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Buis v Accident Compensation Corporation [2022] NZHC 1043 (13 May 2022)

Last Updated: 19 May 2022

JUDGMENT OF FITZGERALD J

This judgment was delivered by me on 13 May 2022 at 2.00pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date..............

Solicitors: Young Hunter, Christchurch (I Hunt)

To: Accident Compensation Corporation, Wellington (R Wanigasekera) And to: M Buis, Auckland

BUIS v ACC [2022] NZHC 1043 [13 May 2022]

Introduction and summary

• [1] Mr Buis applies for special leave to appeal to this Court on a question of law against a decision of Judge A A Sinclair in the Auckland District Court on 18 May 2020.¹

• [2] On 28 September 2021, Judge D Clark declined Mr Buis’ application for leave to appeal from Judge Sinclair’s decision to this Court, hence Mr Buis’ application to this Court for special leave.²

• [3] By way of background, in July 1976, Mr Buis suffered an epidural infection which resulted in T9 paraplegia. At that time, Mr Buis was employed by the Royal New Zealand Navy (RNZN). In January 1980, the respondent (the Corporation) granted cover to Mr Buis on the basis his condition was as a result of medical misadventure.

• [4] There then followed many years of discussion and debate between Mr Buis and the Corporation over the quantum of his cover, arrears payments and interest on arrears payments. Ultimately, Mr Buis was satisfied that the Corporation had correctly calculated and paid his weekly compensation by way of decisions and arrears payments made in December 2006.

• [5] In January and February 2007, the Corporation issued decisions about and made payments of interest on the December 2006 weekly compensation arrears payments.³ The Corporation recalculated the total amount of interest payable to Mr Buis as $118,620.27, which covered the period 13 July 1992 to the date of the payment of the weekly compensation arrears. The reason for the 13 July 1992 “start date” for the payment of interest was that that was the date the Corporation accepted it had “all information necessary” to (correctly) calculate Mr Buis’ weekly compensation entitlement (having “all information necessary” being the statutory trigger for the payment of interest).

¹ Buis v Accident Compensation Corporation [2020] NZACC 46 [Decision of Judge Sinclair].

² Buis v Accident Compensation Corporation [2021] NZACC 146 [Decision of Judge Clark].

³ For ease of reference, I will refer to these as the “2007 interest decisions”.

• [6] There matters rested for some ten years. In April 2017, Mr Buis contacted the Corporation setting out his view why, on a proper approach to the relevant statutory provisions, he was entitled to interest on the weekly compensation arrears payment for periods going back much further than 13 July 1992. In a decision issued on 29 May 2017, the Corporation disagreed, being of the view that the 2007 interest decisions were correct. Mr Buis persevered, and on 14 November 2017, the Corporation issued a further decision, in which it said that it would pay interest from 1 July 1992, with the result that a further $276 was payable to Mr Buis.

• [7] The Corporation was of the view that it could only pay interest from 1 July 1992 (despite the weekly compensation arrears dating back to January 1977) because at the time it made its 2007 (and 2017) interest decisions, the statutory provisions governing the payment of interest permitted interest only to be paid from that date.

• [8] Mr Buis remained dissatisfied. He filed an application for review of the Corporation’s November 2017 decision. In a review decision issued on 8 May 2018, Mr Buis’ application was dismissed. Mr Buis then appealed to the District Court, but Judge Sinclair dismissed the appeal. As noted at [1] above, it is from this decision that Mr Buis wants to appeal to this Court.

• [9] The key issue arising on Mr Buis’ application for special leave to appeal is the proper characterisation of the 2007 interest decisions. The nature of those decisions determines which statutory scheme is to be applied when calculating Mr Buis’ interest entitlement. The competing positions may be summarised as follows:

(a) Mr Buis says that the 2007 interest decisions revised an earlier interest decision or decisions, thereby engaging s 390 of the Accident Compensation Act 2001 (the 2001 Act). Section 390 empowers the Corporation to revise earlier decisions that were made in error, and provides that when carrying out such a revision, the law applying at the time the original decision was made is to apply. Mr Buis says that as a result, s 72 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act), in its original form, applies to his entitlement

to interest. Section 72 of the 1992 Act as enacted does not contain the 1 July 1992 “backstop” on interest referred to at [7] above.

(b) The Corporation on the other hand says that the 2007 interest decisions were “fresh” or “new” interest decisions, and therefore s 371 of the 2001 Act applies. Pursuant to that provision, s 72 of the 1992 Act (which was repealed as of 1 July 1999) remains in force, but in a modified form, under which interest on weekly compensation arrears payments is not payable for periods prior to 1 July 1992.⁴

Background – more detail

• [10] Judge Sinclair set out the detailed factual background to Mr Buis’ appeal, and I gratefully adopt that summary:⁵

1976–2003

• [3] In July 1976, Mr Buis suffered an epidural infection which led to T9 paraplegia. At the time, Mr Buis was 20 years of age and was employed as a leading steward with the Royal New Zealand Navy (“RNZN”).

• [4] Mr Buis’ initial claim for cover was declined on the basis that the condition was not caused by an accident. Mr Buis applied to review this decision and produced medical evidence to show that his condition was caused by medical misadventure. Cover was subsequently granted in a review decision dated 29 January 1980. The Corporation proceeded to determine Mr Buis’ entitlements including entitlement to earnings related compensation/weekly compensation.

• [5] Various assessments followed. Mr Buis was employed for a period in 1978/79 and again at various times between 1981 and 1984. In June 1986 he commenced employment with the Department of Social Welfare (New Zealand Income and Support Services). He resigned from his (then) part time position on 1 May 1996 due to medical issues related to his 1976 injury and applied for weekly compensation.

• [6] The Corporation obtained earnings information from NZISS and calculated Mr Buis’ weekly compensation on 24 May 1996 at $135.71 per week. In a letter dated 28 June 1996, Mr Buis disputed this calculation noting that make up pay was paid to him for the period 10 February 1983 to 2 June 1986 based on 80% of wages paid by his various employers during this period. He contended that he had been incapacitated since his primary injury in 1976

⁴ For ease of reference, I will refer in this judgment to s 72 of the 1992 Act in its original form as the “original s 72”, and the provision as it was continued, albeit modified, following the repeal of the 1992 Act, as the “modified s 72”.

⁵ Decision of Judge Sinclair, above n 1.

and make up pay should be calculated based on his RNZN wages. The Corporation maintained its position that his weekly compensation should be paid based on his earnings in the period immediately before 2 May 1996.

• [7] Mr Buis lodged a review from the Corporation’s decision. The review was dismissed and an appeal to the District Court was filed. This appeal was settled in early 1999 on the basis that the Corporation accepted that Mr Buis had been incapacitated since his accident in 1976 and was entitled to make up pay on that basis.

