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ACC Fraud Unit Audit Discussion and input please

#1 User is offline   hukildaspida 

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Posted 05 February 2009 - 11:12 AM

In Advance it would be appreciated if you would PLEASE stick to this Topic & keep your personal stories where they belong.

There have been positive changes with the requirements relating to what Private Investigators are & are not able to do as a result of a number of you on this site & other places input.

Unfortunately an area that has not yet been addressed which one would've hoped would have been undertaken by now is that of an AUDIT of ACC staff & there actions etc who are involved in it's Fraud Unit to ensure Transparency & ACCountabilty.

It's a well known fact that Bank Staff must take at least a week off on annual leave to ensure they are not doing anything untoward to clients files & as financial gain is also possible with ACC staff should not ACC staff have to do the same?

As an example it is quite clear that there are people's ACC files that have had documents removed to make them look guilty of offences, including Fraud, that they have not committed, more than one set of files on clients & files in more than one place with a Liquorice allsorts of documents.

Should a 3rd party, NOT Private Investigators be assigned to do random Audits of clients files that have been accessed by the Fraud Unit to ensure documents are all intact etc?

This would ensure those whom are ACCountable for knowingly removing/ altering documents including that of an electronic nature etc are brought to ACCountabilty & if necessarily before a Criminal Court of Law.

What follow ups have been done on people to see what help etc they are getting who have had accidents & lost payments/entitlements as a result of false & vexatious allegations?

Are they on WINZ benenfits, back at full-time work etc as these things are all interelated?

What processes have been put in place by ACC to ensure full checks and balances are done PRIOR to any client files, including that of claimants, medical professionals etc, are referred for to Private Investigators for surveillance and or investigation?

Has there been any formal investigations done to see if there has been a history of conflicts of interest between ACC staff at their Fraud Unit since it was set up and that of Private Investigators who perfed from the Police?

Are there figures available for each year to show how much of ACC Levies have been spent on surveillance / investigations from all ACC branches?

What is the average number of hours spent on surveillance / investigation per ACC client?

What proceedures have been put in place by ACC to ensure that clients who have stood up for their Legal Rights are not further Victimised by repeated Investigations because someone in ACCs Fraud Unit has an axe to grind and *Flagged the clients ACC file as being a Risky Client?

* please refer to Flagged file threads on this & http://www.accfocus.org websites for further information.
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#2 User is offline   Alan Thomas 

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Posted 05 February 2009 - 01:53 PM

Could you particularise the positive changes relating to ACC private investigators and the activities of the fraud unit.

From what I can see the ACC is still relying upon various assumptions made by members of the public by the ACC in defiance of the medical evidence. ACC appeare to be fishing for such information particularly in regards to long term claimants with very robust medical reporting describing permanent incapacity. They then confront the claimant with this box licorice all sorts then threaten criminal prosecution if they did not surrender their entitlements.

Has the rate of investigations conducted in this way lessened from the previous average of 600 claimants per year whereby more than 50% surrender their entitlements with a large proportion of the remaining actually facing legal action?

Has there been any actual criteria laid down in accordance with law so as to describe when ACC may engage private investigators and when they may not? Or is it still open season on an invalids?

I doubt very much auditing claimant files would change anything if the case managers and decision-makers do not have any criteria by which to work.

We will always get what we have always got if they always do what they have always done!

Criteria criteria criteria, what is happening? Or is everything still a blancmange creating a labyrinth to impossible for an invalid to navigate? or Is the ACC still talking about swapping the one labyrinth for another labyrinth?
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#3 User is offline   Alan Thomas 

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Posted 05 February 2009 - 05:52 PM

Douglas please do not blog
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#4 User is offline   Sitting Duck 

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  Posted 05 February 2009 - 06:09 PM

Now that Alan Thomas has associated himself with this issue one can be asurred it has already become a "lost cause".
It is a pity really as I do believe Hukildaspada had a valid point!
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#5 User is offline   Huggy 

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Posted 05 February 2009 - 08:03 PM

The fraud unit is itself being watched by the network. No longer can they get away with picking on someone who doesnt have a clue what is happening. Once the network hears the slightest hint of an investigation the network goes in and assists in anyway we can.

ACC would have received some bad news today whilst we ching ching our bottles to celebrate good news.

Fraud unit your days of watching are getting harder. By all means you have the right to investigate if there is a genuine case of fraud, we accept that, but gone are the days where you persecute, lie,and fabricate your investigations so you can proceed with prosecutions. As time goes on this will be harder and harder and some very interesting occurrences will strengthen what the network has done and will publicy humiliate the ACC in a big way.

Media are working with the network and are following many items of interest.

As the network gets stronger the fraud unit will weaken.


ACC FRAUD UNIT WE ARE WATCHING YOU AND RECORDING ALL YOUR STUFF UPS.

Bottoms up folks have a great weekend and keep on keeping on.
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#6 User is offline   Alan Thomas 

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Posted 06 February 2009 - 03:07 PM

If the private investigators are taken to court but get away scot-free, do they really care whether or not they are being watched? Surely the ACC will simply pay the more money to offset any increased embarrassment they or their families suffer from the dirty deeds they do.
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#7 User is offline   fairgo 

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Posted 06 February 2009 - 04:39 PM

Agreed Huggy. There is a very close eye being kept on certain decisions of the fraud unit and their willingness to prosecute at all costs to make examples of people, thereby frightening others and successfully denying rightful entitlement. There was a celebration I'm sure last night and I raise my glass to those who kept up the pressure. Truth will out.
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#8 User is offline   hukildaspida 

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Posted 10 February 2009 - 03:49 PM

View PostAlan Thomas, on Feb 5 2009, 06:52 PM, said:

Douglas please do not blog


Alan Thomas Please practice what you preach on the threads Hukildaspida has started.
We wrote what we did as an Audit into ACC's Fraud Unit is a very serious issue that needs addressing immediately.

Please read the introduction to Hukildaspida's topic again.
Thank you & please do not reply to this post.
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#9 User is offline   Alan Thomas 

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Posted 10 February 2009 - 05:40 PM

Has there been any actual criteria laid down in accordance with law so as to describe when ACC may engage private investigators and when they may not? Or is it still open season on an invalids?
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#10 User is offline   hukildaspida 

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Posted 17 February 2009 - 04:17 PM

Are any of ACC staff who work for the Fraud Unit Certified Examining Officers?

