Slight v Accident Compensation Corporation
[2017] NZHC 2716
•7 November 2017
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2016-485-978 [2017] NZHC 2716
BETWEEN PETER JAMES SLIGHT
Appellant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 2 August 2017 Appearances:
J C Gwilliam for Appellant
T D Gee for RespondentJudgment:
7 November 2017
JUDGMENT OF CLARK J
Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is
3 pm on 7 November 2017
SLIGHT v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 2716 [7 November 2017]
[1] The appellant, Peter Slight, had accident compensation cover for a lower back injury suffered in 1994. The Accident Compensation Corporation (the Corporation) suspended Mr Slight’s entitlement to weekly compensation in June 2011 because, for one reason or another, he failed to attend a medical assessment.
[2] Mr Slight applied under the Accident Compensation Act 2001 (the Act) for a review of the decision to suspend his entitlement. The review application was dismissed. Mr Slight appealed the review decision to the District Court. The appeal was dismissed.1 Mr Slight applied to have the judgment recalled. The application was declined.2 Mr Slight applied for leave to appeal the District Court decision. That application was dismissed.3
[3] Mr Slight now mounts a fifth challenge to the suspension decision by way of this present application for special leave to appeal to the High Court. Mr Slight seeks reinstatement of his entitlements to weekly compensation backdated to 2011.
Background
[4] In May 2011 the Corporation referred Mr Slight to Dr Waite for a Vocational Independence Medical Assessment (VIMA). Mr Slight subsequently advised the Corporation he had attended the address but Dr Waite was not there. Due to an administrative error Mr Slight had been given the wrong address.
[5] Mr Slight’s advocate, Mr King, contacted the Corporation about making a new VIMA appointment. On 16 June 2011 the Corporation wrote to Mr Slight (copied to Mr King) advising a new appointment with Dr Michael Antoniadis was made for 9 am on 23 June 2011 (the Antoniadis appointment). The letter advised:
ACC is able to decline to pay weekly compensation if a person unreasonably refuses to take part in these assessments, or otherwise does not attend.
[6] On 17 June 2011, Mr Slight’s case manager phoned Mr Slight’s home and left a message reminding him of the Antoniadis appointment. The case manager rang
1 Slight v Accident Compensation Corporation [2016] NZACC 40.
2 Slight v Accident Compensation Corporation [2016] NZACC 40 (Minute of Judge Henare).
3 Slight v Accident Compensation Corporation [2016] NZACC 303.
Mr Slight’s cell phone later that day and Mr Slight advised that his wife, as support person, likely could not attend the appointment. The case manager reminded
Mr Slight of the importance of attending the assessment and suggested his daughter might attend as a support person. The case manager advised Mr Slight if he did not attend it was possible the Corporation would view his failure as an unreasonable refusal to attend and suspend his weekly payments until he attended an assessment. Later that day the case manager wrote to Mr Slight to remind him of his obligations.
[7] A number of messages passed between Mr Slight and the case manager and Mr Slight and Dr Antoniadis’ practice to the effect Mr Slight would not attend the Antoniadis appointment. At around 5 pm on 21 June 2011 Mr Slight left a message with Dr Antoniadis’ practice stating he would not be attending the appointment. Dr Antoniadis’ office left a message with the Corporation at 8.45 am on 22 June 2011:
This is to advise you that Mr Slight has left a phone message on Tuesday June
21st at 5pm to advise that for various reasons he is not able to attend his appointment with Dr Antoniadis on Thursday 23 June at 0900.
[8] Mr Slight gave various reasons for not being able to attend the appointment: he did not want a morning appointment; the traffic was too busy at that time; he had something else on; driving in from Lower Hutt hurt his back too much and his support person was not available until 12 July 2011. Dr Antoniadis’ practice offered to change the time of the appointment to avoid peak hour. The case manager’s file note of a telephone conversation with Mr Slight on 22 June 2011 records an, at times, heated response from Mr Slight to reminders of his obligations to attend his appointment. Later that day, Mr Slight advised the Corporation, by letter, that he was not refusing to attend the appointment; the time of the appointment was unsuitable.
