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ACC Fails to Implement the Will of Parliament

#1 User is offline   Lupine 

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Posted 05 August 2017 - 01:41 PM

The time has come for me to make an announcement. Some months ago, many will have noticed, I spent some time away from this Forum. No doubt this action was put down to the issues effecting the Forum at the time but this was not so.

The real reason I was not here was because I made a discovery. This discovery has resulted in one of the most brutal legal firefights in the Corporation’s dubious history. The truth is we are now going to find out what happens when the irresistible force (Cassandra) meets head on with the immovable object (The Corporation).

What I do know is that only one of us is going to walk away from this. If I am proven wrong then Cassandra is finished. If the Corporation is proven wrong then it will lose all public confidence and the Board and the Executive and probably the current Minister will be finished. Needless to say I am not on the Corporation’s Christmas card list.

Please note that I will not be identifying individuals or publishing OIA documents but you can all be assured that I do indeed possess the documents I will be referring to.

Now I will put the basic outline of the situation as the argument is very basic and needs little in the way of explanation. However, I will be publishing in great detail on Cassandra the evidence that I have and the circumstances behind it.

I accuse the Accident Compensation Corporation of the following:

1) Failing to implement the will of Parliament.
2) Failing to correctly assess ERC payments for Self-Employed Earners and Shareholder Employees since 2005.
3) Conducting an ultra vires process to determine ERC entitlement for above earners.
4) Failing to have in place an appropriate auditing / reporting system to determine what claims were paid out or not under the applicable subclause’s found in Clause 38 and Clause 39 under Schedule 1 resulting in a failure to accurately report to the Minister as required by the Crown Entities Act.

Essentially the legislation was amended in 2005 to fix identified injustices when it came to the payments for Self-Employed and Shareholder Employees. I have discovered that ACC has not updated its ERC payment processes and policy to accommodate the 2005 amendments to Clause 38 and Clause 39 of the legislation.

As a result of this failure ACC has been incorrectly assessing earners who ran at a loss in all previous financial years and but first received earnings in the same tax year as incapacity commenced. ACC has placed an ultra vires consideration on the process. ACC’s stated requirement in official documents is that to eligible for 38 (2)(a) and 39(2)(a) the claimant must be in their first year of self-employment.

ACC has confirmed to me in official documents that there is no reporting/ auditing system in place to determine what if anything was paid out under the specific subclause’s that apply to 38 and 39. ACC is obliged to provide the Minister with an agreement under the Crown Entities Act that details the expected and previous “outputs” (expenses) the Corporation is paying out. This begs the question.

How can the Corporation claim its agreements with the Minister under the Crown Entities Act are accurate and complete when there is no audit in place to determine who got paid what under six ERC subclause’s? My expectation is that there is an audit trail but that audit trail applies to the previous legislation and has not been updated to accommodate the amendment. ACC can hardly say that though.

Ultra Vires Process


This is very easy to prove and so simple it beggars belief. The first step is to be aware that the wording of Clause 38 (2)(a) and 39 (2)(a) are wholly identical except for the class of earner.

The legislation:

Clause 38 (and 39)
(2) The amounts that apply under this subclause are,—
(a) for claimants who first commenced receiving earnings as self-employed persons in the tax year in which the incapacity commenced, the amount calculated using the following formula:
a
b
where—
a is the total of the claimant’s earnings as an employee in the 52 weeks immediately before the incapacity commenced
b is the number of full or part weeks during which the claimant earned those earnings as an employee:

ACC’s position is that Clause 38 and 39 (2)(a) apply to claimants in their first year of self-employment. Try as I might I can find no reference to “first year of self-employment” in the applicable legislation. Of course, some case law would be helpful but between 2004 and July 2017 there is not one shred of case law that applies to 38 (2)(a). I note the July 2017 case appears well after I have raised these matters with ACC and more on that later.
I do however have case law under 39 (2)(a) at the DC and the HC, Bartrom v ACC. Now in Bartrom ACC successfully argued that Bartrom was not entitled to a Clause 39 (2)(a) entitlement because his incapacity occurred in 2003 and he had earnings as a shareholder employee in… drum roll….1993 and 1994 and so his 2003 earnings were not his first earnings.

But wait Lupine I hear you say. ACC is saying that the requirement is that Bartrom should be in his first year as a shareholder employee according to officially obtained documentation. Yet it is very evident that Bartrom was in his eleventh year of self-employment but ACC did not argue their official line in front of the courts as you will see when you read these very helpful judgments.