If so which country have their qualifications been obtained?
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#11 User is offline   Alan Thomas 

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Posted 17 February 2009 - 04:48 PM

I examined both the manager of the fraud investigation unit and one of the examining officers in the district court under oath. They both confirmed that there is no particular training or qualification.

In addition they had no investigation planning technique, criteria or mechanism by which they can determine results. It seems to me ever so freely touchy peer review mumbo-jumbo where they have a group hug and declare the claimant a criminal by consensus of opinion in the advice of the private investigator as to whether or not they can secure a conviction based entirely upon appearances and not the legislation.

hukildaspida you are definitely on to the critical issue whereby if an examining officer was to be qualified or certified in some way they would then be able to ensure the safety of claimants against false allegation. Instead it appears that everybody is avoiding taking liability by having no qualification, not being responsible for any particular decision and generally ducking for cover based on incompetence and ignorance when push comes to shove in the court room which would clarify whether or not the examining officer had a guilty mind by making a false document for which courts would be entitled to rely upon qualified work.
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#12 User is offline   hukildaspida 

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Posted 31 March 2009 - 04:02 PM

View Posthukildaspida, on Feb 5 2009, 12:12 PM, said:

In Advance it would be appreciated if you would PLEASE stick to this Topic & keep your personal stories where they belong.

There have been positive changes with the requirements relating to what Private Investigators are & are not able to do as a result of a number of you on this site & other places input.

Unfortunately an area that has not yet been addressed which one would've hoped would have been undertaken by now is that of an AUDIT of ACC staff & there actions etc who are involved in it's Fraud Unit to ensure Transparency & ACCountabilty.

It's a well known fact that Bank Staff must take at least a week off on annual leave to ensure they are not doing anything untoward to clients files & as financial gain is also possible with ACC staff should not ACC staff have to do the same?

As an example it is quite clear that there are people's ACC files that have had documents removed to make them look guilty of offences, including Fraud, that they have not committed, more than one set of files on clients & files in more than one place with a Liquorice allsorts of documents.

Should a 3rd party, NOT Private Investigators be assigned to do random Audits of clients files that have been accessed by the Fraud Unit to ensure documents are all intact etc?

This would ensure those whom are ACCountable for knowingly removing/ altering documents including that of an electronic nature etc are brought to ACCountabilty & if necessarily before a Criminal Court of Law.

What follow ups have been done on people to see what help etc they are getting who have had accidents & lost payments/entitlements as a result of false & vexatious allegations?

Are they on WINZ benenfits, back at full-time work etc as these things are all interelated?

What processes have been put in place by ACC to ensure full checks and balances are done PRIOR to any client files, including that of claimants, medical professionals etc, are referred for to Private Investigators for surveillance and or investigation?

Has there been any formal investigations done to see if there has been a history of conflicts of interest between ACC staff at their Fraud Unit since it was set up and that of Private Investigators who perfed from the Police?

Are there figures available for each year to show how much of ACC Levies have been spent on surveillance / investigations from all ACC branches?

What is the average number of hours spent on surveillance / investigation per ACC client?

What proceedures have been put in place by ACC to ensure that clients who have stood up for their Legal Rights are not further Victimised by repeated Investigations because someone in ACCs Fraud Unit has an axe to grind and *Flagged the clients ACC file as being a Risky Client?

* please refer to Flagged file threads on this & http://www.accfocus.org websites for further information.

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#13 User is offline   hukildaspida 

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Posted 02 April 2009 - 12:08 PM

Those reading this topic should also read other topics including those relating to Private Investigators & also that of the topic "Martin Ashley Williscroft"as they are all interelated.
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#14 User is offline   hukildaspida 

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Posted 18 August 2009 - 04:07 PM

In light of Judge Fogarty decision publically released on 6 August 2009 relating to Private Investigator & Security Guard Registrar Barrister Gary Harrison ,who is based in the Auckland District Court, it is most important that the ACC Minister Nick Smith takes a very close look at all Crown Entity Fraud Investigation unit contracts where PIs are working who have had Licenses issued by Garry Harrison.

How many Private Investigators & Security Guards who have grown in number recently in roles of Public Safety in our lives are also more than likely not 'Fit & Proper people' to hold licenses in this field?

They have access to at times extremely sensitive health & personal information & the Office of the Privacy Commissioner should also be most concerned for all NZ citizens safety.


It is noted on page 3 in the article below that the Privacy Commissioner wrote to the Justice Ministry in 2008 raising concerns in which Mr Gary Harrison was also interviewed.

The same article mentioned concerns raised by the NSW Independent Commission against Corruption & how Private Investigators were behaving in inlawful manners with some of their "corrupt mates" still in the Police force.

We hope the bad Police have all been caught up with as society only needs good honest people in the Police & there are good ones.

"Spying OK in the eyes of the law"


http://www.nzherald.co.nz/nz-law-society/n...02126



Security watchdogs' decisions shown to be flawed


http://www.scoop.co....0908/S00062.htm

It also raises the issue if perhaps the Executive of the Justice Ministry is up to the standard they should be to have allowed someone to carry on in the way Mr Garry Harrison may have done over the years.

We would not like to see further 'Conflicts of Interest' with others who have strong links to Private Investigators who have had certificates issued by Mr Harrison working within the Ministry of Justice, would we?
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#15 User is offline   hukildaspida 

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Posted 02 October 2009 - 04:54 PM

Thank you to those who have read this thread.

Looks like it's had a few hits,over a 1000, we only hope that good will come out of it for all concerned.
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#16 User is offline   hukildaspida 

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Posted 26 April 2010 - 05:57 PM

View Posthukildaspida, on Apr 2 2009, 01:08 PM, said:

Those reading this topic should also read other topics including those relating to Private Investigators & also that of the topic "Martin Ashley Williscroft"as they are all interelated.



Admin would you please let us know why the thread Martin Ashley Williscroft is now unable to be accessed via this forum?

It was previously under the topic of Fraud & is very relevant for the public to read.

