Thomas v Accident Compensation Corporation - [2012] NZHC 1073

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-002458 [2012] NZHC 1073

IN THE MATTER OF the Accident Rehabilitation and
Compensation Act 1992

AND

IN THE MATTER OF the Accident Compensation Act 2001

BETWEEN ALAN THOMAS Applicant

ANDACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 14 February 2012

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

Judgment: 18 May 2012

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 18 May 2012 at 10.00 am, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: D G Hayes P O Box 9323 Waikato Mail Centre Hamilton 3240 for the
Applicant

Solicitors: Medico Law Limited P O Box 78965 Grey Lynn Auckland 1245 for the
Respondent

Copy To: Brook Law P O Box 9600 (DX GB21525) Waikato Mail Centre Hamilton 3240

THOMAS v ACCIDENT COMPENSATION CORPORATION HC AK CIV-2011-404-002458 [18 May 2012]

[1] The applicant, Alan Thomas, seeks special leave to appeal to this Court against a decision of the District Court in which the District Court dismissed Mr Thomas’ appeal against the decision of a review officer dismissing Mr Thomas’ view of a decision of the Accident Compensation Corporation (ACC) ceasing Mr Thomas’ entitlements under the relevant legislation. The application for special leave to appeal is opposed.

Facts

[2] On 18 August 1997, ACC wrote to Mr Thomas advising him that it had cancelled his continuing entitlements, and disentitled his claim under s 73 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the ARCI Act). The ARCI Act was the legislation then in force. Mr Thomas exercised his right of review, pursuant to s 90 of the ARCI Act. The review was heard on 5 January 1998.

[3] On 25 February 1998, the review officer issued a decision in which he found that, from Mr Thomas’ own evidence, he had been working. Furthermore, the available evidence was found to indicate that Mr Thomas had been working for the purposes of pecuniary gain or profit. The reviewer noted that Mr Thomas may not have enjoyed some pecuniary gain or profit as a consequence of that work because of unfortunate setbacks, but the reviewer considered that to be peripheral to the fact that Mr Thomas was working. The reviewer concluded that it was evident that Mr Thomas worked quite extensively in various businesses. The reviewer considered that Mr Thomas had set up a number of companies (without ACC’s knowledge) and claimed they were for the purpose of self-rehabilitation when, in the reviewer’s mind, those companies were set up to generate income and clearly did so. The reviewer concluded that the available evidence showed Mr Thomas was working for a considerable period of time without ACC’s knowledge, and the reviewer rejected Mr Thomas’ statements that the activities he was obviously involved in were only part of a rehabilitation programme and not work at all. Accordingly, the reviewer found the Corporation’s decision to cancel Mr Thomas’ continuing entitlements and to…

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: [2012] NZHC 1073
Decision Date: 18 May 2012

CaseChat Overview and Summary

The case of Thomas v Accident Compensation Corporation involved an application by Alan Thomas for special leave to appeal a decision of the District Court. The District Court had dismissed Mr Thomas' appeal against the decision of a review officer who dismissed Mr Thomas' view of a decision of the Accident Compensation Corporation (ACC) ceasing Mr Thomas' entitlements under the relevant legislation. The appeal to the High Court was opposed. The primary legal issue before the court was whether Mr Thomas should be granted special leave to appeal to the High Court on the grounds that the District Court had determined the correctness of ACC's decision on a different statutory basis to that used by ACC. The court found that there were reasonable prospects of Mr Thomas succeeding with an argument that the District Court's use of a different statutory approach to that taken by ACC had effectively denied him his right on appeal to have the merits of his case properly considered. The court also found that there were issues of principle at stake if Parliament had intended that claimants' earnings related compensation not be cancelled without compliance with the procedures in Part IV of the Accident Rehabilitation and Compensation Insurance Act 1992. Therefore, Mr Thomas was granted special leave to appeal on four of the proposed questions of law, but not on the fifth question regarding a deemed decision under the Accident Compensation Act 1982. The final orders of the court were that Mr Thomas was granted special leave to appeal on proposed questions one, two, three and four, but not on proposed question five. If the parties were unable to agree on costs, they were granted leave to file memoranda on costs.

Orders