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Weal v ACC DC 183/2008 Deemed review decision

#1 User is offline   Bill Birch 

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  Posted 14 August 2008 - 07:00 PM

Setting of a review hearing date outside the 3 months from the date the review application was lodged



http://www.acc.co.nz/PRD_EXT_CSMP/groups/e..._ctrb092159.pdf


It can be better explained by the appellant. Congratulations, well done and good luck with the rest of it.
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#2 User is offline   Spacecadet 

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  Posted 14 August 2008 - 07:18 PM

Thanks "Sir" Bill Birch.
It was nice to find the determination of my Appeal hearing on the forum before I received it in the mail. Comment to follow but on first reading Judge Beattie skirts around issues, an even though I won, it may still go onto the High Court, or at least be resubmitted to the District Court for correction.
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#3 User is offline   Alan Thomas 

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Posted 14 August 2008 - 07:53 PM

Obviously this case needs to proceed immediately to the High Court on a point of law as the ACC did not apply for an appeal to the deemed decision within the permissible time under the act. The only possible outcome is that the ACC must reinstate the claim and make good on their liability until it reviews the deemed decision based on the additional information that it has requested by way of statutory declaration, providing a was that information has not already been provided which from reviewing paperwork sent to me is actually covered which means that the ACC will have to come up with new information before they can make a new decision to cancel cover if that is what they want to do.

I covered this exact same issue with concerning the effect of deemed decision is Mr Tui in the district court on Monday 11 August 2008 so I guess he from his submissions to the judge he was anticipating that he would have won this appeal regarding the characteristics of a deemed decision. Obviously I will be taking advantage of various points of the decision for the stack of deemed decisions in my favour waiting to be heard by judge Barber February next year
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#4 User is offline   Spacecadet 

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Posted 14 August 2008 - 08:21 PM

The thread of my legal argument to the Court was as follows.
(1) I faxed my application for review to the ACC Review Unit at the fax number listed for the ACC mailroom; and I retained the fax verification report for this application.
(2) The faxed application for review contained a copy of the decision to revoke cover, the decision which I wanted reviewed.
(3) I filed my bundle of documents for the review of the "revoke of cover" issue to DRSL, copy to ACC, 60 days after filing the application for review.
(4) 4 months after faxing the application to review, I mailed to ACC a letter advising that as the requested review of the decision to "revoke cover" had not been set down within 3 months as required under the Act; it was now a deemed decision in my favour. i.e. the decision by ACC to revoke of cover was now quashed.
Judge Beattie, in his decision, has ruled in my favour as being legally correct.

NOW THE FUN STARTS!

ACC have filed an application appealing the decision of Judge Beattie, against the "deemed decision on revoke of cover" quashing the decision of ACC to revoke cover for my claim.

HANG ON?

I advised ACC in February 2007 that their decision of 11 October 2006 to revoke cover was quashed by virtue of a deemed decision under section 146; as was upheld by Judge Beattie in this decision.
If ACC wish to contest this decision - surely they must appeal to the High Court rather than refer the issue back to the district Court ??????

I am interested in informed comment on this.

(PS this does not include comment from Mr Thomas, as from his posting the factual issues and legal argument are already well over his head and beyond his comprehension)
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#5 User is offline   Spacecadet 

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Posted 14 August 2008 - 09:03 PM

This decision by Judge Beattie will probably subject to a recall of judgement due to his comments in the decision based on on factual inaccuracies, which although they do not affect the primary decision, they will affect the implementation of this decision.
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#6 User is offline   Witchiepoo 

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Posted 14 August 2008 - 09:05 PM

oh spacie, yr crazy, oh spacie, nice one son ! would you like fries with that ...... fun-tastic ..... its all good boy-o

yepedie do dar, yepedie day, wonderful feeling coming my way ..........
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#7 User is offline   Medwyn 

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Posted 14 August 2008 - 09:10 PM

View PostAlan Thomas, on Aug 14 2008, 07:53 PM, said:

Obviously this case needs to proceed immediately to the High Court on a point of law as the ACC did not apply for an appeal to the deemed decision within the permissible time under the act. The only possible outcome is that the ACC must reinstate the claim and make good on their liability until it reviews the deemed decision based on the additional information that it has requested by way of statutory declaration, providing a was that information has not already been provided which from reviewing paperwork sent to me is actually covered which means that the ACC will have to come up with new information before they can make a new decision to cancel cover if that is what they want to do.

I covered this exact same issue with concerning the effect of deemed decision is Mr Tui in the district court on Monday 11 August 2008 so I guess he from his submissions to the judge he was anticipating that he would have won this appeal regarding the characteristics of a deemed decision. Obviously I will be taking advantage of various points of the decision for the stack of deemed decisions in my favour waiting to be heard by judge Barber February next year

Instead of looking to score points and revealing your lack of tact. Why can't you just congratulate Spacie on a win.

