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Hawke v Accident Compensation Corporation [2015] NZCA 189 (22 May 2015)

Last Updated: 3 June 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
BETWEEN
 Appellant
AND
 Respondent
Hearing:
30 April 2015
Court:
Harrison, Keane and Wylie JJ
Counsel:
P Schmidt and H Peart for Appellant C J Hlavac for Respondent
Judgment:


JUDGMENT OF THE COURT

A The appeal is dismissed.

  1. The answer to the question of law for this Court is as follows:

The District Court, not the Accident Compensation Appeal Authority, has jurisdiction to determine an appeal against a decision of the Accident Compensation Corporation made pursuant to s 53(2) of the Accident Compensation Act 2001.

C There is no order for costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

[1] The appellant, Diane Hawke, appeals a decision given by Woolford J in the High Court.[1] The Court allowed an appeal against a decision of the Accident Compensation Appeal Authority (the Authority)[2] and held that an appeal from a decision made under s 53(2) of the Accident Compensation Act 2001 (2001 Act) lies to the District Court and not to the Authority.
[2] Mrs Hawke obtained leave from Woolford J to appeal to this Court. The question of law for this Court was refined in discussions with counsel. It is as follows:

Does the District Court or the Accident Compensation Appeal Authority have jurisdiction to determine an appeal against a decision of the Accident Compensation Corporation made pursuant to s 53(2) of the Accident Compensation Act 2001?

Factual background

[3] In February 1978 Mrs Hawke suffered multiple injuries in a motor vehicle accident. Her injuries were covered under the Accident Compensation Act 1972 and this was accepted by the Accident Compensation Corporation (the “Corporation”). At the time of the accident Mrs Hawke was employed as a pilot. She was initially unable to continue in employment and she received what was then known as earnings related compensation until late 1978 when she returned to work.
[4] Mrs Hawke had various jobs thereafter, although she had ongoing difficulties maintaining employment because of the effects of the injuries she had suffered. In 1982 she became self-employed as an interior designer, initially as a sole trader, and then later through a limited liability company.
[5] On 9 May 2003 Mrs Hawke applied for what had become known as weekly compensation, backdated to the date when she had returned to work in late 1978 and ceased receiving earnings related compensation. In support of her application she provided the Corporation with all of the medical documentation that she held.
[6] On 7 December 2004 the Corporation issued a decision confirming payment to Mrs Hawke of weekly compensation for the period 1991 to 1998, where the medical documentation established that Mrs Hawke had taken time off work due to her injuries. Mrs Hawke subsequently applied to review the Corporation’s decision. Her review was unsuccessful and she did not seek to appeal the decision.
[7] The decision of 7 December 2004 also advised that the Corporation’s accounting advisors were considering whether Mrs Hawke’s earnings could be established prior to 1991. The Corporation sought earnings information from the IRD. In June 2004 the IRD advised that it could not confirm Mrs Hawke’s earnings for the years 1989, 1990 and 1991.
[8] On 29 September 2005 the Corporation issued a decision letter advising Mrs Hawke that she was not entitled to weekly compensation, because the Corporation had been prejudiced in its ability to make a decision on her weekly compensation entitlement for any period prior to 1992. The Corporation recorded that, as a result, it was unable to pay weekly compensation. The letter did note that the Corporation had paid for all incapacities from 5 November 1991 to 9 February 1998.
[9] Mrs Hawke applied to review the Corporation’s decision. The reviewer treated the application as coming under the 2001 Act, and held that the Corporation was entitled to decline the claim on the basis that Mrs Hawke’s lateness in lodging the application had prejudiced its ability to make a decision.[3]
[10] On 8 February 2006 Mrs Hawke lodged a notice of appeal against the review decision with the District Court, but on 12 April 2007 she withdrew that appeal.
[11] On 14 March 2012 Mrs Hawke filed and served a notice of appeal with the Authority. The Corporation objected to the jurisdiction of the Authority to hear the appeal.
[12] Following a hearing the Authority issued a decision on 3 August 2012. It held that it did have jurisdiction to hear and determine Mrs Hawke’s appeal.[4]
[13] The Corporation then applied to the Authority for leave to appeal to the High Court. On 16 April 2013 the Authority dismissed the Corporation’s application for leave to appeal.[5] The Corporation then applied to the High Court for special leave to appeal. On 12 November 2013 the High Court granted special leave.[6]