• [8] The Corporation proceeded to obtain the necessary information (which included post incapacity earnings information and benefits paid over the relevant period) to be able to calculate Mr Buis’ entitlement to make up pay. In November 1999, the Corporation made an arrears payment to Mr Buis covering the period from 1981 to 1999. A second arrears payment was made in early 2001 for the period from 1979 to 1981.

• [9] In a letter dated 23 March 1999 discussing the make-up pay, Mr Buis observed:

Interest of course will need to be calculated at some point, after negotiation with the Corporation, although a recent High Court decision has fixed this level at either 11% or 11.25%

The Corporation considered Mr Buis’ entitlement to interest following the first arrears payment and issued a decision on 20 March 2000. A further interest decision was issued on 16 May 2001 following the second arrears payment. Interest payable on the arrears payments for the period from 1 July 1992 was calculated in the total amount of $106,112.39.

• [10] Mr Buis lodged a review seeking interest for the period before 1 July 1992 under the original s 72 provision. This review was dismissed, and Mr Buis filed an appeal in the District Court.

• [11] Judge Hole allowed the appeal in a decision dated 10 October 2003. His Honour found that Mr Buis had applied for interest prior to 1 July 1999 and held that interest should therefore be calculated under the original s 72.⁶ In accordance with this decision, the Corporation subsequently recalculated Mr Buis’ interest entitlement for the period from 1 July 1992 resulting in a further payment to him of $73,871.91.

Recalculation of relevant earnings and interest

• [12] In March 2004, Mr Buis requested the Corporation to reassess his original “relevant earnings” to include the value of allowances that he received from the RNZN. Following investigation, the Corporation agreed to include the value of certain allowances in its calculation of relevant earnings. Arrears based on the new earnings figure totalled $124,956.72.

• [13] Arrears of interest were initially calculated in the sum of $109,042.15. The “all information necessary” date relied upon by the Corporation was the

⁶ Buis v Accident Compensation Corporation DC Wellington 246/2003, 10 October 2003.

date of the High Court decision in Lewis⁷ being 13 April 1994. Following further communication with Mr Buis, the Corporation revisited the matter and on 19 February 2007 issued a further letter accepting that the “all information necessary” date should be that of the Accident Compensation Appeal Authority’s decision in Lewis.⁸ This date was 13 July 1992. The Corporation recalculated the total interest payable in the sum of $118,620.27.

Further request for reconsideration of entitlement to interest

• [14] Mr Buis wrote to the Corporation on 28 April 2017 requesting that the Corporation reconsider his entitlement to interest on the weekly compensation arrears payments made in December 2006. He contended that the interest on the arrears should be calculated under the original s 72.

• [15] The Corporation responded on 29 May 2017 stating that issues raised by him had been fully considered in previous communications over the years. The Corporation was satisfied that its decision of 19 February 2007 was correct. The letter went on to state that the Corporation would not be responding to any further correspondence in the matter “unless you are able to provide new information that has not previously been provided to us”.

• [16] Mr Buis sought to provide that further information in a letter dated 7 November 2017. In summary, he considered that there had been failures by the Corporation in the calculation of [weekly compensation] following the Lewis decision. In addition, the necessary information was always available from the RNZN if the Corporation had requested the same.

• [17] The Corporation’s internal panel considered the matter and on 14 November 2017 issued a further decision letter advising that a further interest payment of $276.35 would be made on Mr Buis’ backdated weekly compensation. The letter went on:

The amount of interest we’re paying covers the period from 1 July 1992, the earliest date that ACC can calculate interest from, to 18 December 2006, the date we paid your backdated weekly compensation for 17 January 1977 to 20 June 2006. $276.35 is the difference between the recalculated interest total of $118,896.62 and the interest amounts already paid on 18 January 2007 of

$109,042.15 and 26 February 2007 of $9,578.12.

• [18] Mr Buis filed an application to review this decision which was heard before Ms Rachael Knight on 10 April 2018. This application was dismissed in a decision dated [8 May] 2018 and Mr Buis subsequently lodged a notice of appeal to the District Court.

⁷ Accident Rehabilitation & Compensation Insurance Corporation v Lewis (1994) 16 NZTC 11,234 (HC). For background, I interpolate to note that the decision in Lewis confirmed that earnings relevant to the calculation of weekly compensation should include non-taxable earnings. In this case, this includes Mr Buis’ allowances paid to him by the RNZN.

⁸ Cited by Judge Sinclair as: Lewis v Accident Rehabilitation and Compensation Insurance Corporation

No 236/92.

• [11] Given the matters raised on Mr Buis’ application for special leave to appeal, it is helpful to summarise at this point the various decisions and payments made in relation to Mr Buis’ weekly compensation over the years:

(a) 30 October 1999 – weekly compensation arrears payment made (following settlement in early 1999);

(b) 20 March 2000 – interest on (a) above paid (from 1 July 1992);

(c) 9 April 2001 – further weekly compensation arrears payment made;

(d) 16 May 2001 – further interest paid following (c) above;

(e) 18 April 2004 – further payment of weekly compensation arrears (the precise basis for this further payment is unclear on the materials before me);

(f) 28 April 2004 – further payment of interest made (for periods pre-dating 1 July 1992, following the decision of Judge Hole referred to at [11] of the above extract from Judge Sinclair’s judgment);

(g) 15 and 18 December 2006 – further payments of weekly compensation arrears (backdated to 17 January 1977), based on information provided by Mr Buis (in March 2004) on allowances received by him from the RNZN;⁹

(h) 17 January 2007 – interest decision and payment on the weekly compensation arrears payment at (g) above (the “all information necessary” date being the date of this Court’s decision in Lewis);

(i) 19 February 2007 – further interest decision and payment made following acceptance by the Corporation that the “all information

⁹ This is the point at which Mr Buis accepts the Corporation correctly calculated his weekly compensation entitlement.

necessary” date should be the date of the Accident Compensation Appeal Authority’s decision in Lewis (13 July 1992);

(j) 29 May 2017 – the Corporation declines to review the 2007 interest decisions following Mr Buis’ submission that he is entitled to interest on arrears payments for periods prior to 1 July 1992; and

(k) 14 November 2017 – the Corporation agrees to pay interest from 1 July 1992 (that is, rather than from 13 July 1992 as per (i) above).

Judge Sinclair’s decision

• [12] After summarising the factual background to the appeal, the relevant statutory provisions and Mr Buis’ submissions, the Judge identified the principal issue for determination as being:¹⁰

... whether the Corporation was required to apply the original s 72 provision or the modified s 72 pursuant to s 371 of the 2001 Act when it considered Mr Buis’ entitlement to interest on the 2006 arrears payment of weekly compensation in early 2007.

