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Higgins v Accident Compensation Corporation [2008] NZACC 13 (23 January 2008)

IN THE DISTRICT COURT
HELD AT AUCKLAND

Decision No. 13 /2007

UNDER The Injury Prevention, Rehabilitation,

and Compensation Act 2001

IN THE MATTER of an appeal pursuant to section 149

of the Act

BETWEEN BRIAN HIGGINS

Appellant

(Appeal No. AI 416/06

AND ACCIDENT COMPENSATION

CORPORATION a body corporate duly constituted under the provisions of the said Act

Respondent

HEARING: at Auckland on 12 November 2007

APPEARANCES: Mr A Thomas for the appellant.

Mr D Tui for respondent.

RESERVED DECISION OF JUDGE J CADENHEAD

THE ISSUE

[1] At issue is whether an application for review brought on behalf of the

appellant, and dated 29 June 2006, where it was decided that the reviewer did not have jurisdiction should be confirmed.

[2] The appellant contended in the review application that the Accident

Compensation Corporation ("the Corporation") had made a decision to cancel the appellant's Individual Rehabilitation Plan ("IRP"); in particular to cease the continuation of funding for a computer course for the appellant.

BACKGROUND OF FACTS

[3] I set out the substantial narrative of facts provided by the respondent, as I

consider after a perusal of the file and submissions it accurately sets out the situation.

[4] The appellant suffered an injury in September 1995 for which he has cover.

Rehabilitation plans were signed from 1998. In November 2002 it was noted that the appellant had expressed an interest in repairing home computers. With respect to this job option Mr Dunn noted at page 3 of his decision:

"An amendment to Mr Higgin's rehabilitation plan signed on 23 January 2004 states:

'Mr Higgins and case manager will research appropriate qualifications for computer technician. ACC will consider reimbursement for the cost of this once course completed and passed to facilitate self-employment as computer technician. '"

[5] Mr Dunn proceeded to state at page 4 of his decision:

"A further intervention set out consideration of options for Mr Higgins to become self-employed as a computer technician.

Electronic records showed that discussions continued on the issue of computer training. On 13 May 2004, a Pathway entry records that the course was discussed with Mr Higgins. ACC advised that its policy was to reimburse some of the cost on successful completion of course.

A rehabilitation plan extension signed on 6 December 2004, states that:

'ACC will continue to support Mr Higgins to gain qualifications as a computer technician to enable him to achieve a return to work in this field as established by IMA.

On 29 August 2005, Mr Higgins' case manager made the following entry:

Claimant contact — I met with Mr Higgins in the office today — discussed progress with Voc Rehab — he advised IT study delayed but on track to be completed December 2005. He asked i f ACC could then continue to pay abated W/C while he establishes business — I have advised that ACC not able to establish claimants in self employment but that he could begin now to complete ACC206 forms if he was able to start employment now — Mr Higgins seemed enthusiastic about this and I will check progress in three weeks — we discussed the VI process again — advised that this would start end of December — I have given Mr Higgins the P/N for Franklin Enterprise Agencies so he can begin learning about setting up business. Extended IRP to 23/12....

[6] In early 2006, the appellant contacted the Corporation regarding

reimbursement of his course fees for the National Certificate in Computer Support or Technology.

[7] On 7 April 2006 the Corporation wrote to the appellant to advise that it

would issue a decision on the matter once the appellant had completed an Initial Occupational Assessment with Focus on Jobs.

[8] An Initial Occupational Assessment was completed by Marsha Manning of

Focus on Jobs on 28 April 2006.

[9] On 23 May 2006 the Corporation approved reimbursement of the appellant's

costs for his course of $6,500.

[10] At or about this time, an appointment was arranged for the appellant to be assessed by Dr Tom Bracken, Initial Medical Assessor, on 7 June 2006.
[11] On or about 6 June 2006, the Corporation was advised that Alan Thomas was the appellant's representative. The appellant also advised the Corporation that he intended to have Mr Thomas attend the Initial Medical Assessment with him on 7 June 2006.
[12] On 7 June 2006 the Corporation wrote to the appellant to advise that it would not deal with Mr Thomas as the appellant's advocate. The appointment with Dr Bracken was postponed in order to allow the appellant to obtain another support person to attend the assessment. The appointment was postponed to 28 June 2006.
[13] On 25 June 2006 the Corporation wrote to the appellant in relation to a range of matters. The letter read, inter alia:

"You write that ACC has not agreed to pay for surgery, however your file shows your injury-related surgery has been paid for by ACC, if this is not correct I am prepared to explore this further if you identifir the specific application for surgery that was declined.

