[MINI]

Huggy, on 28 March 2018 - 09:41 AM, said:

Just in the process with Fairway now on why I request Fairway to deny ACC attendance by teleconference.


Please forward this onto the reviewer.

Dear Reviewer

Thank you for giving me the opportunity to provide submissions on why I believe ACC should be denied to participate in the review by way of teleconference.

I have canvassed my objection in my earlier emails, however, for reference, I will list these in brief, along with some other points.

I strongly object to ACC attending by teleconference because :

1. This is a significant issue that involves weekly compensation (ERC).
2. It is established in law that it is unacceptable that ACC, and in fact, any party, attend by teleconference.
3. His Honour Barber J is extremely critical of parties attending by teleconference (P v ACC and Gale v ACC).
4. His Honour Barber J has commented that it appears teleconferencing hearings do not comply with s.141 of the AC Act (Gale v ACC).
5. It appears in contradiction of the New Zealand Bill of Rights Act 1990 at s.27(1) the rights to natural justice.
6. The actual decision maker could attend as he is based in Dunedin where the review will take place.
7. ACC has other representatives based in Dunedin that can be the attendee if required.
8. I opine ACC attending by teleconference doesn’t conform with natural justice.
9. It makes the review process an unfair playing field.
10. This is not a meeting, it is a hearing where parties may be required to provide evidence.
11. The reviewer has commented that he/she would “prefer” that all parties attend in person.
12. The reviewer has the discretion and ability by way of s140 of the AC Act to deny ACC participation by teleconference.
13. If ACC is denied participation by teleconference, ACC can still provide written submissions to the review.
14. In a previous review hearing for myself, and in attendance at other review hearings as a support person, I have struggled to hear and understand ACC through the speaker when they have participated by teleconference.
15. It is my view that ACC attending by teleconference is to my disadvantage. ACC could have, unbeknown to myself and to the reviewer access to their computer system along with having staff assisting the presenter during the review process, in order to submit further information that I may not be privy to.

This is a nationwide problem that has just been raised in the media where further media coverage is expected.

https://www.stuff.co...ne-not-the-face

[MINI]

Huggy

Good letter to Reviewer

AND good to see the human rights section being used to stuff there little games up.

also thanks for the Court numbers of the cases used as caselaw.

Please let us/me know how you get on with this letter and the write up of the the paper both being used. I see their attempt to use this horrible system again going up in flames.

Well done you lot down there. Hope others are having the same success as I see you having. The mention of the human rights section will scare them into submission as the human rights can pay you damages, so they will be a little careful of that mention.

Nice going.

Mini

[MINI]

Alan Thomas, on 28 March 2018 - 11:39 AM, said:

As you know Hagi the public have no power to make any changes of any sort and that it is the legislation that provides the authority for any changes. I'm simply trying to find out on what basis the changes that have been made to transfer duties and authority from the ACC to a privately owned company? If our rights have been hijacked by a private company for personal profit I want to be able to bring about criminal prosecutions against the individuals involved. I don't want a media event, I want something close-up and personal with the actual individuals.

My experiences that both Fairway and the reviewers have full access to our entire claim files as confirmed by management staff of Fairway. I have written to both ACC and Fairway for the purposes of expressly forbidding any of Fairway staff from having access to my private information which includes the reviewers. All information going before a reviewer should come from either the ACC or the claimant in the form of submissions and exhibits.

I don't know who all why it has come about that private matters and particularly judicial matters have gone into the hands of a limited liability company. This in itself is outrageous and cannot possibly stand. The situation has clearly got worse once the staff members gained ownership of this private company. How is it come about that ACC reviewers are currently being employed by this private company? How can reviewers be independent if they are employees?

As you know the legislation requires that ACC be responsible for the arrangements of an independent reviewer and that will law on this matter has not changed. What should be taken place is an immediate correction so as to reflect the legislated criteria for such matters. As the changing to a Ministry of Justice based system of course this should always have been the case but given many governments have been given the opportunity to do this for us and have not I don't see any changes coming any time soon as this issue has been canvassed many times over the last three or four decades without change.

