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Natural Justice Natural Justice

#1 User is offline   magnacarta 

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Posted 04 June 2007 - 12:27 PM

Hi Guys, I thought you might be interested in this quotable extract from M v
ACC 17/2002 Judge Willy.

The first point that I want to make is that when ACC makes decisions it must
afford the claimant their right to the observance of the principles of
natural justice (see s.27 NZ Bill of Rights Act 1990) before it makes any
decision effecting the rights, interests or obligations of a claimant.

In other words a right to be heard BEFORE a decision affecting your rights, interests or obligations is made (called Audi Alteram Partem - decency in adjudication).

It is unconscionable that ACC offers its own staff the right to be heard by another person if they disagree with their personal employment assessment by, for example, their branch manager - but they have been offering no such right to most claimants.

Moreover, in offering mediation or an administrative review by ACC itself or by an
independent person outside the statutory review and appeal process ACC are not offering anything
other than what ACC is required by law to do. ACC is bound to the NZ Bill
of Rights Act by virtue of s.3 (B) of that Act.

Similarly, a reviewer is not permitted to adjudicate on anything other than
what was presented at the review. So often, a reviewer will decided "no
jurisdiction" - or some other stupid decision - when neither ACC nor the
claimant has raised the jurisdiction issue or other things which the reviewer has adjudicated on at the review.

For example, I have seen a case where ACC asked the reviewer to uphold its
decision of a certain date but the stupid reviewer then issued his decision
declining jurisdiction saying that it was not a decision. In other words he
acted for, on behalf of, and as, ACC. This is happening all too frequently.

I also ask that you pay particular attention to what Lord Diplock said below about your "......interests (including in that term career and reputation........" as it relates to your reputation which may be under attack by ACC and its private investigator's.

You have a right to be heard on the commentary, observations, opinions, inferences etc drawn by ACC or its private investigator's - (and including police officer's) because they affect your "interests" under the NZ Bill of Rights Act.

This is what Judge Willy found - and said - in M v ACC.

[21] These submissions are, in my view, unanswerable. The relevant
principles of natural justice applicable to such hearings were stated by
Lord Diplock in Re Erebus Royal Commission; Air New Zealand v Mahon [1993]
NZLR 662 at 671 in this way:

"The first rule is that the person making a finding in the exercise of such
a jurisdiction must base his decision upon evidence that has some probative
value in the sense described below. The second rule is that he must listen
fairly to any relevant evidence conflicting with the finding and any
rational argument against the finding that a person represented at the
inquiry, whose interests (including in that term career or reputation) may
be adversely affected by it, may wish to place before him or would have so
wished if he had been aware of the risk of the finding being made.

The technical rules of evidence applicable to civil or criminal litigation
form no part of the rules of natural justice. What is required by the first
rule is that the decision to make the finding must be based upon some
material that tends logically to show the existence of facts consistent with
the finding and that the reasoning supportive of the finding, if it be
disclosed, is not logically self-contradictory.

The second rule requires that any person represented at the inquiry who will
be adversely affected by the decision to make the finding should not be left
in the dark as to the risk of the finding being made and thus deprived of
any opportunity to adduce additional material of probative value which, had
it been placed before the decision-maker, might have deterred him from
making the finding even though it cannot be predicated that it would
inevitably have had that result."

[22] There is nothing difficult or technical about these prescriptions.
They amount to no more than well understood notions of fair play.
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#2 Guest_mini_*

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Posted 04 June 2007 - 03:24 PM

Magnacarta

Thanks for that, will get a copy and read. Could be real handy seeing as have no case-law for my tax case and Judge Willy is well known in Tax Court. His opinion will be greatly appreciated.

Fair play...............fair play.............ACC wouldn't hear those words very often!! Good to see he is in the middle of it, giving them what-for!!!

Thanks
Mini
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#3 User is offline   magnacarta 

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Posted 05 June 2007 - 01:36 PM

Following on from Lord Diplocks statements above In Re Erebus Royal Commission relating to the rules of natural justice, my further inquiries reveal that ACC does not have carte blanche to share and receive information obtained about you, for example, from private investigators affecting your interests, including in that term career and reputation, without providing you with an opportunity to correct or amend it.