[9] Because Mr Slight had left a message cancelling his 9 am appointment on
23 June 2011, Dr Antoniadis committed himself elsewhere. As it happened Mr Slight turned up but, of course, Dr Antoniadis was unavailable.
[10] That same day, the Corporation wrote to Mr Slight advising his weekly entitlements had been suspended. The decision letter set out the events leading to the suspension, including the varied reasons Mr Slight had given for cancelling his appointment and stated:
It is clear that you have deliberately set out to be as uncooperative as possible. ACC does not accept that after making multiple texts, phone messages and discussions with Dr Antoniadis’ office to cancel your appointment that you then, on the advice of your advocate turn up.
Your entitlements have now been suspended.
[11] There was no dispute between the parties that Mr Slight turned up to Dr Antoniadis’ practice on 23 June 2011 and that Dr Antoniadis did not attend because Mr Slight had cancelled his appointment the previous evening. Unaware of the cancellation Mr Slight’s advocate had strongly recommended to him that he attend. Mr Slight’s physical attendance was pointless given the doctor had acted on the advice of the cancellation and was elsewhere.
[12] Mr Slight’s conduct was regarded as amounting to a breach of his responsibilities to undergo assessment under the Act. Section 72 of the Act relevantly provides:
72 Responsibilities of claimant who receives entitlement
(1) A claimant who receives any entitlement must, when reasonably required to do so by the Corporation, —
…
(d) undergo assessment by a registered health professional
specified by the Corporation, at the Corporation’s expense:
(e) undergo assessment, at the Corporation’s expense:
(f) co-operate with the Corporation in the development and implementation of an individual rehabilitation plan:
(g) undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation’s expense:
(h) participate in rehabilitation.
[13] The Corporation took the view Mr Slight’s conduct and behaviour amounted to an unreasonable refusal to comply with the Act and in those circumstances s 117(3) permitted the Corporation to decline Mr Slight’s entitlement.
[14] Section 117 of the Act provides:
117 Corporation may suspend, cancel, or decline entitlements
(1) The Corporation may suspend or cancel an entitlement if it is not satisfied, on the basis of the information in its possession, that a claimant is entitled to continue to receive the entitlement.
(2) The Corporation must give the claimant written notice of the proposed suspension or cancellation within a reasonable period before the proposed starting date.
(3) The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to—
(a) comply with any requirement of this Act relating to the claimant’s claim; or
(b) undergo medical or surgical treatment for his or her personal injury, being treatment that the claimant is entitled to receive; or
(c) agree to, or comply with, an individual rehabilitation plan.
…
[15] As stated at the outset the suspension decision was affirmed on review.
Mr Slight appealed to the District Court.
The District Court Judgment
[16] Judge Henare’s meticulous reserved decision begins with a detailed narration of the events leading to the suspension followed by a summary of the main submissions advanced by Mr King on behalf of Mr Slight:
(a) The Corporation had previously suspended Mr Slight’s weekly compensation for supposed “non-compliance”, the Reviewer finding the Corporation did not have reasonable grounds for so doing.
(b)The appointment on 23 June 2011 followed a previous appointment scheduled on 13 June 2011 which Mr Slight attended. However, Dr Waite did not attend and the Corporation set up the new appointment.
(c) The Corporation refused to change the 23 June 2011 appointment to a date that was suitable to Mr Slight.
(d) The Corporation failed to respond to messages from Mr Slight.
(e) Mr Slight attended at Dr Antoniadis’ premises but Dr Antoniadis did not.
(f) There was no valid basis for suspending Mr Slight’s entitlements.