Alan Thomas.

The Justice Dept rules the Legal Aid right. How many of the same entity are going to be loaded with supposedily separate entities making decisions for the same disabled people.

They have to fix the way it is working now because the use of the Humans Right Act is being used more and more and they wont want that to be presented in our submissions whether it be Fairways Review or District Court. (I wish I could find that speech of the PM key to the Newspaper regarding the court of appeal being able to handle these issues). It would stop you having to write such long convoluted messages on here to make no point of any interest.

Mini

[anonymousey]

Tish, on 28 March 2018 - 01:58 PM, said:

The downside to automatically proceeding is that, if the reviewer doesn't have time to cover everything that is required and insists on finishing on time, regardless of when they started, should the claimant be unsuccessful they might have no come back if they allowed it to happen without raising a reasonable objection to the proceedings continuing without all submissions being provided, or if ACC made an issue, and ditto missing or late ACC submissions. So far, we haven't yet met a reviewer with two brain cells to rub together, so I have little faith in there being any intellectual justice contained within the review process.

20/20 hindsight is nice, but it doesn't win battles and it sure as hell doesn't automatically win against ACC lol

This is why I consider an automatic favourable result for the claimant should be considered Tish.

AFAIK if a claimant does not turn up to their Review or Court Hearing [either in person & with paper submissions already registered] then the hearing ends & they have basically lost this chance to argue their case etc

SO I am kinda if its happening with claimants - then ACC themselves - should also face this risk ie if their casemanagers are unprepared for a review process then it is not much different to the deemed decision principles as in avoidable delays ie result should be deemed in claimants favour

[anonymousey]

MINI, on 28 March 2018 - 02:32 PM, said:

mousey

You are calling a Reviewer a Judge and they are no such thing. You only have a judge when you get past the Reviewer and onto the District or High court. Calling a Reviewer a judge makes it hard to understand what level of Judisury you are at. Those with a lot of usage of the system should be able to sort out what you mean, but the newbies may find it a bit harder.

Just a wee hiccup, but very important. Others should take note as well. It would make the understanding of a submission very difficult. Otherwise, I agree with what you say in that the publicity is good for those who have these types of issues in very high hands at the moment should be pleased even though they have not been noted.

Mini

I was thinking more that if a claimant had been through a Review ...then the next step in that process was going to the Judge or District Court...and this step is where a review tape or transcript would become available ... & able to proffer more relevant evidence if necessary Mini.

<<"What you should do is record the proceedings and when it comes time to you to talk play the tape back piece by piece and address your recording in response to the ACC submissions. ">>

Sorry I basically read Alans advisement as just quoted to a injured claimant going through a tape piece by piece with counter responses as a possible waste of valuable time. I also can not imagine any professional person sitting listening to Alan to dissecting anyone elses words with a form of countering rhetoric or obsessive spotlighting when they have either specifically been present [Reviewer] or have access to copy [Judge] of both lots of submissions in hand &or also any possible audio or videorecordings etc.

Basically my thinking is that anything significant can always be extracted and referenced to the transcript as required .. AND thus this evidence should in essence be only one aspect of a claimants next lot submissions as part of their second bundle of documents! This is because I consider that any disputed issues & particular arguments a claimant is relying upon to support their Decision Review process should already have been disclosed to the Reviewer before turning up on the day etc

[Tish]

MINI, on 28 March 2018 - 02:07 PM, said:

Hi Tish

It is handy to know that they didn't say 'No' to you for a copy of the transcript. Usually you cant get that until you take it to District Court. Mind you having said that I have actually received two different transcripts for the same Review hearing, which fact was ignored at the DC.