• [13] The Judge recorded her view that this issue was considered by the High Court in McLean v Accident Compensation Corporation¹¹ and the Court of Appeal in Robinson v Accident Compensation Corporation.¹² Those decisions confirmed that the Corporation must apply the legislation in force at the time it considers or determines a claimant’s payment of interest.

• [14] The Judge then noted that the Corporation had made an arrears payment of weekly compensation to Mr Buis in December 2006, and that:¹³

The decision on interest was initially made in January 2007 and revised in February 2007 before being revised again in November [2017]. These events fall clearly within the operation of the 2001 Act.

¹⁰ Decision of Judge Sinclair, above n 1, at [24].

¹¹ McLean v Accident Compensation Corporation HC Auckland CIV-2007-485-2653, 2 May 2008.

¹² Robinson v Accident Compensation Corporation [2006] NZCA 289; [2007] NZAR 193 (CA).

¹³ Decision of Judge Sinclair, above n 1, at [29].

• [15] The Judge rejected Mr Buis’ argument that he was entitled to have matters addressed in terms of the original s 72 as preserved by s 18 of the Interpretation Act 1999.¹⁴ She stated that s 371 of the 2001 Act preserves the payment of interest for periods prior to the enactment of that Act, but expressly confines this to periods after 1 July 1992.

• [16] The Judge also rejected Mr Buis’ contention that a letter he sent in March 1999 seeking interest to be calculated at a later time had preserved his entitlement to interest under the original s 72.¹⁵ The Judge said that this letter related to the arrears payment of weekly compensation being calculated at that time, not the arrears payments made in December 2006.

• [17] The Judge declined to apply the earlier decision of Judge Hole¹⁶ on the basis that that decision had no application to the situation before her.¹⁷ In his 2003 decision, Judge Hole made a factual finding that Mr Buis’ claim for interest had been made before 1 July 1999, whereas in the case before Judge Sinclair, the claim for interest had been made in 2006 and in relation to a different arrears claim.

• [18] Next, the Judge rejected a submission made by Mr Buis based on the decision in Accident Compensation Corporation v Kearney,¹⁸ on the basis that Kearney did not assist Mr Buis’ argument (under s 390 or otherwise).¹⁹ The Judge recorded that in Kearney, the Corporation had made errors and in addition had “all information necessary” in December 1986 to correctly calculate Mr Kearney’s weekly compensation. The Judge highlighted that despite these factors, the Court of Appeal still found that s 458 of the Accident Insurance Act 1998 (the 1998 Act) applied and the commencement date for the payment of interest was 1 July 1992.²⁰

¹⁴ Decision of Judge Sinclair, above n 1, at [30]–[31].

¹⁵ At [32].

¹⁶ Buis v Accident Compensation Corporation, above n 6.

¹⁷ Decision of Judge Sinclair, above n 1, at [33].

¹⁸ Accident Compensation Corporation v Kearney [2010] NZCA 327.

¹⁹ Decision of Judge Sinclair, above n 1, at [34]–[36].

²⁰ I note that the Judge’s summary of Kearney is potentially in error, and her Honour may have intended to refer to the judgment in Robinson, given it was that judgment in which the “all information necessary” date was December 1986 (see Robinson v Accident Compensation Corporation, above n 12, at [6]), yet interest was not payable for periods prior to 1 July 1992. The decision in Kearney is, however, to the same effect.

• [19] The Judge also rejected an argument that the decision in King v Accident Compensation Corporation²¹ had application on the facts before her.²² She said the facts and issues under consideration in that case were quite different, and more importantly, King involved a consideration of transitional provisions in the 1992 Act which she did not consider relevant to Mr Buis’ appeal.

• [20] In terms of s 390 of the 2001 Act, the Judge accepted the Corporation’s submission that the 2007 interest decisions were new decisions and did not involve the revision of the 2000 and 2001 interest decisions.²³ On that basis the Judge concluded that s 390 did not apply.

• [21] The Judge noted that Mr Buis’ assertions that the Corporation had breached its duties and obligations to collect “all information necessary” were not relevant, because the Corporation accepted it had received “all information necessary” by or before 1 July 1992, which was the earliest date from which the Judge had found interest was payable.²⁴

• [22] The Judge concluded that, as the 2001 Act was in force at the time of the 2007 interest decisions, and s 371 expressly modifies s 72 of the 1992 Act with the effect that interest is not payable before 1 July 1992, the interest payments made to Mr Buis were correctly calculated by the Corporation.²⁵

• [23] The Judge therefore dismissed the appeal.

Judge Clark’s decision (leave to appeal)

• [24] In considering Mr Buis’ application for leave to appeal Judge Sinclair’s decision to the High Court, Judge Clark agreed with the Corporation that the relevant decisions regarding compensation arrears and interest had been made in late 2006 and early 2007, such that the relevant Act was the 2001 Act.²⁶ Thus, the transitional

²¹ King v Accident Compensation Corporation [1994] NZAR 159 (HC).

²² Decision of Judge Sinclair, above n 1, at [37].

²³ At [40]–[41].

²⁴ At [42].

²⁵ At [43]–[44].

²⁶ Decision of Judge Clark, above n 2, at [35].

provision for interest payments was s 371 of that Act, which applied the modified s 72, meaning interest could only run from 1 July 1992.

• [25] The Judge also agreed that the decisions were new decisions and not the revision of earlier decisions, therefore s 390 did not apply.²⁷ Further, the Judge said that even if these decisions should have been made prior to 1992, on the authority of Kearney, Robinson and McLean, interest could only run from 1 July 1992.

• [26] The Judge concluded that Judge Sinclair’s decision was correct and that while Mr Buis had raised a question of law, it was not one capable of bona fide and serious argument.²⁸ The Judge accordingly dismissed Mr Buis’ application.

Question of law Mr Buis seeks to appeal

• [27] Section 162 of the 2001 Act limits appeals to this Court to appeals on a question of law. It is not in dispute that a question of law arises on Mr Buis’ proposed appeal.

• [28] Before proceeding further, and given the somewhat wide-ranging nature of Mr Buis’ submissions before this Court, it is helpful to set out the question of law on which Mr Buis proposes to appeal.

• [29] In his application to the District Court seeking leave to appeal, Mr Buis framed his proposed question of law as follows:

Did the District Court misconstrue the relevant transitional provisions when determining how s 65 of the [2001] Act applied to the revision of the interest decision.

• [30] As Judge Clark noted in his decision, while Mr Buis’ question of law referred to s 65 of the 2001 Act, that provision deals with the revision of decisions made under the 2001 Act, that is, decisions made after 1 April 2002.²⁹ In his submissions both in the District Court and this Court, Mr Buis relies primarily on s 390 of the 2001 Act, which addresses the revision of decisions made under the earlier accident

²⁷ Decision of Judge Clark, above n 2, at [36].

²⁸ At [37]–[38].

²⁹ At [29], n 21.

compensation legislation. Like Judge Clark, I proceed on the basis that Mr Buis relies on both provisions and indeed, primarily on s 390.