Indeed, the Courts agreed with ACC. Bartrom had earnings from ten years previously. There was but one qualification and that was Bartrom’s first earnings had to have occurred in 2003. The Clauses are formulaic and the Tarr case applies in that the plain wording of the legislation introduces inherent rigidities that cannot be cured by purposive judicial interpretation. These were the arguments presented by the Corporation itself and the Courts both DC and HC decreed it so.

Yet here we have the Corporation stating it places a requirement for the claimant to be in their first year of self-employment. The Corporation’s stated position cannot be reconciled with the Bartrom principles and on that basis the Corporation has been conducting an ultra vires process for the last 12 years.


No auditing system to report on ERC payments to Self-Employed and Shareholder Employees


I have in my possession, documents provided by ACC that confirm that ACC cannot provide me with the figures that relate to what was paid out or not under Clause 38 (2)(a) and Clause 39 (2)(a). ACC states that it cannot provide the information I requested because its reporting systems do not go to into that degree of specificity.

When I challenged ACC on this absence of reporting ACC issued another document telling me an ACC staff member had manually selected and examined one hundred claims at random and determined that they had paid out under Clause 38 (2)(a) to x number of claimants based on the fact those claimants were in their first year of self-employment.

On that basis, it is undeniable that ACC has no auditing system in place to audit the payments under six ERC subclause’s.

Current Status


I have asked the Minister to state he has confidence that ACC has implemented the will of Parliament and the Minister has failed to do so.
I have asked the Minister to state that he has confidence that ACC has appropriate reporting systems in place and the Minister has failed to do so.
I have asked ACC to provide the specific legislation that it is relying upon to allow it to place the first year of self-employment test on the ERC considerations in question. ACC has refused to answer this question.
I have asked ACC to reconcile its stated position with the Bartrom principles. ACC has refused to do this.

We know why don’t we?

Attached File(s)


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#2 User is offline   Huggy 

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Posted 06 August 2017 - 11:10 AM

You wont get any answers out of Woodhouse, he is a wimp who hides behind his closed doors when the pressure goes on.

What is the expected time frame for an outcome the above ?????? I am watching with interest.

Well done Lupine for taking on the ACC
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#3 User is offline   Lupine 

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Posted 06 August 2017 - 11:26 AM

View PostHuggy, on 06 August 2017 - 11:10 AM, said:

You wont get any answers out of Woodhouse, he is a wimp who hides behind his closed doors when the pressure goes on.


So true. It was a sad day when we lost Nikki Kaye.

Still it cannot be denied that Mr Woodhouse has failed to state that he has confidence in ACC. Oh he is happy to state that ACC is confident in its position but when I put the confidence question to him again backed by case law there has been no response and ACC is now refusing to answer questions.

ACC has stated to me in two OIA documents that the test to be eligible for ERC under Clause 38 (2)(a) and 39 (2)(a) is that the claimant shall be in their first year of self employment. Yet examination of the legislation demonstrates that no such requirement exists in the legislation.

I have asked ACC to indicate the legislation ACC is relying upon and it simply refuses to do so. I have that in writing also.

The Bartrom appeals under 39 (2)(a) demonstrate beyond doubt, based on the Corporation's own arguments, just what the test is.

It is my position that the Corporation simply cannot reconcile its stated policy and process with the Bartrom rulings and the legislation. Faced with that position the Corporation has refused to respond. This is because the Corporation simply does not have an answer.

Then there is the matter of the fact ACC can tell us how many people hurt themselves cutting avocados and how much that cost but apparently has no reporting systems in place to determine who was paid what if anything under 38 and 39 (2) (a) (B) ©.


We are talking about thousands of claimants and millions of dollars and a cornered Corporation hung by its own statements that sit in stark conflict with arguments it put forward to defeat the Bartrom appeals.
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#4 User is offline   Lupine 

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Posted 06 August 2017 - 11:59 AM

View PostHuggy, on 06 August 2017 - 11:10 AM, said:

What is the expected time frame for an outcome the above ?????? I am watching with interest.

Well done Lupine for taking on the ACC


I appreciate that Huggy.

As for a time frame? Hard to say. At the moment I think it is fair to say that it has been a harsh process. I have a plan and a detailed one to be sure.

The end result will demonstrate a lot of things about the Corporation in a manner that cannot be denied.

What I will be pushing for among other things is a Commissioner to oversee the Corporation and what I will be providing in support of that argument is compelling.
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#5 User is offline   Alan Thomas 

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Posted 06 August 2017 - 01:14 PM

I would caution you not to speak of total war.
Even people imagining talk like that will then report you to the ACC who will then complained to the police.