For those whom are unaware Martin Ashley Williscroft went to school in Wellington & Westlake Boys in Auckland.

http://www.oldfriend...ew.aspx?id=1180

He left school around the age of 15years & obtained a job at Accident Compensation Corporation as a Fraud Examiner, after a period of time as a Fisheries officer.

It is understood he doesnt have a very high level of qualifications to do the 'job' he has been.
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#17 User is offline   hukildaspida 

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Posted 13 July 2010 - 04:56 PM

View Posthukildaspida, on Apr 26 2010, 05:57 PM, said:

Admin would you please let us know why the thread Martin Ashley Williscroft is now unable to be accessed via this forum?

It was previously under the topic of Fraud & is very relevant for the public to read.

For those whom are unaware Martin Ashley Williscroft went to school in Wellington & Westlake Boys in Auckland.

http://www.oldfriend...ew.aspx?id=1180

He left school around the age of 15years & obtained a job at Accident Compensation Corporation as a Fraud Examiner, after a period of time as a Fisheries officer.

It is understood he doesnt have a very high level of qualifications to do the 'job' he has been.



Martin Williscroft whom has been employed by http://www.acc.co.nz/ from around 1990 as a Fraud Unit Investigator is married to Sharryn nee Carter then Greenwood from around 1985.

Sharryn worked under the names of Carter & Greenwood at http://www.state.co.nz Takapuna & Orewa Branches, when ACC claims were managed by them, from 1975 to 1987.

How many files has Martin Ashley Williscroft Investigated & initiated Fraud & other Surviellance investigations & proceedings that he should never have been in the situation to in the first instance.

At what cost to our society, financially & in other ways?

Maybe you are an employer who spent considerable time & effort training your staff & they had an accident & were accused of "Fraud" that was investigated as a result of negligence on the part of Williscroft, & your loyal staff member had to leave their employment with you to sort out the mess he created leaving you the expense of having to find & train up a new staff member.

Do you think it is OK to let Williscroft not to be made accountable?


If you are a member of http://www.lawsociety.org.nz/

http://www.doctor.co.nz/

http://www.nzma.org.nz/

Please fufil your Legal Duty of Care & contact your clients whom have had involvement with ACC issues.

Go through your files with a fine tooth comb & ensure something is done to prevent this serious Conflict of Interest continuing on without action.

It is understood Martin Williscroft may not have even been Legally Qualified to Authorize or Investigate allegations of "Fraud Cases" that he has.

He is also understood to have his name on Criminal Court Summons, which makes him very accountable for how our acc levies have been spent.

Now wouldn't it be a revelation to see how much Williscroft has claimed in Public Disbursements during his employment at http://www.acc.co.nz/
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#18 User is offline   MINI 

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Posted 13 July 2010 - 05:42 PM

Spider

If he had a Company or Trust name it should be able to be traced.

Mini
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#19 User is offline   doppelganger 

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Posted 07 August 2010 - 11:21 PM

A case that martin made a decision bit considered it not a decision.

Cruickshank v Accident Compensation Corporation [2008] NZACC 271 (7 November 2008)
IN THE DISTRICT COURT
HELD AT ROTORUA

Decision No. 271/2008

IN THE MATTER of the Injury Prevention, Rehabilitation and
Compensation Act 2001

AND

IN THE MATTER of an appeal pursuant to Section 149 of the Act

BETWEEN MICHAEL CRUICKSHANK

(Al 344/08)

Appellant

AND ACCIDENT COMPENSATION

CORPORATION

Respondent

HEARD at ROTORUA on 21 October 2008

APPEARANCES

Mr D Heperi, Advocate for Appellant.

Mr A D Barnett, Counsel for Respondent.

RESERVED JUDGMENT OF JUDGE M J BEATTIE

[1] The issue in this appeal relates to a consideration of whether a letter from the respondent, dated 21 July 2008, to the appellant's Advocate, was a decision within the meaning of Section 6 of the Act and thereby amenable to review pursuant to Section 134 of the Act.
[2] A further issue requiring determination is whether the Reviewer correctly exercised his discretion in declining to award the costs of review to the appellant. [3] The background facts relevant to the issues in this appeal may be stated as follows:
The appellant has cover under the Act for an injury to his left arm suffered in a work accident in April 1995.
The appellant's incapacity from his employment as a carpenter, as a consequence of his injury, enabled him to receive weekly compensation.
In May 2007 the respondent's Fraud Office laid an Information in the North Shore District Court alleging that the appellant had committed an offence under the Act by failing to advise the Corporation of income he had allegedly been receiving, whilst in receipt of weekly compensation.
This Court has been informed that the appellant has pleaded not guilty to that charge and a hearing of the Information has not yet taken place.
As part of the discovery process for that criminal proceeding, the Corporation provided the appellant with a copy of the Brief of Evidence of its principal witness in that proceeding.
One of the statements in that Brief of Evidence states:
As a result of the defendant working whilst in receipt of weekly compensation and not advising ACC, an overpayment has been calculated at $10,853.60."

By email dated 17 July 2008, the appellant's representative requested particulars of the respondent's assessment of weekly earnings and weekly compensation for the period in question.
By email dated 21 July 2008, the appellant's case manager, David Smith, emailed the appellant's representative stating, inter alia -
"I spoke with Martin Williscroft and he informed me that ACC is seeking full repayment of weekly compensation for the period Mr Cruickshank was working. I will post a copy of the weekly compensation that was paid from 18.8.05 to 1.12.05."

By email dated 21 July 2008, the appellant's representative requested Mr Smith to advise whether an actual decision letter had been issued.

By email response of 22 July 2008, Mr Smith stated:
"I have been informed that a decision letter has not been issued."

On receipt of that email the appellant lodged an application for a review of the respondent's letter of 21 July 2008.
A Review Hearing took place on 20 August 2008, at which the appellant was represented by Mr Heperi.
In his decision dated 3 September 2008, the Reviewer, Mr Woodhouse, determined that the letter of 21 July 2008 was not a decision letter but rather was correspondence of an administrative nature.
In a further decision the Reviewer determined the question of costs sought by the appellant as follows:
When I consider this matter in the round, I find it likely the intent of the review application was to seek information regarding ACC's case for prosecution, or to potentially influence the criminal prosecution. Given a review hearing is a civil matter, I must conclude such a request is an abuse of process and on that basis, was not reasonably brought."