• [31] In his application for special leave to appeal to this Court, Mr Buis frames his proposed question(s) of law in a somewhat broader way:

...[W]as it open to the Corporation to revise the earlier interest decision due to error under the 1992 Act by way of s 390 ACC Act 2001 rather than issue a fresh decision under s371 of the 2001 Act?

And if s 390 ACC Act 2001 by way of revision was open to the Corporation, was the decision to apply s 371 ACC Act 2001 reasonable in terms of s 54 of the ACC Act 2001?

In finding that s 371 ACC Act 2001 did apply did the Court give undue weight to the Appellant not being aware of the High Court decision in Lewis until the 2001 Act was in force?

Parliament said that the overarching purpose of the interest provision was as an encouragement to Administrative efficiency, is this consistent with the Courts findings given the Corporations failures?

• [32] I consider the issue may be framed in more simple terms:³⁰

In the circumstances of this case, is there any statutory authority for the Corporation to pay interest on weekly compensation arrears payments made to Mr Buis for periods prior to 1 July 1992?

Legal principles – special leave to appeal

• [33] The principles governing an application for special leave to appeal were summarised by Fisher J in Kenyon v Accident Compensation Corporation as follows:³¹

• [15] In his helpful submissions Mr Corkhill summarised the effect of the authorities relating to special leave as follows:

(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA).

(b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principal at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle, Manawatu Co-operative Dairy Co Ltd v Lawry [1988]

³⁰ See for example Robinson v Accident Compensation Corporation, above n 12, at [9].

³¹ Kenyon v Accident Compensation Corporation [2001] NZHC 1301; [2002] NZAR 385 (HC).

DCR 509, Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43.

(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O’Loughlin v Healing Industries Ltd (1990) 2 PRNZ 464.

(d) It is for the Applicant to show that leave is required in the interests of justice: Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).

(e) As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chow Mein Fashions Ltd.

Relevant statutory provisions

• [34] The original s 72 of the 1992 Act (that is, as enacted) provided as follows:

72. Payment of interest where Corporation or exempt employer makes late payment of compensation based on weekly earnings—Where any payment of compensation based on weekly earnings to which a claimant is entitled is not paid by the Corporation or exempt employer within 1 month after the Corporation or exempt employer has received all information necessary to enable calculation of the payment, interest shall be paid on the amount payable by the Corporation or exempt employer at the rate for the time being prescribed by or for the purposes of section 87 of the Judicature Act 1908 from the date on which payment should have been made to the date on which it is made.

(emphasis added)

• [35] I interpolate to note that prior to the coming into force of the original s 72 (on 1 July 1992, being the date on which the 1992 Act came into force), there was no statutory basis upon which the Corporation could pay interest on weekly compensation arrears payments. And as can be seen, the original s 72 did not have an express “backstop” prior to which interest could not be paid. This Court in GPB v Accident Rehabilitation and Compensation Insurance Corporation subsequently held that the original s 72 permitted payment of interest from before it came into force, and thus prior to 1 July 1992.³²

³² GPB v Accident Rehabilitation and Compensation Insurance Corporation HC Wellington AP393/97, 23 November 1998.

• [36] The 1998 Act came into force on 1 July 1999, repealing the 1992 Act. Section 458 of the 1998 Act provided as follows:

458. Interest on late payments— Despite section 417, —

(a) Section 72 of the [1992 Act] continues in effect as if that section had not been repealed; but

(b) Section 72 has effect to require the payment of interest only in respect of calculations made under that Act for the period 1 July 1992 to 1 July 1999.

• [37] As the Court of Appeal observed in Kearney, “[s] 458(b) reversed the effect of

GPB.”³³ Section 458 accordingly established the modified s 72.

• [38] The 2001 Act came into force on 1 April 2002 and repealed the 1998 Act.

• [39] Part 11 of the 2001 Act provides for how the Corporation is to deal with those persons who had been injured prior to the 2001 Act coming into force. Section 355(1) provides:

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.

• [40] Section 371, which falls within Part 11 of the 2001 Act, provides:

371 Interest on late payments of weekly compensation

(1) Despite section 339, section 72 of the Accident Rehabilitation and Compensation Insurance Act 1992 (as continued by section 458 of the Accident Insurance Act 1998) continues in effect to the extent that it requires payment of interest only in respect of calculations made under that Act for any period commencing on or after 1 July 1992 for which weekly compensation is payable.

(2) Despite section 339,—

(a) section 101 of the Accident Insurance Act 1998 continues in effect as if that section had not been repealed; but

(b) section 101 has effect to require the payment of interest only in respect of calculations made under that Act for the period 1 July 1999 to 1 April 2002.

³³ Accident Compensation Corporation v Kearney, above n 18, at [20].

• [41] The Court of Appeal in Kearney explained s 371’s history and operation as follows:

• [9] By the time the issue of interest arose, the Accident Compensation Act 2001 (the 2001 Act) was in force. Section 339(1) had repealed the 1998 Act. In turn, s 417(1) of the 1998 Act had repealed the Accident Rehabilitation and Compensation Insurance Act 1992 (the 1992 Act); s 179(1) of the 1992 Act had repealed the 1982 Act. Accordingly, except as provided by transitional provisions to which we will come, the only relevant statute in force was the 2001 Act. In broad terms, Part 11 of the 2001 Act provided for how the Corporation was to deal with those who had been injured prior to the 2001 Act coming into force. Mr Kearney’s case was covered by s 355(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.

• [10] One of the sections in Part 11 is s 371. Because of the importance of that section to this appeal, we set it out in full.

...

• [11] By way of explanation, s 339 of the 2001 Act is the section which repealed the 1998 Act. By the “despite section 339” device, that Act continued in force for the limited purpose specified in s 371. Section 72 of the 1992 Act was the section empowering and requiring the Corporation to pay interest on late payments of compensation under the 1992 Act. Section 101 of the 1998 Act was the equivalent section applicable for the period that Act was in force, namely 1 July 1999 to 1 April 2002.

• [12] There is a further quirk to s 371(1) which requires explanation. That subsection preserved s 72 of the 1992 Act, but only “to the extent that it requires payment of interest only in respect of calculations made under that Act for any period commencing on or after 1 July 1992”. The reason for that qualification is this. An issue had arisen under the 1992 Act as to whether s 72 of that Act permitted or mandated the payment of interest prior to 1 July 1992, the date on which the 1992 Act came into force. The Corporation contended it did not, but this argument did not prevail in at least one District Court case. At the time the 1998 Act was before Parliament as a Bill, another case was making its way to the High Court on the same issue. Parliament made its position clear by specifically providing in s 458(b) of the 1998 Act that s 72 of the 1992 Act, which continued in effect as a transitional provision, required the payment of interest “only in respect of calculations made under [the 1992] Act for the period 1 July 1992 to 1 July 1999”.

