[doppelganger]

here is another one of williscroft investigations.

Savage v Accident Compensation Corporation [2001] NZACC 192 (13 July 2001)
Last Updated: 18 July 2010

IN THE DISTRICT COURT HELD

AT AUCKLAND

Decision No. 192/2001

IN THE MATTER of The Accident Insurance Act 1998

AND

IN THE MATTER of an Appeal pursuant to Section

152 of the Act

BETWEEN GRAHAM SAVAGE

AI 505/00

Appellant

AND ACCIDENT COMPENSATION

CORPORATION

Respondent

HEARD at AUCKLAND on the 27th day of April 2001

APPEARANCES:

Mr G Savage in person

Ms J M Silcock counsel for respondent

RESERVED JUDGMENT OF JUDGE M J BEATTIE

[1] The issue in this appeal is whether the respondent acted correctly in suspending the appellant's weekly compensation for the period 3 January 2000 until 20 January 2000 on the grounds that the appellant had unreasonably refused or failed to provide information which had been requested of him relating to his business. The power of suspension exercised was that contained in section 116(3)(a) of the Act.
[2] The facts which are relevant to the determination of this issue, as I find them to be, are as follows.

[3] In July 1983 the appellant suffered injuries to his hip as a result of a car
accident. The appellant's claim for cover was accepted and he commenced receiving various entitlements including weekly compensation.
[4] In 1999 the respondent became aware that the appellant was involved in a
business venture and it was the case that any income received from that venture would affect the amount of his weekly compensation.
[5] The business venture carried on by the appellant was that of a music business
trading as Savage Sounds and which, the respondent learned, had received a Business Development Grant from the Auckland Business Development Board.
[6] Accordingly by letter dated 26 August 1999 the respondent wrote to the
appellant requesting full particulars of the business, including copies of his financial statements for the financial years ending 1993 to 1999. The letter also required to be advised of all monies received by him from this business venture. The letter
concluded by stating that the information was required pursuant to section 115 of the Act and that failure to comply with that request for information may result in the respondent declining to make further payments of weekly compensation, pursuant to section 116 of the Act.
[7] The respondent received a response to that letter from Mr Oliver, the
principal of Compensation Consultants Ltd, requesting that he be provided with all details of the appellant's file before responding to that request for information.
[8] Particulars from the respondent's file were provided to Mr Oliver on 21
September 1999 and by letter dated 23 September 1999 the respondent again wrote to Mr Oliver requesting the information sought, stating that it must be received within three weeks. The letter indicated that should an extension be required Mr Oliver should contact the Corporation.
[9] No further response was received from Mr Oliver and therefore by letter
dated 29 November 1999 the respondent advised that as it had not received the requested information it would be suspending the appellant's weekly compensation as from 8 December 1999.
[10] In a letter dated 3 December 1999 Mr Oliver advised the respondent that he had ceased to act for the appellant who he now understood was representing himself.

Mr Oliver advised that he had forwarded the Corporation's letter of 29 November 1999 to the appellant.

[11] In a letter to the appellant dated 21 December 1999 the respondent advised that it had not received any of the information requested and it noted that Mr Oliver had advised he was no longer acting for the appellant. The letter then set out the provisions of sections 115 and 116 of the Act and advised that as the information requested had not been provided the appellant's weekly compensation would cease two weeks from the date of this letter until such time as the information requested had been provided.
[12] The date on which weekly compensation would cease was therefore 3 January 2000.
[13] From a copy letter provided by the appellant it seems that he had consulted Brett Cunningham, Barrister, in relation to the matter and by letter dated 22 December 1999 Mr Cunningham wrote to the appellant requesting him to sign a fresh authority for Mr Cunningham to act for him.
[14] The next recorded event on the file is Mr Cunningham's letter of 10 January 2000 to the respondent, which letter states as follows:
"I now act for Mr Savage in place of Mr Howard Oliver of Compensation Consultants.

Please find enclosed herewith an authority from Mr Savage.

Mr Martin Williscroft , Examining Officer, in a letter dated 26 August 1999 requested Mr Oliver to provide certain information to the Corporation regarding the financial statements of Savage Sounds. I understand that Mr Williscroft will be on leave until the end of this month, hence this letter is addressed to you.