[4] Mr Heperi, for the appellant, submitted that the respondent's letter of 21
July did amount to a reviewable decision in that it determined the amount of an alleged overpayment of weekly compensation and that full repayment would be sought.

[5] Mr Heperi went further and submitted that having made its mind up on that point, the respondent should then have complied with Section 64 of the Act which requires that the Corporation must give notice in writing of its decision, and the fact that it had not given such notice was a breach of that section.
[6] With regard to the question of review costs, Mr Heperi submitted that the appellant was simply seeking to obtain further information regarding the respondent's assessment of an overpayment , and that in those circumstances it could not be said that the application for review was an abuse of process.
[7] Mr Barnett, for the respondent, submitted that all correspondence between Mr Heperi and the appellant's case manager in and about July 2008, was in the context of the prosecution which the Corporation had commenced, rather than in relation to any action on any entitlement that the appellant may have been enjoying. Counsel submitted that the letter in issue must be looked at in its correct context.
[8] Mr Barnett went further to suggest that the Reviewer must have suspected that the appellant was engaged in a "fishing" expedition, and considered that because it was a "fishing" expedition this was the reason for declining costs.
[9] Counsel further submitted that the respondent's follow-up letter advising
that no decision within the meaning of the Act had been issued ought to have been the end of the matter, and that the appellant's continuation with the questioning of that letter indicated his true motives.

DECISION

[10] The appellant has appealed to this Court from the Review Decision which determined that the respondent's email of 21 July 2008 was not a reviewable decision within the meaning of Section 134 of the Act. A reviewable decision must be one that comes within the definition of "decision" in Section 6 of the Act.
[11] Section 6 sets out seven instances where decisions made by the Corporation are considered to be reviewable decisions, and although these definitions are not meant to be exhaustive, it is clear from the various definitions that it is only decisions which affect a claimant's entitlement or cover which come within the category or reviewable decisions.
[12] In this present case the advice contained in the respondent's letter that it was contending that it had made an overpayment to the appellant and that it was intending to recover that overpayment , was clearly made within the context of the fraud prosecution which it had commenced and where it was giving particulars of the amount of fraud which was alleged had been committed.
[13] In terms of the Injury Prevention, Rehabilitation and Compensation Act 2001, I find it to be the case that the letter from the respondent did not amount to a decision pursuant to Section 248 of the Act, that it was seeking to recover a debt by way of proceedings from the appellant, but rather that as part of any penalty that may be imposed in the event of conviction, that it would be seeking a sum by way of reparation.
[14] The actions by the appellant in questioning the respondent's advice to that effebt is premature insofar as assessment of any liability under the Act by the appellant is concerned, as any such overpayment would need to be considered in the context of the abatement formula, and if and when the respondent were to seek to recover all or any overpayment by proceedings taken under the Act, then that decision to do so would be one which was reviewable.
[15] The letter in question, I find, was simply advisory of the position which the respondent was taking in the context of the prosecution for fraudulent acts on the appellant's behalf in relation to his receipt of weekly compensation. Such information being provided wholly within the context of Court criminal proceedings, and in those circumstances it was not a matter which was capable of review within the framework of the Injury Prevention, Rehabilitation and Compensation Act 2001.
[16] The question of review costs is wholly a matter of discretion for the Reviewer to determine, and in circumstances where an applicant for review is unsuccessful, the Reviewer must take into account whether the applicant has acted reasonably in applying for the review.
[17] In the present case, the context of the communications which passed between the appellant's representative and his case manager were solely in the context of the criminal prosecution and the advice of 22 July, that no decision under the Act had been made, was indicative of that being the case, yet despite that advice the appellant elected to pursue the question of particulars by way of review proceedings.
[18] The position is that the appellant sought to use the review procedure as a means of obtaining further particulars in the context of a criminal prosecution and this was identified by the Reviewer and he concluded that in that context the application for review was an abuse of process and not reasonably brought.
[19] The Reviewer's decision was one of an exercise of a discretion which the Act vested in him, and I find there is nothing in the facts which would suggest that the finding, upon which the Reviewer based his decision, could not be had. In those circumstances, as a matter of law, it is not open to this Court to interfere
[20] with the exercise of that discretion. The Reviewer was acting within the statutory framework relating to the award of costs and I find that there are no grounds to disturb that exercise of a discretion.
[21] [20] Accordingly then, in relation to both issues, the appellant is unsuccessful and this appeal is dismissed.
DATED this 7th day of November 2008

M J Beattie

District Court Judge



take note that the ACC think that contesting the ACC matter is considered as a fishing to stop the fraud conviction.

The ACC had not made a decision there was an overpayment either they wanted all of the Compensation paid even if the amount earned was less than the level of abatement.
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#20 User is offline   doppelganger 

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Posted 08 August 2010 - 12:51 AM

Not signing a staturaty declaration so the ACC can proscute for fraud.

Smith v Accident Compensation Corporation [2001] NZACC 83 (3 April 2001)
IN THE DISTRICT COURT HELD AT AUCKLAND

Decision No. 83/2001

IN THE MATTER of The Accident Rehabilitation and Compensation Insurance Act 1992

AND

IN THE MATTER of an Appeal pursuant to Section 152 of the Accident Insurance Act 1998

BETWEEN MICHAEL JOHN SMITH

AI 502/00

Appellant

AND ACCIDENT COMPENSATION CORPORATION

Respondent

HEARD at Auckland on the 2'd day of February 2001

APPEARANCES:

Mr H J I Oliver advocate for appellant

Ms E Hook counsel for respondent

RESERVED JUDGMENT OF JUDGE M J BEATTIE

[1] This is an appeal and cross appeal from the decision of a Review Officer given on 19 September 2000. The issues that are the subject of this appeal and cross appeal may best be summarised as being whether the respondent was entitled to invoke the provisions of section 73(2) of the Act and to decline to make any payment of weekly compensation to the appellant on the grounds that he had unreasonably refused to comply with a request made of him pursuant to section 64(1)(B) of the Act to furnish certain information to the respondent that it had requested.

