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NO JURISDICTION TO HEAR REVIEW APPLICATION

#1 User is offline   Battleaxe 

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Posted 26 May 2015 - 10:44 AM

Hi everyone, the latest trick that has been pulled out of the Fairway Resolution's hats of tricks is to now claim - less than a week before the hearing date - that there the reviewer believes there is no jurisdiction. They've had this application since 17 October 2015 mind you.

What is the basis to claim no jurisdiction? I'm completely ignorant. The review application was filed in good time - within the 3 month time frame - and the hearing is about a an application that was declined but subsequently revoked and replaced with another decision that covered injuries I did not suffer (G.P. messed up on the ACC45 form but has since advised the ACC of this error, however, the ACC refused to accept this definitive diagnosis and is preferring to hang onto the idea that I have plantar fasciitis rather than plantar fascia rupture diagnosed by my treating Orthopaedic Surgeon). The law allows the ACC to revoke and replace a decision where the original decision was "made in error" but the evidence - which I have laid out in my submissions document - proves that the ACC did not make "an error" and that it actually made a calculated decision to decline my claim.

Anyone got an case law I can quote from in terms of "error" and how this is recognised by the legislation?
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#2 User is offline   Alan Thomas 

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Posted 26 May 2015 - 01:16 PM

A reviewer does not have the authority to do anything of any sort prior to opening the actual review hearing and certainly may not make any form of decision until after the hearing has closed. It seems to me that battleaxes describing at least two wrongdoings.

Fairway has no authority whatsoever and are simply at administrator carrying out administrative functions of providing the facility rather like a caterer.

What you will find is happening is that the ACC has asked that the hearing be heard in the context of the reviewer having no jurisdiction. In reality what is happening is that fairway is involving themselves with decision making and is providing the case work load to be viewed by a different reviewer who streamlines the various review hearings into categories and it is a different reviewer that has determined that the review hearing application is defective. Once the reviewers colleague, the reviewer that is actually hearing the matter sees that as colleague has decided something about how the hearing should proceed then you will find the hearing will be opened on that basis. What they are doing is confusing and confounding the whole legal process making it a nightmare to try and resolve.
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#3 User is offline   Alan Thomas 

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Posted 26 May 2015 - 01:19 PM

Battleaxe you must be very forceful when you go to the review hearing and insist that it is your review hearing application and that is your issue that is going to be heard, to the exclusion of everything else including predetermination made by a third party having no authorisation of law to make any form of comment as what seems to have happened. Seek the reviewers assurance that the terms of the review hearing is in accordance with the review hearing application and your submissions and that no decisions of any sort regarding how the matter is to be heard will be entertained by the reviewer at all. If your review hearing application has been reconfigured into something else then there is no possibility that you can have a decision relevant to your application but rather will end up with a decision made on what the ACC a seeking to be determined making it an ACC review hearing application, not yours. This diversionary tactic seems to be quite commonplace these days.
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#4 User is offline   Battleaxe 

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Posted 26 May 2015 - 01:25 PM

View PostAlan Thomas, on 26 May 2015 - 01:16 PM, said:

A reviewer does not have the authority to do anything of any sort prior to opening the actual review hearing and certainly may not make any form of decision until after the hearing has closed. It seems to me that battleaxes describing at least two wrongdoings.

Fairway has no authority whatsoever and are simply at administrator carrying out administrative functions of providing the facility rather like a caterer.

What you will find is happening is that the ACC has asked that the hearing be heard in the context of the reviewer having no jurisdiction. In reality what is happening is that fairway is involving themselves with decision making and is providing the case work load to be viewed by a different reviewer who streamlines the various review hearings into categories and it is a different reviewer that has determined that the review hearing application is defective. Once the reviewers colleague, the reviewer that is actually hearing the matter sees that as colleague has decided something about how the hearing should proceed then you will find the hearing will be opened on that basis. What they are doing is confusing and confounding the whole legal process making it a nightmare to try and resolve.


Hi Alan, funny you mention the reviewer issue. I managed to get Fairway Resolution to agree to appoint a new reviewer. Today I was advised that the previous reviewer they had appointed - that is after I had complained about certain procedural issues - Mr Rex Woodhouse, has been replaced with a Mrs Clark. Now the review application was submitted on 17 October 2015, the ACC submissions for this particular review hearing were copied to me in April 2015, the ACC's submissions document requests the application be "dismissed" but it does not challenge jurisdiction. This issue of jurisdiction was already decided months ago by the ACC's Natasha Mitchell who - after I argued the point - agreed in writing that there is no jurisdictional issue, and so the review application should proceed. Now this Mrs Clark today advised me - through Fairway Resolution's Ms Toni Hough (co-ordinator) - that there is a jurisdictional issue.