[17] Turning to the Act, Judge Henare considered the purpose of s 117(3) “is to enable the proper and effective management of the Accident Compensation scheme”.4
It was apparent to the Judge that the communications between the case manager and
Mr Slight did not cast either person in the best light.5 But standing back, and having considered all of the notes and communications in the record before the Court, Judge Henare was satisfied the effect of Mr Slight’s communications to Dr Antoniadis’ practice caused the appointment to be cancelled, not rescheduled. The communications between Mr Slight and the case manager supported this conclusion.6
The suggestion that the Corporation had not responded to Mr Slight ran into difficulty in light of Mr Slight’s letter of 22 June 2011 requesting the case manager not to ring him and requiring “everything” to go through his representative, Mr King.7
[18] Judge Henare observed that, on the face of it, the need for a support person is a reasonable request. But there was no evidence from Mr Slight about the circumstances supporting his reasons for non-attendance. This made it difficult for the Judge to make findings about whether or not Mr Slight’s reasons were genuine. That said, the evidence showed Mr Slight’s reasons appeared to change from one message to the next.8
[19] The Judge concluded it was “disingenuous” to have expected Dr Antoniadis to present for the appointment when Mr Slight had advised the practice the appointment
was unsuitable. Once Mr Slight had been advised by his advocate to attend, the obvious step was for Mr Slight to “uncancel” the appointment.9
[20] The evidence satisfied the Judge Mr Slight was aware the consequence of his non-compliance would lead to suspension of his entitlements.10 The distinction
Mr Slight sought to draw between “refusal” and non-attendance at an unsuitable time was dismissed as “self-serving”.
[21] Cancellation of the appointment amounted to an unreasonable refusal to comply with s 72(1) of the Act. It followed the Corporation had reasonable grounds to suspend Mr Slight’s entitlements.11 Judge Henare made a final and significant observation: as at 25 February 2016, the date of her decision, Mr Slight had continued to refuse an assessment and had chosen not to take steps towards reinstatement of his weekly compensation.12 On the basis of the body of evidence before her Judge Henare concluded that Mr Slight had not discharged his obligations under s 72 of the Act and he had unreasonably refused or failed to comply with the requirements of the Act. The Corporation had a reasonable basis for suspending Mr Slight’s entitlements.
[22] Mr Slight subsequently sought recall of Judge Henare’s decision on the basis he was inadequately represented in the District Court. Judge Henare refused the application for recall.
Application for leave to appeal to the District Court
[23] Mr Slight applied for leave to appeal Judge Henare’s decision. There was some overlap between the grounds for leave to appeal and the grounds advanced for recall. Ultimately, Judge MacLean declined the application for leave to appeal.13
[24] The first ground advanced was that Mr Slight did not receive a fair hearing due to deficiencies in his representation. As did Judge Henare in her recall decision so did
Judge MacLean categorise the submission as a “hindsight submission”.14 The proposition advanced was that there was something missing from the narrative of events which, from Mr Slight’s perspective, might have changed the outcome had it been before the Court. Judge MacLean considered the additional evidence sought to be adduced did not materially alter the flavour of the interaction over the critical days.15 Nor did Judge MacLean consider the broader contention of non-compliance with the New Zealand Bill of Rights Act 1990, fair hearing considerations and assertions of misconduct on the part of Mr Slight’s then advocate were matters for which the Court had responsibility. “The Court’s function was to deal with the evidence and submissions put before it and rule accordingly.”16
[25] Mr Slight’s essential proposition was that his entitlement was ‘suspended’ under s 117(1) rather than ‘declined’ under s 117(3). The consequence of a suspension under s 117(1) is that, when reinstated, entitlements can be backdated. Further, pursuant to s 117(2) the Corporation should have given reasonable notice of the proposed suspension. It was “very clear” to Judge MacLean, however, that a s 117(3) notice, not a s 117(1) notice, had been served.17
[26] This conclusion meant Mr Slight’s submission, that the Court’s focus was on the reasonableness of his actions when it should have been on the reasonableness of the Corporation’s actions, was misconceived. The reasonableness of the Corporation’s actions was not a matter raised before Judge Henare and, in any event, s 117(3) specifically focuses on the question of reasonableness of the claimant not the Corporation.18
[27] Not only was no error of law established the issue was inappropriate for reference to the High Court. There remained an “olive branch” extended to Mr Slight with an invitation to agree to a fresh start but Mr Slight had declined to take up the
offer.19
14 At [41].
Grounds of Appeal
[28] Mr Slight applies for special leave to appeal to the High Court pursuant to s 162(3) of the Act. Under s 162(1) a party who is dissatisfied with the decision of the District Court as being wrong in law may appeal to the High Court.
[29] The specific grounds of appeal in Mr Slight’s application dated 6 December
2016 are that Judge Henare’s decision was wrong in law in the following respects:
(a) Mr Slight did not receive a fair hearing in the District Court by reason of deficiencies in legal representation he received from his Corporation advocate.