[2] The nature of an appeal in this jurisdiction is that of a rehearing and it so happens that the two aspects of the Reviewer's decision, which are respectively appealed against by the appellant and the respondent, constitute the whole of that decision and therefore I consider the issue to be as I have indicated above.
[3] The facts which are relevant to the determination of this appeal, as I find them to be, are as follows:
[4] In May 1994 the appellant slipped and fell on a sloping driveway sustaining a compression fracture to his 3rd lumbar vertebra. At the time of this injury the appellant was employed as a vehicle salesperson for Percy Motors Ltd.
[5] The appellant was certified as unfit for work and lodged a claim for cover with the respondent on 8 June 1994. The appellant continued to be certified unfit for work and he commenced to receive weekly compensation. In September 1994 Mr Howie, Spinal Surgeon, carried out a disectomy but the appellant continued to be certified as unfit to return to his former employment. A subsequent CT scan demonstrated significant abnormalities that might require a two level lumbar fusion.
[6] For the purposes of this appeal the subsequent medical history of the appellant need not be traversed save to say that at all relevant and material times the appellant was certified as wholly unfit to resume his former employment and prima facie therefore was entitled to receive weekly compensation at the level that had been assessed, based on his pre-accident income.
[7] In or about October/November 1996 the respondent received anonymous information regarding the appellant's post accident activities and on 7 November 1996 the respondent wrote to the appellant requesting that he complete a statutory declaration. The letter advised that it had received anonymous information but did not disclose what the nature of that information was. The letter posed four questions which the appellant was required to answer. Those questions related to the sale and purchase of motor vehicles, the carrying out of extensions to his home, his association with Henderson Panelbeaters Limited and what was his primary occupation at the time of his injury. That letter was signed by M Williscroft who described himself as "Examining Officer".
[8] That letter was responded to by the appellant's then solicitor, Mr Neumegen, on 14 November 1996. Mr Neumegen requested full particulars of the anonymous information that the respondent had received and he made his request under the Official Information Act 1982. At the same time he also requested further clarification on matters contained in the four questions that had been posed.
[9] That letter was responded to by Mr Williscroft on 6 January 1997. He advised that the information sought under the Official Information Act would not be released and he gave as his grounds the provisions of section 6© of the Official Information Act and section 27(1)© of the Privacy Act 1993. The letter requested the completion of the statutory declaration. It is to be noted that the first letter from the respondent stated that it enclosed the statutory declaration to be completed. In a subsequent letter from Mr Neumegen dated 31 January 1997, he answered the questions on the appellant's behalf in that letter and advised that no statutory declaration form had been enclosed but that his client would sign one when it was provided.
[10] By letter dated 17 February Mr Williscroft enclosed a statutory declaration form and again repeated the four questions for the appellant to answer in that declaration. The declaration was duly completed by the appellant and declared on 24 February 1997 and returned to the respondent.
[11] The next relevant step in the chronology was a letter of 20 May 1998 from Mr Neumegen to Mr Williscroft noting that both he and his client were under the impression that any matter had been earlier raised had been laid to rest but that he had learnt that a private investigator had been making inquiries through the appellant's associates regarding the appellant.Mr Neumegen requested an explanation for this. That letter was responded to by another person described as examining officer on 17 June 1998. That letter advised that the Corporation had concerns regarding the appellant's entitlements and wished to have a meeting to discuss the matter. The letter advised that a private investigator would be present at the meeting and that the appellant could be accompanied by his lawyer if he wished.
[12] That letter was responded to by Mr Neumegen on 22 June 1998 to advise that the appellant was unable to attend the scheduled meeting but that before a meeting be rescheduled he required clarification of what the involvement of the private investigator was and the nature of the concerns and inquiries that the Corporation wished to discuss.
[13] Ms McIntosh the Examining Officer responded by letter of 26 June to indicate that the private investigator had been carrying out an investigation and
"It is Corporation policy for an investigator from the investigating company to complete the final interview in the presence of the Fraud Liaison Officer."

[14] The letter went on to state that the Corporation had concerns about whether the appellant had been working whilst in receipt of weekly compensation.
[15] It was at this time that the appellant instructed Mr Oliver of Compensation Consultants to represent him and advice was duly given of that fact by Mr Oliver in a letter dated 16 July 1998. In that letter Mr Oliver again requested specific details of the matters about which the Corporation wished to interview the appellant, stating that his client required to be fully and fairly informed of all matters that the Corporation wished to raise.
[16] That letter was responded to by Mr Williscroft on 28 July 1998. That letter advising that the Corporation refused to supply any documentation that related to the investigation of Mr Smith's activities. The letter went on to advise:
"Mr Smith has been asked to attend an interview as part of an investigation into an allegation that he may have received income or engaged in activities in consistent with his medical certification, and failed to advise ACC as is his obligations. Mr Smith is not obliged or compelled to attend the interview, however it will give the investigator an opportunity to put to him the specific issues that require clarification."

[17] Mr Oliver responded to that letter by advising that the appellant was not prepared to attend any meeting until full particulars of the details of the investigation and allegations were provided.
[18] That letter was responded to by Mr Williscroft , now describing himself as "Fraud Prevention and Investigation". He noted that the appellant declined to attend an interview and he advised that he had instructed the investigator to prepare a series of questions which would be forwarded for answer shortly. The letter stated:
"The questions will be forwarded to him in due course and he will be required to answer them pursuant to sections64(2). In the event he declines to do so the provisions of section 73(2)(a) may be invoked"

[19] That letter was not followed up until a letter of 2 December 1998 when Mr Williscroft enclosed the prepared list of questions for the appellant to answer on the enclosed statutory declaration form. The letter again advised of the responsibilities of a claimant under section 64 of the Act and it further advised that it required the statutory declaration to be completed and returned by 16 December 1998. It stated that failure to complete and return the declaration as required within the time frame may result in the respondent declining, without further notice, to make any further payments of compensation pursuant to section 73(2)(a) of the Act.