The Corporation appears to believe that Mr Savage was a sole proprietor trading as Savage Sounds. Savage Sounds Ltd, a company of which Mr Savage is a director, was incorporated on 30 October 1996 and its file numbered AK/832274 is located at the Auckland office of the Companies Office.

Could you please direct all future correspondence to me at the abovementioned address?

I am endeavouring to obtain the information requested from Mr Savage for forwarding to ACC."




[15] The respondent acknowledges that part of the information sought was provided to it on 21 January and it thereupon reinstated weekly compensation from that date.
[16] Although it is not relevant for the determination of the issue in this appeal a further suspension of weekly compensation was imposed in February 2000 when the further information was not to hand.
[17] The foregoing is the chronology of the events as they are disclosed from the respondent's file and which relate to the correspondence which passed between the parties during the relevant period.
[18] The hearing of this appeal first came on before me on 1 February 2001 and in the course of his submissions to me Mr Savage contended that Mr Cunningham had obtained an extension of time for the providing of the information requested, that extension of time having been obtained prior to Christmas 1999. There was no evidence on this point and therefore I adjourned the hearing of the appeal to enable the appellant to produce such evidence as may exist as to any such arrangement for an extension of time.
[19] The evidence produced by the appellant was an affidavit sworn by Mr Cunningham and the relevant paragraphs on that affidavit states as follows:
The respondent advised the appellant by letter dated 21 December 1999 that his weekly compensation would be declined 2 weeks from the date of that letter until such time as the information requested by the respondent had been provided in full.

The appellant telephoned me on 22 December 1999 and informed me of the threatened suspension of his weekly compensation.
I telephoned Mr Martin Williscroft , the writer of the said letter dated 21 December 1999, on his mobile telephone in late December 1999. Mr Williscroft mentioned that he was at an airport at the time and that he would be on holiday until the end of January 2000. I believe that I made that call on 23 December 1999 to number 021 653 233, a number that is no longer in use. I annex and mark "A" a copy of a page from my telephone account dated 17 January 2000 showing a call made on 23/12/99 at 2.33 pm to that mobile telephone number.
During my telephone conversation with Mr Williscroft , I informed him that it would be very difficult to obtain all of the information requested by the respondent when the persons who held it would be on holiday. I advised Mr Williscroft that I would endeavour to send the information to the respondent as soon as it came to hand.



I informed the respondent in writing that I was acting for the appellant by letter dated 10 January 2000 enclosing an authority for me to act signed by the appellant on 24 December 1999.
I sent as much of the requested information that I could obtain at the time under cover of a letter dated 20 January 2000 to Sonja Akkerntan at the Corporation because I had learned from my call to Mr Williscroft that he would be on holiday at that time. I annex and mark "B" a copy of that covering letter.
I was surprised when the respondent suspended the payment of weekly compensation to the appellant as from 3 January 2000 after I had informed Mr Williscroft that all of the requested information available would be sent to the respondent as soon as was practicable after the Christmas and New Year holiday period"
[20] With reference to exhibit A to Mr Cunningham's affidavit, that is a page of his telephone account and he has indicated that a telephone call made on 23 December 1999 at 2.33 pm to a Vodafone cellphone 021-653233, being a call timed at 1 minute, was the telephone call that he identified as being to Mr Williscroft .
[21] The respondent obtained leave to file an affidavit in reply, that affidavit being from Mr Williscroft and the relevant paragraphs of it stated as follows:
understand that Mr Savage is alleging that an oral extension was given by myself to Mr Cunningham, his Barrister, granting further time in which to provide the requested information before weekly compensation would be suspended. I have read the affidavit of Brett Michael Cunningham, dated 16 March 2001 filed in support of Mr Savage's appeal.

While I do recall having a telephone conversation with Mr Cunningham about the information that had been requested from Mr Savage, I do not recall exactly when this conversation took place. I think the conversation took place earlier than 23 December 1999, maybe even in November 1999. There are a number of reasons why I do not believe that the phone call took place on 23 December 1999.