With regards to getting anything out of a politician immediately prior to the election I would go so far as to say you don't have shown the world and then after the election There will be someone you who will feel the need for a settling in period before blaming someone else and then doing nothing.
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#6 User is offline   Lupine 

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Posted 06 August 2017 - 02:04 PM

View PostAlan Thomas, on 06 August 2017 - 01:14 PM, said:

I would caution you not to speak of total war.
Even people imagining talk like that will then report you to the ACC who will then complained to the police.

With regards to getting anything out of a politician immediately prior to the election I would go so far as to say you don't have shown the world and then after the election There will be someone you who will feel the need for a settling in period before blaming someone else and then doing nothing.


I have considered that and that is why I believe that a Commissioner to provide oversight is a desirable outcome and one that I will be pursuing.

Once my discovery becomes common knowledge then the Corporation's veracity is zero. An ultra vires process and a lack of auditing relating to thousands of claims are very serious matters and I think it is fair to say that the cost will be unbelievable both financially and politically.

As it stands I have pursued this matter from the very bottom to the very top of ACC and at Government level. I have several processes to initiate to defeat the Corporation's stonewalling.


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#7 User is offline   greg 

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Posted 06 August 2017 - 04:58 PM

View PostLupine, on 06 August 2017 - 02:04 PM, said:

I have considered that and that is why I believe that a Commissioner to provide oversight is a desirable outcome and one that I will be pursuing.

Once my discovery becomes common knowledge then the Corporation's veracity is zero. An ultra vires process and a lack of auditing relating to thousands of claims are very serious matters and I think it is fair to say that the cost will be unbelievable both financially and politically.

As it stands I have pursued this matter from the very bottom to the very top of ACC and at Government level. I have several processes to initiate to defeat the Corporation's stonewalling.


Certain posters are now missing , could a recent poster on ACCforum.org have been sent to only damage your Claims.?
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#8 User is offline   Alan Thomas 

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Posted 06 August 2017 - 05:30 PM

View PostLupine, on 06 August 2017 - 02:04 PM, said:

I have considered that and that is why I believe that a Commissioner to provide oversight is a desirable outcome and one that I will be pursuing.

Once my discovery becomes common knowledge then the Corporation's veracity is zero. An ultra vires process and a lack of auditing relating to thousands of claims are very serious matters and I think it is fair to say that the cost will be unbelievable both financially and politically.

As it stands I have pursued this matter from the very bottom to the very top of ACC and at Government level. I have several processes to initiate to defeat the Corporation's stonewalling.




Are we dealing with an issue whereby

1) the legislation is defective?
2) the ACC Corporate interpretation of the legislation is defective?
3) the ACC corporate knows exactly what is right and wrong and chooses to disobey the legislation?
4) individual staff members of the ACC have demonstrated themselves to be incompetent in the capacity to comprehend the legislation and have no guidance from the ACC corporate?
5) individual staff members of the ACC have deliberately disregarded the legislation knowingly making decisions outside of legislation and/or on the basis of information not known to be right or wrong and/or deliberately seek false information to support a wrong decision?

We must separate our thinking between the legislation and those who are required to serve us by administering that legislation. We must further breakdown the nature of the problem right down to the component level.
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#9 User is offline   tommy 

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Posted 06 August 2017 - 06:28 PM

as in your points above , as in posting 8 allan , many LTC claimants have difficulty as in achieving entitlemermts , as in the corporations immense poswer , and hence there would be as in moneteries as millions not put to the destination of the clamants purse , and then the cycle of all is whom is associated on the gravy train exists , which has been explained numerously on this forum, same questions and answers and answers , another period of time
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#10 User is offline   Lupine 

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Posted 07 August 2017 - 07:16 AM

View PostAlan Thomas, on 06 August 2017 - 05:30 PM, said:

Are we dealing with an issue whereby

1) the legislation is defective?
2) the ACC Corporate interpretation of the legislation is defective?
3) the ACC corporate knows exactly what is right and wrong and chooses to disobey the legislation?
4) individual staff members of the ACC have demonstrated themselves to be incompetent in the capacity to comprehend the legislation and have no guidance from the ACC corporate?
5) individual staff members of the ACC have deliberately disregarded the legislation knowingly making decisions outside of legislation and/or on the basis of information not known to be right or wrong and/or deliberately seek false information to support a wrong decision?