So, should I e-mail the ACC and ask them if they have requested that the application be heard in the context of the reviewer having no jurisdiction? Or do I simply rely on my written evidence from Ms Mitchell - the ACC's Review Unit Solicitor - which confirmed months ago there is no jurisdictional issue? What do you suggest?

I am living the worst nightmare, you're right about that, but I'm trying to 'stay strong'.
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#5 User is offline   not their victim 

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Posted 26 May 2015 - 01:43 PM

CORRECTION OF INFORMATION!


OTHERWISE ITS A PRIVACY BREACH


keep it simple

the DEFINITIVE MEDICO LEGAL DIAGNOSIS MUST BE WITHIN THE FILE TO ENSURE YOU GET GOLD STANDARD TREATMENT WITHIN THE CORRECT TIMEFRAMES....

if this does not occur, then acc have to accept you have had a treatment error (as in lack of correct treatment)

treatment error is under their jurisdiction


Fairways is still acting like the bought and paid for drsl i see......which again is illegal
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#6 User is offline   greg 

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Posted 26 May 2015 - 02:07 PM

Please check date 'Now the review application was submitted on 17 October 2015, '
Has not occurred yet.
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#7 User is offline   Alan Thomas 

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Posted 26 May 2015 - 02:43 PM

Battleaxe what you are doing is submitting yourself to all manner of procedural inventions of both the ACC and fairway that have no basis in law.

Legislation entitles you to a review hearing of the decision or delay of process.

No rights of any sort exist in law regarding either ACC or fairway or the reviewer interpreting anything at all for any purpose.
However ACC have always sought to manipulate the question before the reviewer which is something you must be very wary of and on the day of the hearing clearly described what the hearing is going to be about. Under no circumstance permit anybody to express any viewpoint about what the review hearing is going to be about.The ACC invariably try to create conflict and confusion. Reviewers have a tendency to listen to the most experienced and wise person in the room and as such if the ACC put forward a lawyer or some form of qualified person who is more qualified and experienced than yourself then the reviewer will tend to listen to that person.

Your review hearing application needs to identify the nature of your application but even if your application does not contain any information that does not mean anybody can make a decision regarding the nature of your application and streamline it will make any predetermination whatsoever. Put simply everyone must simply shut up until the review hearing application date arrives and the reviewer opens the hearing. At that point the reviewer may enquire into the nature of the situation but even then must provide you with a hearing and hear you about what the nature of your complaint is with the ACC then being entitled to challenge your viewpoint with the reviewer deciding who is right between the two.

There is a lot to be said for simply placing your written submissions before the reviewer and not even attending the review hearing so as to prevent any possibility that the reviewer terms their mind to anything other than your written submissions. This will avoid the hijacking of the hearing on the day. Quite frequently reviewers will deliver a decision that has nothing whatsoever to do with what took place at the review hearing or even in the written submissions but rather a review hearing decision in response to the reconfigured issue put before the reviewer by the third party whether it be the ACC, fairway or other reviewer who has been brought on by fairway to streamline the nature of the hearings in order to put certain types of hearings for certain types of reviewers.
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#8 User is offline   Alan Thomas 

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Posted 26 May 2015 - 02:47 PM

Greg has raised a very interesting point regarding 15 October 2015. Are you meaning 15 October 2014 being the application date. Then check to see if a date has been given for a hearing before the expiry of three months. If a review hearing has not been set down with the expiry of three months then of course it is a deemed decision in your favour in which case the reviewer does not have jurisdiction because a decision has already been made as a reviewer has made a decision. If this is the case have a look at s58 and asked the ACC to send you a letter of acknowledgement of the will to make decision in your favour. It is then up to you to stipulate the nature of how this decision would be in your favour and as such is as important that you describe a win in your favour so as the ACC do not have an opportunity to reconfigure how a decision in your favour might be interpreted. The reviewer may never hear such an application and all and do not be tempted into having a reviewer re-examine the hearing to see if you would event jurisdiction in the first instance which is a common practice.
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#9 User is offline   Battleaxe 

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Posted 26 May 2015 - 03:26 PM

View Postgreg, on 26 May 2015 - 02:07 PM, said:

Please check date 'Now the review application was submitted on 17 October 2015, '
Has not occurred yet.


Hi, sorry, yes, the review application was submitted on 17 October 2014 and no the review hearings have not been held yet.
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#10 User is offline   Battleaxe 

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Posted 26 May 2015 - 03:30 PM

View PostAlan Thomas, on 26 May 2015 - 02:43 PM, said:

Battleaxe what you are doing is submitting yourself to all manner of procedural inventions of both the ACC and fairway that have no basis in law.