IMHO you ae a cultural thief who just trolls for more ways to frustrate the judiciary.

Will you still be on bail when Judge Barber sits, or will it be a special session at the "Nick"?

Congrats Spacie, tenacity and perseverance pays!
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#8 User is offline   Gloria Mitchell 

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Posted 14 August 2008 - 09:22 PM

View PostBill Birch, on Aug 14 2008, 08:00 PM, said:

Setting of a review hearing date outside the 3 months from the date the review application was lodged
http://www.acc.co.nz/PRD_EXT_CSMP/groups/e..._ctrb092159.pdf
It can be better explained by the appellant. Congratulations, well done and good luck with the rest of it.



Slippery as a kete full of eels....that Mr Tui.

So.....they knew they were wrong and the DC Appeal would fail and had already posted notion to appeal to High Court? Can only guess they were making sure nobody forgot this time.

They are a sorry lot.

Shaking head here.....sorry you have had to fight so long and hard for this......ITS NOT FAIR!!!

Gloria
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#9 User is offline   Bill Birch 

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Posted 14 August 2008 - 09:26 PM

Obviously the legislation does not specifically cover this situation so IMHO it comes down to the intention of the Act.

The Judge has allowed the appeal regarding a deemed review decision, that is ACC's decision revoking cover is quashed.

Appeals to the high Court are on a question of law. However, ACC is now seeking to address the substantive issue which is whether or not the evidence supports revoking cover.

Therefore, as there is now a deemed review decision to quash ACC primary decision revoking cover, the next step would be for ACC to appeal to the District Court.

In other words, it is the District Court that would be the correct forum to consider the substantive issue of cover, after considering the evidence.

Anyway, that is one way of looking at it. That does not mean there is not another argument. As I have said before, that is why we have Judges, to hear the different arguments then decide.


(I may have the above wrong, did you say ACC appealing to the District Court or the High Court)
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#10 User is offline   Spacecadet 

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Posted 14 August 2008 - 09:29 PM

Hi Gloria
The irony is that ACC have filed their appeal against the decision of Judge Beattie, before it was even issued, in the District Court!!!!!!
This is currently subject to a legal challenge, which Judge Beattie has conveniently overlooked. IMHO my barrister and I agree with you and that it should be filed in the High Court.
Let the legal argument begin!

Thanks for your comment; 5+ years, claim accepted and still no entitlement!
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#11 User is offline   Gloria Mitchell 

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Posted 14 August 2008 - 09:44 PM

View PostSpacecadet, on Aug 14 2008, 10:29 PM, said:

Hi Gloria
The irony is that ACC have filed their appeal against the decision of Judge Beattie, before it was even issued, in the District Court!!!!!!
This is currently subject to a legal challenge, which Judge Beattie has conveniently overlooked. IMHO my barrister and I agree with you and that it should be filed in the High Court.
Let the legal argument begin!

Thanks for your comment; 5+ years, claim accepted and still no entitlement!



Oops got that a bit wrong sorry.....they have applied to have it reheard at DC without going through a review? Well I guess they don't have to review....thats reserved for us suckers huh.

That means they don't agree with Judge Beattie....how did they know they were not going to agree with Judge Beattie....that smacks of collusion even though he found against them.

I thought Judges decisions were sacrosanct and could not be questioned unless within the time frame and through the proper channels in a higher court.

On a point of law.....surely the law is the same for all.

Gloria.
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#12 User is offline   Huggy 

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Posted 14 August 2008 - 10:24 PM

They tried the same on the Burnett case and Beaatie was not impressed with ACC and basically told them to go and jump.

Well done Spacie, by crikey things are starting to pile up on ACC.

Looks like Havoc has nearly managed to free himself and is ready to let rip when he does get out.
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#13 User is offline   doppelganger 

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Posted 14 August 2008 - 10:34 PM

View PostBill Birch, on Aug 14 2008, 09:26 PM, said:

Obviously the legislation does not specifically cover this situation so IMHO it comes down to the intention of the Act.

The Judge has allowed the appeal regarding a deemed review decision, that is ACC's decision revoking cover is quashed.

Appeals to the high Court are on a question of law. However, ACC is now seeking to address the substantive issue which is whether or not the evidence supports revoking cover.

Therefore, as there is now a deemed review decision to quash ACC primary decision revoking cover, the next step would be for ACC to appeal to the District Court.

In other words, it is the District Court that would be the correct forum to consider the substantive issue of cover, after considering the evidence.

