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 2006 to 2009.  The Judge dismissed the appeal in a reserved judgment issued on 21 April 2010.  The Judge found that Mr Thomas’ injury  did  not  prevent  him  from  performing  the  type  of  work  he undertook prior to his accident.  The Judge also found that despite his injury, and despite receiving weekly compensation, Mr Thomas continued to work full-time as a controlling executive in his companies.  The Judge found that Mr Thomas did not

suffer from incapacity in terms of ss 37 and 37A of the ARCI Act.   He therefore concluded that the Corporation was entitled to cease payments to Mr Thomas.

[1] Section 92 of the ARCI Act provided that appeals to the District Court were by way of rehearing.

[6]      After leave to appeal was declined in the District Court, Duffy J  granted Mr Thomas leave to appeal to this Court on four questions of law.[2]   These questions and my answers to them were as follows:

[2] Thomas v ACC [2012] NZHC 1073.

(a)      Question 1: Was it an error of law for the District Court to determine the correctness of a decision on a statutory basis other than that used by the Corporation?

The answer is “no”.  The District Court was obliged to consider the question of incapacity under s 37A of the ARCI Act in order to determine whether the Corporation was correct in cancelling weekly compensation payments to Mr Thomas under s 73.

(b)      Question  2:  Does  s  73  of  the  ARCI  Act  allow  cancellation  of

entitlements for “working”?

The answer is “yes”, depending on whether the information in the Corporation’s possession relating to the work being undertaken is such that it is no longer satisfied that the person is incapacitated.

(c)      Question 3: Do ss 37 and 37A of the ARCI Act invoke section 73?

The answer is “yes”. A determination under ss 37 and 37A that a person is no longer incapacitated triggers an obligation on the Corporation under s 73 to cancel or suspend payments.

(d)Question 4: Does the application of ss 37 and 37A of the ARCI Act require an occupational medical assessment by a qualified person?

The answer is “no”.  It depends on the circumstances.

Leave application

[7]      Mr  Thomas’ application  for  leave  to  appeal  to  the  Court  of  Appeal  is

governed by s 98(1) of the ARCI Act which provides:

If any party to any proceedings before the High Court under this part of this Act is dissatisfied with any determination or decision of the Court in the proceedings as being erroneous in point of law, that party may, with the leave of that Court appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law only:

Provided that, if the High Court refuses to grant leave to appeal to the

Court of Appeal, the Court of Appeal may grant special leave to appeal.

[8]      Despite my judgment being confined to the four questions of law for which he was granted leave to appeal to the High Court, Mr Thomas now seeks leave to advance 16 new “questions of law” in his proposed appeal to the Court of Appeal. The proposed questions are:

(a)      What evidence was there that as at 18 August 1997 ACC determined a capacity to return to the pre-injury occupation under s 37 and/or 37A [or 73]?

(b)As a decision under s 73(1) of the ARCI Act requires ACC to show that they were “not satisfied” at the time of the decision being made should the District Court have restricted itself to the same information and procedures as was on the ACC file as at the time of the decision,

18 August  1997?    Or  did  the  District  Court  have  jurisdiction  to reconsider the matter afresh relying upon subsequently obtained evidence from 1998 to 2008?

(c)      If s 73(1) requires the previous operation of s 37A, is it correct to say that, where there has been no statutory determination of incapacity under s 37A, ACC cannot end an entitlement?

(d)Whilst a decision under s 73(1) and (2) can be made without reference to a claimant, if s 37A is to be applied, can an incorporated determination under s 37A be made unilaterally by ACC or should the claimant be involved?

(e)      Can a reviewer, the District Court or the High Court, add to or alter the statutory basis of a decision made by ACC to remedy a defect in decision without first cancelling existing decision and replacing with a new one in accordance with s 63A?

(f)      Was it correct to find that when a claimant is believed to no longer have an incapacity for its previous employment under s 37A that his whole claim and entitlement ends pursuant to s 73(1) and not s 37A?

(g)Could ACC  (or  the  District  Court)  be  ‘not  satisfied’,  pursuant  to s 73(1) without further occupational assessor and medical evidence in order  to  have  reasonable  grounds  to  usurp  the  ongoing  ACC

18 medical certificates or could ACC or the Court be ‘not satisfied’ based exclusively upon third-party assumptions of work to reach the criteria of not satisfied to cancel the claim and entitlements?

(h)Is it consistent with the principles of natural justice that ACC can determine a person’s incapacity under s 37A without input from other parties including medical professionals and the claimant?

(i)As the decision letter dated 18 August 1997 cancels both the claim and entitlements in reliance upon s 73(1) information, does s 73(1) in isolation and without reference to the material evidence of alleged work or any reasoning connecting s 73(1) to any other section of the Act and in particular s 37, permit the cancellation of the claim?