We must separate our thinking between the legislation and those who are required to serve us by administering that legislation. We must further breakdown the nature of the problem right down to the component level.


1) No
2) Yes
3) Yes
4) Yes and No
5) Yes
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#11 User is offline   Lupine 

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Posted 07 August 2017 - 07:24 AM

View Postgreg, on 06 August 2017 - 04:58 PM, said:

Certain posters are now missing , could a recent poster on ACCforum.org have been sent to only damage your Claims.?


I think that is unlikely Greg.

I am sure that the Corporation is trying to discredit me as much as possible in all other areas but will be severely impeded in its efforts by the undeniable fact that there is no audit system in place to respond to the raised issues. At this stage there is a lot of ducking for cover taking placer but in this instance there is no where to duck to.

To defeat my arguments all ACC has to do is point to the legislation that supports it position and reconcile its stated position on the first year of self employment requirement with the arguments it presented in Bartrom. As ACC cannot do that it is now simply refusing to engage on the matter. The Minister has taken off to get himself reelected but the issue will be waiting for his return if he makes it back.
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#12 User is offline   Huggy 

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Posted 07 August 2017 - 12:16 PM

I can confirm that I have viewed the relevant documentation as mentioned above.

Clearly ACC again are playing their game that they are correct and everyone else is wrong. This is the same behaviour as was displayed by ACC regarding the ACC167 and even the ARC18's where clearly they were wrong even though they were adamant they were not.

The response from Woodhouse is another stock standard response where he clearly doesn't investigate into the matter fully and simply relies on what ACC has told him. I wouldn't expect anything less from Woodhouse.
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#13 User is offline   Alan Thomas 

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Posted 07 August 2017 - 02:12 PM

We never should forget that the ACC keep a trained Ministerial Unit Manager as the interface between the ACC and the Minister. Many years ago I caught the person this position telling the regional manager a direct lie with the result that they cease to work in that position. The problem is behind-the-scenes they are congratulated for their dedication anyway and invariably get a promotion.

Don't expect the Minister to be properly informed.

My previous discussions with several different ACC ministers resulted in these ministers expressing their lack of confidence in the ACC to the extent that they were directly disobedience to the law which necessitated rewrites of the law so as to remove the possibility of the ACC playing silly games regarding the intention of the law. One even said it was like herding cats, which means he is expressing the wilful behaviour of the ACC and the lack of obedience.
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#14 User is offline   Lupine 

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Posted 07 August 2017 - 07:00 PM

View PostHuggy, on 07 August 2017 - 12:16 PM, said:

I can confirm that I have viewed the relevant documentation as mentioned above.

Clearly ACC again are playing their game that they are correct and everyone else is wrong. This is the same behaviour as was displayed by ACC regarding the ACC167 and even the ARC18's where clearly they were wrong even though they were adamant they were not.

The response from Woodhouse is another stock standard response where he clearly doesn't investigate into the matter fully and simply relies on what ACC has told him. I wouldn't expect anything less from Woodhouse.


Thank you Huggy. I appreciate you taking the time.

The claimants that are impacted on are claimants who ran at a loss in all previous financial years but had started receiving earnings in the same tax year as incapacity occurred. Those claimants should be 38 (2) ( a ) and 39 (2) ( a ) claimants.

Instead those claimants are incorrectly treated as 38 (2)( c ) and 39 (2)( c ) claimants and are paid out under Clause 42 being 80% of the minimum wage. If the Corporation can argue the claimant was working part time hours they get nothing. The Corporation is prepared to go to great lengths to avoid Clause 42 as well. More on that later.

The Corporation has been ultra vires for twelve years. That amounts to a lot of claimants and a lot of money.
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#15 User is offline   Lupine 

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Posted 07 August 2017 - 07:05 PM

View PostAlan Thomas, on 07 August 2017 - 02:12 PM, said:

We never should forget that the ACC keep a trained Ministerial Unit Manager as the interface between the ACC and the Minister. Many years ago I caught the person this position telling the regional manager a direct lie with the result that they cease to work in that position. The problem is behind-the-scenes they are congratulated for their dedication anyway and invariably get a promotion.

Don't expect the Minister to be properly informed.

My previous discussions with several different ACC ministers resulted in these ministers expressing their lack of confidence in the ACC to the extent that they were directly disobedience to the law which necessitated rewrites of the law so as to remove the possibility of the ACC playing silly games regarding the intention of the law. One even said it was like herding cats, which means he is expressing the wilful behaviour of the ACC and the lack of obedience.