Anyway, that is one way of looking at it. That does not mean there is not another argument. As I have said before, that is why we have Judges, to hear the different arguments then decide.
(I may have the above wrong, did you say ACC appealing to the District Court or the High Court)


Are they appealing the District Court decision or are they making an out of time appeal of the deemed review decision?
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#14 User is offline   Alan Thomas 

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Posted 15 August 2008 - 12:43 AM

ACC appear to be making an out of time appeal of review hearing application that was converted to a deemed decision (paragraph 26 "... the respondent has lodged an appeal against that deemed decision...).

A review hearing application is converted to a deemed decision 3 months after the application was presented when a review hearing date was not set.

The ACC then have 1 month to appeal the deemed decision to the district court.

In the meantime a deemed decision is binding upon the ACC and the ACC must calculate entitlements and surrender those entitlements forthwith.

Beattie J. appears to have accepted the ACC application to appeal the deemed decision out of time despite the fact that the point of law prevents this possibility. I am of the opinion that the legislators in their wisdom created these portions of legislation as a penalty against the ACC regardless as to the merits so long as the legislation is capable of delivering an entitlement required of it.

It would be interesting to know the grounds for the ACC application which had to have been submitted at the time of their application. I mystified as to why the appellant's counsel did not have that application struck out on a point of law right then and there as the district court would be acting ultra vires as it does not have the power to override legislated criteria in these matters. Nevertheless the court has made a decision to hear the matter. That decision can be immediately appealed to the High Court as it is not a decision that is capable of being part of the original appeal to the district court. It is the ACC appeal which is an entirely different case.

My experience with the ACC legal services department in Wellington is that when they are losing they will create a blancmange or a mishmash in the attempt to try and create an overall impression. They will weave in issues of integrity and fraud in connection with injury from mosquito bites and whether or not the appellant was on holiday while with his beloved when he had his injury and submitted a claim that he was working. While the case looks dodgy it is in fact factually and legally sound.

As the ACC have refused to pay out on the basis of not believing the information given in relation to this claim their only substantial remedy to their position is to prosecute for fraud now that the claim has been legally accepted on behalf of the ACC. The difficulty for the ACC is that they had the opportunity to argue the merits of the case at a review hearing was that elected not to set down or attend. When I was faced with a very similar set of circumstances 1997 the ACC were trying desperately not to have a review hearing by first refusing to give the review hearing application forms then refusing to set down a review hearing date. My application was at the end of August at the date was not set until the end of December 1997. A review hearing date was set but ACC refuse to disclose the information they rely upon, elected not to present any submissions and not attend.

Therefore as the ACC not appealing to the High Court and are not seeking to ask Beattie J. to recall his decision I should be able to rely upon Weal v ACC AI 404/07 in my appeal that is currently before Barber J. and the very large number of deemed decisions going before Barber J. late February 2009. I anticipate that within the next six months a decision concerning ACC applying for out of time appeal is to deemed decision is should also be clarified as there is very little case law on this matter. Probably because the legislation is so clear.
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#15 User is offline   Spacecadet 

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Posted 15 August 2008 - 08:16 AM

Thanks Sir Bill.
You are right on track.
ACC appear to be appealing the deemed decision to the District Court under section 151(3)( b ) & ( c )

Quote

Section 151 Manner of bringing appeal
(1) An appellant brings an appeal by sending a notice of appeal to, or filing a notice of appeal in, a specified registry.
(2) The notice must be in the prescribed form.
(3) The notice must be received by the specified registry—
( a ) within 28 days after the date on which the reviewer gives a copy of the review decision to the appellant; or
( b ) in the case of a deemed review decision under section 146, within 28 days of the date specified in section 146(2); or;
( c ) within any longer time allowed by a District Court.

My argument is that when I notified ACC in writing on the 8th Feb 2007 that the decision to revoke cover was quashed by virture of a "deemed decision"; ACC should have appealed this claimed "deemed decision" within 28 days, rather than deny a deemed decision existed and carry on with the review regardless.
The Reviewer found that there was no deemed decision in that I had contributed to the delay; and that I had submitted the application for review out of time. It was this decision by the reviewer that was appealed to the District Court.
Judge Beattie has quashed the review decision and stated as a matter of fact I have a deemed decision on the issue of "revoke of cover"

So - my understanding is that as of yesterday my cover has been reinstated?

My brief of evidence is attached. It shows what lengths ACC will go to to lie, twist and turn to cover uo for their stuff ups. ACC objected to this brief because it contained "submissions" . Judge Beattie agreed and was very critical of this brief. To quote Judge Beattie "he wanted facts and only facts"
However I remain unrepentant, as does my barrister, who let the brief written by me be submitted to the Court, "warts and all"

When ACC lodge their application for Appeal against the possible "deemed decision" to be issued by Judge Beattie, my barrister lodged an application to have the Appeal struck out; which is the current state of play.

Attached File(s)


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#16 User is offline   MINI 

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Posted 15 August 2008 - 09:41 AM

How good is that then spacie. Well done

I gather the cyber troll will make good use of this. he has already started to 'help you"!!!!