(b)The District Court failed to address the reasonableness of the Corporation’s decision to reschedule Mr Slight’s appointment for a medical assessment.
(c) The Corporation did not have power under the Act to suspend entitlements in the way it did.
(d) When issuing its decision letter to suspend Mr Slight’s entitlements the
Corporation failed to comply with s 117(2) of the Act.
Special leave principles
[30] Section 162 of the Act provides:
162 Appeal to High Court on question of law
(1) A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.
(2) The leave of the District Court must be sought within 21 days after
the District Court’s decision.
(3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal.
(4) The special leave of the High Court must be sought within 21 days after the District Court refused leave.
(5) The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.
[31] The District Court has refused to grant leave. Accordingly, this application falls to be determined under s 162(3), the special leave provision.
[32] The first point is that the appeal must raise a question of law. As Dunningham J stated in the context of an application for special leave under the Act, the Court must be satisfied there is a question of law to be argued and that it reaches the threshold required to justify allowing a further appeal to the High Court.20
[33] Dunningham J addressed the circumstances when it can be said a question of law properly arises:21
A question of law does not arise where the Court has merely applied law, which it has correctly understood, to the facts of an individual case. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is … for the fact-finding Court unless clearly unsupportable. Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law. However, issues of fact should not be dressed up as questions of law. That said, a mixed question of law and fact is a matter of law.
[34] In company with Dunningham J and a respectably long line of High Court decisions I have been assisted by Fisher J’s summary of the effect of the authorities relating to special leave:22
(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982]
1 NZLR 708 (CA)
(b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of [principle] at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle; Manawatu Co-op Dairy Company Limited v Lawry [1988] DCR 509; Brown v Chowmein Fashions Limited (1993) 7 PRNZ 43
20 Gilmore v Accident Compensation Corporation [2016] NZHC 1594 at [5].
21 At [28] (footnotes omitted).
22 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].
(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O’Loughlin v Healing Industries Limited (1990) PRNZ 464
(d) It is for the Applicant to show that leave is required in the interests of justice: Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR
86 (CA)
(e) As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chowmein Fashions Limited (supra).
[35] I turn now to consider the present appeal in light of these principles.
Did Mr Slight have a fair hearing?
[36] Counsel for Mr Slight, Mr Gwilliam, submitted the standard of representation before the Reviewer, and in the District Court, “was so inept” Mr Slight had been deprived of his right to put his full case. In particular:
(a) The advocate had failed to advise Mr Slight of his right, indeed the desirability, for him to give evidence directly himself particularly given the issue related to the reasonableness of his actions.
(b)The advocate failed to put before the Reviewer and the District Court the specific medical evidence regarding the “white coat syndrome” that Mr Slight suffers such that he needs a support person present with him.
(c) Mr Slight was wrongly advised he need not engage further with the Corporation subsequent to its decision of 23 June 2011. That was commented upon adversely by the District Court Judge.
[37] More generally, Mr Gwilliam referred to concerns apparently expressed by the New Zealand Law Society as to the competence of advocates who do not have legal qualifications and the growing trend for non-legally qualified advocates to set themselves up in business to provide advice and representation in the employment, accident compensation, immigration and work and income areas. Mr Gwilliam submitted:
… the Court should provide some guidance to the lower Courts and Tribunals as to how they should treat such non-legally qualified advocates so that the Court can be satisfied that those appearing before it are not denied their rights to natural justice and in particular that the advocate is competent enough to ensure a party’s case is properly presented before it.
[38] Mr Gee, counsel for the Corporation, submitted the Court was under no duty to inquire into the competence of Mr Slight’s advocate but had the District Court done so it would have found the advocate “to be an extremely experienced ACC advocate”.
[39] Further, Mr Gee submitted that errors by a party’s representative do not amount to an error of law on the part of the Court. The argument advanced on behalf of Mr Slight fundamentally misunderstood the role of the District Court as an impartial decision-maker tasked with considering the evidence and argument presented to it in an adversarial system. Mr Gee submitted that counsel error does not form part of civil appeal jurisprudence. As to the contention that evidence of Mr Slight’s “white coat syndrome” should have been, but was not, before the District Court Mr Gee argued the evidence was available at the time of the first hearing and the fact Mr Slight sought to rely on it reinforced the conclusion that this appeal ground was not error of law but, in truth, a question of fact.