• [13] So what s 371 of the 2001 Act makes clear is that interest for the period 1 July 1992 to 1 July 1999 is payable and calculated under s 72 of the 1992 Act and interest for the period 1 July 1999 to 1 April 2002 is payable and calculated under s 101 of the 1998 Act. For the period after 1 April 2002, s 114 of the 2001 Act applies. ...

(citations omitted)

• [42] Finally, a further relevant provision within Part 11 of the 2001 Act is s 390, which provides as follows:

390 Corporation may revise decisions

(1) The Corporation may revise any decision specified in subsection (2) if it appears to the Corporation that the decision was made in error, whatever the reason for the error.

(2) The decisions are the following decisions made before the commencement of this Act:

(a) decisions made by the Corporation (including decisions about premiums):

(b) decisions not made by the Corporation, but made in respect of claims that the Corporation is responsible for managing.

(3) In revising a decision, the Corporation must apply the Act that applied at the time when the decision being revised was made.

(4) The Corporation may revise a decision that, by operation of section 66(1) of the Accident Insurance Act 1998, it has accepted a claim.

(5) However, if the Corporation issues a decision in reliance on subsection (4), the Corporation may not recover from the claimant any payments made by it, in respect of the claim, before the date of the revision unless the claimant made statements or provided information that are, in the opinion of the Corporation, fraudulent or intentionally misleading.

(6) A revision may—

(a) amend the original decision; or

(b) revoke the original decision and substitute a new decision.

(7) Every amendment to a decision, and every substituted decision, is a fresh decision.

(8) Part 5 applies to every fresh decision made under this section. (emphasis added)

• [43] As can be seen, s 390(3) provides an “escape hatch” out of the 2001 Act and back into earlier iterations of the accident compensation legislation – hence Mr Buis’ reliance on this provision as a means of taking him, and the Corporation, back to the original s 72.

Submissions

Mr Buis’ submissions

• [44] I asked Mr Buis at the hearing if the 8 May 2018 review decision provided an accurate summary of his position, and he confirmed that it did. That decision helpfully summarised the key points from Mr Buis’ submissions as follows:

One of the policy decisions made by the ACC Board specified the content of the ACC C3 form, which required the employer to provide details of gross taxable weekly earnings up to the date of the claimant’s accident and stated that the employer was to include all overtime, taxable allowances and taxable benefits, but not include non-taxable items.

The Board breached its duties and obligations by unreasonably and unlawfully limiting its policy and requisite earnings information in the C3 form.

The Accident Compensation Appeal Authority in Lewis v ACC (236/1992) held that the calculation of employee earnings was not limited to taxable amounts returned as income by the employee. ACC appealed but the Authority’s decision was upheld by the High Court (Lewis (HC149/93).

ACC had ten opportunities prior to 22 June 2006 to calculate his compensation according to the law, but each time deliberately chose to apply a process that it knew would underpay him.

ACC correctly calculated his earnings as an employee on 22 June 2006 only because he found out about the Lewis decision and obtained the necessary information from the Navy (his former employer).

By making the arrears payment to Mr Buis on 11 December 2006, ACC admitted that its policy was wrong.

This situation falls within the ambit of ACC v Kearney (NZCA 327, 27 July 2010) and Manapori v ACC (007/2017).

In Buis v ACC (246/2003) Judge Hole found that s.72 of the 1992 Act applied to the payment, so that interest was due on unpaid weekly compensation arrears for periods prior to 1 July 1992 by way of s.138 of that Act.

The 2004 arrears and interest payments are a revision by way of s390 given that the first decisions in 2000 were wrong. The last payments of arrears in 2006 should be a revision of the 2004 decision, given that ACC was in breach of its duties in respect of employees’ non-taxable allowances under the 1982 Act.

ACC is attempting to negate his existing rights under s391 by trying to side- step the decision of the District Court in Lewis. ACC’s submissions appear to give no weight to its responsibilities in respect of the Lewis [judgment], which was a decision that had retrospective effect.

The [judgment] in McLean cited by ACC can be distinguished, from his case as the appellant in McLean did not apply for interest until the 2001 Act.

The correct applicable provision is s.390 so that s.72 of the 1992 will apply. ACC is attempting to apply the wrong statutory provision [s 371] so as to avoid its liability to pay the correct amount of interest and so thwart the current legal position as decided by the Courts.

• [45] Mr Buis makes some supplementary points in his application for special leave and accompanying submissions:

(a) He says that it is in the interests of justice that the appeal be heard, given the public interest in the Corporation’s “obvious failure in its statutory duty which has [brought] about the delay in payments in the first instance”; and

(b) that the 14 November 2017 interest decision is unreasonable in terms of s 54 of the 2001 Act (pursuant to which the Corporation must make reasonable decisions in a timely manner).

• [46] For completeness, I note that Mr Buis said in his notice of appeal to the District Court that the review decision’s emphasis of the discretionary term “may” in s 390 fails to follow legal authority that in context and depending on the circumstances, the word “may” can be mandatory.³⁴ This matter is not raised, however, in Mr Buis’ application for special leave.

The Corporation’s submissions

• [47] Mr Hunt, for the Corporation, submits that the decisions of Judge Sinclair and Judge Clark are correct.

• [48] Mr Hunt first says that to the extent Mr Buis now argues that the Corporation did not properly give effect to Judge Hole’s decision, if that were the case (leaving transitional issues and provisions to one side), the appropriate means of challenging the Corporation’s decisions following Judge Hole’s decision would be a challenge to

³⁴ Mr Buis cites Far North District Council v Local Government Commission [1994] 3 NZLR 78 (HC) as authority for this proposition.

those particular decisions. Such challenges would, in the first instance, be to the correctness of the calculation of weekly compensation. Mr Hunt submits that as such challenges were not the subject of Judge Sinclair’s decision, nor the subject of Judge Clark’s decision, they cannot be raised in seeking special leave to appeal to this Court.

• [49] Second, Mr Hunt emphasises that the issue before the Court is not concerned with the correctness of the Corporation’s calculation of weekly compensation, as confirmed by the question of law Mr Buis proposed in seeking leave to appeal to this Court, and then special leave to appeal. Rather the key issue is whether there is some basis upon which the Corporation can and ought to pay to Mr Buis interest on weekly compensation payments for periods pre-dating 1 July 1992.

• [50] In this context, Mr Hunt submits that as confirmed by Judge Clark, the decisions made by the Corporation in relation to both weekly compensation and interest were made in December 2006 and early 2007, when the relevant and applicable statute was the 2001 Act. That Act also provided for the application of the modified s 72, per s 371 of the 2001 Act, which limits the payment of interest, prospectively, from 1 July 1992.

