O'Neill v Accident Compensation Corporation
[2017] NZHC 2373
•29 September 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2016-404-2477 [2017] NZHC 2373
BETWEEN CHRISTOPHER JOSEPH OʼNEILL
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
First Respondent
FAIRWAY RESOLUTION LIMITED Second Respondent
DALE TODD Third Respondent
LINDY ALICE CLARK Fourth Respondent
Hearing: 2 August 2017 Counsel:
Applicant in person
D Tuiqereqere for First Respondent
J B Opie for Second to Fourth RespondentsJudgment:
29 September 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 29 September 2017 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Buddle Findlay, Wellington
OʼNEILL v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 2373 [29 September 2017]
[1] Mr O’Neill is an accident compensation claimant. He seeks to judicially review three decisions made under Part 5 of the Accident Compensation Act 2001 (the Act), which reviewed complaints he brought under the Code of ACC Claimants’ Rights (the Code).1 The review hearings were set down on a date and at a venue not suitable to Mr O’Neill. There was also a security guard present. As a result, Mr O’Neill did not attend the hearings and the applications were declined in his absence.
[2] Multiple and varied claims are made by Mr O’Neill.2 But the central issues in this review are whether the decisions fixing a hearing date and venue, and to require a security guard, were made fairly and in accordance with the procedural requirements of the Act.
Background
The original complaints
[3] The review applications relate to three separate complaints about by Accident
Compensation Corporation (ACC) made by Mr O’Neill on 20 August 2015, 25
November 2015 and 13 January 2016. The first complaint alleged:
(a) ACC sought legal information from the Police illegally, and inaccurate information was given in return.
(b) ACC had no right to obtain information about Mr O’Neill, and doing
so was a breach of his rights under the Code.
(c) One of the ACC officers had misinformed Mr O’Neill, as she did not reference the correct Act when addressing a request Mr O’Neill had made under the Privacy Act 1993 and Official Information Act 1982.
[4] This complaint was investigated by Mr Gratkowski, an employee of ACC. He found there had been no breach.
1 The Code is found in the Injury Prevention, Rehabilitation, and Compensation (Code of ACC
Claimants’ Rights) Notice 2002.
2 For a full outline, see [21] below.
[5] The second complaint claimed the following:
(a) Mr O’Neill telephoned ACC’s customer support service on
16 November 2015, wanting to speak to Mr Gratkowski, but was
“thwarted” from doing so by ACC staff.
(b)Mr O’Neill considered Mr Gratkowski had not provided sufficient time to Mr O’Neill to meet a deadline to return a summary of events document for the first complaint.
(c) A request made by Mr O’Neill under the Privacy Act, which was forwarded to government services team for them to respond to ACC, was not investigated by the complaints office.
[6] This complaint was investigated by Ms Lulham. She found there was no
breach of Mr ONeill’s rights under the Code.
[7] The final complaint alleged:
(a) ACC did not meet the legislative timeframe for responding to an
Official Information Act request by Mr O’Neill.
(b) Further issues with Mr Gratkowski in relation to the first complaint. (c) Breaches by three other ACC officers.
[8] This complaint was also declined by Ms Lulham.
The review process
[9] FairWay Resolution Ltd (FairWay) is contracted by ACC to provide dispute resolution management services. The service includes provision of reviewers to carry out reviews under the Act. The contract states an individual reviewer is to comply with all duties and obligations imposed on reviewers under the Act, including the
obligation to act independently of ACC. It also states the dispute resolution management service FairWay provides under it will be independent.
[10] As a consequence of a substantial increase of reviews (from about 6,000 to
10,000 per year by 2009), oversight of applications for reviews is divided between two reviewers:
(a) An executive reviewer carries out what is referred to as triage, i.e. all steps up to the application being set down for hearing.
(b)Once the review application has been set down for hearing, it is allocated to a hearing reviewer, who manages the review from then on, including hearing the review and issuing a decision.
[11] Currently however, the number of review applications has returned to the pre-
2009 average. As such, Mr Dunn, a senior FairWay employee, acknowledges there is less need for executive/hearing reviewer system.
The applications for review
[12] In April 2016 Mr O’Neill lodged three separate applications for review of the three decisions declining his complaints. In each, he requested that the hearings be held at a community venue. He also made it clear the hearings could not be “held in conjunction with one another”. In May 2016 ACC informed FairWay of the reviews, and requested that FairWay allocate a reviewer to conduct the hearing of each review. The applications were initially managed by Mrs Todd as an executive reviewer. Her primary task was to ensure the applications were ready to be set down for hearings.