There is no express power requiring ACC to withhold your personal information from you without giving you an opportunity for correction.

If it could do so, it is argued, s.27 of the NZ Bill of Rights Act 1990 and provisions in the Defamation Act relating to reputation would then be rendered a nullity.

In fact, in ACC's own forms, which it provides to claimants requesting consent to collect and exchange information, provides that you understand that you have the right to correct any information ACC holds about you.

IMHO this distinction needs to be pointed out to the Privacy Commissioner and the Ombudsmen.
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#4 User is offline   fairgo 

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Posted 05 June 2007 - 01:53 PM

Quote

In fact, in ACC's own forms, which it provides to claimants requesting consent to collect and exchange information, provides that you understand that you have the right to correct any information ACC holds about you.



There certainly has been some discussion about this very area lately Magna and the fraud unit has been particularly remiss in their 'corrections'
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#5 User is offline   Alan Thomas 

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Posted 05 June 2007 - 02:26 PM

When the Long-Term Claims Unit can't relabel a claimant had transferred the file to the fraud unit. The fraud unit handles about 1500 claimants cases per year.

Once the ACC fraud unit are investigating the file the file relevant portions of the file cannot be accessed for correction under the Privacy Act S27(1), or so says ACC.
The file remains an accessible while the ACC Fraud Unit continue to manage the file.

The Privacy Commissioner, ombudsman, Reviewers and District Courts have historically supported the ACC's use of the Privacy Act to withhold information on the file and prevent the correction of such information.

This way the ACC can secure a criminal conviction without ever disclosing the information claimed to be in its possession. Once obtaining a conviction the ACC claim that they don't need to release the information that they claimed on their possession. This locks all claimants out of any judicial opportunity of rebuttal.

The ACC claim that the use of S27 of the privacy act is consistent with NZ Bill of Rights Act.

Attached File(s)


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#6 User is offline   Spacecadet 

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Posted 05 June 2007 - 02:47 PM

View PostAlan Thomas, on Jun 5 2007, 02:26 PM, said:

The ACC claim that the use of S27 of the privacy act is consistent with NZ Bill of Rights Act.

An this is the issue I intend to test with the Human Rights Commission.

Incidently; The Privacy Act, S27. Security, defence, international relations, etc.

Cant say any more at present!
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#7 User is offline   fairgo 

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Posted 05 June 2007 - 03:04 PM

As I see that reply Alan - ACC is referring to copies of a fraud file whilst it is under investigation. This is different I believe when the file/investigation has been closed. You are then entitled to correct what is on file if it is incorrect.
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#8 User is offline   MG 

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Posted 05 June 2007 - 03:31 PM

Claimants are entitled to a copy of their "fraud" file once the investigation has been concluded. If prosecution takes place, disclosure is usually to the claimant's lawyer. In cases where prosecution does not take place, and ACC sends the 'fraud" file on to the branch to assist it with removing entitlements, claimants should always request a copy of the information and challenge any inaccuracies before ACC makes use of it. In particular, any "determinations of capacity" by PIs should be challenged. AFAIK, none of these characters are registered medical practitioners, therefore any conclusion they arrive at regarding a claimant's physical or mental capacity for either pre-injury employment or post-incapacity job options are of about as much weight as a knob of goat shit.
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#9 User is offline   Alan Thomas 

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Posted 05 June 2007 - 03:54 PM

Fairgo - my claim has been under investigation since 1990 until the total declinature of my claim 1997 at which time they declined to release the private information of my file. The ACC thought I was working and therefore no longer incapacitated. If ACC think I can work then I would like to know what type of work I can do. Obviously if I am no longer incapacitated it is private information I am entitled to have.

The Review Hearing decision of 1992 confirmed that the alleged work was not work in regards to the ACC act. The ACC disagreed with this decision and kept the fraud file open and continuing without any new information. The ACC apparently claim they need to keep this information from a claimant's eyes to prevent them from changing the information prior to a criminal prosecution. One would expect that the information would be released during the course of the prosecution. In most of these cases ACC on move to have information throughout criminal trials but never actually disclose it would challenge but simply say they have already made a decision to force the criminal court to rely upon the authority of the decision.