Firstly, I have never (either personally or through work) had the mobile number 021-653-233 which is the number that Mr Cunningham alleges records his telephone call with me. In December 1999 that was not my mobile phone number, I note that the telephone call to that number was only a one minute telephone call.
Secondly, the 23rd of December 1999 was a Thursday. I was still working at this time. I went on holiday from midday on Friday the 24th of December 1999 until the end of January 2000. Further, I did not fly anywhere over that period.
If Iwas on holiday at the time the telephone conversation took place, then I would not have agreed to any extension as I was not in a position where I could implement it. I would have had to informed someone at the Corporation of the extension so that weekly compensation would not cease. That did not happen.




Irrespective of when the telephone conversation took place, I agree with paragraph 5 of Mr Cunningham's affidavit - that we discussed the information which had been requested by the Corporation back in August 1999. I explained to Mr Cunningham the detail of the information which we were seeking.
I told Mr Cunningham that the initial request had been made for such information in August 1999 and over four months had now passed. At no time did I indicate to Mr Cunningham that suspension would not take place on 3 January 2000 in order to allow additional time to obtain the information.
The information that was provided by Mr Cunningham on 21 January 2000 was still not all the information that had been requested. However, weekly compensation was reinstated by the Corporation at that time.

10. If any kind of agreement in relation to an extension of time had been made,

I would have made a record of the same. There is no record on my file to this effect."

[22] Another document presented by the appellant is a copy of a fax from Mr Cunningham to him dated 1 October 1999 which is headed up "Authority to Act" and says "Please sign and return by fax the Authority herewith. I shall enclose a copy of it in requesting your file from ACC Officer at Henderson."
[23] The relevant statutory provisions are sections 115(1)( and 116(3)(a).
[24] Section 115(1)( states:
An insured who receives any statutory entitlement must, when reasonably required to do so by the insurer

( Give the insurer any other relevant information that the insurer requires.

[25] Section 116(3)(a) states:
"An Insurer may decline to provide any statutory entitlement for as long as an insured unreasonably refuses or unreasonably fails to ---

(a) Comply with any requirement of this Act relating to the insured's claim.

DECISION

[26] Having regard to the fact that the appellant acknowledges that he was operating a business at the time he was receiving full weekly compensation, I find it totally reasonable for the respondent, when it learnt of this, to seek full details of that business and of the financial ramifications of it and of any income that the appellant may be receiving from that source. For the avoidance of doubt therefore I find that

the request made by the respondent of the appellant for the information was a reasonable request.

[27] At the time that request was made the appellant was represented by a person holding himself out as having some expertise in compensation matters and the letter of request was first made in the letter of 26 August 1999 and there was a further letter of 23 September 1999.
[28] From statements made by the appellant at the hearing, it would seem that he contends that Mr Oliver of Compensation Consultants Ltd did not serve him well and this was the reason he sought advice elsewhere and consulted with Mr Cunningham. It can be inferred from the evidence that the appellant had consulted Mr Cunningham in late September 1999 as the first authority to act was sought to be obtained by Mr Cunningham in his fax to the appellant dated 1 October 1999.
[29] From the affidavit of Mr Williscroft it seems that Mr Cunningham did have a conversation with him at some earlier time than mid December 1999 but I find as a fact that Mr Cunningham did not speak to Mr Williscroft on 23 December 1999 by telephone and that Mr Williscroft did not agree to or give any extension of time at the time he did have a conversation with Mr Cunningham. An extension of time was not something that was discussed in that conversation. From the contents of Mr Cunningham's letter of 10 January 2000 it is clear that this is the first formal contact between he and the respondent and as is noted in that letter Mr Cunningham advises he is endeavouring to obtain the information requested.
[30] That information, or sufficient of it to satisfy the respondent initially, was provided in a letter of 21 January 2000 and therefore it can be seen that that information was not hard to get.
[31] The appellant had had since late August 1999 to provide the information but the undertone from the file is that he, through Mr Oliver, was seeking to be difficult and seemed not to appreciate the concern that the respondent would have had on learning of the fact of this business venture of the appellant.
[32] Having regard to the time frames that were involved I am satisfied that the respondent was acting within the spirit and intent of section 116(3)(a) when it suspended the appellant's weekly compensation for the period 3 January 2000 to 20
January 2000 as there had been by that date an unreasonable failure or refusal to provide the information sought.