[13] Agnes Browne was to provide administrative support. On 17 May 2016, she first called Ms Lulham of ACC about hearing dates and venue. Ms Lulham was happy for the hearings to proceed on 21 July 2016 at 1pm, 2 pm and 3 pm respectively, at FairWay’s Auckland office. Ms Browne then called Mr O’Neill. She says Mr O’Neill responded “ok” to the hearing date, but wanted them held at a community venue. This “ok” response is disputed by Mr O’Neill. He says he never
agreed to the proposed date of the hearings. In any event, hearing notices were sent out the following day identifying 21 July 2016 as the hearing date. Mrs Browne did not advise Mrs Todd of any disagreement about the date and times of the hearings for Mr O’Neill’s applications. Mrs Todd was however made aware of discussions Mr O’Neill had with Ms Browne and Ms Rachel Atoni after the hearing notices were issued, but did not take any steps to alter the hearing date.
[14] Mrs Todd, reviewing the files on Mr O’Neill’s applications as part of her triage, became concerned from information supplied by Mr O’Neill that he might be abusive. She discussed her concerns with Mr Dunn, who was ACC scheme manager for FairWay at the time. Mr Dunn noted Mr O’Neill had a history with FairWay, that there had been problems at hearings in the past, and that he was likely to be verbally abusive. She decided to make a request to ACC as to whether he was “care- indicated” (identified as a potentially risky claimant). On 13 May 2017, at Mrs Todd’s request, Ms Browne contacted Ms Lulham to ask; he was not. Nevertheless, she remained concerned he might be verbally abusive and resolved to require a security guard to be present at the hearing.
[15] Mrs Todd did not consider a community venue was necessary. Her understanding was provision of community venues was directed to cultural support matters, for example Māori protocol. She also says the security risk Mr O’Neill posed was a factor in deciding to hold the hearings at FairWay’s Auckland office. Mrs Todd was however content for there to be three separate hearings.
[16] Mrs Clark assumed responsibility for the applications as hearing reviewer. Consequently, on 23 May 2016, she was assigned all the tasks that needed to be done after the review applications were set down for hearing, up to and including making a decision on the review applications. Reviewing the case notes and correspondence attached to the applications, she noted Mr O’Neill appeared very angry at ACC and FairWay, and his demands for a hearing venue and date. She also saw case notes referring to a letter sent to Mr O’Neill dated 27 June 2016. Although she did not see the letter at the time, the case notes provided a summary. The letter advised Mr O’Neill:
The resolution coordinator who spoke with you on 17 May 2016 was of the view that you had agreed to the proposed date that was put to you. If you are unable to attend on the set date and time as per the hearing notices then you may now request an adjournment, explaining why you are unable to attend. If you consider the time currently allocated is insufficient then please put your request and reasons in writing to the reviewer for consideration.
[17] Apparently in response, three letters were received by FairWay from Mr O’Neill, two dated 29 June 2016 and the third dated 2 July 2016. Ms Clark does not remember when she read these letters, but says it would have been soon after 7 July
2016. They reveal a litany of abuse.3 Unsurprisingly, Ms Clark considered the letters
were threatening, abusive and alarming. Ms Clark also considered a February 2012 email from a security advisor to ACC which was on the file. In that email, Mr Jackson advised the Police had told him Mr O’Neill had “a prolific history for sending abusive and threatening letters and could pose a harassment risk for ACC staff if met face to face.”
[18] Given these circumstances, and having regard to FairWay’s Health and Safety policy for reviews, Ms Clark decided to have a security guard present. She says this was not unusual in any event. She also saw no good reason to have a community venue, particularly given her security concerns, or to change the hearing date or times, though Mr O’Neill did not agree to them. This was because it was available to Mr O’Neill to apply for an adjournment, and he had made no such application, or provided any reasons provided as to why the date was unsuitable.
[19] The hearings went ahead as scheduled on 21 July 2016. Mr O’Neill did not attend. As planned, ACC attended by telephone. Ms Clark took their submissions as read for the 1 pm hearing, given Mr O’Neill’s non-attendance. At 2 pm, she convened the second review hearing, and due to Mr O’Neill’s non-attendance she took ACC’s submissions for both that and the 3 pm hearing as read.
[20] On 28 July 2016, Ms Clark declined the applications on the information before her.
3 They are itemised in the affidavit of Ms Clark. I have not included them in the body of the judgment, bearing in mind the context in which they were made and Mr O’Neill’s privacy concerns.
The claims
[21] Mr O’Neill’s pleaded claims are:
(a) The reviewer did not comply with s 140(c) of the Act, as the reviews were conducted in such a way as to exclude Mr O’Neill.
(b) The reviewer did not act with due diligence, in accordance with s
140(d), insofar as she did not provide an appropriate venue, time or date for the review applications.
(c) The reviewer did not conduct the reviews in an informal, timely and practical manner, in accordance with s 140(e), as she orchestrated Mr O’Neill’s absence.
(d)The reviewer did not comply with s 141(2)(a), because a date for the reviews was not fixed by agreement and the reviewer simply ignored Mr O’Neill’s rights.