After conviction you would think that the fraud file would be closed and that the information they had in their possession at the time of the 1997 decision would then become available. Wrong. The information still isn't released up until the present. The ACC are still paying private investigators to investigate me with the most recent confirmed by invoices from the PI to ACC last year, 10 years after the close of the file.

MG - Unfortunately even though you are quite correct in what you say the ACC are running roughshod over everything and everybody anyway. The ACC are using fraud convictions based on the ACC's decision alone in the absence of legislated procedure as an alternative to any form of assessment procedure. They have been doing it for 20 years and had not been stopped.

The technique the ACC are using, with injured self-employed claimants especially, as to not put them through any kind of assessment procedure but rather accuse them of working in their businesses with the strategy to shift the onus on the claimant to prove they are not working simply by alleging that they are working without ever having to disclose the particulars of that working allegation. It is almost impossible to prove that you are not working when you own a functioning company. The ACC do not directly allege a determination of capacity but rather allege "working" claiming to rely upon the dictionary meaning rather than actual tangible tasks of which a doctor can determine safe or not. The does not seem to be any legislated facility for the ACC to make a decision based on "working" rather than a determination of capacity.

In my case it is probable that the private investigators thought I had acquired for myself a new occupation which meant the ACC should have carried out a determination for capacity under S51, the Work Capacity Assessment Procedure. As the ACC fraud unit did not liaise with the case manager the procedure was ignored, by the authority of the Auckland ACC Fraud Unit Manager. Now the ACC are alleging that there is a capacity for me to return to my pre injury occupation under S37 without having any particular work task activity or medical report to rely upon while all of the specialist reports describe a physical impossibility to return to my pre injury occupation.

At the appeal to the 1997 decision the ACC are calling as a witness and a fellow that is a director of a company I did work for prior to my injury 1989 who will try to say that I could have done my engineering work with one hand. They also change my job title from project manager/mechanical design engineer two CEO/managing director presumably thinking that relabelling me creates a different criteria of rehabilitation threshold.

Are we talking about the ACC committing perjury and falsifying documents for pecuniary advantage?
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#10 User is offline   doppelganger 

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Posted 05 June 2007 - 04:18 PM

Allan have you got your tax records on your file both the fraud file and ACC claims file.

If you havent then I would suggest that you get them there.

First step in operating with ACC is to make sure that they have all the relevant information.

If ACC seam to miss that information then put that information back on the file. Have a look at ACC files and what do you see is a repeat of assessment after assessment. Why? this is to boost the number of assessments when reviewers and judges look at the file.

Yes I know that you are going to court so you send the same information to ACC lawyers also. this will make a bigger confusion with the ACC lawyer.
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#11 User is offline   Alan Thomas 

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Posted 05 June 2007 - 04:37 PM

Dopplegangger-

The only tax records on my file other taxes that the ACC had paid as part of my ERC. I do not have the fraud file as the ACC have refused to surrender it. As a compromise the district court has instructed the ACC to describe the information they have relied upon with sufficient particularity, type of work / material time of work etc.

As previously stated the ACC Fraud Unit have withheld information from the main body of my file. The search warrant revealed that I was not working for the companies I owned. The case manager has refused to reassess the decision to cancel my claim even though the information is indirect contrast to the assumptions of the private investigator.

The ACC have possession of two sets of information that oppose each other and had elected to go with the hypothesised assumption rather than the documented information which is to the contrary.

Unfortunately dopplegangger the ACC had not carried out any assessments and have withheld the search warrant seized documented information from any judicial authority. John Miller spent all of the legal aid funding on trying to get the search warrant items returned and my file brought into order. The ACC auditor acknowledged that my file was in a mess and remains in a mess until the present simply because it speaks against the ACC decision.

Needless to say I have assembled a comprehensive set of information and sent it to the ACC took place on my file and asked them to reassess my entitlements based on this new information. The ACC have refused to make a new decision on the basis that they have totally declined my claim and therefore have no responsibility to make any reassessment.