• [51] Mr Hunt submits that Judge Clark was right to conclude that the decisions made were new decisions, and were not revisions of earlier interest decisions. He says that, to the extent that such new decisions reflected the Corporation’s reconsideration of weekly compensation entitlements, they may be decisions capable of review and appeal – but the focus of Mr Buis’ argument has not been on the correctness of those decisions, but on whether he has any entitlement to interest in respect of the calculated arrears for periods prior to 1 July 1992.

• [52] Mr Hunt says that Judge Clark was also right to conclude that even if such decisions should have been made before 1992, decisions such as Kearney, Robinson and McLean, where decisions in relation to weekly compensation had in fact been made prior to 1992, were of no assistance to Mr Buis, as in each of those cases the interest entitlement still ran only from 1 July 1992.
• [53] Mr Hunt summarises the Corporation’s position to be that where an issue is raised which goes to the heart of the correctness of a calculation of a weekly compensation entitlement, the Corporation is generally willing to reconsider such a decision and if it is shown to be wrong, revise it. In this case, the Corporation has made a number of calculations of weekly compensation commencing in late 2006 and extending into 2007; however, Mr Buis’ issue is not with those decisions, but with the date from which interest on the amount of compensation as was calculated in 2006 should run.

• [54] For these reasons, Mr Hunt submits it is clear that interest cannot, under any circumstances, be paid for any period prior to 1 July 1992.

Relevant legal authorities

• [55] Before turning to my assessment of the parties’ submissions, it is helpful first to address the key authorities upon which they rely. There are three decisions in particular which, while not directly on point, are of considerable assistance in determining the present application.

• [56] The Corporation relies on the decisions of the Court of Appeal in Robinson and Kearney, and the High Court in McLean. Judge Clark stated that all of these cases “are on point”.³⁵ As already observed, while I do not consider they are directly on point (in that none of them consider whether s 371 or s 390 ought to apply to the decision in issue), they are nevertheless of some guidance.

• [57] Turning first to Robinson, in that case, Mr Robinson had suffered injuries in 1986.³⁶ He received weekly compensation for several years, but the Corporation stopped paying it in 1988 when he failed to provide further medical certificates. In 2001, the Corporation accepted that he was entitled to weekly compensation from 1986, and paid compensation, appropriately backdated. Mr Robinson then sought interest on that payment. Eventually, the Corporation paid him interest from 1 July 1992; however, Mr Robinson contended that he should also get interest for the period

³⁵ Decision of Judge Clark, above n 2, at [30].

³⁶ Robinson v Accident Compensation Corporation, above n 12.

15 January 1987 to 30 June 1992. Mr Robinson argued in the Court of Appeal that his entitlement to interest should be evaluated under the original s 72.

• [58] The Court of Appeal said that whether a claimant has an interest entitlement will depend on the legislative provisions applying at the time his or her claim is determined.³⁷ Therefore, despite the finding in the District Court that the Corporation had all information necessary to calculate Mr Robinson’s weekly compensation as of December 1986 (being a point in time when the original s 72 was in force), at the time the Corporation determined Mr Robinson’s claim to interest, only the modified s 72 remained in force in accordance with s 458 of the 1998 Act. Interest was therefore payable only from 1 July 1992.³⁸

• [59] McLean was another case in which an injured person sought to have interest paid for periods prior to 1 July 1992.³⁹ Ms McLean had been injured in 1990. She received weekly compensation until 31 May 1991. In 1995, a Review Officer directed the Corporation to reinstate Ms McLean’s weekly compensation from 31 May 1991. The Corporation paid her arrears of weekly compensation from 1 June 1991. Ms McLean did not raise the issue of interest until June 2002. By that time, the 2001 Act was in force. Counsel for Ms McLean argued that the applicable law was s 72 of the 1992 Act. (As the Court of Appeal noted in Kearney, this was exactly the same argument raised in Robinson.) Judge Barber, at first instance, rejected Ms McLean’s submission.⁴⁰ He observed that at the times the Corporation considered her entitlement to interest (that is, in September 2002 and then in April 2006), the 2001 Act was in force. He explained:

[49] The Corporation is a creature of statute and must apply the legislation in force at the time it considers and determines a claimant’s payment of interest. The relevant legislation in force here was the 2001 Act. Such legislation had expressly modified s.72 of the 1992 Act with the effect that interest is not payable before 1 July 1992. Parliament decided on 1 April 2002 that interest on unpaid compensation would only run from 1 July 1992 and not for any period prior to that.

³⁷ Robinson v Accident Compensation Corporation, above n 12, at [9].

³⁸ At [26]–[27].

³⁹ McLean v Accident Compensation Corporation, above n 11.

⁴⁰ McLean v Accident Compensation Corporation DC Whangārei AI289/06, 2 July 2007.

• [60] Judge Barber also observed:

• [30] It seems to me that the purpose of the said ss.458 (of the 1998 Act) and 371 ... (of the 2001 Act) are clearly two-fold:

(a) To preserve the payment of interest for periods prior to the enactment of the new legislation; and

(b) To confine the payment of interest to periods after 1 July 1992.

• [61] Stevens J subsequently declined special leave to appeal to the High Court, stating that he agreed entirely with Judge Barber’s reasoning. Stevens J said:⁴¹

• [35] With respect to the argument for the appellant based on the applicability of s 72 in the 1992 Act, I am satisfied that the approach followed by the Judge in the District Court was correct. Such an approach finds support from the dicta in the Court of Appeal in Robinson and the other authorities cited at [31] above. I agree with the submission of counsel for the Corporation that the application of the relevant legislation at the time that the determination is made by the Corporation regarding payment of compensation (or interest) is consistent and would avoid haphazard results dependent upon accidents of timing.

• [36] So far as the Corporation is concerned, being a creature of statute it must apply the legislation in force at the time it is dealing with any particular claim. It would be entirely artificial to say that the Corporation, dealing with claims for interest in 2003 or 2006, could reach back and apply s 72 of the 1992 Act when, at the point of determination, that section had been repealed. It is true that the effect of s 72 continued in part at those times, but that was only due to the effect of s 371 of the Act. By its express terms the payment of interest prior to 1 July 1992 was not possible.

• [62] In Kearney, Mr Kearney had suffered injuries in February 1985.⁴² He claimed cover under the Accident Compensation Act 1982 (the 1982 Act). The Corporation accepted his claim, but subsequently terminated his weekly compensation payments on 31 July 1991. In October 2004, the Corporation accepted that Mr Kearney was entitled to compensation from 1 August 1991, and made a backdated payment. In 2005, Mr Kearney sought interest on that payment. The Corporation initially determined that no interest was payable; subsequently a Review Officer determined that interest was payable from 19 August 2003, being the date when the Corporation had all information necessary to make the correct weekly compensation payments. Mr Kearney contended that interest should run from “as and when the weekly

⁴¹ McLean v Accident Compensation Corporation, above n 11.