Prior to your appointment for an initial medical assessment, you advised that you wanted to have Mr Thomas attend the assessment with you. You were advised that ACC does not recognise Mr Thomas as an advocate, and should he attend with you, then the assessment would not continue. You will be aware your assessment has been postponed until 28 June 2006, so that you have time to arrange another advocate.

In your letter, you have commented on your individual rehabilitation plan. The last agreed plan was to be achieved by 20th May 2006, and as you did not accept the draft prepared on or about 8 May 2006, an updated rehabilitation plan will be revisited following your assessment report from Mr Bracken.

Having received a copy ofyour initial occupational assessment, you claim there are errors in this report. This report is the assessor's determination and opinion and will not be altered. However if you supply detailed factual errors, these will be considered and may be attached to the solicitor's report. If possible, this will be actioned before your scheduled medical assessment."

[14] The assessment with Dr Bracken proceeded on 28 June 2006.
[15] An application for review form was completed for the appellant on 29 June 2006. The date of the alleged decision, that was being reviewed, was identified as "Various communications on or before 25 June 2006". The reasons for the review application read:

"Decision to cancel individual rehabilitation plan.

The Corporation have produced and made an agreement with the claimant to an individual rehabilitation plan whereby the vocational rehabilitation portion agreed to the claimant retraining from a tradesman plasterer to an occupation of the equivalent educational status, a computer technician or similar. A course of studies has been funded by the claimant and contributed to by the Corporation. Part way through the studies, the Corporation has made a decision to abandon this form of rehabilitation so as to seek other alternative occupations without properly describing his decision to the claimant, On 28 June 2006 it became apparent that the assessments were not progress reports but that the Corporation had made the decision to cancel the existing IRP and it was seeking new and different occupations.

The Corporation was not seeking a determination of the progress of the existing plan but sought to cancel that plan and start making a new plan for a different occupation."

[16] The relief sought by the appellant, from the review, was described as:

"The decision sought by the claimant is that the previously agreed individual rehabilitation plan for the claimant to retrain as a computer technician or similar should remain undisturbed until the plan reaches its conclusion"

THE REVIEW HEARING

[17] A review hearing was conducted on 19 September 2006 before M J Dunn. Mr Dunn issued a decision on 11 October 2006 dismissing the review on the basis that he had no jurisdiction. Mr Dunn stated, inter alia, at pages 7, 8 and 9:

"I repeatedly asked Mr Thomas to identify:

The decision on which this review application was brought.

Whether that decision fell within the timeframe set out in section 135(2)0. No such decision was identified.

In the application for review (no. 46693) Mr Thomas identified the date of decision as various communications on and before 25 June 2006.

When I pressed Mr Thomas to speck which decisions he referred to, he replied that he was unable to identify a specific decision, He submitted that fragments of earlier communications and ACC's actions in respect of Mr Higgins' individual rehabilitation plan, made it clear that ACC decided to cancel Mr Higgins' rehabilitation.

... I cannot accept Mr Thomas' argument that one can take fragments of letters, a claimant's or advocate's beliefs and interpretations of ACC 's intentions and somehow formulate these into a formal decision. Such an approach would result in endless review proceedings.

I find that ACC has not issued a formal decision to cease Mr Higgins' rehabilitation. Mr Liuchan advised that ACC extends the offer of mediation on the rehabilitation issue, without Mr Thomas' involvement.

Mr Higgins has been engaged in rehabilitation for many years so there needs to be some finality to this process. The previous rehabilitation plan agreements regarding computer training have been too open-ended, lacked specific timeframes, measurement points and have failed to adequately define the end point. This has provided fertile grounds for dispute as evidenced by this review.

I consider that Mr Higgins is entitled to have some clarity in respect of his expectations for computer training by way of a formal decision."

[18] A notice of appeal was filed on or about 25 October 2006. POST REVIEW EVENTS
[19] There have since been a number of events relevant to the matters raised in this proceeding. These events are summarised in a recent review decision issued, again, by Mr Dunn on 15 October 2007.
[20] In November 2006 the appellant wrote to the Corporation seeking funding for study towards a Diploma in Information Technology (Network Engineering).
[21] Following receipt of advice from Dynamix Consultants dated 23 March 2007, the Corporation issued a formal decision on 28 March 2007 declining the application for assistance. The appellant applied for a review from this decision.