[20] Mr Oliver responded to that letter by letter dated 15 December 1998 in which he advised that the documents forwarded were incomplete in that question 10 referred to attached medical certificates but that no documents were attached. Mr Oliver stated

"Until a document regular on the face of it is provided my client is unable to respond"

[21] That letter was responded to by letter dated 29 January 1999 and the medical certificates pertaining to question 10 were enclosed. Further questions pertaining to those medical certificates were posed in the letter and a deadline of 16 February 1999 was stated for the return of the completed statutory declaration.
[22] By letter dated 16 February 1999 Mr Oliver advised that his client declined to provide the statutory declaration that had been requested. The reason given by Mr Oliver was that he considered the Corporation had indicated that it required the information for the purposes of its investigation into allegations of fraud against the appellant and that in those circumstances, his client was not bound to respond as he contended that the provisions of section 64 of the Act could not be used for that purpose.
[23] By letter dated 5 March 1999 Mr Williscroft responded and stated that whilst it was correct that the appellant was the subject of an ongoing investigation, the purpose of that investigation was to establish the correct level of the appellant's entitlement to weekly compensation and as to whether or not any overpayment had occurred. It further stated that no allegation of fraud had been levelled at the appellant. The letter then again referred to the responsibilities of a claimant contained in section 64(1)(B) and went on to state as follows:
"You have stated that the document is not a statutory declaration in its current form. While I disagree with you in this regard I do not intend to argue the matter at this stage. Rather I have attached a series of questions to this letter. Mr Smith is required to provide answers to those questions in the order they appear by way of statutory declaration.

The issues which have arisen during the course of the investigation do require addressing as they call into question Mr Smith's past and continued level of entitlement to weekly compensation. Failure by Mr Smith to provide the information inhibits or indeed prevents the Corporation from correctly calculating the aforementioned entitlement to weekly compensation. It is therefore both reasonable and proffer that Mr Smith be required to provide the necessary information. Accordingly failure to provide it may result in the implementation of section 73(2)(a) of the Act."

[24] The letter advised that the declaration was required to be provided within 10 days.
[25] Mr Oliver obtained an extension of time because he had been absent from his office and the extended date was 28 March 1999. By letter dated 25 March 1999 Mr Oliver advised that he did not consider that the information sought was for the purposes of determining the appellant's level of entitlement but was wholly directed at the fraud investigation which had previously been referred to.
[26] That letter brought a further response from Mr Williscroft dated 1 April 1999 when he reaffirmed that the sole purpose of the investigation was to establish the correct level of entitlement of the appellant and that the information sought was necessary for that purpose. He went on to state:
"Clearly should this inquiry establish any wrong doing by Mr Smith than that will be considered in the light of current Corporation policy. The investigation has been commenced on the basis of allegations that called the level of compensation and ongoing entitlements into question. The allegations are simply that and not accepted as fact by the Corporation. This inquiry will establish the truth. Nothing less is acceptable... failure to comply with this and the earlier requirement by 12 April 1999 the result of section 73(2)(a) being invoked. There shall be no extension of time unless given all the circumstances it is reasonable to do so.

[27] There was no response to that letter and accordingly by letter dated 16 April 1999 the respondent advised the appellant that it was declining to make further payments of weekly compensation to him effective from 13 April 1999. It advised that the decision to do so was issued in accordance with section 73(2) of the Act on the grounds that the appellant had failed to provide the respondent with information required from him in its letters of 2 December 1998, 29 January 1999, 5 March 1999 and 1 April 1999. It further advised that entitlements would only be reinstated on the date the required information was received and that reinstatement would also be subject to ongoing medical certification of the appellant's incapacity.
[28] The appellant sought a review of that decision. In his decision dated 19 September 2000 the Review Officer quashed the Corporation's decision on the grounds that it had not disclosed the basis or outline of the information regarding the appellant's activities. There was therefore no objective basis upon which a section 73 declinature could be sustained. The Review Officer directed that the Corporation must decide what investigation material it was prepared to disclose and once that information was provided to the appellant the respondent could then request a statutory declaration. However, the Review Officer specifically directed that the appellant's weekly compensation be not reinstated pending the providing of that material and the answering of it by the appellant.

[29] The appellant sought to appeal that part of the review decision which stated that weekly compensation be not reinstated in the meantime and the respondent cross appealed against the decision of the Review Officer quashing the Corporation's primary decision.
RELEVANT STATUTORY PROVISIONS

[30] Section 64 of the 1992 Act provides, inter alia:-
"64. Responsibilities of claimant - (1) Every person who claims for or is in receipt of any rehabilitation, compensation, grant or allowance shall, when reasonably required to do so by the Corporation, -

(a) Give to the Corporation the prescribed certificate of a registered health professional as to such matters, and containing such information, as the Corporation requires:
(B) Furnish to the Corporation such other relevant information as the Corporation requires:
[(2) Every claimant under this Act and every person who is receiving or has received any payment or rehabilitation under this Act shall, whenever required by the Corporation, give to the Corporation a statement in writing, and; if the Corporation so requires, as a statutory declaration or in a form supplied by the Corporation, with respect to such matters relating to the person's entitlement or continuing entitlement to any payment or rehabilitation under this Act as the Corporation specifies."

[31] Section 73 of the 1992 Act provides, inter alia:-

"73. Suspension, cancellation, or refusal of compensation and rehabilitation -

(2) The Corporation shall, ... upon the unreasonable refusal or failure of any person to —

(a) Comply with any requirement made under any provision of this Act relating to any claim,. Or decline to make any payment under this Act.]"

SUBMISSIONS

[32] Mr Oliver, advocate for the appellant, submitted that:

The respondent's request for information was not reasonable. He contended that the evidence from the correspondence showed that the investigation was being conducted with a view to detecting possible fraud and it had been ongoing since November 1996. In those circumstances the appellant was quite entitled to decline to answer questions which had been directed for that purpose. He referred to the decision of this Court in Symons (Decision 20/98).
None of the four particulars of refusal referred to in the decision letter were in fact a failure or refusal because none of the four letters mentioned amounted to a proper requirement under the Act. The letter of 1 April superseded the previous demands and the time frame provided was too short having regard to the Easter period which intervened. A letter from Mr Oliver dated 13 April requesting an extension has not been considered.
The respondent did not give any warnings against self-incrimination in any of its requests for the information sought.

