Borst v Accident Compensation Corporation [2013] NZCA 557 (14 November 2013)

Last Updated: 20 November 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA144/2013 [2013] NZCA 557
BETWEEN	NOEL BORST Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	4 November 2013 (further submissions received 8 November 2013)
Court:	Harrison, Stevens and White JJ
Counsel:	P G Schmidt for Applicant D K L Tuiqereqere for Respondent
Judgment:	14 November 2013 at 11.30 am

JUDGMENT OF THE COURT

1. The application to extend the time to file the application for special leave is granted.
2. The application for special leave to appeal is dismissed.

100. There is no order for costs.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] Mr Borst applies for special leave to appeal pursuant to s 112(4) of the Accident Compensation Act 1982 (the 1982 Act) against a decision of Katz J delivered on 12 October 2012.^[1] The application arises from Mr Borst’s attempts to establish his eligibility for compensation for permanent incapacity under s 60 of the 1982 Act. Such compensation was abolished in 1992. However, under s 368(4) of the Accident Compensation Act 2001 (the 2001 Act) those persons who were receiving compensation for a permanent incapacity before 1 April 2002 are entitled to continue to receive payments. In addition, a claimant may be entitled to such compensation if he or she can establish that an assessment of permanent incapacity was completed (i) prior to 1 October 1992, or (ii) after 1 October 1992 where a review of a decision about the assessment was lodged before 1 October 1992.^[2]
[2] Following a consideration of Mr Borst’s file in mid 1987, the Accident Compensation Corporation (the Corporation) concluded that he was not entitled to any earnings related compensation or to an assessment of permanent incapacity.^[3] On 11 June 1987 the Corporation wrote to Mr Borst informing him accordingly.
[3] In January 1990, Mr Borst wrote a letter to the Minister responsible for the Corporation setting out the facts concerning his case. He now argues that that letter constituted an application for review of a decision about an assessment under s 60 of the 1982 Act so that the review is still “live” and he remains entitled to an assessment of permanent incapacity under the transitional provisions of the 2001 Act.
[4] The Accident Compensation Appeal Authority found against Mr Borst.^[4] In the High Court, Katz J found that the letter sent by Mr Borst in January 1990 could not “realistically be construed, in form or substance, as a request for a review of the 1987 decision”.^[5] Accordingly, Mr Borst could not satisfy the requirements of s 368(4) and he was not entitled to compensation for permanent incapacity.
[5] On 15 February 2013 Katz J declined leave to appeal to this Court.^[6] In order to obtain special leave Mr Borst must persuade this Court that there is a question of law involved in the appeal is one which “by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision”.^[7]
[6] The written submissions filed by Mr Schmidt in support of the application for special leave failed to identify a question of law. Accordingly Mr Schmidt was permitted to file a supplementary submission after the hearing identifying a question of law. He then proffered a two-part question as follows:

• Is Mr Borst’s letter of January 1990 a valid review application of ACC’s decision dated 11 June 1987 in terms of the requirements for a review application set out in s 101 of the Accident Compensation Act 1982?
• If Mr Borst’s letter is a valid review application, can it satisfy the requirement set out in s 368(4)(b)(ii) of the Accident Compensation Act 2001?

[7] Mr Tuiqereqere, for the Corporation, filed a memorandum in response on 8 November 2013.
[8] Mr Borst also requires an extension of time. The application was filed three days out of time. The delay is minimal and is not opposed. We grant an extension of time accordingly.

Discussion

[9] As to the proposed questions of law, Mr Schmidt submits that the interests of justice require that the application be granted. Because the only remedy under the 1982 Act is the review process under s 101, Mr Borst should be allowed to take advantage of that process.
[10] The immediate problem for Mr Borst is the fact that the January 1990 letter does not seek a review of a decision about an assessment of permanent incapacity under s 60. No such assessment had been carried out. There are “three basic complaints” advanced in the letter to the Minister. None of these relate to an assessment of his permanent incapacity or the failure to make such an assessment.
[11] Therefore the first of the two questions cannot assist Mr Borst. Katz J was plainly right when she held that the January 1990 letter could not meet the requirements of s 368(4)(b) of the 2001 Act.
[12] There is another equally significant problem for Mr Borst. In his supplementary submission Mr Schmidt realistically accepted that “any successful judgment will likely not affect other members of the public”. Moreover he acknowledged that Mr Borst’s “factual situation is unusual and likely unique”.
[13] Accordingly Mr Borst is unable to meet the requirement that the appeal is of general or public importance. Further, there is no other reason why this appeal ought to be submitted to this Court for decision.
[14] For the above reasons the application for special leave to appeal is dismissed. As Mr Tuiqereqere accepted, there should be no order for costs.

Solicitors:
Schmidt & Peart Law, Auckland for Applicant
Medico Law Limited, Auckland for Respondent

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^[1] Borst v Accident Compensation Corporation [2012] NZHC 2657, [2012] NZAR 941. Section 391 of the Accident Compensation Act 2001 provides that part 9 of the Accident Compensation Act 1982 (which deals with appeal rights including applications for review under s 101) continues to apply to any decision made by the Corporation under the 1982 Act.

^[2] See s 368(4)(b)(ii).

^[3] A claim for earnings related compensation is dealt with under s 59 of the 1982 Act. The assessment of permanent incapacity is dealt with under s 60.

^[4] Borst v Accident Compensation Corporation No 4/2009, 5 October 2009 (ACA). Before the Accident Compensation Appeal Authority Mr Borst argued his case on the basis that the Authority ought to extend the time for filing the review. The argument relating to the 1990 letter was raised for the first time in the High Court.

^[5] At [47].

^[6] Borst v Accident Compensation Corporation [2013] NZHC 176.

^[7] Section 112(4) of the 1982 Act.