⁴² Accident Compensation Corporation v Kearney, above n 18.

payments were due”, although he accepted that, under the relevant statutory provisions, 1 July 1992 was the earliest date from which interest could run.

• [63] The Court of Appeal said that by the time the issue of interest arose (2005), and except as provided by the transitional provisions, the only relevant statute in force was the 2001 Act. The Court held that the Corporation could not rely on its own error in failing to request information to delay the “all information necessary” date until August 2003. The Court held that the reason the Corporation had ceased Mr Kearney’s payments was because of its erroneous interpretation of the Act, and that it did not ask for information it needed in a timely way.⁴³ For that reason, the Court concluded that the Corporation had all information necessary to correctly calculate Mr Kearney’s entitlements as at 31 July 1991.⁴⁴ Despite this, however, the Court held that interest could only run from 1 July 1992, in accordance with the modified s 72 as continued in force by s 371 of the 2001 Act. The Court noted that its decision was consistent with the reasoning in Robinson. The Court also noted that Judge Barber’s analysis in McLean was exactly in line with its own analysis in Kearney.⁴⁵

• [64] Mr Buis refers to two further cases: Accident Compensation Corporation v Bartels⁴⁶ and King v Accident Compensation Corporation.⁴⁷ In Bartels, this Court held that where later information shows that an original decision was wrong, then it is appropriate to apply s 390 to correct that original decision.⁴⁸ The Court observed:⁴⁹

Section 390 is a backstop for both claimants and the Corporation when all else has failed (for example the formal claim/appeal system) and yet a decision has been made that is in error. The section’s purpose, therefore, is to ensure that such a decision does not stand where it can be established that the decision has been made in error.

• [65] King concerned an application for judicial review.⁵⁰ The Corporation failed to undertake a s 60 assessment of Mr King (for compensation for permanent incapacity)

⁴³ Accident Compensation Corporation v Kearney, above n 18, at [30] and [32].

⁴⁴ At [30] and [38].

⁴⁵ At [24], citing at McLean v Accident Compensation Corporation, above n 40, at [23]–[30] and [49].

⁴⁶ Accident Compensation Corporation v Bartels [2006] NZHC 939; [2006] NZAR 680 (HC).

⁴⁷ King v Accident Compensation Corporation, above n 21.

⁴⁸ Accident Compensation Corporation v Bartels, above n 46, at [28]–[34].

⁴⁹ At [33].

⁵⁰ King v Accident Compensation Corporation, above n 21.

prior to that provision being repealed under the new 1992 Act. Barker J criticised the Corporation’s attempts to deliberately delay the assessment. He held that Mr King was entitled to judicial review. The Corporation had taken into account an improper consideration, namely the fact that s 60 assessments were being abolished by a new Act not then in force. Barker J ordered the Corporation to consider Mr King’s s 60 application under the 1982 Act.

Discussion

• [66] Mr Buis responsibly acknowledges that if s 371 of the 2001 Act applies, his claim must fail. That must be right, given the authorities referred to earlier in this judgment are clear that as a creature of statute, and when determining a claim for interest, the Corporation must apply the statutory provisions then in force.⁵¹ If that is the 2001 Act, then the effect of s 371 is that interest cannot be paid for periods prior to 1 July 1992.

• [67] In order to avoid the application of s 371, Mr Buis characterises the Corporation’s ongoing decisions in relation to his weekly compensation payments, arrears payments, and then interest on those arrears payments, as all part of a single error correction process, such that the interest decisions are effectively tied to or “attached” to the earlier weekly compensation decisions (ultimately deriving from the weekly compensation decision of October 1999).

• [68] I do not accept that approach. Both the statutory provisions and the authorities discussed earlier make it clear that a person’s entitlement to first, weekly compensation arrears payments and second, interest on those payments, are separate matters. Under the statutory provisions, for example, there is no express “backstop” for the payment of weekly compensation arrears as there is with the payment of interest (as a result of the modified s 72). In addition, the “triggers” for the payment of weekly compensation and interest on weekly compensation arrears payments are different – the latter being when the Corporation has “all information necessary” to

⁵¹ In this way, the authorities do not tie the relevant statutory provisions to the point at which interest is claimed. A similar approach is adopted in s 390(3) of the 2001 Act (see [42] above), namely that if a decision revises an earlier decision, the statutory provisions in force at the time the earlier decision was made are to apply (and not the statutory provisions in force at the time the original claim was made).

correctly calculate a claimant’s weekly compensation. In terms of the authorities, those referred to earlier in this judgment highlight the distinction between the payment of weekly compensation arrears and interest payable on those arrears. For example, in Robinson, weekly compensation backdated to 1986 was paid, but interest on that payment accrued only as of 1 July 1992. Similarly, in Kearney, weekly compensation arrears backdated to 1991 were paid, though interest on that arrears payment was only paid for the period from 1 July 1992 onwards.

• [69] Mr Buis further says that the Corporation cannot “benefit from its own wrong”. He refers to the Corporation’s delay in reaching the correct position on his weekly compensation entitlement, that point having only been reached when the 2001 Act – and thus the modified s 72 – was in force. Mr Buis relies on the Court of Appeal’s judgment in Kearney to the effect that the Corporation should not take advantage of its own inaction.⁵²

• [70] I do not consider this aspect of Kearney assists Mr Buis. Mr Buis said that he provided the Corporation with information concerning his RNZN allowance in February 2004. On the approach adopted by the Corporation (and the Review Officer) in Kearney, this would have been the date upon which the Corporation had all information necessary to correctly calculate Mr Buis’ weekly compensation, and therefore the date from which interest on the arrears payment would accrue. However, assuming for present purposes that it had always been open to the Corporation to have sought information on Mr Buis’ earnings, including non-taxable allowances, the approach adopted in Kearney would mean that the Corporation had all information necessary to calculate Mr Buis’ weekly compensation well before 1992. But that would not alter the appropriate start date for the payment of interest. In Kearney, and applying the principle that the Corporation should not benefit from its own failure to seek out information, the Court of Appeal concluded that the Corporation had all information necessary to correctly calculate Mr Kearney’s weekly compensation as at 1991, yet interest only ran from 1 July 1992.

⁵² Accident Compensation Corporation v Kearney, above n 18, at [32].

• [71] As to the potential application of s 390, it is helpful to reiterate the nub of Mr Buis’ submissions on this point. The issue is put most clearly in Mr Buis’ submissions in reply:

The actual position is that from the first [weekly compensation] decision in 1999 the process had not been finalized due to the Corporations own calculation errors for both [weekly compensation] and interest.

...