Assessment
[40] Mr Slight seeks to rely on two letters written in June 2016 by general practitioners at the Naenae Medical Centre which Mr Slight attended. The first letter is dated 3 June 2016 and confirms Mr Slight’s admission to hospital on 26 August
2010 and discharge on 2 September 2010 for a particular medical problem. The doctor adds:
He does have anxiety issue around specialist visit and any medical intervention, suggesting ‘white coat syndrome’.
[41] The second letter is dated 9 June 2016 and is written by the practitioner who has been attending Mr Slight for over 20 years. Dr Young stated that in over 30 years of practice he has not seen as severe a reaction as Mr Slight’s when he becomes anxious attending appointments with doctors.
[42] Mr Gwilliam submitted that Mr Slight did not have an opportunity to present his case therefore the Court and Reviewer were left to make the decision on the Corporation’s evidence.
[43] Judge MacLean considered this very point. He found the proposition that the medical evidence may have changed the outcome to be “most unlikely”.23
Judge MacLean stated:
What comes through clearly from both the review and the appeal decision, is an awareness that the somewhat heated flurry of events over the days surrounding the events in question, was against a background of a very fraught relationship and behaviour by the appellant, which he concedes in his affidavit
… “that I may have conducted myself poorly in such conversations …”. There is nothing advanced which materially alters the flavour of the interaction over those critical days as interpreted by the reviewer and Judge Henare.
[44] I cannot say that, faced with the two letters, Judge Henare would have reached the conclusion she reached namely, that Mr Slight’s conduct was “unreasonable” in terms of s 117(3) of the Act. But I do not need to go so far.
[45] First, the alleged failure in representation and, more specifically, the failure to place this evidence before the Court is not a question of law. Secondly, even if a serious question of law were raised I would exercise my discretion against the grant of special leave. The appellant has not established special leave is required in the interests of justice. It has not been shown that there is some extraordinary factor that has not properly been taken into account.24
[46] Although the context was an application for leave to appeal to the Court of Appeal under s 163 of the Act the principles summarised in Cullen v Accident Compensation Corporation are applicable to this, an application for special leave to appeal to the High Court under s 162 of the Act:25
The Court will exercise this power [to grant special leave], if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. Other relevant
23 Slight v Accident Compensation Corporation, above n 2, at [41].
24 See Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 85 (CA); and Brown v Chow Mein
Fashions Ltd (1993) 7 PRNZ 43 (HC) cited above at [34].
25 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].
considerations include the desirability of finality of litigation and the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration.
[47] The medical letters fall to be considered against the totality of the available evidence:
(a) Mr Slight’s syndrome would have been known to him. The accident which entitled him to weekly payments occurred in 1994. Necessarily, he would have had medical assessments from that time until the contentious appointment in 2011.
(b)Mr Slight offered many reasons for his failure to attend the appointment including conflicting reasons. As Mr Gee submitted some of the explanations suggested obfuscation and inconsistency.
(c) Mr King is a highly-experienced advocate. As well, he had represented
Mr Slight for many years. There is no evidence before the Court of the reasons for the various judgement calls which Mr King can be assumed to have made in representing his client including not calling Mr Slight to give evidence, as Mr Gwilliam submitted should have happened. Even if analogies with the “incompetent counsel” ground of appeal in the criminal jurisdiction are apt, the circumstances in this case, by a large measure, fall short of demonstrating errors that “are so radical or fundamental as to undermine the integrity of the trial, so that [Mr Slight] has been denied a fair [hearing].”26 Indeed, the evidence shows
Mr King, behind the scenes, advocated strongly to the Corporation on
behalf of his client. On the day before the failed appointment when
Mr Slight phoned Mr King, Mr King urged Mr Slight to attend.
Mr Slight had omitted to advise his advocate that he had cancelled the appointment and so, of course, his attendance happened to be futile.
[48] No question of law arises. Nor, in any event, has Mr Slight reached the threshold for the grant of special leave to appeal.