I trust that you appreciate that the ACC have demonstrated a capacity to occupy over six weeks of court time without even getting to a description of my pre injury occupation, injury, incapacity and whether or not I have rehabilitated physically or gained a capacity to earn in a new occupation. Despite this anomaly that exists totally outside of ACC legislation I am having difficulty in achieving judicial redress at which is the reason why I post on the site, to get suggestions that relate to my circumstances from my fellow claimants.
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#12 User is offline   magnacarta 

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Posted 05 June 2007 - 05:18 PM

And so what happens if ACC never closes the "fraud" file??????

Surely we are not seriously suggesting that a claimant may not have access to personal information for correction after say, 5 - 10 - or even 20 years.

Surely we are not seriously suggesting that Parliament intended that s.27 (1) of the Privacy Act is to be construed in such a restrictive and unfair way that a citizen of this country may never be allowed access to their personal information for correction???????????

As Emeritus Professor John Burrows said about Law Reform when being appointed as a Law Commissioner earlier this year:

"Sometimes the law wasn't much good in the first place, because it was irrational or produced unfairness....."

That is exactly the present situation that is created by the interpretation placed on s.27 (1) of the Privacy Act by the Privacy Commissioner et al.

However, no matter what any of us personally says, IMHO what needs to happen is that an attempt has to be made to perhaps persuade the High Court by way of judicial review that this section of the Privacy Act is irrational and being construed too narrowly and restrictive by the Privacy Commissioer thereby creating uncertainty, unfairness and instability in the law.
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#13 User is offline   Spacecadet 

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Posted 05 June 2007 - 05:27 PM

I am currently in debate with my barrister about the use of this section of the Privacy Act by ACC. Look at the entire section, particularly the heading.

Does the heading of this section give an "open season" to ACC fraud investigators? I think not.

The question is - will this argument stand up in the High Court?

Which leads us back to the topic thread "Natural Justice" and S27 of the Bill of Rights"

Your learned comments welcome.
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#14 User is offline   doppelganger 

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Posted 05 June 2007 - 05:34 PM

Allan you might not have all of the documantation from the fraud file but you know of its contence. you know that the turned what the doctors said to the opposite. Get that corrected. that is the start.

When Huggy got the same reply to his PI file he argued that point and yes he is receiving it. He had received his earlier files after investigations and requested for a full copy of all investigations. they wouldn't give them to him, so he made the Privacy Corrections and asked for comformations (that is another story)

He received his files as the files did not come under the any section that the ACC say. It is information that you should already know and you are requiring the documation to qualify that it is correct.
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#15 User is offline   Spacecadet 

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Posted 05 June 2007 - 05:37 PM

View Postdoppelganger, on Jun 5 2007, 05:34 PM, said:

He received his files as the files did not come under the any section that the ACC say. It is information that you should already know and you are requiring the documation to qualify that it is correct.

Exactly
ACC are very thin ground using S27!
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#16 User is offline   Alan Thomas 

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Posted 05 June 2007 - 05:41 PM

Magnacarter my file shows that I have not had full access to my file since 1991 until the present. This is 16 years! Because I have not had access to the ACC suspicions I have not been in a position to put their suspicions at rest. McGreevy instructed all staff not to communicate with me. My current case manager who was a branch manager has written to me to confirm that she refuses to take any information within my file into account which effectively prevents any decisions being made on my file which in turn prevents any form of challenge.

I was also deprived of district court appeal on the basis of the ACC's application of S27 of the privacy act. My right to the civil appeal was denied on the basis that it would reveal this secret information. The fact is no information existed and I was a bluff that the ACC carried all the way through a seven-week trial 1999 and beyond until the present. The ACC now ignores the district court direction to reveal this information so as I may move ahead with my appeal.

At any one time 1500 claimants files are being processed in secret inaccessible under the S27 privacy act with the blessings of the Privacy Commissioner under the guise of being investigated for fraud. A fraud investigation is initiated even though there is no information to suggest fraud exists except perhaps the claimant being profiled in the George Orwell 1984 style and subject to relabelling.

Being deprived of the protection of the Privacy Commissioner in this way makes accident victims are second-class citizens.

It is my position that S27 of the Privacy Act is being relied upon in an inappropriate way it was not intended by the legislators. If there is a genuine fraud investigation whereby a fraud prosecution is in progress S27 can be properly applied. It is not properly applied however when used to make a civil decision ought to deprive access to civil judicial remedy.