(e) The reviewer breached s 142 by allowing a security guard to be present. This decision was premeditated, illegal and orchestrated to exclude Mr O’Neill.
(f) Ms Clark did not set aside ACC’s decision and consider the application afresh, in breach of s 145 as she (along with Ms Browne and Mrs Todd) orchestrated Mr O’Neill’s absence.
(g) Mrs Todd had no lawful authority to set a date for the review hearing.
There being no lawful decision, s 146 applies and a deemed decision
in Mr O’Neill’s favour must follow.
The Act
[22] Part 5 of the Act is directed toward dispute resolution, encompassing ss 133-
164. In Dean v Chief Executive of the Accident Compensation Corporation, the
Court of Appeal summarised the dispute resolution regime in the Act as follows:4
Before embarking on the exercise of determining whether review or appeal rights could have been exercised by Mr Dean in the present case, it is necessary to establish exactly what those review and appeal rights are. Part 5 of the Act contains a comprehensive review and appeals regime, which can be briefly summarised as follows:
(a) A claimant may apply to ACC for a review of any of ACC's decisions on the claim;
(b) Reviews are conducted by reviewers engaged by ACC for the purpose. However, the reviewers are required to act independently of ACC;
(c) The review process is intended to be informal but to be undertaken in accordance with the principles of natural justice. A hearing is required to be held unless the parties agree otherwise. A written decision must be issued within 28 days of the hearing and must contain information as to possible rights of review or appeal;
(d) The reviewer is required to put aside ACC's decision and look at the matter afresh, and also to put aside the policy and procedure followed by ACC. Where the review relates to a decision made by ACC, s 145(3) requires the reviewer to dismiss the application, modify ACC's decision or quash ACC's decision. If the reviewer quashes ACC's decision, s 145(4) requires that the reviewer must substitute the reviewer's decision for that of ACC or require ACC to make the decision again in accordance with directions the reviewer gives;
…
[23] Particularly relevant to the present application are ss 137, 138, 140-142, 145 and 146.
[24] Section 137 provides for the engagement of reviewers, and allocation of reviews:
137 Corporation to engage and allocate reviewers
4 Dean v Chief Executive of the Accident Compensation Corporation [2007] NZCA 462, [2008] NZAR 318 at [7]. That case concerned whether Mr Dean had a right of appeal under Part 5 of the Act, but its summary of the rest of the Part 5 process is applicable.
(1) The Corporation must engage as many persons as it considers necessary to be reviewers under this Part.
(2) As soon as practicable after receiving an application for review, the Corporation must arrange for the allocation of a reviewer to the review even if it considers that there is no right of review in the circumstances.
(3) If for any reason the Corporation has to allocate a new reviewer to a review, the Corporation must do this as soon as practicable after becoming aware of the need to allocate a new reviewer.
[25] Section 140 provides general principles of review a reviewer must be guided by:
140 Conduct of review: general principles
The reviewer may conduct the review in any manner he or she thinks fit, but he or she must—
(a) comply with section 138; and
(b) comply with any other relevant provision of this Act and any regulations made under this Act; and
(c) comply with the principles of natural justice; and
(d) exercise due diligence in decision-making; and
(e) adopt an investigative approach with a view to conducting the review in an informal, timely, and practical manner.
[26] Section 140(a) refers to s 138, which requires a reviewer to act independently when conducting a review.
[27] Section 141 sets out the requirement to hold a hearing:
141 Conduct of review: hearing to be held
(1) In the course of conducting a review, the reviewer must hold a hearing unless—
(a) the applicant withdraws the review application; or
(b) the applicant, the Corporation, and all persons who would be entitled to be present and heard at the hearing agree not to have a hearing.
(2) The reviewer must hold the hearing at a time and place that are—
(a) agreed to by all persons who are parties to the application and the reviewer; or
(b) decided on by the reviewer if those persons do not agree.
(3) The reviewer must take all practicable steps to ensure that notice of the time and place of the hearing is given—
(a) to every person entitled to be present and heard at it; and
(b) at least 7 days before the date of the hearing.
(4) The reviewer may admit any relevant evidence at the hearing from any person who is entitled to be present and be heard at it, whether or not the evidence would be admissible in a court.
[28] Section 142 prescribes which persons are entitled to be present and heard at hearings:
142 Persons entitled to be present and heard at hearing
The following persons are entitled to be present at the hearing, with a representative if they wish, and to be heard at it, either personally or by a representative:
(a) on every review, the applicant and the Corporation:
…
(d) if the review relates to a decision to accept or decline cover for a work-related personal injury,—
(i) the claimant; and
(ii) the claimant’s employer; and
(iii) in the case of a claim for cover for personal injury under section 30, any employer whose name the reviewer receives from the claimant or from the claimant’s employer or from the Corporation so that notice can be given under section 141(3), if the
name is that of any other employer of the claimant or any former employer of the claimant.
