Weal v Accident Compensation Corporation HC Wellington CIV-2011-485-912
[2011] NZHC 1166
•29 September 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2011-485-912
UNDER the Judicature Amendment Act 1972
IN THE MATTER OF an application for judicial review
BETWEEN DOUGLAS JAMES WEAL Plaintiff
ANDACCIDENT COMPENSATION CORPORATION
Defendant
Hearing: 26 September 2011
Counsel: A Beck for Plaintiff
H Ifwersen for Defendant
Judgment: 29 September 2011
JUDGMENT OF MILLER J
[1] This application for judicial review concerns the appellate jurisdiction of the
District Court under the Accident Compensation Act 2001.
[2] The Act creates a right of appeal on the merits to the District Court from decisions of reviewers appointed under the Act to review ACC‟s decisions about claims. In this case, Mr Weal had claimed cover for dengue fever, saying that he contracted it while working in Fiji in 2003. ACC eventually decided that he was actually on holiday at that time, so denied him cover. He sought a review. Through oversight ACC failed to respond to his application, with the consequence that the review was deemed to have been decided in his favour. No actual review was ever
conducted.
DOUGLAS JAMES WEAL V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2011-485-912 29
September 2011
[3] From that deemed decision ACC has appealed to the District Court. It is common ground that the legislation admits such an appeal. However, ACC intends to conduct a full merits hearing, calling some ten witnesses. Mr Weal argues that because the appeal is by way of rehearing, it is not possible, in the absence of an actual review decision and supporting record, to hear an appeal on the merits. If successful, his application for judicial review would bring an end to ACC‟s appeal.
Has a reviewable decision been made?
[4] The matter has a long, complex and troubled procedural history which was explored at some length in the submissions. On the view I take of the application, I need not review that.
[5] It is necessary to record that the statutory power of decision specifically challenged in the statement of claim is a direction of the District Court declining to decide the question of jurisdiction as a preliminary issue and directing that the Registrar of that Court set the appeal down for hearing on the basis that jurisdiction would be argued with the merits.
[6] Ms Ifwersen took the point that a procedural decision of that sort does not amount to the exercise of a statutory power of decision. However, she conceded that ACC is asking the District Court to decide its appeal on the merits, so there is a proposed exercise of a statutory power of decision for purposes of s 4 of the Judicature Amendment Act 1972. Accordingly, judicial review is available. It is well-established, of course, that this Court may decline review until the power has been exercised, particularly in circumstances where there is also provision for an appeal to this Court under the Act, but that is a separate issue which I need not address, for I am satisfied that the District Court does enjoy jurisdiction to hear the appeal.
The Accident Compensation Act 2001
[7] Part 5 of the Act deals with dispute resolution. It provides that a claimant may apply to ACC for a review of any of its decisions on the claim.[1] There is a procedure for giving notice of an application for review, identifying the offending decision, the grounds on which it was made, and the relief sought. It is common ground that Mr Weal made such an application. Reviewers are appointed by ACC, but they must act independently, putting ACC‟s decision to one side. Procedures are
informal, but reviewers must adopt an investigative approach, and they must normally conduct a hearing, at which any relevant evidence may be used whether or not it would admissible in a court.[2] A reviewer must decide the matter on the merits, on the basis of the information provided at the review.[3]
[1] Section 134.
[2] Sections 140 and 141.
[3] Section 145.
[8] Section 146 provides for deemed review decisions:
146 Deemed review decisions
(1) The reviewer is deemed to have made a decision on the review in favour of the applicant if—
(a) the date for the hearing has not been set within 3 months after the review application is received by the Corporation; and
(b) the applicant did not cause, or contribute to, the delay.
(2) The date of the deemed decision is 3 months after the review application is received.
It is common ground that ACC received Mr Weal‟s application but did nothing with
it until some time after the deadline had expired.
[9] A review decision, including a deemed review decision, is binding on the applicant and ACC.[4]
[4] Section 147.
[10] ACC may appeal to the District Court against a review decision.[5] The right of appeal unquestionably extends to a deemed review decision, for s 151 sets a specific time limit for bringing an appeal against such decisions.
[5] Section 149(2).
[11] An appeal having been lodged, ACC must provide the Registrar of the District Court with a copy of the decision appealed against, the record of the review hearing, all documents, items and exhibits relating to the review that are in the custody of ACC or the reviewer, and a copy of any notes made by or at the direction
of the reviewer relating to the hearing of the review.[6] Because no review was ever
held, there is no such first instance record here.
[6] Section 154
[12] Section 155 provides that the appeal is a rehearing, but it authorises the bringing of certain evidence about questions of fact:
155 Hearing of appeal
(2) An appeal is a rehearing, but evidence about a question of fact may be brought before the court under section 156(2).
[13] Section 156(2) establishes that the court may enlarge upon the record prepared under s 154 by receiving evidence that was taken before or received by the reviewer, in cases where a question of fact arises on appeal:
156 Evidence at appeal
(2) If a question of fact is involved in an appeal, the evidence taken before or received by the reviewer about the question may be brought before the court under any of subsections (3) to (5), subject to any order of the court.
(3) Evidence given orally about a question of fact may be brought before the court by the production of a copy of—
(a) the notes of the reviewer; or
(b) the reviewer's record of hearing; or
(c) a written statement read by a witness; or
(d) any other material that the court thinks expedient.
(4) Evidence taken by affidavit about a question of fact may be brought before the court by the production of any of the affidavits that have been forwarded to the Registrar.