• [22] A review hearing was conducted on 19 September 2007. As stated above, Mr Dunn issued a decision on 15 October 2007. Mr Dunn allowed the review, quashing the Corporation's decision and making directions in relation to the funding of the particular course.
• [23] It is accepted that there is no issue of funding now alive, and it appears that

substantial issue before me is moot.

LEGISLATION AND LEGAL PRINCIPLES

[24] Section 134(1) of the Injury Prevention, Rehabilitation and Compensation

Act 2001 reads:

"134 Who may apply for review

(I) A claimant may apply to the Corporation for a review of—

(a) any of its decisions on the claim:
(b) any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay:

(c) any of its decisions under the Code on a complaint by the claimant,"

The term 'decision' is defined by section 6(1) of the 2001 Act as

"Decision or Corporation's decision includes all or any of the following decisions by the Corporation:

(a) a decision whether or not a claimant has cover;
(b) a decision about the classification of the personal injury a claimant has

suffered (for example, a work-related personal injury or a motor vehicle injury):

(c) a decision whether or not the Corporation will provide any entitlements to

a claimant:

(d) a decision about which entitlements the Corporation will provide to a

claimant:

(e) a decision relating to the level of any entitlements to be provided:

(2 a decision relating to the levy payable by a particular levy payer:

(g) a decision made under the Code about a claimant's complaint."

To these sections there must be consideration of Clause 9 of Schedule I of the Act which provides:

"9 Disputes about plan

(1) For the purposes of Part 5 of this Act, the Corporation makes

a decision when —

(a) the claimant agrees to a plan; or
(b) the Corporation advises the claimant that a plan has been

finalised.

(2) The fact that a claimant has agreed to a plan does not affect his

or her rights to make a review application under Part 5 of this Act with respect to the plan."

These sections were considered in detail by Miller J in Weir v Accident Compensation Corporation (High Court, Wellington Registry, C1V-2003-485-1921, delivered 18 August 2004). The interlocking nature of these sections was referred to by Miller J, and it is clear that the definition of 'decision' was enlarged by Clause 9 of Schedule 1 when the claimant agreed to an IRP or the Corporation advised the claimant that an IRP had been finalised. When these two conditions were met Clause 9 was construed as conferring a decision on the claimant for the purposes of section 134. Miller J stressed that only decisions, as defined in section 6 of the Act were reviewable. He stressed this point in answer to the respondent's argument that his decision would open up ACC's administrative decisions to constant review. The jurisdiction to entertain a review or an appeal is defined by these sections. He said at para 40:

In answer to Mr Barnett's point that this decision would open up ACC's administration to constant review, several points may be made. The first is that an IRP is not simply an administrative process. The statute prescribes it, and it is of central importance to the statutory goal or rehabilitation. Statutory obligations surround it. Second, it remains the case that only `decisions' as defined in s.6 and clause 9 of schedule I, are reviewable. Third, it is impossible to overlook the fact that an IRP is expressly defined as a 'decision' in clause 9, which does not distinguish between IRP 's that provide for or remove entitlements and those that do not "

[25] This strict interpretation is consistent with the purposes of the Act. Under

Part 3 of the Act which deals with the Code of Claimants' Rights it is noted that after

a complaint the decision on that complaint may be reviewed by section 149(3) of the Act. However, that review decision may not be appealed to the District Court.

[26] More recently, the District Court held in Sherson (87/2005) at page 5:

"[6] The provisions of section 6 of the 2001 Act must be regarded as being wider than the definition section contained in the 1998 Act, as that Act had a closed definition whereas this Act has an open definition. At the same time however, the categories of matters which must be interpreted as constituting a reviewable decision which need to be of the same type as those specifically given as examples. It is a case where 1 find that the ejusdem geners rule of statutory interpretation would apply.

[7] In the present case the letter from the respondent was requiring the appellant to be reassessed as it considered that the existing Occupational Assessment was less than satisfactory. The letter did not make any determination about the appellant's cover under the Act, nor did it seek to interfere with any existing entitlements, or indeed, with any application for entitlement by way of declinature thereof. "

[27] I am of the view that if it could be shown that the entitlement provided for rehabilitation had been cancelled or if the rehabilitation plan had been unilaterally cancelled then it would be arguable that there was a decision capable of review.

MOOT ISSUE

[28] I set out some the legal principles that have developed concerning the determination of moot or academic issues before a Court.
[29] In R v Secretary of State for the Home Dept, ex parte Salem [1999] 2 All ER 42 Lord Slynn said at pp 45, 46 and 47:

"In Sun Life Assurance Co of Canada v Jervis [1944] 1 All ER 469 at 470-471, [1944] AC 111 at 113-114 Viscount Simon LC said:

'I do not think that it would be a proper exercise of the authority which this House possesses to hear appeals if it occupies time in this case in deciding an academic question, the answer to which cannot affect the respondent in any way I think it is an essential quality of an appeal fit to be disposed of by this House that there should exist between the parties a matter in actual controversy which the House undertakes to decide as a living issue.'