[29] Section 145 then provides for the substance of review decisions, and the powers of reviewers. It requires reviewers to put aside ACC’s decision and look at the matter afresh, deciding the matter only on the basis of its substantive merits. In addition, s 145(5) provides:
(5) The reviewer may make a decision even though a person entitled to be present and heard at the hearing did not attend it unless, before the reviewer makes the decision,—
(a) the person gives the reviewer a reasonable excuse for the
person’s non-attendance; and
(b) the reviewer considers that a decision should not be made until the person has been heard.
[30] Section 146 provides a reviewer is deemed to have made a decision in favour of the applicant if the date for hearing has not been set within three months after the review application is received by ACC, and the applicant did not cause or contribute to the delay.
Jurisdiction
[31] This is a judicial review proceeding. While appeals to the District Court are normally available against review decisions, s 149(3) provides no right of appeal is available against a review decision on a decision by ACC under the Code on a complaint by the claimant. But this Court has observed that a challenge to the process followed in a review may be amenable to judicial review.5
[32] As this is a judicial review proceeding, I proceed on the basis that the scope of my review power is limited to correcting errors of law, failure to have regard to relevant considerations, regard to irrelevant considerations, procedural unfairness and unreasonableness.6 Nevertheless, it is the responsibility of this Court on review to ensure that any requisite legislative condition underpinning the exercise of a statutory power was fulfilled. That is an assessment of substance.7
Overview of Argument
[33] Mr O’Neill makes a number of varied claims and arguments – many in reply to affidavits filed by the respondents. It is unnecessary to repeat them all. Simply put, Mr O’Neill’s case stands or falls on his broad claim that the process adopted by
FairWay and the reviewers was unlawful, unreasonable and unfair. He contends (in
5 See Re Willson HC Wellington CIV-2005-485-1974, 22 March 2006 at [12].
6 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL); Peters v
Davison [1999] 2 NZLR 164 (CA) at 180.
7 McGrath v Accident Compensation Corporation [2011] NZSC 77 at [31].
short) the scheme of the Act envisages a process that will secure a fair hearing for vulnerable claimants. This means, he submits, the date and venue of the hearing must be convenient for claimants, and the hearing process must respect their privacy. He says FairWay failed to secure such a process for him, because Ms Browne lied about him agreeing to the hearing date, and the reviewers were predisposed against him. Mr O’Neill also contends Mrs Todd was not a “reviewer”, in terms of s 137 of the Act, as there is no such thing as an “executive reviewer.”
[34] In the result, Mr O’Neill submits the reviewers unlawfully and unfairly orchestrated his absence from the hearing by insisting on the date, venue and the presence of a security guard.
[35] The respondents do not accept the various claims made by Mr O’Neill.
Rather they contend:
(a) the process followed complied with the statutory scheme; (b) the reviewers acted reasonably; and
(c) the process was not unfair to Mr O’Neill.
Assessment
[36] I will address Mr O’Neill’s case by reference to each of the pleaded claims.
The reviewer did not comply with s 140(c) as the reviews were conducted in such a
way as to exclude Mr O’Neill
[37] Section 140(c) states the reviewer may conduct the review in any manner he or she thinks fit, but he or she must comply with the principles of natural justice.
[38] Mr O’Neill’s submits (in summary):
(a) The ACC and FairWay employees and contractors, including Mr Dunn, Ms Browne, Mrs Todd and Ms Clark, were biased against him, unfairly perceiving him to be a threat without proper cause.
(b) Ms Browne lied about Mr O’Neill agreeing to the hearing date.
(c) The hearing date, venue and requirement for a security guard were an orchestrated attempt to exclude him from the hearing, because they knew he objected to the presence of a guard and had a preference for a community venue.
[39] I reject this claim. There is no cogent evidence to suggest Mr Dunn, Ms Browne, Mrs Todd or Ms Clark set out individually or collectively to exclude Mr O’Neill. Rather:
(a) ample notice of the hearing date was given;
(b) Mr O’Neill was advised he could seek an adjournment;
(c) he elected to stand on his perceived right to object to the date because he had never agreed to it, arguing there was no need to seek an adjournment as a hearing had never been properly set down;
(d) he was verbally abusive toward Ms Browne and Ms Clark; and
(e) the requirement for a guard was reasonable in the circumstances.
[40] Furthermore, I am not satisfied on balance of probabilities Ms Browne lied. She had no reason to lie, and her record of events in the case notes is consistent with her recollection.
