[ernie]

CHALECKI v ACCIDENT COMPENSATION CORPORATION

District Court, Christchurch (336/2004); 21 October 2004
Judge M J Beattie


Mr E Chalecki, In Person
Mr C Hlavac, Counsel for Respondent

RULING OF JUDGE M J BEATTIE

• The respondent has applied by way of preliminary question to determine whether the District Court has jurisdiction to hear the appeal lodged by the appellant. It is Counsel for the Respondent’s assertion that the District Court has no such jurisdiction and that the appeal should be struck out.
  
  
  
• This is not a matter which has come before the Court before, possibly because it relates to the question of the Code of Claimants’ Rights which is provided for in Sections 40-47 of the Act. The previous Accident Compensation Legislation made no such provision for a Code of this type.
  
  
  
• It is the case that a Code has been approved and promulgated in accordance with Section 44 of the Act and came into force on 1 February 2003.
  
  
  
• The background to this matter can be taken from the Review Decision of 13 August 2004.
  
  ·On 26 March 2004, Dr David Rankin, ACC’s Healthwise General Manager was reported in the media as saying –
  
  “People with serious injuries get into the habit of watching TV all day, getting up at midday and lose the routine, lose some of their self-presentation skills.”
  
  ·On 29 March the appellant, who was in receipt of weekly compensation for what he described as ‘a serious injury’ lodged a complaint about Dr Rankin’s comments. The appellant contended that Dr Rankin had breached the Code of Claimants’ Rights.
  
  ·The respondent’s Complaints Investigator carried out an investigation and wrote to the appellant on 6 May 2004. She advised that she found that he had made a valid complaint in relation to the nature of Dr Rankin’s comments, but then went on to state:
  
  “As Dr Rankin’s comments did not specify any individual claimants, I cannot consider they constitute a breach of any one particular individual’s rights under the Code of ACC Claimants’ Rights. Therefore, as these remarks were not directed at you personally, I am unable to apply the provisions of the Code to your complaint. There are no review rights attached to my investigation of non-Code matters.”
  
  ·The appellant lodged an application for review against that letter of 6 May 2004. He sought both a personal apology from Dr Rankin and an apology in the public arena.
  
  ·The respondent took the view that the application for review was not valid because it did not relate to a Code decision and it asked the Reviewer to determine, as a preliminary matter, whether the application for review was valid.
  
  ·In her decision dated 13 August 2004, the Reviewer ruled as a matter of statutory interpretation, that the Code of Claimants’ Rights only applied to a complaint by a claimant in relation to the way the Corporation dealt with that claimant in respect of his/her claim and that it did not extend to claimants generally. She therefore ruled that, on this occasion, the Code did not apply to the appellant’s complaint and that the Complaints’ Investigator was correct to determine that the Code did not apply. She therefore concluded by stating:
  
  “Accordingly, I decline jurisdiction in this matter.”
  
  ·It is against that decision that the appellant has now appealed to this Court. In his Notice of Appeal the appellant seeks the Court “to exercise its constitutional jurisdiction on a question of law, being:
  
  (i)To determine a question of statutory interpretation of the purpose and meaning of Section 40 of the Act, more particularly, whether the words and phrases in that section applies to or implies a class of ACC claimant.
  
  (ii)Whether the Review Officer correctly understood and discharged her powers”.
  
  
  
• Two statutory provisions are relevant to the issue, firstly, Section 134(1)© which states:
  
  “134 Who may apply for review
  
  (1)A claimant may apply to the Corporation for a review of:
  (c )any of its decisions under the Code on a complaint by the claimant.”
  
  Secondly, Section 149 which states:
  
  “149 Who may appeal against a review decision -
  • A claimant may appeal to a District Court against:
    • a review decision; or
      
    • a decision as to an award of costs and expenses
      under Section 148.
    
    
  • The Corporation may appeal to a District Court against:
    • a review decision; or
      
    • a decision as to an award of costs and expenses
      under Section 148.
    
    
  • However, neither a claimant nor the Corporation may appeal to the District Court against a review decision on a decision by the Corporation under the Code on a complaint by the claimant.”
  
  
  
  
• In the light of those two statutory provisions, it is clear that it is only a decision relating to the breach of a claimant’s rights under the Code, in respect of which a claimant has made a complaint, that is capable of being the subject of review consideration. It would be at review that the substance of the complaint and the nature in which it had been addressed by the Corporation would be capable of reconsideration.
  
  
  
• It is patently clear that any decision made on review in the above circumstances is not capable of being taken further by way of appeal to the District Court.
  
  
  
• In the present case, having regard to the Definitions Section in the Code, firstly, the Complaints Investigator, and secondly, the Reviewer, determined that the Code, by its very nature, only applied to individual claimants in respect of specific matters relating to the treatment of them by the Corporation in respect of that claimant’s claims.
  
  
  
• In essence, the Reviewer, by her decision, made a finding that the Complaints Investigator, acting on behalf of the Corporation, had been correct to identify that the appellant’s complaint was not one which came within the purview of the Code, and could therefore not be the subject of a complaint or be the subject of any particular remedial action by the Corporation.
  