The whole basis of the investigation was to investigate the allegation of fraud and as such section 64 could not be used without warning.
[33] Ms Hook, counsel for the respondent, submitted as follows:

The Corporation is managing publicly funded monies and has an obligation and duty to ensure that no claimant receives compensation to which he/she is not entitled. Once information comes to the Corporation's attention that a claimant may not be receiving correct entitlements the Corporation must investigate that information.
The information sought by the respondent was relevant. It pertained to the appellant's entitlement to cover and the extent of weekly compensation. It asked for an explanation about the appellant's involvement with certain business activities such as the sale of motor vehicles and involvement with a panelbeating firm.
All the information sought was relevant to ascertaining the appellant's entitlement to and quantum of compensation. The Corporation had been transparent and up front with the appellant from the outset of its investigation.
The respondent relies on the High Court decision of Caverhill v ACC (Potter J AP 93/97 Rotorua Registry).
The appellant's refusal to provide the information requested was unreasonable. The respondent was entitled to withhold the investigation documents pursuant to section 27(1)© of the Privacy Act 1993 and (6)© of the Official Information Act 1982.
The respondent was and is conducting an investigation into the appellant's eligibility for cover and his correct level of entitlement. That investigation would be prejudiced if the appellant examined the investigation documents before that investigation was completed. That investigation cannot be completed until the appellant provides the information sought from him.
The information sought relates directly to the appellant's level of entitlement and the appellant has a responsibility to provide full and honest disclosure of relevant information and his failure to do so was unreasonable.
The respondent is not compelling the appellant to furnish the information requested but if the appellant wants the benefit from the compensation scheme then he must fulfil his responsibilities and obligations under the Act in return.
DECISION

[34] As this Court is looking at the matter de novo the Court is required to consider three questions:

(i) Was the Corporation's request for information reasonable?

(ii) Was the information requested relevant?

(iii) Was the appellant's refusal to supply the information unreasonable?

[35] If those questions can be answered in the affirmative then the respondent's decision to invoke the provisions of section 73(2)(a) must be upheld. However, if any of the questions so posed are answered in the negative then it must be held that the exercise of the respondent's powers under section 73(2) cannot be sustained.
[36] The principal reason why the Reviewer considered that the respondent's decision under section 73(2)(a) could not be sustained was because the respondent had steadfastly refused to provide the appellant or his advisors with the particulars of the allegations that had been made against him and which it was investigating. Essentially that reasoning is picked up and advanced by the appellant in his submissions to this Court.
[37] On the other side of the coin, counsel for the respondent submits that there is a line of authority in the High Court which establishes that there is an obligation on a claimant to keep the Corporation fully informed and that this is an ongoing responsibility and it includes an obligation to inform the Corporation of all events that may be relevant to the claimant's right to compensation, particularly details of earnings. Counsel pointed to the fact that the system of compensation under the Act relies to a significant extent on the honesty of a claimant, and in such circumstances there is a duty to make full disclosure of all matters which may be relevant to an entitlement to the receipt of compensation.
[38] I agree with those submissions wholeheartedly and I note that they are referred to in decisions of the High Court. They are referred to in detail by Her Honour Justice Potter in Caverhill v Accident Compensation Corporation (AP 93/97) Rotorua Registry. In that decision Her Honour noted the two decisions of Justice Tomkins in Homes-Kinsella v ACC (Auckland High Court AP 93/96) and Gainfort v ACC (Auckland High Court AP 220/95) where His Honour stated:
"The ACC system is dependent on the honesty of those claiming under it. It is all to easy to defraud the system by those minded to do so. Unfortunately such a fraudulent approach is all too common. It amounts to theft from the community, frequently over a long period

The proper administration of Accident Compensation under the Act is very dependent upon claimants being honest with the Corporation. It is therefore an obligation on claimants to inform the Corporation of all events that may be relevant to their right to compensation particular details of earnings where a person is in receipt of earnings related compensation.-

[39] Justice Potter went on to state that the responsibility of honest and full disclosure rests with the claimant and underlies the whole of his relationship with the Corporation.
[40] Against that background I turn to consider the particular questions which the Corporation's sought answers to and which the appellant, on advice, refused to answer. There were 25 questions in all, the first 9 questions being standard questions relating to the circumstances of the accident and the injuries suffered and the nature of the appellant's employment at the time of injury. They were not pivotal.
[41] Questions 10 to 20, I apprehend, are the ones that the appellant was reluctant to answer and these all relate to questions about motor vehicles which were stated to have been seen in the appellant's possession. The questions related to their disposal and associated with questions relating to specific motor vehicles were certain questions relating to the appellant's relationship and association with the principal of, and the business of, Henderson Panelbeaters Ltd. Finally, there were questions relating to what bank accounts the appellant or his wife operated.
[42] In the correspondence between the appellant's advocate and the Corporation, it was contended that the appellant could not be forced to answer the questions posed. Whilst it was not stated as such in as many words by the appellant's advocate in that correspondence, the clear implication from that correspondence is that the appellant's advocate was contending that the Corporation could not compel the appellant to answer questions which may tend to incriminate him. Certainly that was the submission that was made by Mr Oliver to this Court. It was his submission that the tenor of the questions was clearly related to a fraud investigation rather than the investigation into determining the appellant's correct level of entitlement and that therefore the appellant could not be compelled to answer those questions.
[43] However the matter is dressed up I find that the reason that the appellant did not provide the answers to the questions posed was on the basis that it was considered that it might tend to incriminate him and he elected to exercise his right not to answer.
[44] The question then is whether, if that is the case, does that election not to answer constitute a reasonable refusal and is the request to seek answers therefore an unreasonable request as it is seeking to obtain incriminating answers from the appellant.
[45] This question was considered at some length by His Honour Justice Giles in the decision Freeborn v Accident Compensation Corporation 1998 2 NZLR 371. In that case the appellant was in receipt of weekly compensation and the Corporation believed that he had been undertaking paid work without disclosing it. It carried out certain investigations through a private investigator and then he was called to a meeting. He attended that meeting with his lawyer and declined to answer any questions. He requested that the questions be put in writing and he thereupon completed a statutory declaration giving answers. The Corporation required further information and requested the same under section 64(2)(B). The appellant declined to answer any further questions and his weekly compensation was thereupon suspended. Subsequent to that, the appellant completed the statutory declaration and was then charged with a number of offences of fraud by reason of making false declarations. At his trial, the appellant sought to have the statutory declarations declared inadmissible on the grounds that they had been unfairly obtained and in breach of the privilege against self-incrimination. So it was in the context of the admissibility of the statutory declarations that the matter came for consideration by Justice Giles.
[46] At page 381 His Honour noted:
"The evidence establishes that the appellant was fairly informed, having regard to the state of knowledge in the possession of the corporation as at February/March 1996, as to the reasons for the interview and as to the corporation's concerns. He was made fully aware of and exercised, the right to be accompanied by a solicitor. He exercised his right to remain silent at both interviews. He requested that any questions be put in writing. The corporation followed that course. The draft declarations were submitted to the appellant through his legal advisers. He answered the questions in his own words.