Did the Judge fail to assess the reasonableness of ACC’s actions?
[49] Mr Slight contends Judge Henare failed to address the reasonableness of the
Corporation’s decision to reschedule his appointment for a VIMA.
[50] As Mr Gwilliam submitted a claimant’s obligation under s 71(1) of the Act to attend a medical assessment only arises if the claimant is “reasonably required to do so by the Corporation”.
[51] Mr Gwilliam identified also Mr Slight’s willing attendance at other appointments which the Corporation required of him, such as the occupational assessment. The overarching submission is that the reasonableness of the Corporation’s actions in rescheduling Mr Slight’s appointment was not addressed by the Court. Rather, the focus was on Mr Slight and the reasonableness of his conduct.
[52] Mr Gee accepted the Judge did not directly address the reasonableness of the Corporation’s decision to require Mr Slight to attend an appointment on 23 June 2011. That was because Mr Slight did not challenge the reasonableness of the decision. The Court was under no duty to consider an issue not before the Court. Therefore, the Court’s failure to address the issue directly does not amount to an error of law.
Assessment
[53] Section 72 sets out the responsibilities of a claimant who receives an entitlement. A claimant who receives any entitlement must, when reasonably required to do so by the Corporation, undergo assessment by a registered health professional specified by the Corporation.27 I accept Mr Gwilliam’s submission that a precondition of s 72(1) is reasonableness on the part of the Corporation. If the requirement is unreasonable it is difficult for the Corporation to assert that a claimant must comply with it or is required to do that which the Corporation unreasonably requires. Whether the point was argued or not the statutory pre-requisite for suspension must be satisfied in order for the suspension to be lawful.
[54] The written submissions of the advocate were part of the Court record before me. I have considered the passages brought to my particular attention. They show the advocate did raise, as a point of concern, the reasonableness of the Corporation’s actions.
[55] The matters Mr Gwilliam referenced in illustration of the factual basis for challenging the reasonableness of the Corporation’s requirement were not only before Judge Henare but discussed in her comprehensive and careful judgment: the history of the fraught relationship between Mr Slight and the Corporation; that a common sense approach may have allowed for more time for Mr Slight to recover from his frustration before arranging a new appointment and that his request to have a support person in attendance was a reasonable request.
[56] Standing back, I am satisfied, Judge Henare was alert to the reasonableness of the Corporation’s responses as well as to its handling of Mr Slight’s frustrations. This awareness accounts for the Judge’s observation that a commonsense approach might have allowed more time for Mr Slight to recover before arranging a new appointment. That said, and as Judge Henare observed, an email of 13 June 2011 from the advocate to the case manager requested another appointment be made following the failed appointment with Dr Waite.28 At the outset the Judge recorded the Corporation’s submission it “reasonably required Mr Slight to attend the appointment”.29 It is apparent the reasonableness of the Corporation’s requirement was a live issue before Judge Henare and the Judge was assiduous in her attention to all of the evidence bearing, directly and indirectly, on the issue.
[57] No question of law arises justifying the grant of special leave to appeal.
What statutory power did the Corporation exercise?
[58] Under this head I propose to consider the final two issues which Mr Slight raises:
(a) that the Corporation had no power to suspend; and
28 Slight v Accident Compensation Corporation, above n 1, at [16].
29 At [3].
(b) no reasonable notice was given.
[59] Counsel for Mr Slight submits a question of law arises out of the wording of the Corporation’s suspension letter. The argument runs along these lines:
(a) Section 117 distinguishes between ‘suspending’ or ‘cancelling’ an entitlement on the basis of ineligibility to receive it (s 117(1)) and
‘declining’ to provide an entitlement for as long as the claimant unreasonably refuses or fails to comply with a requirement of the Act (s 117(3)).
(b)The wording of the suspension letter is important. At no point does the Corporation state it is “declining” to provide the entitlement. The letter refers specifically to Mr Slight’s entitlements being “suspended”. Therefore, it was a suspension under s 117(1).
