Van Helmond v Accident Compensation Corporation

[2014] NZHC 2750

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2014-485-7669 [2014] NZHC 2750

BETWEEN

FRANCISCUS VAN HELMOND

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	10 September 2014
Counsel:	A Beck for Applicant I Hunt for Respondent
Judgment:	6 November 2014

JUDGMENT OF WILLIAMS J

[1]      The applicant seeks special leave to appeal to this Court, having been refused leave to appeal by His Honour Judge Powell in the District Court.1

[2]      The application raises two questions:

(a)      whether ACC’s advice to the applicant on 11 July 2005 advising him that his claim for cover was a duplicate claim that had already been rejected amounted to a “decision on the claim” for the purposes of ss 57 and 58 of the Accident Compensation Act 2001; and

(b)      whether  the  review  decision  of  His  Honour  Judge  Beattie  of

30 November  2006  finding  the  July  2005  advice  to  have  been incorrect, reset the clock for the purpose of the statutory timeframes contained  in  s 57(2)  and  triggering  thereby  the  deemed  decision

consequence in s 58.

1      Van Helmond v ACC [2014] NZACC 143.

Factual and procedural background

[3]      This matter has a convoluted history but the relevant facts may be briefly summarised.   The applicant, on advice from a doctor, claimed in 1992 to have suffered two injuries: a thoracic strain and a lumbar strain.  He was granted cover in respect of the lumbar sprain.  The respondent ceased cover in respect of that strain in July 2002 having reached the view that the applicant was now capable of working.

[4]      On 7 July 2005, the applicant applied for cover in relation to the thoracic strain.  On 11 July 2005, the respondent wrote a letter to the applicant advising him that this was a duplicate claim (i.e. it had been made before) and rejected it.   On review, the reviewer held that the respondent had no jurisdiction to further consider the matter as there was no new claim. The applicant appealed.

[5]      In a decision dated 30 November 2006, His Honour Judge Beattie found that the respondent’s letter of 11 July 2005 was a decision within the meaning of s 6 of the Act.   The reviewer was therefore wrong, he said, to find that there was no jurisdiction to hear the matter.  His Honour directed the respondent to reconsider the claim on its merits.

[6]      On 13 July 2007, the respondent reached a decision on its reconsideration of the claim. The respondent declined cover for thoracic spine injury.

[7]      Meanwhile on 12 February 2007, the applicant had already filed separate applications for review contending that the respondent had failed to process the matter in accordance with the statutory time limit contained in s 57.  The argument was that Judge Beattie’s decision of 30 November 2006 reset the clock giving the respondent a maximum of two months within which to reconsider his claim.  This meant, the applicant argued, that, whatever the substantive merits, he was entitled to deemed cover under s 58 on the expiry of the  two months.   The reviews were unsuccessful.

[8]      His  Honour  Judge  Joyce  QC  then  heard  an  appeal  against  those  review decisions.    No  appeal  was  lodged  against  the  respondent’s  earlier  substantive coverage decision of 13 July 2007.   It was before His Honour Joyce QC that the

applicant raised the second of the two questions now before me – whether Judge Beattie’s decision of 30 November 2006 effectively reset the statutory clock in s 57 so that the respondent had two months from that date to make a decision on its reconsideration and if it did not meet that timeframe, the applicant would be entitled to deemed cover under s 58.

[9]      The learned Judge rejected that contention.   The Judge found that the s 57 time limits are triggered by the lodging of a claim, not by an appeal decision, and the two months time limit is not reset.  Section 58 was therefore not engaged and the applicant could not claim the benefit of a deemed decision.    Instead  the Judge concluded that the appropriate remedy in the event that the respondent failed to properly and promptly reconsider the applicant’s claim, was to return to the Court for further directions.

[10]     The matter then came before His Honour Judge Powell on the applicant’s application for leave to appeal.  The learned Judge found that the argument advanced before Judge Joyce QC was not capable of bona fide and serious argument.   The application for leave was dismissed.

