Thomas v Accident Compensation Corporation - [2013] NZHC 2296

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-002458 [2013] NZHC 2296

IN THE MATTER OF The Accident Rehabilitation and
Compensation Act 1992

BETWEEN ALAN THOMAS Plaintiff

ANDACCIDENT COMPENSATION CORPORATION
Defendant

Hearing: 15 July 2013

Appearances: D G Hayes for the Applicant
D K L Tuiqereqere for the Respondent

Judgment: 4 September 2013

JUDGMENT OF GILBERT J

This judgment was delivered by me on 4 September 2013 at 4.00 pm
Pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:………………

ALAN THOMAS v ACCIDENT COMPENSATION CORPORATION [2013] NZHC 2296 [4 September 2013]

Introduction

[1] Mr Thomas applies for leave to appeal to the Court of Appeal from my judgment dated 30 November 2012 which dismissed his appeal from a decision of Judge P F Barber in the Auckland District Court. Judge Barber dismissed Mr Thomas’ appeal from a reviewer’s decision which confirmed the Corporation’s decision to cease making payments of weekly compensation to Mr Thomas.

Background

[2] Mr Thomas claims that he suffered a wrist injury in December 1989 when he fell off his boat while sailing alone in the Marlborough Sounds. At that time he was employed as a project manager for the design and construction of a sealing machine. This work was not physically demanding but required him to use a computer. Mr Thomas claimed that as a result of his injury he was unable to work and he received weekly compensation for loss of income from 1990 to 1997. Mr Thomas did not disclose to the Accident Compensation Corporation or to his medical practitioners that throughout this period he was working full-time managing 15 or more companies that he established.

[3] The Corporation commenced a fraud investigation into Mr Thomas’ work activities in 1996. Following this investigation, the Corporation wrote to Mr Thomas on 18 August 1997 advising him that it had cancelled all future payments. It relied on s 73 of the legislation then in force, the Accident Rehabilitation and Compensation Insurance Act 1992 (the ARCI Act). Criminal charges were laid against Mr Thomas for defrauding the Corporation. He was convicted and sentenced in 2000 to three years’ imprisonment.

[4] Mr Thomas applied for a review of the Corporation’s decision cancelling his entitlements. The review was heard on 5 January 1998. Mr Thomas claimed that he established all of these companies for the purpose of “self-rehabilitation” and that the Corporation was wrong to have concluded that he was working. In a decision released on 25 February 1998, the reviewer rejected Mr Thomas’ claim and found that the companies were established to generate income and that some of them did

so. In upholding the Corporation’s decision, the reviewer found that Mr Thomas had been working extensively in these various businesses throughout the time he was receiving weekly compensation.

[5] After Mr Thomas was released from prison he was given leave to appeal the reviewer’s decision to the District Court.[1] The appeal was heard before Judge Barber over a period of four years from…

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 2296
Decision Date: 4 September 2013

CaseChat Overview and Summary

Mr Thomas applies for leave to appeal to the Court of Appeal from the High Court's dismissal of his appeal against the Corporation's decision to cease making payments of weekly compensation to him. The application for leave to appeal is governed by section 98(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 (ARCI Act) which provides that if any party to any proceedings before the High Court is dissatisfied with any determination or decision of the Court, that party may appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law only. Mr Thomas' application for leave to appeal to the Court of Appeal is declined. The proposed appeal raises 16 new "questions of law" which fall outside the scope of what is permissible under section 98 of the ARCI Act. The interrelationship between the specific provisions in the ARCI Act considered in the High Court judgment has limited wider application because that legislation was repealed as from 1 July 1999. The proposed appeal will not determine whether Mr Thomas is entitled to weekly compensation. Even if Mr Thomas succeeded in showing that the High Court erred in answering any of the four questions of law that it was required to consider, it would not follow that he would be entitled to weekly compensation during the relevant period. Mr Thomas was convicted of defrauding the Corporation in respect of the payments of weekly compensation made to him. Despite that conviction, he has pursued his perceived entitlement to weekly compensation in an obsessive manner, consuming vast resources and resulting in significant delay. The appeal to the District Court alone took four years to hear. The cost and delay of the proposed further appeal cannot be justified. Leave to appeal to the Court of Appeal must accordingly be declined.

Orders