(c) The difference is significant. An entitlement, if suspended under s 117(1) but later resumed, is to be backdated. By contrast, if the Corporation resumes an entitlement that it declined to provide under s 117(3), it is not required to pay it for the period during which it was declined.30
(d)A further distinction is that s 117(2) requires notice of a proposed suspension or cancellation to be given but notice is not required where an entitlement is declined.
Assessment
[60] Throughout the protracted history of the challenge to the suspension decision, which began with the review hearing on 5 September 2011, the central issue has been whether Mr Slight was entitled to continue receiving entitlements or whether he had
unreasonably refused or failed to comply with a requirement of the Act or undergo
30 Although the Corporation may do so: Accident Compensation Act, s 117(3B).
medical assessment. Indeed, in his decision, the Reviewer summarised the
Corporation’s case. The summary included the following two submissions:
•Section 117(3)(a) permits [the Corporation] to decline to provide statutory entitlements where a claimant unreasonably refuses or unreasonably fails to comply with any requirement under the Act relating to the claimant’s claim.
•Non-compliance suspension action by [the Corporation] under s 117(3) does not require written notice to be given within a reasonable period before the proposed starting date. That requirement of s 117(2) only applies to suspension action under s 117(1).
[61] Perhaps more to the point is that the opening statement of the Reviewer when framing the issue refers to “[the Corporation’s] decision of 23 June 2011 suspending all of Mr Slight’s entitlements (the suspension decision)”.
[62] The relevant and significant point is that, throughout, the Corporation’s decision to cease providing entitlement has been described as a “suspension”. The use of that expression is understandable. It is convenient. As Mr Gee submitted the word “suspend” is appropriate and arguably clearer than following the more complex statutory language of “declin[ing] to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to comply … ”.
[63] To avoid these issues arising in the future it may be desirable for the Corporation to state in its advice of suspension, or cancellation, or declination, the specific statutory provision relied upon. But for the purpose of this appeal it is clear from the background leading to the suspension letter that the Corporation acted under s 117(3) of the Act. In fact, the suspension letter refers at the outset to an earlier letter dated 16 June 2011 in which Mr Slight had been provided with the details of his new appointment. That letter stated:
If you cannot attend the appointment for any reason, you will need to give, the medical assessor, at least two working days’ notice so they can arrange another appointment. ACC is able to decline to pay weekly compensation if a person unreasonably refuses to take part in these assessments, or otherwise does not attend. [Emphasis added]
[64] The evidence shows the Corporation was exercising its powers pursuant to s 117(3). The Reviewer, Judge Henare and Judge MacLean all proceeded on the basis that the challenge was to the exercise of that power.
[65] No question of law arises.
Evidence
[66] In February 2017 Mr Gwilliam recorded his intention to include in the record, for the purpose of the application for special leave to appeal to this Court, the evidence presented to the District Court for the purpose of the application for leave to appeal.31
Mr Gee did not oppose that course. He acknowledged the High Court inevitably would need to refer to that evidence. Counsel agreed issues of admissibility could be left to be determined in conjunction with the application for special leave.
[67] As is apparent from my judgment I have referred to the new evidence, in particular, the letters from the doctors written in June 2016.32 As I observed to counsel at the end of the hearing it will, however, be for the Court hearing the appeal (if special leave is granted) to determine whether or not special reasons justify a departure from the usual course which is that further evidence, not before the decision-maker, is received on appeal only if the evidence is cogent and likely to be material.
Result
[68] Mr Slight has not demonstrated that an arguable question of law arises much less a question justifying the grant of special leave to appeal. In that regard I note, as did Judge Henare, the “olive branch” that remained extended as at November 2016 before Judge MacLean, with the Corporation’s invitation to Mr Slight to agree to a fresh start. As at November 2016 Mr Slight, apparently, had declined to take up the invitation.
[69] The application for special leave to appeal is dismissed.
31 Slight v Accident Compensation Corporation HC Wellington CIV-20156-485-978, 20 February
2017 (Minute of Collins J).
32 See [40]–[41] above.
[70] The Corporation is entitled to costs which I award on a 2B basis reflecting
counsels’ earlier agreement that the appeal should be so categorised.
Karen Clark J
Solicitors:
John Gwilliam & Co, Upper Hutt for Appellant
MinterEllisonRuddWatts, Auckland for Respondent
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