By the by, just a little misunderstanding here, in one part you say the first decision was to revoke your cover, then you say it was to quash their decision. These two action are totally different to each other, so could you clarify for me. Did they 'revoke your cover' or 'quash their decision' in the first instance??

I have one the same being prepared for District Court at moment. In mine if I wasnt prepared for to agree with ACC to quash their decision, she was going to tell them to revoke the decision. I need to have a good read up on yours and keep this in the back of my mind as I prepare my 2nd Appeal to be joined to the first.

Obiviously you have a lot more work to do yet, but I think the hard part is over.

Cheers Mini
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#17 User is offline   Spacecadet 

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Posted 15 August 2008 - 09:55 AM

Thanks Mini, although it is a very hollow victory.
And yes like everyone else I need Thomas's help like I need a hole in the head!
ACC "revoked my cover" on 11th October 2006, I applied for a review of that decision but the review was not set down within 3 months so I wrote to ACC and claimed a deemed decision, with the effect of quashing ACC's decision to "revoke my cover".

Important points to note from this decision.
I faxed my application for review, addressed to the ACC Review Unit, fax number 04 9187701, the fax number of the ACC mail room.
This must be accepted as "received by the Corporation" as is required under the Act. If the review is not set down within 3 months of the date on the fax verification report, it becomes a deemed decision under s146 of the Act.
As Judge Beattie rightly points out in para [20], under the Act there are statutory provision for ACC to notify claimants (s307) but none for the claimants to notify ACC.
In conclusion
Faxing an application for Review to the Corporation is an acceptable method of service, and one I recommend is used.

Service by Fax has been listed as a method for service under District Court Rules for 20 years, and ACC have to be dragged screaming and kicking to comply with accepted business practices.
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#18 User is offline   Spacecadet 

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Posted 15 August 2008 - 10:50 AM

ACC's application to the District Court to Appeal against the "deemed decision" as issued by Judge Beattie in 183 / 2008.

Judge Beattie on paragraph [28] directs that that is to be the next Appeal heard. A Notice of Opposition to this Appeal has been lodged.

Attached File(s)


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#19 User is offline   Witchiepoo 

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  Posted 15 August 2008 - 11:17 AM

Gosh, aren't they following the act ! Just like mine right now Spacie - "no decision" for cover now week 8, review application for undue delay on decision now week 3 and still no date set down.

That's right, delay, deny, and hope you just lay down and die !

YOU CAN'T KILL WEEDS ACC !!!!!!!!!
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#20 User is offline   Alan Thomas 

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Posted 15 August 2008 - 12:09 PM

ACC appear to have made a separate out of time appeal to the deemed decision without any basis in law whatsoever. The time for them to address the substantive issues was in the review hearing which they did not set.

So - my understanding is that as of yesterday my cover has been reinstated?

Cover has been reinstated and the decision is now currently binding upon the ACC.

Personally I do not think it is possible for the ACC to address the exact same substantive issue in any subsequent appeal, whether that be another review hearing or district court appeal, as Part 5 of the act has expressly excluded that possibility. The decision is binding. The ACC needs to rely upon something new that was not available previously, then effectively make a new decision. There is absolutely no basis in law that the ACC can bypass a decision that is binding.


Nevertheless judge Beattie has allowed an out of time appeal for the ACC and in the meantime that decision has legal force but it does not put a hold on the binding effects of the deemed decision.

Section 151 Manner of bringing appeal
( c ) within any longer time allowed by a District Court.

In cases where an out of time appeal is submitted the reasons for being out of time must be given. Beattie J. cannot simply issue a decision on an ACC application for an appeal within the confines of the the claimant's appeal. Beattie J. is simply wrong in law to have done this.Nevertheless Beattie J. has allowed an appeal but it cannot be part of the original appeal as he has already made the decision on the original appeal. It therefore must be a new appeal. This aspect of the decision should be appealed to the High Court immediately or at least sent back to Beattie J. with a request that he reissued his decision so as to conclusively address the ACC immediate liability as it is very possible that ACC might read into paragraph 27 that the substantive issue is yet to be decided and not make good on its liability..

As the first appeal decision did not put on hold on ACC processing the claim awarded by the deemed decision ACC will need to make an immediate pay out and give a date for a new decision of which they are basing their appeal that will be heard a couple of months from now. If the ACC were to win that appeal it would only be from the time the deemed decision was overturned. In the meantime the deemed decision is binding upon the ACC which means they must make payment now.

An application for the claim and entitlements to be paid should be submitted immediately but as pointed out in my previous post it will also most likely attract an immediate fraud prosecution given that the ACC clearly had a viewpoint on wrong and/or unsupported information has been given.
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