The Corporation having full knowledge of the decision in [Lewis] in 1994 meant that every subsequent [weekly compensation] calculation not including the Appellants allowances and attached interest decision was in error. The Hon Judge Sinclair was incorrect in stating at paragraph 32 that the Appellants argument was that the 1999 letter preserved the Appellants right to interest for later periods, rather the point being made was that if the 1999 decision is to be revised at a future time it will [be] because the decision was made in error, the Appellants rights under the 1999 decision were made will be preserved.

... the correctness of the weekly compensation decisions ... directly effects the interest decisions in so far as, if the [weekly compensation] calculation is wrong, then the interest calculated on unpaid arrears will also be in error. If the compensation and interest decisions are in error then s 390 must be applied to correct the mistake ...

• [72] In this context, it is important to recall that the decision under appeal is the Corporation’s interest decision of 17 November 2017. That decision revised the earlier interest decision of May 2017. On the basis that s 390 applies to the 17 November 2017 decision, the decision being revised was made at a time when the 2001 Act was in force, and thus s 371, and the modified s 72, are still applicable.

• [73] The same conclusion is reached even if the decisions being challenged are the 2007 interest decisions. To recap: in December 2006, the Corporation recalculated Mr Buis’ weekly compensation entitlement, and made the resulting arrears payments required. I proceed on the basis that those December 2006 decisions revised earlier decisions made in relation to weekly compensation. Pursuant to s 390(7), the December 2006 decisions were therefore “fresh decisions”. The 2007 interest decisions involved a new calculation of interest based on the fresh weekly compensation decisions made in December 2006. To put the point another way, the 2007 interest decisions did not revise any earlier interest decisions, and in particular, did not revise those decisions of 20 March 2000 and 16 May 2001 (being the earliest decisions made by the Corporation on interest). Those earlier interest decisions were

not wrong: they correctly calculated interest on the (then) weekly compensation arrears payments that had been made to Mr Buis. The information later provided to the Corporation in 2004 about Mr Buis’ non-taxable allowances meant that the Corporation’s earlier decisions on Mr Buis’ entitlement to weekly compensation had been made in error, but not the 2000 and 2001 interest decisions.

• [74] In this context, Mr Buis suggests that the approach taken in McLean and Kearney can be distinguished because in those cases, interest had not been claimed, and decisions made on those claims, prior to the 2001 Act coming into force. In other words, the interest decisions in those cases could not have revised an earlier interest decision pursuant to s 390 of the 2001 Act, given there were no such earlier decisions to revise. Mr Buis says his case is different, in that there are earlier interest decisions (namely the 2000 and 2001 interest decisions), which in substance were being revised by the 2007 (and 2017) interest decisions.

• [75] I do not consider the presence of pre-2001 Act interest decisions in this case means Kearney, Robinson and McLean are distinguishable. The point remains that the 2007 interest decisions were not themselves revising the Corporation’s 2000 and 2001 interest decisions, but rather were a new calculation of interest based on the fresh weekly compensation arrears decision and payment made to Mr Buis in December 2006. Further and in any event, even if the 2007 (and/or 2017) interest decisions were to be treated as revising the 2000 and 2001 interest decisions, s 390 still does not assist Mr Buis. Pursuant to s 390, the Corporation would be required to apply the law existing at the time the decisions being revised were made. At the time the 2000 and 2001 interest decisions were made, the 1998 Act was in force. The Corporation would accordingly be required to determine interest in accordance with s 458 of that Act, and thus by reference to the modified s 72.

• [76] A final matter is the relevance of Judge Hole’s decision in 2003. Mr Buis places considerable reliance on that decision, his submission being that the approach adopted by the Corporation effectively avoids the proper application of Judge Hole’s determination.
• [77] The nature of Judge Hole’s decision is somewhat curious, and there is very limited material before me in terms of its broader context. The judgment itself is very brief. In it, Judge Hole simply determines a factual matter, namely whether Mr Buis had made a claim for interest prior to 1 July 1999.⁵³ Judge Hole recorded that the parties had agreed that if Mr Buis had claimed interest prior to 1 July 1999, then interest on the weekly compensation decision of 30 October 1999 should be determined pursuant to the original s 72. Judge Hole found that Mr Buis had claimed interest prior to 1 July 1999. He did not make any other directions or orders in relation to the consequences of that finding.

• [78] It is not clear to me that the fact Mr Buis claimed interest prior to 1 July 1999 leads to the conclusion that the original s 72 ought to apply to his entitlement to interest. As later appellate authorities have made clear, the Corporation is a creature of statute and must apply the legislation in force at the time it makes a determination. All of the Corporation’s decisions on interest in this case post-date the repeal of the original s 72. The parties did not have the benefit of decisions such as Robinson, McLean and Kearney at the time of Judge Hole’s judgment. They may nevertheless have agreed that if Mr Buis had made a claim for interest in March 1999, the Corporation would “correct” its 2000 and 2001 interest decisions (albeit made when the 1998 Act was in force) in accordance with the original s 72. Judge Hole’s decision resulted in the Corporation paying Mr Buis a further $73,871.91 in interest in April 2004. In that sense at least, Mr Buis has had the benefit of Judge Hole’s decision.

• [79] Mr Buis says in relation to this payment that “s 390 [was] applied to pay interest under [the] 1992 Act”.⁵⁴ I do not agree. Even if the Corporation’s decision on interest implementing Judge Hole’s judgment was treated as a revision of the March 2000 and May 2001 interest decisions for the purposes of s 390, as noted in the preceding paragraph, those decisions were made at a time when the modified s 72 was in force. As a matter of statute, therefore, the Corporation did not have the power to pay interest for periods prior to 1 July 1992.

⁵³ Although not expressly stated in the judgment, this was no doubt a reference to the date the 1998 Act, and thus the modified s 72, came into force.

⁵⁴ Applicant’s submissions to the High Court, “Historical Schedule of WC Arrears and Interest Payments”.

• [80] In terms of the Corporation’s later interest decisions made in 2007 (or 2017), I agree with Mr Hunt that Judge Hole’s judgment is not relevant to those decisions, that judgment being delivered and concerning decisions made several years prior to the 2007 interest decisions.

• [81] Finally, I am not persuaded that Bartels and King assist Mr Buis. Bartels simply addresses the operation of s 390; it does not provide guidance on the distinction between a “fresh” decision and one which corrects or revises an earlier decision, which is the key issue on the present application. And as Judge Sinclair pointed out,⁵⁵ the facts and issues under consideration in King were quite different, and more importantly, that case involved consideration of the transitional provisions in the 1992 Act (particularly s 60), which are not relevant to Mr Buis’ case.

Result

• [82] The application for special leave to appeal is declined.

• [83] Neither party addressed me on costs. Any party seeking costs may file a memorandum within 15 working days of this judgment. The other party may file a memorandum in reply within a further five working days. I will thereafter determine costs on the papers.

Fitzgerald J

⁵⁵ Decision of Judge Sinclair, above n 1, at [38].