Key statutory provisions

[14] In order to understand the judgment under appeal, counsel’s submissions and the judgment of this Court, it is necessary to set out the key statutory provisions.
[15] Since 1972, accident compensation in New Zealand has been covered by five successive Acts:
[16] The Acts have from the outset provided a statutory “no fault” scheme for the provision of compensation arising from personal injury. Cover is available for qualifying injuries, and, where injuries are covered, there are entitlements which claimants are able to access.[7] One of the entitlements is to what was known as earnings related compensation, but is now known as weekly earnings compensation or simply weekly compensation.[8]
[17] This appeal turns on various provisions contained in the 2001 Act. It repealed the Accident Insurance Act 1998.[9] Parts of the 2001 Act came into force on 20 September 2001, other parts on 1 April 2003, and the balance of the Act on 1 April 2002.[10] All sections relevant to Mrs Hawke’s appeal came into effect on 1 April 2002. They are summarised or set out in a schedule attached to this judgment. The following focuses only on the key provisions.
[18] Section 354 contained in the transitional provisions provides as follows:

354 Processing of claims

Part 3 applies to all claims received on or after 1 April 2002 for cover and entitlements in respect of personal injury suffered before that date.

[19] Section 391, also in the transitional provisions, provides as follows:

391 Review and appeal proceedings for decisions under former Acts

(1) Part 9 of the Accident Compensation Act 1982 continues in force in order to apply to any decision made by the Corporation—

(a) under the Accident Compensation Act 1972 or the Accident Compensation Act 1982; or

(b) under either of those Acts, as applied by section 453 of the Accident Insurance Act 1998 or as applied by this Act.

(2) Part 6 of the Accident Rehabilitation and Compensation Insurance Act 1992 continues in force in order to apply to an application for a review or an appeal about a decision made by the Corporation, if—

(a) the application was made or the appeal was filed before 1 July 1999; and

(b) subsection (1) does not apply.

(3) Part 6 of the Accident Insurance Act 1998 continues in force in order to apply to an application for review or an appeal about a decision made by the Corporation, if—

(a) the application was made or the appeal was filed before 1 April 2002; and

(b) subsections (1) and (2) do not apply.

(3A) ...

(4) Part 5 of this Act applies to any decision made by the Corporation under this Part, except a decision referred to in subsection (1), subsection (2), or subsection (3).

[20] Section 53, contained in pt 3, relevantly provides as follows:

53 Time for making claim

(1) A person must lodge a claim with the Corporation within the time limit specified in this section.

(2) The Corporation must not decline a claim lodged after the time limit specified in this section on the ground that the claim was lodged late, unless the claim’s lateness prejudices the Corporation in its ability to make decisions.

...

[21] Pursuant to s 134, a claimant can apply to the Corporation for a review of any of its decisions on a claim. The word “decision” is defined in s 6 to include a decision by the Corporation as to whether or not a claimant has cover, a decision whether or not the Corporation will provide any entitlements to a claimant, and a decision about which entitlements the Corporation will provide to a claimant.
[22] Any review sought by a claimant goes before a reviewer. Section 145 applies and it materially provides as follows:

145 Review decisions: substance

(1) In making a decision on the review, the reviewer must—

(a) put aside the Corporation’s decision and look at the matter afresh on the basis of the information provided at the review; and

(b) put aside the policy and procedure followed by the Corporation and decide the matter only on the basis of its substantive merits under this Act.

(2) However, on the review of a decision revised by the Corporation under section 65(1), the Corporation must establish that the decision revised under that subsection was made in error.

(3) The reviewer must—

(a) dismiss the application; or

(b) modify the Corporation’s decision; or

(c) quash the Corporation’s decision; or

(d) direct the Corporation to make a decision within a time frame specified by the reviewer if the Corporation has not made the decision in a timely manner as contemplated by sections 54 and 134(1)(b); or

(e) make the decision for the Corporation if it has not made a decision in a timely manner as contemplated by sections 54 and 134(1)(b).

(4) If the reviewer quashes the Corporation’s decision, the reviewer must—

(a) substitute the reviewer’s decision for that of the Corporation; or

(b) require the Corporation to make the decision again in accordance with directions the reviewer gives.

...

[23] Finally, s 149, in pt 5 of the Act, materially provides as follows:

149 Who may appeal against review decision

(1) A claimant may appeal to a District Court against—

(a) a review decision; or

(b) a decision as to an award of costs and expenses under section 148.

(2) The Corporation may appeal to a District Court against—

(a) a review decision; or

(b) a decision as to an award of costs and expenses under section 148.

...