Legislation entitles you to a review hearing of the decision or delay of process.

No rights of any sort exist in law regarding either ACC or fairway or the reviewer interpreting anything at all for any purpose.
However ACC have always sought to manipulate the question before the reviewer which is something you must be very wary of and on the day of the hearing clearly described what the hearing is going to be about. Under no circumstance permit anybody to express any viewpoint about what the review hearing is going to be about.The ACC invariably try to create conflict and confusion. Reviewers have a tendency to listen to the most experienced and wise person in the room and as such if the ACC put forward a lawyer or some form of qualified person who is more qualified and experienced than yourself then the reviewer will tend to listen to that person.

Your review hearing application needs to identify the nature of your application but even if your application does not contain any information that does not mean anybody can make a decision regarding the nature of your application and streamline it will make any predetermination whatsoever. Put simply everyone must simply shut up until the review hearing application date arrives and the reviewer opens the hearing. At that point the reviewer may enquire into the nature of the situation but even then must provide you with a hearing and hear you about what the nature of your complaint is with the ACC then being entitled to challenge your viewpoint with the reviewer deciding who is right between the two.

There is a lot to be said for simply placing your written submissions before the reviewer and not even attending the review hearing so as to prevent any possibility that the reviewer terms their mind to anything other than your written submissions. This will avoid the hijacking of the hearing on the day. Quite frequently reviewers will deliver a decision that has nothing whatsoever to do with what took place at the review hearing or even in the written submissions but rather a review hearing decision in response to the reconfigured issue put before the reviewer by the third party whether it be the ACC, fairway or other reviewer who has been brought on by fairway to streamline the nature of the hearings in order to put certain types of hearings for certain types of reviewers.


Hi Alan

No, its not the ACC that has raised the question of jurisdiction but it is the new Fairway Resolution reviewer (who has replaced Mr Rex Woodhouse).

I received an e-mail today - quote - "The reviewer is of the opinion that this is a jurisdictional issue – ie does she have jurisdiction to consider xxxx's application for review in respect of ACC’s decision of 10 September 2014."

An earlier ACC Review Unit person who produced the review hearing submissions for this particular review wanted a case conference initially and when I probed why I was told that there is a jurisdictional issue, however, after I drawn some facts to her attention (including that the review application had been submitted within the 3 month time-period) she backed down and agreed there was no need for a case conference. Then I got the abovementioned e-mail today produced by a different person altogether.

I have requested that this particular review hearing be heard by telephone conference and the reviewer has agreed.
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#11 User is offline   greg 

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Posted 26 May 2015 - 05:06 PM

A Telephone review will have no paper trail or even if you record such , might not be treated as actual.
A face to face , that you can record , will have a more legal standing as both versions will be available
for the court to check times , if they choose. Make copies , but supply the Legals any recorded minutes of the original first.
If you can afford the cost a written transcript done in a lawyers office , all the better.
Talk to some legals before any meeting and understand the legal results prior , if you
get any part wrong as ACC. will pound you on that point.
Your future entitlement with ACC. will be judged on these assessments/reviews so spend the time to get everything correct.
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#12 User is offline   Battleaxe 

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Posted 26 May 2015 - 05:15 PM

View Postgreg, on 26 May 2015 - 05:06 PM, said:

A Telephone review will have no paper trail or even if you record such , might not be treated as actual.
A face to face , that you can record , will have a more legal standing as both versions will be available
for the court to check times , if they choose. Make copies , but supply the Legals any recorded minutes of the original first.
If you can afford the cost a written transcript done in a lawyers office , all the better.
Talk to some legals before any meeting and understand the legal results prior , if you
get any part wrong as ACC. will pound you on that point.
Your future entitlement with ACC. will be judged on these assessments/reviews so spend the time to get everything correct.


Hi, I am recording the telephone conference review. I have a special Dictaphone that has an earpiece for this purpose. It works really well. I can also put my telephone onto loudspeaker and record the proceedings that way using both the Dictaphone and my Tape Recorder. I will make darned certain that I record every single word that is said.

Thanks for the advice.
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#13 User is offline   Alan Thomas 

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Posted 26 May 2015 - 05:40 PM

Battleaxe You have an application date of 17 October 2014.
You did not respond to my previous post on this point
What was the date you receive notification of a review hearing?
If the date was after 17 January 2015 Then you have already won the review hearing by way of legislated procedure and as such the reviewer would have no jurisdiction.
I quit the wrong section.section 58 is a different type of thing decision. This section are meant to refer to was s146

146 Deemed review decisions
(1) The reviewer is deemed to have made a decision on the review in favour of the applicant if—

(a) the date for the hearing has not been set within 3 months after the review application is received by the Corporation; and

(B) the applicant did not cause, or contribute to, the delay.