[41] One aspect, however, requires comment. Mrs Todd sought out Mr Dunn’s views about the risks presented by Mr O’Neill without affording him an opportunity to respond to what was said about him. Mr O’Neill claims this breached the obligation to remain independent, required by s 138(1) of the Act. There can be nothing inherently wrong with a reviewer seeking information that might assist him or her in reaching a properly informed decision about security. I agree with Mr Opie; FairWay and Mrs Todd, as a contractor to FairWay, were obliged by various
provisions of Health and Safety at Work Act 2015 to, in short, secure as far as practicable a safe environment at the hearings.8
[42] But the information given by Mr Dunn behind closed doors was adverse to Mr O’Neill’s interests. This raises the spectre of unfairness, particularly given the importance placed on the presence of a security guard by Mr O’Neill. Mrs Todd’s decision to proceed without first obtaining Mr O’Neill’s response is therefore amenable to review. Nevertheless, in the full circumstances of this case, I am satisfied any unfairness to Mr O’Neill was inconsequential. First, the discussion with Mr Dunn concerned health and safety, not the merits of his complaints. Second, upon being allocated the role of hearing reviewer, Ms Clark independently reconsidered the requirement for security. Third, in reality, the litany of verbal abuse directed to ACC staff, Ms Browne and then Ms Clark overwhelmed the significance of the comments by Mr Dunn to the effect that Mr O’Neill could be confrontational and verbally abusive.
[43] Mr O’Neill also made a broader claim that FairWay was not independent of ACC. But I am satisfied the contractual arrangements between FairWay and ACC achieve the requisite independence,9 and I have seen no evidence to suggest otherwise.
The reviewer did not act with due diligence in accordance with s 140(d) of the Act insofar as she did not provide an appropriate venue, time or date for the review applications
[44] Section 140(d) states the reviewer must exercise due diligence in decision- making. This alleged error was not clearly particularised in pleadings or argument. I assume it is directed to Ms Clark’s decision to adopt the decisions made by Mrs Todd as to venue, date and security guard. If so, I reject this claim. Ms Clark clearly,
and independently, directed her mind to those matters.
8 As Mr Opie helpfully identified, FairWay is person conducting a business or undertaking (PCBU) and subject to ss 36 and 37 of the Health and Safety at Work Act 2015. Mrs Todd, a contractor, is a worker in terms of s 19 of the Act and subject to s 45.
9 In particular, cl 1.3 of schedule 1 of the agreement provides all employment agreements or contracts between FairWay and reviewers will include a provision requiring the reviewer to comply with all duties and obligations imposed on reviewers by the Act, including the obligation to act independently of ACC. Clause 1.4.1 of schedule 1 then states FairWay will provide an independent dispute resolution management service.
The reviewer did not conduct the review in an informal, timely and practical manner in accordance with s 140(e) as she orchestrated Mr O’Neill’s absence
[45] Section 140(e) states a reviewer must adopt an investigative approach with a view to conducting the review in an informal, timely and practical manner. Mr O’Neill’s key complaints (it appears) are s 140(e) was breached because:
(a) the hearing venue was chosen because it suited FairWay and ACC;
(b)the hearing venue was not suitable because it was not reasonably proximate to his home;
(c) he had a contract with ACC to provide a community venue, based on the review application form;
(d) the date was chosen because it suited ACC not him; and
(e) FairWay, Mrs Todd and Ms Clark knew Mr O’Neill was opposed to
the presence of security guards because it infringed his privacy rights.
[46] First, there is no evidence to suggest the venue was selected to impair Mr O’Neill’s ability to attend. Second, I accept the reviewer should ideally identify a venue that is proximate to the claimant, having regard to the mobility of the claimant. But there was nothing before the reviewer to suggest Mr O’Neill was unable to travel to the FairWay offices. Third, given the concerns about the threat posed by Mr O’Neill, holding the hearings at FairWay’s secure office, at which the presence of a security guard could be more easily accommodated, was reasonable. Fourth, Mr O’Neill mischaracterises the application form as a contract between him and ACC.
[47] Fifth, Mr O’Neill cannot reasonably complain about the date. The Act contemplates that reviews will be processed efficiently. Claimants who do not seek an adjournment for good reason cannot later reasonably complain when the hearing goes ahead on the scheduled date. Mr O’Neill was given fair notice of his right to seek an adjournment, or attend by telephone (as ACC did).
[48] Sixth, Mr O’Neill’s engagement with FairWay and the vitriol directed to, among others, Ms Clark, provided an ample basis to require the assuring and calming presence of a security guard at the hearing. Privacy considerations are a factor to be considered. The presence of a security guard should be demonstrably necessary. I elaborate on this below at [56]-[64]. But for present purposes it is sufficient to note the litany of abuse directed to Ms Browne and Ms Clark justified a cautious approach to security arrangements, having regard also to the confidentiality
undertakings given by guards.10
The reviewer did not comply with s 141(2)(a) because a date for the review was not
fixed by agreement and the reviewer simply ignored Mr O’Neill’s rights
[49] Section 142 states the applicant (as well as ACC) is entitled to be present at the hearing, with a representative if they wish. Section 141(2) prefaces this entitlement with a corresponding duty, namely:
(2) The reviewer must hold the hearing at a time and place that are—
(a) agreed to by all persons who are parties to the application and the reviewer; or
(b) decided on by the reviewer if those persons do not agree.