I believe that the service agreements that ACC has with the Minister under the Crown Entities Act can only be flawed having regard for the lack of an audit / reporting system regarding Clause 38 and Clause 39 payments under the applicable sub-clause's and the undeniable presence of an ultra vires consideration being applied to the Clauses in question. I believe that amounts to compelling evidence that the Corporation cannot be trusted to accurately report to the Minister.
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#16 User is offline   Grant-Mac 

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Posted 08 August 2017 - 02:17 PM

Quote

As a result of this failure ACC has been incorrectly assessing earners who ran at a loss in all previous financial years and but first received earnings in the same tax year as incapacity commenced. ACC has placed an ultra vires consideration on the process. ACC’s stated requirement in official documents is that to eligible for 38 (2)(a) and 39(2)(a) the claimant must be in their first year of self-employment.


Do I understand correctly that:

If a company XYZ had been incorporated for five years and the first four years were [for tax liability] all accounting losses, but year five showed [for tax purposes] a net profit, then:

ACC would [as stated in their official documents] consider that the earnings should be calculated from year one, ie. a loss, which would result in no earnings, and therefore no weekly compensation to be paid.

Grant
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#17 User is offline   Lupine 

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Posted 08 August 2017 - 02:59 PM

View PostGrant-Mac, on 08 August 2017 - 02:17 PM, said:

Do I understand correctly that:

If a company XYZ had been incorporated for five years and the first four years were [for tax liability] all accounting losses, but year five showed [for tax purposes] a net profit, then:

ACC would [as stated in their official documents] consider that the earnings should be calculated from year one, ie. a loss, which would result in no earnings, and therefore no weekly compensation to be paid.

Grant


Hi Grant,

No, the Corporation has been much more subtle than that.

Say Company XYZ started in the 2015-2016 year and ran at a loss in that financial year. The 2016-2017 year rolls around around and now the company is in profit and that claimant has paid PAYE Tax on earnings amounting to $60000 since April 01 2017. The claimant is incapacitated in say August of 2016.

Our claimant has first received earnings in the same tax year as the incapacity commenced thus meeting the criteria for Clause 38 (2)( a ). That is if one follows the legislative process.

The Corporation on the other hand has been running a very different process as the OIA documents demonstrate. According to those documents Clause 38 (2)( a) applies to claimants in their first year of self employment. This test is ultra vires and is not supported by the legislation or the Bartrom principles.

So our hapless claimant receives a decision stating that they are entitled to 80% of 0 because according to the Corporation the relevant year component of the legislation applies when it does not. Our 38 (2)( a ) claimant is morphed into a 38 (2)( c ) claimant and either paid out the minimum under Clause 42 or nothing at all.

Yet when one looks at Bartrom then we can observe the Corporation interpreting the legislation correctly when it seeks to defeat the appeals. Some might take a cynical view...........
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#18 User is offline   Grant-Mac 

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Posted 08 August 2017 - 03:26 PM

I think we're on the same page, I just didn't express my thought as clearly as required.

Company XYZ Year:
2015; loss
2016; loss
2017; profit.

Quote

The Corporation on the other hand has been running a very different process as the OIA documents demonstrate. According to those documents Clause 38 (2)( a) applies to claimants in their first year of self employment.

So in the above example our claimant is injured in 2017. ACC will assess him for his earnings as of 2015 [his first year of self-employment], rather than 2017, his first year of [self-employed] earnings.

Grant
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#19 User is offline   Grant-Mac 

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Posted 08 August 2017 - 03:35 PM

Quote

This test is ultra vires ...


It is also clear that you intend to engage the jurisdiction of Judicial Review. 'Ultra vires' has ceased to be the organising principle of judicial review and administrative law. O'Regan v Lousich [1995] 2 NZLR 620 at [620] and [626-627] and Peters v Davison [1999] 2 NZLR 164 per Tipping.

Instead the ground is [in the context of your case] illegality, although the cause of action could be grounded in a number of other breaches. In Judicial Review, the [right] of cross-examination is only available by application, not by right. This is peculiar to JR.

Grant
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#20 User is offline   Grant-Mac 

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Posted 08 August 2017 - 03:53 PM

'Error of law' is the cause of action that subsumes illegality, irrationality and procedural impropriety. The 'rule of law' rationale of JR draws on the inherent jurisdiction of the superior courts to develop common law principles that can correct injustices and superintend unlawful administration. Bulk Gas Users Group v A-G [1983] NZLR 129 (CA).

Grant
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