[33] From a perusal of the review decision, I note that the Reviewer had concerns about the appellant's evidence and I also note that Mr Cunningham represented the appellant at that review hearing and yet there was no suggestion of any extension of time being given in evidence or submissions at that review hearing.
[34] Accordingly therefore, I find that the respondent was correct to suspend the appellant's weekly compensation entitlement for the period it did and this appeal is dismissed.
DATED at WELLINGTON this 13th day of July 2001

M J Beattie

District Court Judge

505 00Savage.cloc(gm) 8

[doppelganger]

Nesbit v Accident Compensation Corporation [2006] NZACC 130 (24 May 2006)


IN THE DISTRICT COURT
HELD AT WELLINGTON



Decision No. 130/2006



UNDER The Injury Prevention, Rehabilitation,

and Compensation Act 2001



IN THE MATTER of an appeal pursuant to Section 149

of the Act



BETWEEN GRAHAM NESBIT of Whangarei



Appellant



(Appeal No. AI 81/06)



AND ACCIDENT COMPENSATION

CORPORATION a body corporate

duly constituted under the provisions of the said Act


Respondent



HEARING at WHANGAREI on 20 April 2006

APPEARANCES/COUNSEL



R Bowden and J Brock for appellant

J Roberts for respondent



RESERVED JUDGMENT OF JUDGE J. CADENHEAD



THE ISSUE

[1] At issue is the respondent�s decision to decline to provide entitlements to the appellant under section 117(3)(a) of the Injury, Prevention, Rehabilitation, and Compensation Act 2001 on the basis that he had unreasonably refused to comply with the respondent�s request for certain information.
[2] The appellant contends that his failure is not unreasonable as he was invoking the privilege against self-incrimination.
BACKGROUND OF FACTS

[3] The appellant suffered injuries to his right knee dating back to 1975. On 9 July 1990 he re-injured his knee, and he has been receiving weekly compensation since that time.
[4] ACC became aware of the appellant�s involvement in a company known as Agnes Farms Ltd. In January 2004 ACC wrote to the appellant seeking the financial accounts for the company since 1997. In January 2004 the appellant�s lawyer (Mr Bowden) provided the financial accounts for the years ended 31 March 1999 to 31 March 2003.
[5] After considering the accounts and other information in his possession Martin Williscroft , examining officer for ACC, wrote to the appellant on 8 June 2004 stating that he required answers to a number of questions that were relevant to the management of his claim and the assessment of entitlements. The information was sought under section 72(1)( of the Injury, Prevention, Rehabilitation, and Compensation Act 2001. The letter stated:
�The information required is as follows:

Are you involved in the management of Agnes Farms Ltd and if so what are your specific responsibilities in relation to:

Property management

Stock management (purchasing, sale, husbandry, movement, etc)

Asset control and maintenance

On average how much time do you spend involved in the affairs of Agnes Farms Ltd on a weekly basis? Please break this down in to farm/property management, stock management and general farm duties.

How much stock is currently under the ownership or management of Agnes Farms Ltd?

How much property is owned, leased or used by Agnes Farms Ltd, and where is that property situated?

During the course of inquiries you were observed moving freely over broken ground and climbing over gates. What specific areas of your pre incapacity occupation does your injury prevent you in engaging in?

Is any other person involved in the operations or management of Agnes Farms Ltd? If so who is that person and what is their involvement?

Inquiries have resulted in you being identified as a person known in some social circles as �Dial-a-Pig�. It has also been indicated that you are an active pig hunter in the mid and far north. Can you explain how you came to be known as �Dial-a-Pig�?

Please advise what your involvement in pig hunting has been during the period you have been in receipt of weekly compensation.

As a result of your involvement with Agnes Farms previously known as Daisy Corporation Ltd have you obtained or derived any benefit direct, monetary or otherwise; including any entitlement to future gain through the sale of accumulated assets/property or the company itself? If so please detail those benefits.

Please provide the company accounts in respect of Agnes Farms for the year ending 31 March 1994.

