[magnacarta]

The Peck decision has apparently been issued by the Court of Appeal and Mrs Peck lost - they overturned Justice Doogue in the High Court who had found in favour of Mrs Peck having her compensation restored and backdated following compliance.

have not seen the Court of Appeal decision as yet, but have been told about it by a lawyer - all I can say is what a nasty, vicious, malicious and vindictive little country we have become - the ACC bureaucracy wins again.

[ernie]

Yes, I've heard the same, but seen nothing.

Was it John Miller handling this? Wonder if anyone's on deck there yet?

[magnacarta]

ernie, The champagne corks will be a-poppin' at ACC HQ tonight - a few more million dollars denied to claimants for ACC to invest -

what ever happened to the will of Parliament in the s3 "Purpose" for the Act to have "....as its overriding goals, minimising the impact of the injury on the community including economic, social and personal costs...."

John Miller was handling this and I think he will be absolutely shocked as are other lawyers I have since spoken to.

On the other hand, apparently the doco maker's think it's great - another angle to expose - and the public loves controversy - it's what sells.

I raise a rehtorical question - Are these Judges getting insider information on ACC's sharemarket and financial transactions to make a killing themselves in the financial markets?????

I have a strong apprehension because of some of the decisions.

[jocko]

Their broke. They have exited something like 40,000 people illegally and yet they are still broke and this decision is so obviously biased and politically motivated it proves it. The act states you MUST be informed of your right to have a representative present in the preparation of the IRP. Who of us has been informed of this right? Let alone have a representative present when the plan is drawn up. The bloody things are drawn up by ACC and then it is sign or else. I have never seen a plan yet where the claimants GP was involved. The agreement of the plan quoted in the act is made a ridiculous joke by the right of ACC to implement the plan without agreement. What right does Mrs Peck have now? Is she able to appeal to the Supreme court?

[jocko]

How come these case managers are so quick to draw up a plan to "Rehabilitate you back to work" Yet you can't find one in a hundred miles if someone wants a wheelchair or some home help. If they were as vigorous in dishing out social rehabilitaion as they are vocational things would be surprising wouldn't they?
ACC never used to appeal and there was quite a stir when they first did and from memory it took a court ruling to allow them. Anyone know about that?

[ernie]

No Jocko, I think we are stuffed on this one.

Section 7 of the Supreme Court Act 2003 states -

7.Appeals against decisions of Court of Appeal in civil proceedings— The Supreme Court can hear and determine an appeal by a party to a civil proceeding in the Court of Appeal against any decision made in the proceeding, unless—
(a)an enactment other than this Act makes provision to the effect that there is no right of appeal against the decision; or
(b)the decision is a refusal to give leave or special leave to appeal to the Court of Appeal.

However, section 163 of the Injury Prevention, Rehabilitation and Compensation Act 2001 states -

163.Appeal to Court of Appeal on question of law—
(1)A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.
(2)If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(3)An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.
(4)The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.

So, the way I see it, subsection 163(3) denies claimants the right to appeal to the Supreme Court that they would otherwise have under section 7 of the Supreme Court Act. Once again, ACC claimants are denied rights that citizens have in almost every other jurisdiction.

In any case, the Government appears to be hell-bent on legislating to ensure that Doogue Js High Court decision in Peck is of no effect for other claimants, whatever the Court of Appeal may have decided.

That said, we have not seen the Court of Appeal judgment yet, and it may not be as bad as the second-hand report I have heard of Gerard McGreevys interpretation of it to a potentially affected claimant would indicate.

[magnacarta]

Ernie, you are right, there is no right of appeal to the new Supreme Court for claimants but this, of course, is contrary to Article 2 (3) of the International Covenant on Civil and Political Rights in which NZ's committment is affirmed in the Long Title of the NZ Bill of Rights Act 1990. (BORA).

The Supreme Court is a Court of competent jurisdiction and can provide an effective remedy and yet ACC claimant's are denied access to it.

Yet another reason why the failure by the Attoney-General to give s7 BORA notification to the House of possible inconsistencies when the principal Act and again when the Amendment Bill No 3 was recently introduced, is so important.

I think a communication to the UN Human Rights Committee might now be worthwhile.

[doppelganger]

to me it looks like that the law makers made a slip up

[magnacarta]

Doppelganger, it was the Attorney-General alone who is in default not the Parliamentary law-makers.

If they raise it in their cases, claimant's are entitled to apply for a declaration of inconsistency when/if they get to the High Court because both the principal Act and the Amendment Act No. 3 were not (and will not be) enacted constitutionally correctly - manner and form because of the Attorney-General's default.

There is a range of Court of Appeal and High Court case law on that point. Poumako, Dunlea, Wishart, Westco Lagan etc. etc.

I am also inclined to now agree with IDB about an approach to the UN Human Rights Committee.