The decision in the High Court

[24] The key findings made by Woolford J relevant to the appeal before this Court were as follows:

Submissions

[25] Counsel’s arguments can be put succinctly.
[26] Mr Schmidt for Mrs Hawke submitted that this Court needs to focus on the purpose and nature of the review process under s 145. He argued that all decisions that decline claims for whatever reason are reviewable on their merits under that section. He submitted that such reviews are substantive, investigative and merits based; the reviewer must be able to consider the earlier legislation, where it is relevant to a claim, and any appeal from the reviewer has to be to a body which also has jurisdiction to take into account the earlier legislation. He submitted that the District Court has no jurisdiction to consider the earlier legislation, and that the only body vested with that jurisdiction is the Authority. He then submitted that review and appeal decisions made under the 2001 Act that require the application of earlier legislation must be conducted under the review or appeal procedure set out in the earlier legislation. In his submission, declining an historic claim for cover or entitlements on the basis of prejudice under s 53(2) of the 2001 Act does not alter which review and appeal process applies.
[27] Mr Hlavac for the Corporation argued that s 354 of the 2001 Act applies, and that Mrs Hawkes’ claim falls squarely within the ambit of that section. He argued that a decision made by the Corporation under s 53(2), declining a claim because it is lodged late, is a decision under the 2001 Act, and not a decision made under any of the earlier Acts, because s 53 was not included in any of the earlier Acts. On his argument, the Authority has no jurisdiction to consider and apply the provisions of the 2001 Act, because it is a creature of statute and it only has the powers conferred on it by the 1972 and 1982 Acts. He argued that where the Corporation has made a decision under s 53(2) of the 2001 Act, the Authority has no jurisdiction to consider the application of that section, and the appeal process set out in pt 5 of the 2001 Act must apply.