In Ainsbury v Millington [1987] 1 All ER 929 at 930-931, [1987] I WLR 379 at 381 Lord Bridge of Harwich, with whom the other members of the House agreed said:

'In the instant case neither party can have any interest at all in the outcome of the appeal. Their joint tenancy of property which was the

subject matter of the dispute no longer exists. Thus, even if the House thought that the judge and the Court of Appeal had been wrong to decline jurisdiction, there would be no order which could now be made to give effect to that view. It has always been a fundamental feature of our judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved. Different considerations may arise in relation to what are called "friendly actions" and conceivably in relation to proceedings instituted specifically as a test case. The instant case does not fall within either of those categories. Again litigation may sometimes be properly continued for the sole purpose of resolving an issue as to costs when all other matters in dispute have been resolved

These cases, however, concern disputes between parties as to private rights—in the Sun Life case as to the terms of an insurance policy, in Ainsbury v Millington as to the parties' rights to the occupation of property initially held under a joint tenancy.

However, in R v Dartmoor Prison Board of Visitors, ex p Smith [1986] 2 All ER 651, [1987] QB 106 where a prisoner was charged with an offence under the Prison Rules 1964, SI 1964/388 (as amended), of doing gross personal violence to a prison officer, it was found by the board of visitors that there was no case to answer, but it was directed that a lesser offence of assault be preferred. On judicial review, the judge held that that direction was made without jurisdiction and prohibited the board from inquiring into the assault charge. The prisoner was no longer at risk from further disciplinary proceedings. Despite opposition from the prisoner, the Court of Appeal ruled:

'It seemed to all the members of this court that the fact that [the prisoner] was no longer at risk of further disciplinary proceedings did not deprive the court ofjurisdiction to hear this appeal; that there were in it questions of general public interest; and that, even if [the prisoner] is rightly to be regarded as having no interest in the outcome, the court should, in the exercise of its discretion, hear the appeal on the merits. ' (See [1986] 2 All ER 651 at 655, [1987] QB 106 at 115.)

In Abdi v Secretary of State for the Home Dept [1996] 1 All ER 641, [1996] 1 WLR 298 two Somalian nationals were refused asylum when they sought to challenge a decision rejecting their claim that to be sent to Spain would be contrary to the United Kingdom's obligations under the Convention relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954) Cmd 9171). I said:

'Following the applications for judicial review the Secretary of State agreed to review their cases on the merits so that the outcome of these appeals will not directly affect the applicants. The appeals do, however, raise what counsel for the Secretary of State in the Court of Appeal accepted (per Steyn LJ) was a question of fundamental importance and a very difficult case.' (See [1996] 1 All ER 641 at 645, [1996] 1 WLR 298 at 302.)

Your Lordships heard the appeal.

My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a !is to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v Millington (and the reference to the latter in r 42 of the Practice Directions Applicable to Civil

Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.

I do not consider that this is such a case. In the first place, although a question of statutory construction does arise, the facts are by no means straightforward and in other cases the problem of when a determination is made may depend on the precise factual context of each case. In this very case, the first issue is expressed to arise 'On the facts of this case'; the second issue concerns the question whether the Secretary of State had any discretion to record and rescind his decision and whether the discretion was exercised rationally and fairly in the instant case."

[30] In line with these principles New Zealand courts will not hear appeals where there is no longer any live issue between the parties to the proceedings : Finnigan v NZ Rugby Football Union Inc (No 3) [1985] 2 NZLR 190. In Ventec Corporation v Auckland and Tomoana Freezing Works [1990] 3 NZLR 274 the Court was informed by the Bar that there was no longer any live issue between the parties. Cooke P at p 275 said:

"The general principle that an appeal will not be permitted where there is no live issue between the parties and the questions desired to be argued are in that sense academic... "

[31] In Maddever v Umawera School Board [1993] 2 NZLR 478 Williams J at 502-3 said:

"Futility — mootness

In my view this is another case where refusal of relief would be inevitable for a number of reasons. First, there would be the futility of granting relief at this stage. This point was strongly relied upon by counsel for the board It is indeed clear that the Court will not give a remedy if it would be useless to do so. In Fowler & Roderique Ltd v Attorney-General [1987] 2 NZLR 56, Casey J said at p 78:

.. events have overtaken this application, rendering any order that the Court may now make of academic interest only. Remedies under the Judicature Amendment Act are discretionary and whether or not it would ever have been appropriate to make a declaration of invalidity in respect of the 1979 Notice, it cannot be justified now.'

