Sinclair v Accident Compensation Corporation - [2013] NZHC 374

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000774 [2013] NZHC 374

BETWEEN HAZEL SINCLAIR Appellant

ANDACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 7 February 2013

Appearances: W Forster as Advocate for Appellant
I Hunt for the Respondent

Judgment: 1 March 2013

RESERVED JUDGMENT OF FOGARTY J

Introduction

[1] The appellant seeks special leave to appeal against the decision of Judge Barber, who dismissed an appeal from a decision in May 2009 by Ms K Stringleman, a reviewer. The applicant had lodged an application for review, claiming that the ACC’s Fraud Unit had made a decision that she was not entitled to weekly compensation. The appellant said that the ACC had failed to issue a decision in accordance with the legislation. The ACC’s position is that no reviewable decision had been issued and the jurisdiction should be declined. The reviewer’s decision was in favour of the ACC, that there is no reviewable decision. The conclusion of the reviewer was:

My conclusion is that ACC has not issued a decision, Ms Sinclair is not entitled to weekly compensation. There is, therefore, no decision in respect of which she may apply for a review. It follows therefore the reviewer has no jurisdiction in respect of the application for review lodged by the applicant.

SINCLAIR V ACCIDENT COMPENSATION CORPORATION HC DUN CIV-2012-412-000774 [1 March
2013]

[2] The matter then went on appeal to Judge Barber, who upheld the decision, in December 2011. Judge Beattie then declined leave to appeal in September 2012. The matter now comes to the Court by application for special leave on the grounds that the decision of Judge Barber was wrong in law, and that the case has general importance, raising issues that need to be addressed by the higher Courts.

Analysis

[3] Mrs Sinclair had suffered a fall in 1997, when employed as a librarian at the Dunedin City Library. She applied for and was granted weekly compensation from the Accident Compensation Corporation.

[4] In March 1999, she was able to return to work part-time. In May 1999, she submitted a further medical certificate, showing her again as fully unfit to work. In June 1999, she returned to full weekly compensation payments.

[5] The Accident Compensation Corporation alleges that in 1999, she accepted full-time employment as an ambulance officer, but failed to advise the Accident Compensation Corporation of this development.

[6] In April 2000, she reported falling from a ladder at home and was granted weekly compensation in relation to this injury.

[7] In or about April 2008, the Accident Compensation Corporation decided to prosecute Mrs Sinclair. She was charged with wilfully omitting to advise the true circumstances (x 1) and wilfully using a document (x 30). In the summary of facts prepared at the time, the following statements can be found:

The Corporation was entirely unaware of her true physical ability, and activity, and as a result of the medical certificates provided, she was paid ongoing weekly compensation without abatement for this entire period.
(May 2000 until January…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 374
Decision Date: 1 March 2013

CaseChat Overview and Summary

The case of Sinclair v Accident Compensation Corporation involves the appellant, Hazel Sinclair, seeking special leave to appeal against the decision of Judge Barber, who dismissed her appeal against a decision made by Ms K Stringleman, a reviewer. The appellant claimed that the Accident Compensation Corporation (ACC) had decided she was not entitled to weekly compensation. The ACC argued that no reviewable decision had been issued and that the jurisdiction should be declined. The reviewer found in favour of the ACC, concluding that there was no reviewable decision as Ms Sinclair was not entitled to weekly compensation. The matter then went on appeal to Judge Barber, who upheld the decision in December 2011. Judge Beattie declined leave to appeal in September 2012, and the matter now comes to the Court by application for special leave on the grounds that the decision of Judge Barber was wrong in law and that the case has general importance, raising issues that need to be addressed by the higher Courts.

The legal issues the Court was required to decide included whether there was a serious argument that there was a decision in 2008 and whether the appeal was moot. The Court found that there was a significant argument that the initial decision by the reviewer conflated the making of the decision with the requirement to give notice of a decision. Judge Barber dismissed the appeal from that decision, and it was found that Judge Barber followed the same reasoning. The Court found that there was no serious argument that there was a decision of the ACC in 2008 that Ms Sinclair was not entitled to weekly compensation at that time. The moot issue was also considered, and it was found that the appeal was of no consequence to the parties, as the ACC had accepted that Ms Sinclair was entitled to the weekly compensation she had received. It was concluded that the case was not of general importance, and the application for special leave was declined.

The Court declined the application for special leave to appeal. This decision is final and cannot be appealed further.

Orders