By the sounds of it, I, personally would much rather pay for Judicial Review on a point of law, than go thru the gaff they have now with Fairways, Reviewers, and ACC all combined, BUT individual entities. It is much to hard to miss something to one of them. What are they all supposed to do for one so-called 'less formal' way than DC.

I hope your audio file and the transcript were the same. They should have been as they are the same thing, from where I sit.

Cheers

MINI

I asked for the transcript at the second case management conference with the judge, this was 3 months after the Appeal was filed. Fairways gave me the audio on CD and said ACC were required to give me the transcript and it should be forthcoming from them shortly. So I waited but it never showed up, so I asked DOJ case manager about it after the first teleconference and she said ask during the next teleconference with the Judge, so I did and ACC lawyer sent it the same day.

Every one tells a different story, but in good faith you believe they are telling the truth because that is the way it is for lay people with their toes in any part of the judicial world and no user manual to work from. You feel your way, you look for reliable seeming instructions and you go with what you have. I have learnt a lot and haven't to date found the Appeal process anywhere near as fraught with bullshit as Fairways and ACC as a combination are.

[Tish]

anonymousey, on 28 March 2018 - 04:21 PM, said:

<snip>


Basically my thinking is that anything significant can always be extracted and referenced to the transcript as required .. AND thus this evidence should in essence be only one aspect of a claimants next lot submissions as part of their second bundle of documents! This is because I consider that any disputed issues & particular arguments a claimant is relying upon to support their Decision Review process should already have been disclosed to the Reviewer before turning up on the day etc

When a claimant heading to review is using an advocate who ignores instructions and produces submissions that do not reflect the case to be addressed and because he lives way down country, the claimant has no opportunity to see them until just before the review, there's a big problem. When relying on someone touting themselves as an advocate, and when you have no idea how this stuff works and what your rights are, avoidable problems become mountains that can't be climbed.

Thank God for a claimant's right to use the Appeal process and be given leave to introduce new documentation into submissions. That makes it a whole new ball game and can very much level out ACCs little playing field.

[anonymousey]

Tish, on 28 March 2018 - 04:32 PM, said:

When a claimant heading to review is using an advocate who ignores instructions and produces submissions that do not reflect the case to be addressed and because he lives way down country, the claimant has no opportunity to see them until just before the review, there's a big problem. When relying on someone touting themselves as an advocate, and when you have no idea how this stuff works and what your rights are, avoidable problems become mountains that can't be climbed.

Thank God for a claimant's right to use the Appeal process and be given leave to introduce new documentation into submissions. That makes it a whole new ball game and can very much level out ACCs little playing field.

AGREED Tish ...this is a very different problem faced by vulnerable claimants sadly. I believe a register is necessary.

I am aware though that this forum has a banned advocate who I consider still trawls for vulnerable claimants who are easily manipulated or deceived ... and I have discovered another awful potential trap ....which is that the way these dodgy alleged representatives work to get around an official or legal restriction is to pull strings from the shadows as well as produce the submission for their target but not sign it etc

[Alan Thomas]

MINI, on 28 March 2018 - 02:57 PM, said:

Alan Thomas.

The Justice Dept rules the Legal Aid right. How many of the same entity are going to be loaded with supposedily separate entities making decisions for the same disabled people.

They have to fix the way it is working now because the use of the Humans Right Act is being used more and more and they wont want that to be presented in our submissions whether it be Fairways Review or District Court. (I wish I could find that speech of the PM key to the Newspaper regarding the court of appeal being able to handle these issues). It would stop you having to write such long convoluted messages on here to make no point of any interest.

Mini

Is there any such thing as a fairway review?

I don't see anything under part five of the ACC act that takes away ACC's duty to arrange review hearings and provide an independent reviewer.

Why then are people such as yourself trying to invent continuous and ever more complex solutions to the problem of ACCs disobedience to the legislation?

[Huggy]

Interesting response from ACC's lawyer, now we await what the reviewer has to say

Dear Axxxxx

I now act for ACC in this matter.

