Sinclair v Accident Compensation Corporation
[2013] NZHC 374
•1 March 2013
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 2006).
The omission to supply the relevant information to the case manager meant the defendant remained in receipt of weekly compensation when she was in fact able to be fully engaged in her pre-injury occupation. As a result of the defendant’s submissions, she continued to be paid weekly compensation for which she was not entitled.
The Corporation have assessed the defendant’s overpayment as $228,001.92.
Accordingly, reparation for this amount is sought.
[9] On 24 February 2009, Mrs Sinclair made an application for review, contending that the Accident Compensation Corporation Fraud Unit had determined that she was not entitled to weekly compensation. This application was made in reliance on s 134(1) of the Act, which provides:
134 Who may apply for review
(1) A claimant may apply to the Corporation for a review of—
(a) any of its decisions on the claim:
(b) any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay:
(c) any of its decisions under the Code on a complaint by the claimant.
[10] In March 2010, the District Court (Judge S J O’Driscoll) in a reserved judgment refused a s 347 application that she be discharged. Shortly thereafter, the accused pleaded guilty to reformatted charges, but essentially based on the same allegations. Accident Compensation Corporation did not seek reparation.
[11] Notwithstanding the plea of guilty, Ms Sinclair has pursued the issue of an application for review.
[12] Throughout these events, the appellant continued to be paid compensation, except for some suspensions of payment because she was not complying with a requirement that she be further medically examined. The important fact is that the decision to prosecute her, including an intention to seek reparation, was not accompanied by suspension or other stopping of weekly compensation. The second fact is that after the plea of guilty in October 2010, the Accident Compensation Corporation formally accepted that the appellant was entitled to the weekly compensation that she had received between 2000 and 2006.
[13] Ms Sinclair’s advocate, Mr Forster, is an experienced Accident Compensation Corporation advocate. He is concerned that the Accident Compensation Corporation had, and possibly still has, a policy of pursuing the recovery of payments made, it alleges due to fraud, by way of orders for reparation, instead of resolving disputes as to entitlements within the scheme and application of the Accident Compensation Corporation Act 2001. The Act provides for overpayments as a debt due to the Corporation to be recovered as a debt (see s 248). There are related provisions imposing penalties if the overpayment is made as a result of a failure by the person to inform the Corporation of any matter that the person ought to have known was relevant to the payment (see s 249).
The oral argument on appeal
[14] The case was argued before me as to whether or not there was a serious argument that the Accident Compensation Corporation had made a decision granting jurisdiction for an application for review back in 2008, when the Accident Compensation Corporation decided to prosecute. In the course of that argument, the Court learned that there had been a plea of guilty to the charges, and that the Accident Compensation Corporation had agreed not to seek to recover any of the payments that had been made. I then raised with counsel whether the appeal was on a point that was moot; being of no consequence to the parties. Where an appeal is of no consequence to the parties, it is usually seen as a waste of the Court’s resources, and so an abuse of the Court process to pursue a dispute over a point of law. I called for written submissions on this point.
Whether there is a serious argument that there was a decision in 2008
[15] Decision is defined in s 6 of the Act as follows:
decision or Corporation's decision includes all or any of the following decisions by the Corporation:
(a) a decision whether or not a claimant has cover:
(b) a decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury):
(c) a decision whether or not the Corporation will provide any entitlements to a claimant:
(d) a decision about which entitlements the Corporation will provide to a claimant:
(e) a decision about the level of any entitlements to be provided:
(f) a decision relating to the levy payable by a particular levy payer: (g) a decision made under the Code about a claimant's complaint.
[16] When a decision is made, the Corporation is obliged to give notice of it to the claimant. Section 64 provides:
Corporation must give notice of decisions
(1) The Corporation must give notice of its decision on a claim to the claimant.
(2) In the case of a claim for cover for a work-related personal injury to an employee, the Corporation must give notice of its decision on the claim for cover to every employer entitled to apply for a review of that decision.
(3) [Repealed]
(4) Every notice given under this section must—
(a) be written; and
(b) contain the reasons for the decision; and
(c) give the claimant or other person information about his or her rights to apply for review, including details of the time available to do so and an explanation of when applications can be made outside that time.
[17] It is plain that a notice of decision is a distinct and subsequent event to the making of a decision. There is no formality required by the Act as to the making of a decision. There is 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. As the reviewer concluded:
My conclusion is that ACC has not issued a decision that Mrs Sinclair is not entitled to weekly compensation. There is, therefore, no decision in respect
of which she may apply for review. It follows therefore the reviewer has no jurisdiction in respect of the application for review lodged by the applicant.
[18] Judge Barber dismissed the appeal from that decision. There is an argument that Judge Barber followed the same reasoning.
Staff at ACC may have views and strategies about management of case claims, but until they make and communicate a decision about a claim, there is nothing which can be reviewed.
[19] Judge Barber’s reasoning rejecting the appeal drove off the fact that the criminal proceedings had been resolved in 2010, and in the context of that prosecution, Accident Compensation Corporation did not seek an order of reparation, nor did it raise any issue as to overpayment by it to the appellant of weekly compensation. He noted:
In other words, in the criminal prosecution there was no live issue before the Court in that regard, and there was no live issue as regards ACC dealings with the appellant in its jurisdiction under the Act.