Magnacarter but he has decision and my own decision will be addressing this issue whereby the ACC withhold private information that they alleged to exist to make a civil decision, acquire a criminal conviction and then use the conviction as the basis for the civil decision rather than the nonexistent information that the claim to exist in the first place.

This is a circular argument constructed that never had any information on the beginning information of which the ACC Fraud Unit and PIs are routinely operating like flim-flam artists. Those of us who have fallen victim to this con, and those who are yet to be conned, need rescuing.
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#17 User is offline   doppelganger 

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Posted 05 June 2007 - 05:53 PM

View PostSpacecadet, on Jun 5 2007, 05:37 PM, said:

View Postdoppelganger, on Jun 5 2007, 05:34 PM, said:

He received his files as the files did not come under the any section that the ACC say. It is information that you should already know and you are requiring the documation to qualify that it is correct.

Exactly
ACC are very thin ground using S27!


Very thin groung. your argument Allan it is information about you and no one else. and with a bit of though I an sure that you will end up with the information. You will need to make a new application or remind then that they haven't sent the information as section 27 does not apply.
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#18 User is offline   Spacecadet 

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Posted 05 June 2007 - 06:00 PM

Alan
As a constructive suggestion, spend some time reading up on issues of Privacy, Human Rights and suppression of personal information in relation to the legal system. This may be more productive than slinging around the Crimes Act.
The situation you find yourself in only exists because you have not yet argued, attempted to enforce, or exhausted your remedies in this area.
Criminal trials can be stopped while these issues are sorted. I know as I have been there, while defending myself. I didn't do a very good job conducting my own defence, but I bought these issues to the fore so clearly that the trial was adjourned while they were sorted, and the Judge would not allow proceeding to recommence until I had competent legal council
ACC have you in a legal hole and you are going around in circles.
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#19 User is offline   Alan Thomas 

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Posted 05 June 2007 - 06:41 PM

Private information about myself and others which has detrimentally affected myself and others has been alleged to exist by the ACC. The ACC have refused to release this information which in turn has deprived recourse in both civil and criminal jurisdictions. That is a fact documented in judgments. That being the case natural Justice has been non-existent. All judicial remedies were exhausted with the judiciary making appealable decisions to the effect that judicial procedures continue without my personal information, my exhibits, that were in the possession of the ACC.

In the criminal trial the judge adjourned for one week to give the ACC a chance to surrender the information. When the ACC didn't surrender the information the trial judge decided to continue regardless. The point that I'm raising Spacecadet is that while you are correct in theory the reality of what is happening in these cases is something quite different.

For the ACC Fraud Unit and in the PIs they are fully aware as to how far they can push these boundaries and when reading the transcripts of these ACC fraud trials it can be seen there is a continual pattern emerge which they have been getting away with for many years. The courts have routinely been very lenient on the ACC and the PIs that run these fraud trials while claimant invariably have underfunded legally aided ill-equipped incompetent legal counsel while the ACC afford multiple legal minds playing every dirty trick in the book. If you are in doubt about the circumstances of a claimant accused of ACC fraud, I strongly urge you speak to legal counsel that have had the experience of attempting to defend a claimant in these ACC fraud trials. In reality ACC fraud trials are nothing more than a show trial.

Depriving someone of natural Justice, such as withholding personal information needed for a criminal defence, is a criminal offence distinctly separate from the civil issues. Typically when innocent a convicted claimant will take 5 or 10 years to resolve the situation.
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#20 User is offline   Spacecadet 

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Posted 05 June 2007 - 07:24 PM

Alan
I agree with you about the situation that exists.

The ideal approach is to confront the issue pre-trial, of if not , during the trial. Unfortunately this appears to have not been strongly emphasised in your case, and as a consequence you are off the the UN on a human rights issue. This, as you are finding, is a very long winded approach with no enforcement action available other than an embarrassment for the judiciary.

These issues must be tackled up front, which is why I am working in the direction I am currently following. Agreed that the Privacy Commissioner will do nothing, and the recourse in the Human Rights tribunal is limited; but most importantly what is achieved is the evidence (which of course has not been fully disclosed) becomes contaminated, and hence unable to be used in any subsequent criminal trial.

And all of this cannot be done without competent legal council; which cost money.
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