[11]     As indicated the applicant advanced a second argument in his application to this Court for special leave – that is the question of whether Judge Beattie was right to have concluded that the respondent’s letter of 11 July 2005 – claiming that the thoracic strain injury claim was a duplicate – was a decision at all.  I will come back to that question below.

The standard on special leave to appeal

[12]     The applicable standard to be applied in assessing applications for special leave to appeal to this Court are well known and uncontroversial.   The general principle is that special leave should only be granted if a material error of law is shown as capable of bona fide and serious argument.2   The alleged error must have materially affected the decision under challenge.  The appellant’s case must not be

just arguable, but well arguable.

2      L v K [2010] NZCA 618.

[13]     By the terms of s 162(1) of the Act, appeals to this Court must be on a question of law.  But regard must also be had to wider considerations including the general importance of the questions raised, and whether the interests of justice might be served by allowing the appeal to proceed.  Although the classes of consideration are clearly not closed, it will usually be necessary for the prospective appellant 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.

Analysis

Was the respondent’s decision of 11 July 2005 a “decision on the claim”?

[14]     Mr  Hunt,  for  the  respondent,  objected  to  the  applicant  advancing  this question.  This is because before His Honour Judge Beattie, the applicant took the reverse position – arguing in response to ACC’s claim that there was no decision in respect  of  the  thoracic  strain,  that  the  11  July letter  amounted  to  a  reviewable decision.  Judge Beattie accepted that argument and the applicant took advantage of that acceptance.

[15]     Nonetheless Mr Beck for the applicant, now argues that the letter of 11 July cannot have been a decision because it did not comply with the requirements of s 57(2)(a).   That is, ACC was required to investigate the claim before making a decision, and no investigation was undertaken.

[16]     I do not consider that this question may be properly put on appeal, and even if I am wrong on that, I do not consider that it is sufficiently arguable.

[17]     As to the first point, the record is clear that the applicant did indeed take the reverse position before Judge Beattie. The Judge recorded:3

When  the  matter  came  on  for  hearing  before  me,  the  stance  taken  by

Mr Forster,  the  appellant’s  advocate,  was  that  the  respondent’s  letter  of

11 July 2005 was indeed a decision within the meaning of the Act and in effect was declining cover in relation to the thoracic strain injury.

[18]     The applicant cannot be permitted to take a  U-turn in the course of the litigation because his previous stance no longer suits him.

[19]     But even if that is wrong, I am clear that the argument lacks sufficient merit to allow it to proceed in any event.  It is true that s 57(2)(a) required the respondent to investigate the applicant’s claim in respect of thoracic strain.   The respondent (wrongly as it turns out) concluded that the claim was a mere repeat of a claim made in 1992.   Investigate here must mean no more than “look into” the claim.   In this case the respondent did that – albeit in a perfunctory way – before coming to its erroneous decision.  The insufficient nature of the investigation cannot be said to rob a respondent’s conclusion of its character as a decision under the Act.   It was a wrong decision because it was not properly investigated.  But it was still a decision. The applicant took the right stance in the first place.

[20]     I conclude that this question of law is not well arguable.

Reset statutory timeframe?

[21]     Section 57 applies to “a claim for cover”.  “Claim” according to s 6(1) means a claim under s 48.  Section 48 provides that a person who wishes to claim under the Act must lodge a claim with ACC for cover for his or her injury.  There is no room in these provisions to construe the reference to a claim in s 57 as if it included a decision of a Judge on appeal.  Rather, s 48 provides a claim is lodged by the person who wishes to claim for his or her own personal injury.  To interpret that as if, on appeal,  claim  included  the  Court’s  appeal  decision,  would  be  to  amend  the legislation in a very blatant way.  Even if there were some underlying justification, such an intrusion into the province of the legislature is not permitted.  Judge Joyce QC was, with respect, correct – the appropriate remedy for a claimant whose reconsideration is not processed with expedition, is to return to the Court to seek further directions.  Judge Powell’s subsequent decision was plainly right too.

[22]     This question also lacks the necessary arguability.

Disposition

[23]     The application is dismissed accordingly.

Williams J