Analysis

[28] The key question is whether the Corporation’s decision of 29 September 2005 was a decision made under the 1972 and/or 1982 Acts, or whether it was a decision made under the 2001 Act.
[29] It is trite law that appellate jurisdiction can only be conferred by statute.[16] If a person desires to appeal, he or she can only do so if an applicable statute has given him or her that right, and only within the limits that the statute giving the right lays down.[17]
[30] The 1972 and 1982 Acts conferred a right of appeal from the decisions of reviewers to the Authority.[18] In 1992, the appeal authority from reviewers became the District Court.[19] The right of appeal from reviewers’ decisions has remained with the District Court since.
[31] Mrs Hawke was injured in 1978 and the Corporation promptly accepted that she had personal injury cover in respect of the injuries which she suffered. Mrs Hawke could then claim the various entitlements which were detailed in the legislation then in force and which have been carried over into subsequent legislation. Under the 1972 and 1982 Acts she was entitled to earnings related compensation. Under the 1992 Act, earnings related compensation was replaced by weekly earnings compensation. Her entitlement to weekly compensation has continued and it is maintained under the 2001 Act. Sections 365 to 371 of the 2001 Act provide for this. Further s 355 provides that a person who has had a claim for cover accepted before 1 April 2002, continues to have cover, and that pt 11 of the 2001 Act applies.
[32] This however does not compel the conclusion that the claims dispute resolution process is governed by either the 1972 Act or the 1982 Act.
[33] Section 354, which is found in pt 11, applies to all claims received on or after 1 April 2002 for cover and entitlements in respect of personal injury suffered before that date. It provides that pt 3 of the 2001 Act applies to all such claims.
[34] Mrs Hawke’s claim for weekly compensation was lodged on 9 May 2003. It was a claim to an entitlement provided for under earlier Acts and also under s 69(1)(c) of the 2001 Act. Section 354 applies in its terms.
[35] While the point was not taken by Mr Schmidt, for the sake of completeness we record that we agree with Woolford J that it is artificial to narrow the effect of s 354, by focussing on the use of the word “and” in the phrase “cover and entitlements”.[20] Section 354 and 355 are not mutually exclusive and it must have been intended that both could apply at the same time. This suggests that Parliament intended that pt 3 of the 2001 Act is to apply to the processing of all claims lodged after 1 April 2002 whether for cover or for entitlements consequent on the acceptance of cover.
[36] Section 53, contained in pt 3 of the 2001 Act, deals with the time within which a claim should be made. A person must lodge a claim for cover, or for an entitlement, within 12 months after he or she suffers the personal injury, or the need for the entitlement arose. It provides that the Corporation is not entitled to decline a claim lodged after the 12 month period specified, unless the claim’s lateness prejudices the Corporation in its ability to make a decision. Where the Corporation concludes that it is prejudiced and so advises the claimant, that is a decision made under s 53(2) of the 2001 Act. It is not a decision made under the 1972 Act, the 1982 Act, or any other of the earlier Acts. Subsections 391(1)–(3) do not apply in these terms. We disagree with Woolford J that s 391(4) applies.[21] It applies only to decisions made by the Corporation under pt 11. A decision made pursuant to s 53(2) is made under pt 3 and not under pt 11.
[37] In any event, pursuant to s 149, in pt 5, the right of appeal from a reviewer’s decision conferred on both the claimant and the Corporation is to the District Court and it is given full power to deal with the same by s 161.
[38] This conclusion does not deny effect to s 355(1). Mrs Hawke’s claim for weekly compensation is a claim to an entitlement arising out of cover accepted before 1 April 2002. She continues to have that cover, and pt 11 applies, subject to the procedural requirements set out in pt 3 as required by s 354. Nor does it deprive s 391 of any effect. We agree with Woolford J in this regard.[22] Once a claimant makes a claim under s 48, and goes through the claims process set out in pt 3 of the 2001 Act, his or her entitlement will then fall to be determined under the 1972 Act, the 1982 Act or any later Act, as the case may require. The applicable subsection in s 391 will apply to the substantive decision on the claim.
[39] Section 145 obliges a reviewer to put aside the Corporation’s decision and the policy and procedure followed by the Corporation. It requires the reviewer to decide “the matter” only on the basis of its substantive merits under the 2001 Act.
[40] Normally an appeal is against the result to which the decision maker has come, and there is no right of appeal against the reasons for that decision, only the decision itself.[23] However ss 145(1)(a) and (b) place obligations on the reviewer to “look at the matter afresh”, and “decide the matter”, on the basis of its substantive merits. When the Corporation declines a claim on the basis of prejudice to it under s 53(2), the “matter” which the reviewer is required to look at afresh and decide pursuant to s 145(1), is the Corporation’s decision claiming prejudice. The Corporation has made no decision on the substantive merits of the claim, and that “matter” is not before the reviewer. If the Corporation has erred in claiming prejudice, the reviewer can quash the Corporation’s decision and require the Corporation to make the decision again in accordance with such directions as the reviewer gives.[24]
[41] While s 145 confers wider obligations and powers on reviewers, those will not be appropriate where the matter at issue is whether or not the Corporation has been prejudiced by the lateness of a claim. We observe that s 145 is not confined to the review of decisions made under s 53(2). It has a much more extensive application, and the wider obligations and powers conferred will be necessary in other contexts.
[42] While the legislation is in our view tolerably clear, and while they are of course not binding on us, we are reinforced in our view by various decisions made by the District Court dealing with the legislation. Claims have been made post-1992 for cover for injuries sustained when earlier legislation was in force. Decisions made by the Corporation to decline claims on the basis of prejudice for lateness under post-1992 legislation and resulting appeals from reviewers have been heard in the District Court.[25] It seems that this has occurred without demur. In another case it has been held that provisions contained in earlier legislation do not apply where the application for the review was filed after 1 April 2002, even in respect of a pre1 April 2002 decision.[26] In one case, the District Court distinguished between a decision made under s 53(2) based on prejudice and the substantive decision in relation to the claim. The District Court held against the Corporation on the issue of prejudice and the claim was sent back to the Corporation for it to consider afresh.[27]
[43] For all of these reasons, we have concluded the statutory scheme established by the Accident Compensation Act 2001 requires that appeals from decisions made by the Corporation under s 53(2) of the 2001 Act must go to the District Court and not to the Authority. Only the District Court has jurisdiction over decisions made pursuant to that subsection.

Result

[44] The appeal is dismissed and the decision of the High Court is upheld.
[45] Normally costs would follow the judgment. The respondent has however advised that it does not seek costs against the appellant. Accordingly there is no order for costs.

Solicitors:
Schmidt & Peart Law, Auckland for Appellant
Young Hunter, Christchurch for Respondent

SCHEDULE OF RELEVANT PROVISIONS NOT SET OUT IN BODY OF JUDGMENT

[1] Section 351 provides as follows:

351 References to former Acts

A former Act, or a section in a former Act, applied by or under any of sections 352 to 400, applies as if the Act or section had not been repealed.

[2] Sections 354 to 361 deal with cover for personal injury suffered before 1 April 2002.
[3] Section 355(1) provides as follows:

355 Claims for cover accepted under former Acts

(1) A person who has had a claim for cover accepted before 1 April 2002 for personal injury covered by the former Acts continues to have cover, and this Part applies accordingly.