(2) The date of the deemed decision is 3 months after the review application is received.


If a date for hearing a review has not been set within 3 months after the application for review, then there is a deemed decision in favour of the applicant unless the applicant has caused or contributed to the delay. The date of the decision will be 3 months after the date of application.

If section 146 has activated by the ACC failure to notify you of a review hearing prior to the expiry of three months the reviewer no longer has jurisdiction to hear the review hearing at all. This also means that the reviewer does not have the authority to determine whether or not your initial application would have had jurisdiction in the first instance. The ACC cannot even appeal a deemed decision and as such the district court cannot even be involved. What will likely happen is that the ACC will simply ignore the deemed decision and wait until you seek another review hearing based on a delay of process to comply with the deemed decision.



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#14 User is offline   not their victim 

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Posted 26 May 2015 - 05:42 PM

Clark should be struck off

she breached a claimants privacy

took 3 phone calls in relation to others hearings, during a hearing

allowed acc representative disruption

and WOULD NOT ACCEPT MEDICAL EVIDENCE

get urgent legal help now Battleaxe.

go well
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#15 User is offline   not their victim 

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Posted 26 May 2015 - 05:44 PM

acc are still completely out of control, and acting outside of the law
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#16 User is offline   greg 

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Posted 26 May 2015 - 06:46 PM

View PostBattleaxe, on 26 May 2015 - 05:15 PM, said:

Hi, I am recording the telephone conference review. I have a special Dictaphone that has an earpiece for this purpose. It works really well. I can also put my telephone onto loudspeaker and record the proceedings that way using both the Dictaphone and my Tape Recorder. I will make darned certain that I record every single word that is said.

Thanks for the advice.

You are in control.
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#17 User is offline   greg 

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Posted 26 May 2015 - 06:48 PM

View Postnot their victim, on 26 May 2015 - 05:44 PM, said:

acc are still completely out of control, and acting outside of the law

Absolutely correct
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#18 User is offline   keentohelp 

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Posted 26 May 2015 - 06:49 PM

View PostBattleaxe, on 26 May 2015 - 10:44 AM, said:

Hi everyone, the latest trick that has been pulled out of the Fairway Resolution's hats of tricks is to now claim - less than a week before the hearing date - that there the reviewer believes there is no jurisdiction. They've had this application since 17 October 2015 mind you.

What is the basis to claim no jurisdiction? I'm completely ignorant. The review application was filed in good time - within the 3 month time frame - and the hearing is about a an application that was declined but subsequently revoked and replaced with another decision that covered injuries I did not suffer (G.P. messed up on the ACC45 form but has since advised the ACC of this error, however, the ACC refused to accept this definitive diagnosis and is preferring to hang onto the idea that I have plantar fasciitis rather than plantar fascia rupture diagnosed by my treating Orthopaedic Surgeon). The law allows the ACC to revoke and replace a decision where the original decision was "made in error" but the evidence - which I have laid out in my submissions document - proves that the ACC did not make "an error" and that it actually made a calculated decision to decline my claim.

Anyone got an case law I can quote from in terms of "error" and how this is recognised by the legislation?



Not commenting on the original decision or application for a review of it it may be that you are barking up the wrong tree Battleaxe.

The case law is clear that there can only be one decision on any one matter.

That is, if the earlier decision has been revoked any review process is an irrelevancy – it no longer exists hence cannot be reviewed – while if that revoking has now included a new decision a separate application for review must be made. Often the same hearing date can made used if that suits you.

This does not stop you arguing that the earlier decision was right or wrong or that, once the new decision has been quashed at review, seeking the Reviewer to substitute her own decision - presumably that what you seek.

I doubt anyone is ‘breaking the law’ rather you have run foul of a procedural nicety.

Either way you can’t usefully review a revoked decision.

May I suggest though that you request a pre-hearing case conference to sort the matter out (you may have explained to you what I have put above) and seek from the Reviewer her advice as to where-to-from-here?
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#19 User is offline   Alan Thomas 

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Posted 26 May 2015 - 07:29 PM

Keen to help
it seems that a review officer has become involved in the review hearing prior to the hearing.
In the event that a hearing does take place and another reviewer he is the matter and makes a decision how do you imagine that the first reviewer has not broken the law by "personating" the actual reviewer appointed accordance with legislation? And then that first reviewer issuing a decision with the expectation that decision is acted upon when there is no lawful basis?
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#20 User is offline   not their victim 

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Posted 26 May 2015 - 07:31 PM

Clarke and Woodhouse were part of DRSL

ILLEGAL BIAS
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