  
  
• Whilst therefore the Reviewer did not consider the substance of the complaint and the apology given, remembering that it is the extent of the apology about which this appellant is still complaining, the Reviewer effectively determined that it was not open to her, as the review body, to consider the substantive question of the appellant’s ‘complaint’.
  
  
  
• Whether it be as a matter of substance or procedure, I find that the provisions of Section 149(3) of the Act, preclude this Court from giving any consideration to a review decision which purports to be consideration of a Code complaint.
  
  
  
• The short answer is that the District Court has no jurisdiction to hear an appeal relating to a Code complaint, be it a complaint which is legitimate under the Code, or one such as this appellant has, a complaint against the Corporation but which is not a Code complaint.
  
  
  
• In all the circumstances, therefore, this appeal cannot proceed and it is hereby dismissed.

[watcha]

Another case heard the same day by the same judge got the same result. Judge Beattie completely ignored relevant issues such as an interpretation of the legislation argued before him. If one ignore facts one can reach any conclusion and that exactly is what Judge Beattie did, and both claimants believed they had a fair hearing.

Shows how wrong it is to anticipate the outcome of "fair hearings" - as you stated IDB - a sham and the Code of Claimant's Rights is a sham - nothing more than a pious aspiration. How many claimants have had a complaint upheld and acted upon?

[fairgo]

None that I know of... and I never even got a reply to my complaint, what a farce.

[MG]

I agree that the ouster clause over Code review decisions is outrageous - and this government is just about to enact another of them in the No 3 Bill. I expect even more now that Michael Cullen is to become Attorney-General.
However, I have taken Code decisions to review successfully, much to ACC's disgust and DRSL's reluctance. The remedies are pitiful, though. The real value of Code reviews is that they bring to the surface the ugly reality of ACC's case management practices and place it all on the record. When/if the judicial enquiry into ACC gets underway I am going to refer the Grand Inquisitor to the DRSL files. I still encourage claimants who feel abused by ACC to lodge Code complaints and then proceed to review and have their say.

[ernie]

I've actually had a good track record of complaints being upheld recently, but all the claimant gets is an empty apology.

In one recent one, the Complaints Investigator found on 15 November that Rights 5(a), 5(b) and 6(f) of the Code had been breached, and ordered an apology.

We got the apology, but another 5 weeks down the track, nothing has been done to remedy the breaches (which stem from failure to implement a reviewer's decision in a timely manner) apart from the payment of outstanding review costs.

[Easyrider]

I had 2 complaints upheld, against my case manager. His branch manager wrote me a letter of apology, and told me things will be better in the future. I have just put in another complaint for the same thing, 6 months later. They can break all the rules and have no fear of being held accountabile.

[MG]

All of this stuff will fester in the archives until the day when sunlight, in the form of an enquiry, arrives to disinfect it. Even if we have to wait 100 years for justice, I am convinced that, one day, we will obtain it. This is the only thought that keeps me going here, sometimes.
If you are discouraged about all this, and I admit I am frequently, remember how bleak things were for concentration camp inmates under the Nazis, or Nelson Mandela under the Boers. Eventually, liberation came and justice was done. I must admit, though, that we could do with a Winston Churchill, or someone with the moral courage to take a stand against this wickedness.

[magnacarta]

Don't despair guys, remember the video documentary is coming - it now has a series name "Question Mark ? "

For example, " In this programme we place a question mark over ACC"

"In this programme we place a question mark over DRSL"

In this programme we place a question mark over the decisions of some of our judiciary

In this programme we place a question mark over what is called Parliamentary sovereignty

In this programme we place a question mark over the Treaty of Waitangi.

In this programme we place a question mark over the Auckland City Council

In this programme we place a question mark over whatever.......etc etc.

I understand that it is now to be an investigative series placing question marks over various public organisations rather than one-off because that type of limited on-off programme cannot do the subject in-depth justice.

Hence the series name Question Mark.

Of course, don't forget Wilson, his cohorts and Dyson will also need to be interviewed or, at least, a request has to be made to them for balance purposes. They'll probably want written questions before hand - but that's OK - so what! The theme can be developed from what they say.

It also appears that it's easy to send the video tapes offshore for broadband streaming onto the internet. Apparantly the quality is higher when streamed onto the internet from overseas countries rather than NZ

The first aim is to get a NZ TV broadcaster to air the programmes but the internet is also available if all else fails. Either way, the programmes will be "on air"

[MG]

When's the video due for release? Given the fact that summer has given us a miss this year, I couldn't think of anything better than snuggling in at home to watch it.

[magnacarta]

MG, the video doco has not even started to be be made yet -

as I understand it is in pre-production story-board, researching, working out shots, planning interviews and who will be interviewed etc etc.

I believe the plan is to commence shooting around February with completion of the first two programmes by april/may and those first two "pilot" programmes broadcast june/july - right in the middle of winter when most are at home and watch TV.

[hukildaspida]

Interesting information and history.