(5) Exhibits relating to a question of fact may be brought before the court by—
(a) the production of any of the exhibits that have been forwarded to the Registrar; or
(b) the production by the parties to the appeal of any exhibits in their custody.
[14] However, the Act also provides in s 156(1) that the District Court may hear any evidence it thinks fit:
156 Evidence at appeal
(1) The court may hear any evidence that it thinks fit, whether or not the evidence would be otherwise admissible in a court of law.
This provision is not subject to s 156(2).
[15] The Act contemplates oral evidence in the District Court, for it provides that witnesses may be present during the hearing of an appeal.[7]
[7] Sections 159(1)(f) and 160(1).
[16] The court‟s powers on appeal extend to modifying the review decision or quashing it, and if the decision is quashed the court may require another review to be conducted in accordance with the court‟s directions.[8]
[8] Sections 161(1) and (2).
[17] The Act provides for a further appeal to this Court, but such appeal is confined to a question of law and requires leave of the District Court or this Court.[9]
[9] Section 162(1).
[18] Finally, I refer to s 117, which is found in Part 4 of the Act, dealing with ACC‟s powers. It provides in ss (1) that ACC 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. Mr Beck invoked this provision in support of a submission that ACC‟s hands are not tied in a case such as this, for it
may instead suspend entitlements. Ms Ifwersen countered that that would be an
abuse of power, for this case is about cover while s 117 is concerned with entitlements. On the view I take of the case, I need not decide whether s 117 would allow ACC to cancel entitlements on the basis that Mr Weal had wrongly been given cover.
What evidence may the District Court consider in an appeal by way of rehearing under the Act?
[19] As noted, Mr Beck contended that the District Court lacks jurisdiction to hear an appeal on the merits when the decision appealed from is a deemed review decision. He postulated that there might be other technical or procedural grounds on which an appeal against a deemed review decision might be entertained. But in his submission, the jurisdiction of the District Court is an appellate one which logically cannot be exercised in the absence of a merits decision. He cited the judgment of the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar, highlighting a passage from the judgment of the Chief Justice in which she, speaking generally of
rights of general appeal, stated:[10]
The appeal is usually conducted on the basis of the record of the court or tribunal appealed from unless, exceptionally, the terms in which the statute providing the right of appeal is expressed indicate that a de novo hearing of the evidence is envisaged.
[10] Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141, at [4].
[20] However, as that passage suggests and the Chief Justice confirmed at [13], the kind of rehearing envisaged depends upon the terms of the empowering legislation.
[21] A rehearing differs from an appeal, in that on an appeal judgment can only be given as ought to have been given at the first instance hearing, while a rehearing allows the appellate court to give judgment as if the case came at that time before the court of first instance.[11] In practice, a rehearing does not normally involve a second trial in the appellate court; rather, it is normally decided on the record at first
[11] Pratt v Wanganui Education Board [1977] 1 NZLR 476 (SC) at 490.
instance. I emphasise „normally‟ because the term “rehearing” in itself says nothing
about the appellate court‟s power to hear the evidence again, or to supplement the
record by hearing additional evidence.
[22] It is plain that the legislature intended that appeals from review decisions under the Act should normally be rehearings on the record, as is shown by s 155(2) and the provisions for supplying the appellate court with the record of the review hearing. Sections 154 and 156(2) together contemplate that not every appeal requires that ACC include all of the evidence in the record. So s 156(2) allows the court to supplement the record provided for in s 154 by receiving evidence that was before the reviewer, in those appeals in which a question of fact arises.
[23] However, the real question is whether the rehearing in the District Court is restricted to the record, with the court precluded from hearing evidence that was not before the reviewer. In my opinion the question is answered by s 156(1), which states that on an appeal the District Court may hear “any evidence that it thinks fit”. That language allows the court to hear evidence that is nowhere to be found in the record. It also establishes a more liberal threshold for additional evidence than is customary in other appellate jurisdictions, insisting upon neither freshness nor an explanation why the evidence was not called at first instance. Relevance and cogency may suffice, and the decision is discretionary. The legislature evidently decided, perhaps because of the informal nature of the review jurisdiction, that the District Court should be empowered to do what it thinks necessary to ensure appeals are decided on the merits. Without a review record a merits appeal from a deemed review decision would not be possible, but the Act contemplates such appeal, drawing no substantive distinction between a deemed review decision and any other review decision. In particular, nothing in the legislation suggests that the court‟s powers over a deemed review decision do not extend to the merits; as in any other case, the court may modify the review decision or quash it and direct another review. Finally, all appeals are conducted under the same provisions, meaning that if Mr Beck was right the District Court would be without power to hear additional evidence on any appeal.
[24] I do accept Mr Beck‟s submission that if the District Court hearing proceeds
as planned, Mr Weal will be denied an appeal from the resulting decision on the
facts. That is so because the right of further appeal to this Court is both by leave and confined to points of law. The legislature plainly intended that the claimant should have a right of general appeal from a merits decision of a reviewer. Further, the legislature customarily allows one merits appeal from a decision of any first instance court, in which capacity the District Court will effectively be acting unless it elects to send the matter back to a reviewer for rehearing. But in this case the legislation plainly admits a merits appeal from a deemed review decision, and it equally plainly allows the District Court to go beyond the first instance record by hearing such evidence as it thinks fit. That being so, the District Court may conduct the proposed hearing.
Decision
[25] The application for review is dismissed. Mr Weal is legally aided, so there will be no order as to costs.
Miller J
Solicitors:
P Sara, Dunedin for Plaintiff
Meredith Connell, Auckland for Respondent
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