[4] Sections 362 and 365 preserve the right to weekly compensation for those persons who were entitled to such compensation immediately before 1 April 2002.
[5] Part 3 deals with the Corporation’s code of claimants’ rights, the processing of claims and with decisions on cover and entitlements. It comprises ss 39–66.
[6] Section 48 provides as follows:

48 Person to lodge claim for cover and entitlement

A person who wishes to claim under this Act must lodge a claim with the Corporation for—

(a) cover for his or her personal injury; or

(b) cover, and a specified entitlement, for his or her personal injury; or

(c) a specified entitlement for his or her personal injury, once the Corporation has accepted the person has cover for the personal injury.

[7] The words “specified entitlement” used in s 48 are not defined. The word “entitlement” is defined in s 6. It means an entitlement described or referred to in s 69. Section 69(1)(c) refers to the entitlement to weekly compensation.
[8] Relevantly s 149 provides as follows:

149 Who may appeal against review decision

(1) A claimant may appeal to a District Court against—

(a) a review decision; or

(b) ...

(2) The Corporation may appeal to a District Court against—

(a) a review decision; or

(b) ...

[9] Relevantly section 161 provides as follows:

161 Decisions on appeal

(1) The court must determine an appeal by—

(a) dismissing the appeal; or

(b) modifying the review decision; or

(c) quashing the review decision.

(2) If the court quashes the review decision, it must indicate the effect clearly. The effect may be, for example, to—

(a) endorse the Corporation's decision; or

(b) require the Corporation to take the action the court specifies in relation to the Corporation's decision; or

(c) require another review to be conducted in accordance with directions the court gives.

...

[10] Any party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law, may, with the leave of the District Court or if that is declined, with special leave of the High Court, appeal to the High Court – subss 162(1) and (3). A party to any appeal before the High Court, who is dissatisfied with any determination or decision of the High Court on appeal as being wrong in law, may, with the leave of the High Court, appeal to this Court by way of case dated for the opinion of this Court on a question of law only. This Court can grant special leave if the High Court refuses to grant leave to appeal. The decision of this Court, on an application for leave to appeal, or on an appeal, is final – s 163.

[1] Accident Compensation Corp v Hawke [2014] NZHC 1098.

[2] Hawke v Accident Compensation Corp [2012] NZACA 10.

[3] Application for Review by Mrs Diane Hawke Review No. 42888, 3 February 2006.

[4] Hawke v Accident Compensation Corp, above n 2.

[5] Hawke v Accident Compensation Corp [2013] NZACA 5.

[6] Accident Compensation Corp v Hawke [2013] NZHC 2982.

[7] See generally Doug Tennent Accident Compensation Law (LexisNexis, Wellington, 2013) at [1.3]; Stephen Todd “Accident Compensation and the Common Law” and Stephen Todd “Accident Compensation in Operation” in Stephen Todd (ed) The Law of Torts in New Zealand (6th ed, Thomson Reuters, Wellington, 2013) 21 (cover) and 73 (entitlements),

[8] The change was introduced by the Accident Rehabilitation and Compensation Insurance Act 1992, pt 4.

[9] Accident Compensation Act 2001, s 339(1).

[10] Section 2.

[11] Accident Compensation Corp v Hawke, above n 1, at [44].

[12] At [46] and [52]–[53].

[13] At [54].

[14] At [55].

[15] At [55] and [58].

[16] Attorney General v Sillem [1864] EngR 352; (1864) 10 HL Cas 704, 11 ER 1200 (HL).

[17] In Re Bowman [1932] 2 KB 621 (KB) at 633; Marriott v Minister of Health [1936] 105 LJKB 125 (KB) at 128; affirmed on appeal in [1937] 1 KB 128 (CA).

[18] Accident Compensation Act 1972, s 162; Accident Compensation Act 1982, s 107.

[19] Accident Rehabilitation and Compensation Insurance Act 1992, s 91.

[20] Accident Compensation Corp v Hawke, above n 1, at [44].

[21] At [55].

[22] At [56].

[23] Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1 NZLR 13 at [25].

[24] Accident Compensation Act 2001, s 145(4).

[25] See for example, O’Halloran v Accident Rehabilitation and Compensation Insurance Corp DC Christchurch 256/97, 11 December 1997; Gallagher v Accident Rehabilitation and Compensation Insurance Corp DC Wellington 357/99, 6 December 1999.

[26] Los’e v Accident Compensation Corp DC Wellington 12/2004, 11 February 2004 at [27]. See for the reverse situation: Ward v Accident Compensation Corp DC Auckland 64/2003, 15 April 2003 at [8]–[9]; Accident Compensation Corp v Robinson HC Whangarei CIV 2004-488-260, 17 June 2004 at [7]–[8]; and see generally Personal Injury in New Zealand (looseleaf ed, Brookers) at [AC391.02].

[27] Woods v Accident Compensation Corp [2013] NZACC 119 at [34]–[35].

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