[50] Section 145(5) however states:
(5) The reviewer may make a decision even though a person entitled to be present and heard at the hearing did not attend it unless, before the reviewer makes the decision,—
(a) the person gives the reviewer a reasonable excuse for the
person’s non-attendance; and
(b) the reviewer considers that a decision should not be made until the person has been heard.
[51] Mr O’Neill claims Ms Clark (and Mrs Todd) never made a decision pursuant to s 141(2) because she wrongly thought he had agreed to 21 July 2016 as the hearing date. There being no agreement reached, and no decision made by her in the
absence of agreement, he says the date of hearing was not properly fixed.
10 It may also be that, as Mr Opie submits, the Privacy Act 1993 equally applies to security guards and their employers, as they fall within “agency” in terms of ss 2, 3 and 4. But it is unnecessary to reach a final view about that given my findings at [56]-[64].
[52] Setting the hearing date is not a perfunctory matter. It corresponds to the right of a claimant to be present and heard at the hearing. The residual power of the reviewer to make a decision in the absence of the applicant is conditional on discharge of the duty at s 141(2) to properly fix a date by agreement or where there is no agreement, by decision of the reviewer.
[53] In the present case, Mrs Todd made the decision to fix the hearing date. She was not aware of Mr O’Neill’s claim that he did not agree to the hearing date. Mr O’Neill however advised FairWay he did not agree with the date immediately on receipt of the notice of hearing. His objection, it appears, was not considered by Mrs Todd, but Ms Clark was aware of it. Upon being appointed hearing reviewer, she familiarised herself with the case notes, and did not think it was necessary to change the date, given Mr O’Neill did not seek an adjournment and had indicated he was going to lodge material relevant to his complaints. Ms Clark was fortified in this by the fact correspondence had been sent to Mr O’Neill advising him of his ability to seek an adjournment.
[54] I am satisfied:
(a) Mrs Todd’s decision to confirm the hearing date was not flawed. It was available to her to assume the date had been agreed. I have already expressed that I am unconvinced by Mr O’Neill’s assertions Ms Browne lied about her conversation with him.
(b)The approach taken by Ms Clark was reasonable and not unfair in the circumstances. I am satisfied Ms Clark, having familiarised herself with the material, arrived at this decision independently.11 It was available to Mr O’Neill to seek an adjournment. This provided an opportunity to cure any mistake or error made by Mrs Todd in terms of failing to reach agreement. As noted above, Mr O’Neill elected to stand on an asserted right to have the date reconsidered, without
seeking an adjournment, because he did not, contrary to Ms Browne’s
11 For a complete discussion of this issue, see [67]-[77] below.
account, agree to the date. There was no unreasonableness or unfairness given this election.
[55] I also accept Mr Opie’s submission that s 141(2) requires agreement of the reviewer, as well as the parties to the application, in any event. Mr O’Neill’s disagreement, while relevant, was never going to be determinative. Ms Clark also had to agree to the time and place.
The reviewer breached s 142 by allowing a security guard to be present
[56] Mr O’Neill says this decision was premeditated, illegal and orchestrated to exclude him.
[57] Mr O’Neill submits s 142 precludes any person other than the claimant, the claimant’s representative and an ACC representative from being present at hearing. This is incorrect. Section 142 identifies the persons entitled to be present and heard. It does not exhaustively list who may or may not be present. On Mr O’Neill’s construction, the reviewer could not attend the review. Plainly that is wrong, but it nevertheless serves to illustrate that s 142 is concerned with rights of audience. It is not directed to the issue of who might be present in the hearing room with the permission of the reviewer. The central issue is therefore whether the presence of a security guard was reasonable in the circumstances.
[58] Mr O’Neill submits security guards are not subject to the Privacy Act, the Health Information Privacy Code 1994 or other privacy legislation. He says the guard could sell his information to the highest bidder. He also says the decision to use a security guard was an attempt to bully and intimidate him.
[59] As I have said, Mr O’Neill’s right to privacy is a relevant consideration when determining who might be present in the hearing room. Among other things, the Code of ACC Claimants’ Rights states:12
You have the right to have your privacy respected.
12 Injury Prevention, Rehabilitation, and Compensation (Code of ACC Claimants’ Rights) Notice
2002, Part 2, Right 7.
(a) We will respect your privacy.
(b) We will comply with all relevant legislation relating to privacy.
(c) We will give you access to your information, in accordance with legislation.