[20] He went on:
[21] Insofar as the appellant seeks some direction, or guidance from this Court to the effect that ACC should issue decisions if it intends to seek reparation from a claimant, that is an invitation I cannot entertain. This is because there is no live issue and there has not been, even in the context of the criminal proceedings. In those circumstances, this Court should not enter into what is, effectively an invitation to issue a declaration as to the course ACC should have taken in this case or should take in any future similar scenario.
[21] The passages I have just referred to in Judge Barber’s decision are more particularly relevant as to the second issue as to whether the appeal is moot. But the passages do contain a finding that there has not been [a decision] even in the context of the criminal proceedings.
[22] If this matter were to have gone further, I am of the view that there is a serious argument that there was a decision of the ACC in 2008 that the defendant was not entitled to weekly compensation at that time.
The moot issue
[23] The moot issue can be conveniently framed against the standard for the granting of special leave, that the case has to be of general importance, raising issued that need to be addressed by the higher Courts. I note, however, that it can also be framed more widely. The common law Courts do not adjudicate upon academic issues. There has to be a real consequence. Either way, the question is what is the real consequence of this litigation?
[24] I think Judge Barber was completely correct to say that this Court should not enter into what is effectively an invitation to issue a declaration as to the course the ACC should have taken in this case, or should take in any future similar scenario.
[25] Mr Forster argues that if the appeal is heard and successful, there would have to be a statutory as to whether or not Ms Sinclair is entitled to the weekly compensation she received from 2000 until 2006.
[26] This proposition should be unpacked a little. It contains within it the implicit recognition that Ms Sinclair has in fact been receiving weekly compensation throughout these events. If the Fraud Unit’s decision to prosecute amounted to a decision she was not entitled to be receiving weekly compensation, there is an oddity that the weekly compensation continued. That can be explained by both the statutory scheme of the Act and the prospect of reclaiming the payments by way of reparation. In reply, Mr Hunt has reiterated that the appellant has been receiving weekly compensation since August 2000, with the exception of a period between 25 August and 13 September 2009, when entitlements were suspended pursuant to s 117(3), because she was not undergoing a medical examination requested by the Commission.
[27] Mr Hunt further submitted that were a statutory review to be now held, it must inevitably conclude “as ACC expects” that the appellant is entitled to have received the weekly compensation that she has.
[28] Mr Forster does not and cannot dispute this as a matter of fact. He argues, however, that if there were a decision binding on the parties, that the appellant was at all times entitled to weekly compensation, then that would be the basis of an out of time application to appeal the conviction and vacate the guilty plea.
[29] As the Court has indicated in its earlier analysis, there is an arguable issue that the decision of the ACC Fraud Unit to prosecute Ms Sinclair carried embedded within it a decision that she was not entitled to the weekly compensation she had been receiving and was receiving. At the same time, however, those payments were not stopped. Embedded in that thinking was the proposition that, should the conviction be secured, reparation could be sought, and indeed it was anticipated that it would be.
[30] There is no suggestion that Ms Sinclair and her advisors did not understand this thinking at the time she entered the plea of guilty. She entered the plea of guilty knowing that no reparation order was going to be sought.
[31] The Court now has a reiterated assurance from counsel for the ACC that the
ACC accepts that she was entitled to the weekly compensation she has received.
[32] So isolated the argument for special leave to appeal is that it may provide the basis for an out of time application to vacate the guilty plea.
[33] Guilty pleas are entered into very carefully, and often reflect a bargain of sorts between the prosecution and the defence. They are not entered lightly. Mr Forster has not been able to cite any authority which creates any precedent for the chain of events by way of litigation that he would like to see unfold. He did not set out his goal of setting up grounds for vacating the guilty plea at the first hearing, when I was asking what the purpose of the litigation was for. Had the ACC ceased making payments at the time it decided to prosecute for dishonesty, this would be an entirely different case.
[34] I do not think this case is now of general importance. It is always open to go back to the Courts’ in the criminal jurisdiction to seek to have a guilty plea vacated. That jurisdiction has its own jurisprudence in that regard.
[35] It is possible, and may be close to likely, that the ACC were content in the end to secure the admission of guilt and a conviction. Because of the complications of the Act having its own procedure for stopping compensation payments, and the risk that seeking reparation for payments made when there was an opportunity to pursue stopping of compensation payments that was not taken, that the Commission simply elected not to attempt an application for reparation. This will be particularly given the role of Mr Forster as an expert counsel advising Ms Sinclair.
[36] In conclusion, it is the judgment of this Court that grounds for special leave to appeal have not been made out. It is a peculiar set of facts. Ms Sinclair has been competently advised at all times, as have the ACC. I am not satisfied that there is a serious argument that there would be a miscarriage of justice unless the special leave is granted. The application for special leave is declined.
Solicitors:
Young Hunter, Christchurch – [email protected] and Associates, Dunedin –
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