In my opinion, upon receipt of those declarations the appellant had three options:

(1) Decline to answer, exercising his rights so to do, including, if applicable, s
27 of the BOR.

(2) Answer the questions posed without amendment.
(3) Amend the questions and answer in his own words.
For its part, depending upon the choice elected, the corporation had certain options:

(1) If the claimant declined to make a declaration it first had to decide

whether that act was "unreasonable" within the meaning of s 73(2). If it was not, then unless there was some other basis to suspend/cancel the benefit, the corporation could not lawfully do so. If it concluded that the refusal was unreasonable it could suspend/cancel.

(2) If the claimant declined to declare the corporation might, independent of that refusal, review the strength of its concerns as to the entitlement to the benefit and suspend/cancel on those grounds.
(3) It could examine the strength of its concerns to see whether an offence against s 166 of the Act, or other statutory provisions, could be made out.
(4) If the claimant provided a declaration the corporation was entitled to consider its adequacy and truthfulness and to take such penal action, if any, arising from any falsity.

I accept Mr Temm's submission that there is no penal sanction capable of being visited upon the appellant should he exercise a right to remain silent in the exercise of the privilege against self-incrimination and not provide a declaration under s 64(2). There may be other consequence flowing from that Act, namely suspension of a benefit through exercise of powers conferred by s73(2). But those consequences are conferred by the Act."

[47] His Honour went on to rule that the declarations made were not executed under duress. He went on to say that he agreed that section 64 incorporates no restriction or qualification as to the use of the information provided thereunder. Whilst it was correct that the purpose of this section was to enable a determination to be made as to the right to or continuation of the benefit there had to be consequences for deliberate falsity. His Honour went on to state as follows:
"I am satisfied that, in the present context, at the time of requesting the declarations, the corporation had not reached the point at which a criminal prosecution was envisaged Had it reached that point, inevitably the payment of the benefit would have been terminated. In any event, I do not accept that the mere fact of the possibility of a criminal prosecution in itself eliminates the right to hay— resort to s 64(2). The section subsists for a separate and independent purpose. A claimant who is made aware of his/her rights, may have to face an election as to maintaining the privilege against self-incrimination or making a declaration. But that election cannot justi6, the making of a false declaration (noting that the issue as to the truth or otherwise of the contents of the declarations is at issue here is not being resolved at this stage). If it should transpire that a declaration has been made which infringes the provisions of the Act or some other legislation (the Crimes Act 1961 in particular) then the declarant will have to face the consequences of so doing"

[48] I take it from those passages in Freeborn that whilst the Act cannot compel a claimant to answer any question and that a claimant can always exercise his right of silence or maintain the privilege against self-incrimination, that does not cause the sanction provisions of section 73 to be unavailable and that the sanction provisions can be, if the Corporation so elects, a necessary consequence of a claimant electing not to answer.
[49] Whilst it is noted that the Corporation has not disclosed the source of or the precise allegations that were being made against the appellant, nevertheless the nature of the questions that were posed left little scope for doubt as to the areas of concern and the subject matter of the inquiry. Furthermore, at all times the appellant has had counsel representing him and has been acting on the advice of counsel and I take him to have known that if he so wished he could answer the questions that had been posed. It seems to me the only difference between the circumstances of this appellant and that of Freeborn are that Freeborn did make the declarations and as a result of the answers that he gave in those declarations he was prosecuted. Certainly the Judge found that the Corporation was quite within its rights to suspend Freeborn's compensation when there was an initial refusal to answer the declarations. It was only as a consequence of the answers being considered false that his compensation was not reinstated as it would otherwise have been.
[50] Mr Oliver referred to the decision of this Court in Symons (supra). That case I find can be easily be distinguished on its facts as in that case I found that the claimant had answered all the questions that could reasonably have been asked of him and that the matters which he did not answer he was quite justified in refusing to do so. I found that the information sought was solely for the detection of possible fraud and not one for a purpose referred to in section 64.
[51] In the present case, whilst it may be that the detection of fraud may be a possibility depending upon the answers given, I find that the purpose of the questions was to determine whether this appellant has a continuing entitlement, whether the entitlement if it were to continue should be at the same level or whether indeed there may have been an overpayment of compensation. I find that if the detection of fraud is a corollary of that inquiry then that cannot be a reason to assert that the inquiry or the request is unreasonable.
[52] Accordingly therefore, I find that the Corporation's request for information was reasonable, that the information requested was relevant to the appellant's continuing entitlement to weekly compensation, and that whilst the appellant's refusal to answer the questions posed is acknowledged as being the exercise of his privilege against self-incrimination, that cannot be a reasonable refusal within the meaning of section 73(2)(a) and cannot prevent that provision from operating to suspend or to decline to make payment of compensation as a consequence of that refusal.
[53] Were it to be considered reasonable in the context of section 73(2)(a), then the whole basis of the relationship between the Corporation and claimants, as enunciated by Justice Potter and Justice Tomkins in the decisions I have referred, to would be rendered nugatory.
[54] For the foregoing reasons therefore, I rule that the respondent's decision of 16 April 1999 to decline to make further payments of weekly compensation from that date was correct. Accordingly, the review decision dated 19 September 2000 is hereby quashed in its entirety and the respondent's primary decision of 16 April 1999 is hereby reinstated.

DATED at WELLINGTON this 3rd day of April 2001



M J Beattie

District Court Judge
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