This case can also be approached on the basis of the related doctrine of mootness. The mootness doctrine is really the doctrine of standing set in a time frame: the requisite personal interest that must exist at the commencement of the litigation

(standing) must continue throughout its existence (mootness). Thus because an actual controversy must exist at all stages of the proceedings a case is moot when the issues presented are no longer live.

Assuming for the sake of argument that the parents had an indirect right to sue as the guardians of their child while he was still a pupil, his departure from the school renders the case moot, A New Zealand example of mootness is Turner v Pickering [1976] 1 NZLR 129 where relief was refused because since the commencement of the proceedings, events had occurred which rendered the outcome of the case irrelevant,

The mootness doctrine is well developed in American constitutional law. In Sapp v Renfroe [1975] USCA5 626; 511 F 2d 172 (1975) a student at a public high school challenged the school's requirement of military instruction on the grounds that it violated his First Amendment rights. While the action was pending he graduated. The action was dismissed as being moot.

As I have already pointed out, almost three years have passed since the events in question. The child has long since left the school and so has the teacher. The ex- pupil is now a secondary school pupil. The board of trustees is not the same, its composition having been changed quite significantly in the meantime due to the ongoing processes of democratic elections, It is probably fair to say that in the ever-changing milieu of the Umawera Primary School, this incident has been entirely forgotten. To revive those instant events with costly further hearings would be meaningless.

It is not without interest that there is not a word in the statement of claim about any need to clear the name of the parents or the pupil. This is understandable since the pupil was never suspended or expelled and it surely cannot be argued that his reputation was harmed by the fact that he was reprimanded by a teacher over a playground incident."

[32] In Eketone v Alliance Textiles [1993] 2 ERNZ 783 Cooke P said:

"The relief claimed in relation to the old contract was compliance orders, the setting aside of the contract, compensation for losses, and 'Such other relief as this Honourable Court in equity and good conscience thinks fit'. Compliance orders relating to the negotiations for the old contract would now obviously be pointless. The setting aside of the old contract as between the two appellants and the employer, which is all that the appellants could seek, would also be pointless unless it could lead to compensation or some other monetary award to them. But neither appellant gave evidence of any losses and the Employment Court considered that the claim for compensation had been effectively abandoned at the hearing. As this Court has had occasion to note recently in a case concerning the employment of a teacher, interest reipublicae ut sit finis litium. The public interest requires an end to law suits. At this stage it would not be right to allow any attempt to reshape a distinctly stale case with further evidence. "

DECISION

[33] The complaint raised in the appellant's application for review, and reiterated

and in the written submissions for the appellant for this appeal was the alleged
cancellation by the Corporation of the appellant's individual rehabilitation plan and, in particular, funding for the appellant's retraining as a computer technician.

[34] However I find that as at 29 June 2006 the Corporation had not made any decision to cancel the appellant's individual rehabilitation plan, nor, specifically, to cancel any funding for retraining as a computer technician.
[35] The appellant was unable to identify any decision issued by the Corporation that has this effect. Instead, as the reviewer pointed out in his decision, the appellant's representative relies on fragments of letters, beliefs and interpretations of the Corporation's intentions to arrive at this particular conclusion.
[36] Subsequently it may be maintained that the rehabilitation was cancelled or suspended. But The Corporation did ultimately issue a reviewable decision on 28 March 2007 regarding the appellant's entitlement to funding for retraining. The appellant's review, taken from that decision, was successful and he has obtained the relief it appears he is seeking by way of these proceedings.
[37] The issue in this appeal is moot and there appears to be no live issue between the parties. Furthermore the review application was vague and indeterminate and on the face seems to have been premature. I received submissions running to 205 paragraphs from the appellant. In my view, these were prolix and did not address the issue in a precise readily understandable way. I record that I have perused them, but have had difficulty in precisely setting them out.

[38] For the reasons that I have given I dismiss the appeal. The appellant sought costs for his representative. I decline to order costs to either party having regard to this appeal. However, the representative of the appellant is unqualified and in terms of section 27 of the Lawyers and Conveyancers Act 2006 he had not sought the permission of this Court to appear as an advocate and this would be another reason, why costs would not be given.

DATED at AUCKLAND this 23 of January 2008

(J Cadenhead)

District Court Judge