[60] The Privacy Act also affirms certain privacy principles that support this right. These principles include:
Principle 5
Storage and security of personal information
An agency that holds personal information shall ensure—
(a) that the information is protected, by such security safeguards as it is reasonable in the circumstances to take, against—
(i) loss; and
(ii) access, use, modification, or disclosure, except with the authority of the agency that holds the information; and
(iii) other misuse; and
(b) that if it is necessary for the information to be given to a person in connection with the provision of a service to the agency, everything reasonably within the power of the agency is done to prevent unauthorised use or unauthorised disclosure of the information.
[61] As Mr O’Neill also correctly submits, ACC claimants may be particularly vulnerable to privacy intrusions. But I do not accept the presence of a security guard, subject to confidentiality undertakings, breaches Mr O’Neill’s privacy rights or the privacy principles. I am guided in this respect by Principle 11(f), dealing with limits on disclosure. It states:
Principle 11
Limits on disclosure of personal information
An agency that holds personal information shall not disclose the information to a person or body or agency unless the agency believes, on reasonable grounds,—
…
(f) that the disclosure of the information is necessary to prevent or lessen a serious threat (as defined in section 2(1)) to—
(i) public health or public safety; or
(ii) the life or health of the individual concerned or another individual; or
…
[62] Serious harm is defined in the Privacy Act as follows:
serious threat, for the purposes of principle 10(d) or 11(f), means a threat that an agency reasonably believes to be a serious threat having regard to all of the following:
(a) the likelihood of the threat being realised; and
(b) the severity of the consequences if the threat is realised; and
(c) the time at which the threat may be realised
[63] While this principle may not have direct application, it illustrates the types of matters that may justify a proportionate incursion into the privacy of an individual. Mr O’Neill also asserts he presented no serious threat and therefore the requirement for security was unjustified. This, he says, is supported by ACC’s evaluation that he was not “care-indicated”. But it was still available to both Mrs Todd and Ms Clark to find he was highly likely to be verbally abusive and confrontational. As I have said above, it was not then unreasonable to require the presence of a security guard to provide, if necessary, some assurance against any abuse escalating to unsafe levels, bearing in mind that verbal abuse may be causative of harm.
[64] Furthermore, a claimant’s expectation of privacy must be tempered by context, including the need to provide a safe working environment. Given the requirements of the Health and Safety at Work Act, a proportionate measure designed to achieve a safe hearing environment is a legitimate fetter on any right to privacy engaged in this context. The presence of a security guard subject to an undertaking as to confidentiality in the present circumstances is an example of a proportionate limit.
The reviewers did not set aside ACC’s decision and approach the application afresh, in breach of s 145 as they orchestrated Mr O’Neill’s absence
[65] Mr O’Neill claims a general conspiracy on the part of FairWay and the reviewers to exclude him from the hearings. For completeness, under this heading I consider the argument raised by Mr O’Neill in his submissions that Mr Dunn effectively instructed Mrs Todd and Ms Clark and that they acted on those instructions. He contends this breached s 138(1) of the Act and the requirement for the reviewers to act independently. Mr O’Neill refers to, for example the following entry made by Mrs Todd in the case notes:
I have still had no instructions from management as to how these hearings are to be heard – whether face to face or by telephone. Mr O’Neill has asked that they not be scheduled together and I can see no reason not to acquiesce in that request. Can you please not confirm arrangements until I have issued further instructions.
[66] I do not accept this claim. Mrs Todd does not recall why she used the word “instructions”. But the full record shows she made the key preliminary decisions, not Mr Dunn or other employees of FairWay. Equally, there is nothing to suggest Ms Clark was following instructions from Mr Dunn or anyone else. She arrived at her final decisions independently, having reviewed the case material.
Mrs Todd had no lawful authority to set a date for the review hearing; there being no lawful decision, s 146 applies and a deemed decision in Mr O’Neill’s favour must follow
[67] Mr O’Neill observes ss 140-146 of the Act refer only to “the reviewer”. There is no mention of an executive reviewer or the division of responsibility for the same case to different reviewers. Mr O’Neill therefore submits the appointment of Mrs Todd as an ‘executive reviewer’, but with no responsibility for the final review, was unlawful. He then says, there being no lawful decision to fix a hearing date, s 146 applies, which states:
146 Deemed review decisions
(1) The reviewer is deemed to have made a decision on the review in favour of the applicant if—
(a) the date for the hearing has not been set within 3 months
after the review application is received by the Corporation;
and
(b) the applicant did not cause, or contribute to, the delay.
(2) The date of the deemed decision is 3 months after the review application is received.
[68] In response, Messrs Tuiqereqere and Opie submit the Act does not expressly preclude more than one reviewer being allocated on a review. They also both emphasise s 137(3), which states:
(3) If for any reason the Corporation has to allocate a new reviewer to a review, the Corporation must do this as soon as practicable after becoming aware of the need to allocate a new reviewer.
[69] Mr Opie concedes the purpose of this subsection is to ensure any reallocation occur as quickly as possible. But both he and Mr Tuiqereqere also submit there is no express constraint on the power to allocate a reviewer, as it may occur “if for any reason” ACC “has to”.