(j)Given that the ACC decision described “work” as the s 73(1) “information”, could the ACC cancel a claim and entitlements under s

73(1) based on work information alone?

(k)Given that the ACC decision had no contrary medical information or information from any informants as at decision date, does the word “may” in s 37A act in a permissive or directive way so that ACC can choose to have no outside input?

(l)As the claimant’s file contains no medical information contrary to the medical  certificates  or  record  of  a  determination  necessary  under s 37A(3) prior to its 18 August 1997 decision what is the criteria for a “determination” under this section?

(m)     Is the test under s 37A objective or subjective?

(n)Did  the decision,  as  evidenced  by the memorandum  and  decision letter meet the statutory threshold for correctness? If it did not, did s 67A apply so that the decision should be revoked?

(o)As a matter of law, if the claimant is believed to be working or has supplementary  earnings  consistent  with  this  medical  certificate, should ACC have applied the abatement provisions and instituted an assessment that met the criteria described in s 37A?

(p)Do the 1992 review decisions remain binding on all parties until the criteria of those decisions has been met?

Should leave be granted?

[9]      The Corporation’s decision on 18 August 1997 to cease making payments of weekly compensation to Mr Thomas has been considered and confirmed in three subsequent decisions, being those made by the reviewer, the District Court and the High Court.   A further appeal to the Court of Appeal will only be justified if the proposed appeal raises a question of law capable of bona fide and serious argument and the case involves some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal.

[10]     I have reached the conclusion that leave to appeal to the Court of Appeal should be declined for the following reasons:

(a)      My judgment was confined to answering the four questions of law for which leave to appeal had been granted by Duffy J.  Section 98 of the ARCI Act confers appeal rights only to the extent that the judgment sought to be appealed is erroneous on a point of law.   Even if I answered all four questions of law wrongly, then that would only give rise to the prospect of leave being granted to appeal to the Court of Appeal on one or more of those questions of law.  Rather than seeking leave to appeal on these four questions of law, Mr Thomas wishes to raise 16 new questions in his proposed appeal to the Court of Appeal. This falls outside the scope of what is permissible under s 98.

(b)The interrelationship between the specific provisions in the ARCI Act which  I considered in  my judgment has limited wider application because that legislation was repealed as from 1 July 1999.   For this reason, I do not consider that the proposed appeal raises any question of law of sufficient public interest to justify the cost and delay of a further appeal.

(c)      To the extent that the proposed questions are not questions of law, for example question (a), leave cannot be granted.

(d)The  proposed  appeal  will  not  determine  whether  Mr  Thomas  is entitled to weekly compensation.   Even if Mr Thomas succeeded in showing that I erred in answering any of the four questions of law that I was required to consider, it would not follow that he would be entitled   to   weekly   compensation   during   the   relevant   period. Mr Thomas would also have to overcome the conclusion reached by Judge Barber after hearing from numerous witnesses at the hearing he

conducted over a four year period from 2006 to 2009:[3]

[3] At [474] of his judgment dated 21 April 2010.

When I stand back and absorb the detailed evidence adduced to me, I am in no doubt that, as at 18 August 1997, the appellant was not incapacitated from performing the type of work he undertook prior to 27 December 1989.   He was not incapacitated, or unable, by reason of personal injury, to engage in his pre-accident employment. Also, as at 18 August 1997, the appellant was working full-time as a controlling executive as described above.   On the balance of probabilities, the Corporation was entitled to be satisfied, from the information available to and in its possession, that the appellant was not entitled to continue receiving entitlements and that they should be suspended.

(e)      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.   Judge Barber noted in the course of his

95 page reserved judgment that:[4]

[4] At [472].

I have allowed this appeal to be unusually (perhaps unduly) lengthy in an effort to be absolutely fair to the appellant who is a man of extensive talent and industry and very persistent.  His very detailed compilation of evidence, documents, and submissions show his intelligence and capabilities.  However, he seems so obsessed with his perceived entitlements from ACC that, on that issue, he becomes irrational.

The 16 proposed “questions of law” that Mr Thomas wishes to pursue confirm that his approach to the claim has not changed and give an indication of the further delay and expense likely to be involved if he is permitted to appeal to the Court of Appeal.

[11]     Taking all these matters into account and having regard to the desirability of finality in litigation, I consider that the cost and delay of the proposed further appeal cannot be justified.   Leave to appeal to the Court of Appeal must accordingly be declined.

Result

[12]     The application for leave to appeal to the Court of Appeal is declined.

[13]     Any application for costs is to be made by memorandum to be filed and served  within  seven  days  of  the  date  of  this  judgment.    Any  memorandum  in

response is to be filed and served within seven days thereafter.

M A Gilbert J