[ernie]

Magnacarta - I am not sure that a reliance on Article 2(3) of the International Covenant on Civil and Political Rights is going to assist.

From the wording of that Article -

3. Each State Party to the present Covenant undertakes:

(a) To ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity;
(b) To ensure that any person claiming such a remedy shall have his right thereto determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy;

© To ensure that the competent authorities shall enforce such remedies when granted.

I do not see that there is anything that prohibits limiting rights of appeal in certain jurisdictions to a Court lower than the highest Court of a country.

However, I think we might be on stronder grounds relying on section 27(3) of the NZ Bill of Rights Act 1990. That section states -

Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

The exclusion provided under section 163(3) IPRC Act from the right to appeal to the Supreme Court, and the permissive provision of section 7(a) of the Supreme Court Act that allows section 163(3) to continue to apply, both appear to contravent section 27(3) of the NZBORA. The argument is that, in the ACC jurisdiction, claimants do not have the same right to appeal to the countrys highest Court that other civil litigants have. As such, the Attorney-General should have advised Parliament of this, both at the time of the introduction of the IPRC Bill and of the Supreme Court Bill, which, when enacted, expressly permitted the inconsistent provision of section 163(3) to remain in law. And she did not.

So there is a strong argument that the current lack of a right to appeal ACC cases to the Supreme Court is unconstitutional. The problem is what jurisdiction to litigate the issue in. Back in the days when Robin Cook was President of the Court of Appeal, he hinted in more than one judgment that there may come a time when the Court would strike down NZ legislation as unconstitutional.

But I doubt the current Supreme Court, which is much more conservative that the Court of Appeal of 20 years ago, would dare to do so, especially given the recent animosity between the Chief Justice and senior Government Ministers. That said, the Ahmed Zaoui judgment and some of the Chief Justicesother public comments, give some hope that the Supreme Court judges may be becoming more assertive than the same judges were when they sat on the Court of Appeal. We certainly need some sort of constitutional check on the tyranny of successive Cabinets in this country.

I, for one, would revel in the reaction of Clark and Cullen, and the ensuing constitutional crisis, if the Supreme Court actually did strike down such blatantly unconstitutional legislation as that discussed above.

So maybe Darelle Peck should apply for leave to appeal to the Supreme Court, on the basis that the prohibition on her appealing was enacted in an unlawful and unconstitutional manner, and see what happens. Could be fun.

[magnacarta]

Ernie I agree for the most part with what you say. The outstanding feature of the BORA is the recognition of those rights (also the ICCPR) by the Parliament as warranting special protection.

I think both the BORA and the ICCPR would form the evidential fabric of any case.

However, as was said in Anderson v Erson 165/2003 Cadenhead DCJ, the IPRC Act constitutes a code which sets out all the rights and entitlements of a claimant, and equally from the Respondent's perspective it sets out all its obligations and responsibilities. It is a statutory scheme requiring specific provision in the statute for any particular power, right or entitlement which either the claimant or the respondent is seeking to assert.

Additional to your proposition, perhaps an additional argument for Mrs Peck could be that the denial of a right to appeal to the Supreme Court therefore provides an unnecessary and inequitable immunity for ACC - a body corporate. (The necessity test).

I agree with your scenario about Mrs Peck applying for leave on the grounds of unconstitutionality.

You are right, that could be fun - but also very much a significant public interest issue.

But could she afford that now that she has lost her compensation backdating???

To place such a burden upon her alone is, I believe, completely unfair and unjust. So can we help??????

[watcha]

Once the Appeal Court decision has been released and digested in detail, we can decide how to handle it.

I think we should help Mrs. Peck if she decides to proceed, it is in our interests to do so and a well-deserved vote of thanks for her persistance in the face of such adversity.

I am prepared to put my oar in the water to assist, however I suggest that it be by personal networking to maintain anonymity if participants so desire.

In the meantime, let this meaningful discussion continue.

[magnacarta]

I've been thinking! - Look at what Cadenhead said in Anderson v Erson 165/2003 quoted in my post above about the Act being a code.

If the Act constitutes, is interpreted and is regarded as a "code" which sets out all the rights and entitlements of a claimant and equally from ACC's perspective, it sets out all its obligations and responsibilities, then Jocko and others are absolutely right - all of the steps in preparing an IRP (involving doctor and claimant) arranging social and vocational rehab neds assessments (s77) must be followed to the letter by ACC.

This "code" puts a whole different perspective on ACC's actions or lack of actions.

[ernie]

Peck Court of Appeal judgment now posted at http://www.accforum....=ST&f=82&t=1771.

It is a majority judgment too, with William Young J dissenting, which heightens the sense of injustice that our lawmakers have seen fit to give ACC claimants no right of appeal to the Supreme Court. Unfortunately, even a majority judgment of the Court of Appeal is final under section 163(3).

[hukildaspida]

bump