[70] Mr Dunn explained that the use of executive reviewers emerged as a response to the sudden increase in work flow, from 6,000 to 10,000 reviews. Messrs Tuiqereqere and Opie submit, against this background, the reference to “the reviewer” at ss 140 and following may include an executive reviewer essentially responsible for case managing the review. They submit in the context outlined by Mr Dunn it was available to FairWay to decide the system was necessary. They both also stress no applicants were disadvantaged by the system, and indeed it benefitted them by making the processing of claims more efficient.
Analysis
[71] The Act envisages “the” reviewer conducting the review in accordance with:
(a) the duty to act independently, specified at s 138; (b) the general principles specified at s 140;
(c) the hearing requirements specified at ss 141 and 142;
(d) the recording requirements at s 143;
(e) the 28 day deadline for producing a decision specified at s 144; and
(f) the requirement for substantive decision-making at s 145.
[72] The starting point, therefore, is as Mr O’Neill suggests; the ordinary operation of the scheme of Part 5 envisages a single reviewer will be responsible for both the case management and resolution of an application for review. But s 137(3) empowers ACC13 to allocate a new reviewer as soon as practicable after becoming aware of the need to allocate a new reviewer ‘for any reason.’ Plainly a single reviewer is not a mandatory requirement in every case.
[73] The executive/hearing reviewer system is not expressly enabled by the Act. It is an overlay to it. But I do not consider that it is unlawful. As Cooke J said in Northland Milk, the responsibility of the Courts “is to work out a practical interpretation appearing to accord best with the general intention of Parliament as
embodied in the Act”.14 A “pragmatic approach” to the interpretation and application
of s 146 and its predecessor was endorsed by the Court of Appeal in an earlier appeal
brought by Mr O’Neill, Accident Compensation Corporation v O’Neill.15
[74] The entire scheme of Part 5 is directed to the fair, informal and efficient management of review applications. The executive/hearing reviewer system is simply a case management mechanism for securing this objective. Conversely, it would defeat the attainment of this objective to read down s 137 as not providing for this type of administration. More particularly, this is not a case of gap filling. The system has been implemented to achieve Part 5’s efficiency objective; in this context
a gloss on Part 5, in particular s 137, “to make the statute work”, is permissible.16 In
13 In this instance, ACC has delegated the task of providing reviewers to FairWay.
14 Northland Milk Vendors Association Inc v Northern Milk Ltd [1988] 1 NZLR 530 (CA) at 537.
See also Director-General of Education v Morrison [1985] 2 NZLR 430 (CA) at 435, where
Cooke J (as he then was) preferred “the most practical interpretation”.
15 Accident Compensation Corporation v O’Neill [2012] NZCA 219, [2012] NZAR 729 at [41].
16 See Zaoui v Attorney-General (No 2) [2005] NZSC 38, [2006] 1 NZLR 289 at [70] and
Canterbury Regional Council v Independent Fisheries Ltd [2012] NZCA 601, [2013] 2 NZLR
57 at [12].
reality, what has happened is ACC has foreseen the need to engage a reviewer for case management purposes in advance of hearing, due to sheer numbers.
[75] I am fortified in this view because:
(a) There is no disadvantage to any applicant by adopting a case management system that secures the expeditious management of the applications.
(b)The executive and final reviewer remains tasked with assessing each application in accordance with the principles and hearing requirements laid down by the Act.
[76] In any event, any purported illegality was cured by Ms Clark’s review: she reconsidered the decisions made by Mrs Todd and satisfied herself the decisions were correct. “The reviewer” having made and endorsed the same decisions, any illegality and procedural irregularity was remedied.
[77] Finally, Mr O’Neill’s prayer for relief, that is a favourable deemed decision in terms of s 146, is also misconceived. The object of s 146 is to secure a date for hearing within three months.17 On the true construction of this provision, it merely
requires a notice which is formally valid and has not been quashed on review.18 This
was achieved and had practical effect until set aside either by the reviewer or this Court, whatever the legality of the executive/hearing reviewer system.19 In any event, the proper recourse on a finding of illegality of this procedural kind, if material, would be to set aside the final review decision and refer it back for reconsideration on another date. The deeming provision has no application in this
context.
17 Accident Compensation Corporation v O’Neill [2012] NZCA 219, [2012] NZAR 729 at [41].
18 R v Wicks [1998] AC 92 (HL) at 117, per Lord Hoffman .
19 A J Burr Ltd v Blenheim Borough Council [1980] 2 NZLR 1 (CA) at 4, per Lord Cooke; Smith v
East Elloe Rural District Council [1956] AC 736 (HL).
Outcome
[78] The process adopted by the reviewers was not unreasonable, unfair or unlawful. The application is dismissed.
Costs
[79] Submissions may be filed on costs within ten working days, no longer than three pages in length.
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