I refer to Mrs xxxxxxx’s request for a direction that ACC not be permitted to attend the hearing unless ACC’s attends in person, i.e. that ACC cannot attend by telephone.

Firstly, with all due respect to the case law cited by Mrs xxxxxxxxx there is no requirement that a party has to attend the hearing in person. I note that other than Judge Barber’s observations, which are not binding, no other authority is cited. The only relevant requirement is that of natural justice, i.e. that both parties should be heard. In almost all cases that can occur by a hearing by telephone. There may be exceptional cases where the parties should attend (such as critical evidence given by telephone where the party’s demeanour cannot be observed) but that is not the case here. The reality is that ACC and claimants and their representatives frequently attend by telephone and no objection is taken, correctly in my view. In this case, if there is to be evidence it will be given by Mrs xxxxxxxxx in person at the review hearing. No evidence will be given by an ACC staff member.

Secondly, what Mrs xxxxxxxxx is requesting (that ACC not attend the hearing unless in person) is a denial of natural justice and a breach of section 142(1)(a).

Thirdly, I am attending on behalf of ACC as ACC’s counsel. I am of course not employed by ACC. There is no requirement that counsel or an advocate has to attend in person, as opposed to a party.

Can you please send me a copy of the hearing notice with the telephone conference details.

[Tish]

Huggy, on 30 March 2018 - 10:47 AM, said:

Interesting response from ACC's lawyer, now we await what the reviewer has to say


Thirdly, I am attending on behalf of ACC as ACC’s counsel. I am of course not employed by ACC. There is no requirement that counsel or an advocate has to attend in person, as opposed to a party.

Can you please send me a copy of the hearing notice with the telephone conference details.

Of course they are employed by ACC, as their Counsel and not an advocate, not a representative, they would not be attending otherwise. Google her name and you should find out what legal firm she works for if you don't know already.

[doppelganger]

This would become interesting especially were the evidence is in dispute or ACC are claiming they don't have evidence like a medical condition which is in the position of the general public.

This statement in the letter

There may be exceptional cases where the parties should attend (such as critical evidence given by telephone

How can ACC present evidence if ACC are not at the hearing or look at evidence if ACC do not attend.
specially when due to natural justice the ACC need to put evidence to the reviewer under oath.

[Huggy]

Interesting response from the Reviewer. Maybe this needs to be raised at a DC hearing again and get some fresh comments on it by a judge. Dont know why the reviewer is adamant I requested she deny ACC attendance, i was very particulate that requesting if ACC do not attend, then the reviewer should exercise their discretion and deny them participation by teleconference.

Please see the reviewer's email below.

"Mrs xxxxxxxxx's request for the reviewer to direct ACC to attend in person is declined. I accept and respectfully agree with the submissions of Mr xxxxx that the only relevant requirement is natural justice. A reviewer must make sure that both parties have the opportunity to be heard. To deny ACC the ability to appear by telephone, especially when represented by legal counsel would be a breach of natural justice. Moreover since the comments in the case law cited by Mrs xxxxxxxx the hearing process in Tribunals and indeed the District Court has changed significantly and appearances by telephone are an every day occurrence."



Yours sincerely,

xxxxxxx xxxxxxxx
FairWay Resolution Limited
Service Delivery Team

[Tish]

MINI, on 28 March 2018 - 02:20 PM, said:

Tish

They didn't type it up into a transcript for you?? Far out, I would have been bugged in that case. I feel the only case for me is to go Judicial Review through High Court on point of law.

Mini

lol I took what I needed off the audio myself, and then requested the typed transcript at CM Conference. I had what I needed and in doing that, it made it obvious to the judge at the time that ACC hadn't provided it as they were supposedly expected to.

The printed and bound version came via ACC subs at Appeal, that made life easy, all nicely packaged up and ready to use at their expense. I'm gonna annotate and decorate the crap out of that bugger for the next Hearing, kinda make it my own haha