Please ensure the information required above is provided to the Corporation by 5 July 2004. In the event you unreasonably fail or refuse to provide the information the Corporation may decline to make any further payment to you pursuant to section 117(3)(a) of the Act until such time as the information is received . . .�

[6] Mr Williscroft sent a further letter (undated) to the appellant again requesting the information, and warning that an unreasonable refusal to provide the information would result in a recommendation to his case manager to decline further payments from 8 December 2004.
[7] The appellant�s lawyer, Mr Bowden, wrote to ACC on 25 November 2004. He stated that he would be assisting the appellant in answering the questions but that he would not be able to carry this out before 30 November 2004. He stated he would attend to it as soon as possible thereafter.
[8] On 6 December 2004 Mr Bowden wrote to ACC stating:
�... Mr Nesbit would in most respects be happy to provide the information you seek. However, the manner in which your questions are framed suggest that you have information which has not been disclosed in that, the information which you seek to obtain will, it seems from the tone of your questions, incriminate Mr Nesbit.

Whether that is the case or not, I cannot tell. The reason I cannot tell is because I do not have the information which it appears you have withheld.

I would be grateful if you could answer some initial questions from me. These are:

1. Has Mr Nesbit been under surveillance, and if so when, by whom and in what circumstances?

2. Could you please send to me details of any surveillance of Mr Nesbit including a summary of useful information gained; and

3. The basis for your belief that the ability of Mr Nesbit to move over broken ground and climb a gate, could give rise to an offence.�

[9] Mr Bowden also stated that the company accounts for the year ending 31 March 1994 were not available.
[10] On 20 December 2004 Mr Williscroft wrote to Mr Bowden stating:
�... where information is required to enable or assist the Corporation in determining a person�s entitlement or level of entitlement to weekly compensation or other assistance, it is unreasonable for the purposes of the Injury Prevention Rehabilitation & Compensation Act 2001, for a person to fail or refuse to provide the said information and [sic] the basis of self incrimination.�

[11] Mr Williscroft stated that the appellant had been under surveillance, but that all information and reports from this were withheld under section 27(1)© of the Privacy Act 1993. With regard to Mr Bowden�s questions regarding the appellant�s ability to move over broken ground and climb a gate and whether this could give rise to an offence Mr Williscroft stated:
�In general terms the continued entitlement of any person who has suffered an injury is dependent upon that person�s level of physical incapacity. The activities you have nominated appear at odds with Mr Nesbit�s physical capacity as set out in the medical certificates he has provided to the Corporation. Whether as you suggest that may give rise to an offence is not a matter that can be determined at this point.�

[12] Mr Williscroft then reiterated his previous request for information and gave a deadline of 21 January 2005. He further stated:
�In the event it is not received by that date I shall make a recommendation to the Branch in accordance with section 117(3)(a) of the Act.�

[13] On 12 January 2005 Mr Bowden replied to Mr Williscroft . He stated:
�It would appear that your request for information has a dual purpose. That is to seek information for a prosecution, as well as case management information.

I would observe, however, that the slant of the questions are clearly aimed at prosecution.

Whilst the Corporation can require case related information, it cannot compel a person to incriminate themselves. This is a fundamental tenent [sic] of our legal system.

Given that you refuse to disclose the ambit of your investigation, it is difficult to assess which information may, or may not, incriminate Mr Nesbit. I also say against the background that Mr Nesbit denies any wrong doing whatsoever.

If you were able to identify those questions which relate to case management, and given an undertaken that any questions would not be used in furtherance of a prosecution, I would be able to advise Mr Nesbit to answer those questions.

In the absence of such an undertaking, I do not consider it would be ethical for Mr Nesbit to answer any of your questions. ...

I make the respectful suggestion that you refer this matter to the legal section for their consideration and further correspondence.�

[14] Mr Williscroft sent an email to Mr Bowden dated 20 January 2005:
�I have reviewed each of the questions and advise they are relevant to assessing Mr Nesbit�s past and continuing entitlements.

I agree that the Corporation cannot compel persons to incriminate themselves.

However that does not mean that person can withhold information from the Corporation on that basis and so continue to receive an entitlement to which to [sic] had or have no entitlement. Whether or not that is the case in this instance is not established at this time.

...

In accordance with the above and my letter of 20 December 2005 I advise that if the information required is not received by close of business tomorrow I shall recommend to the Branch that the Corporation decline to make any further payment in respect of his claim until such time as the information required has been received in full.�

[15] Meanwhile ACC had been assessing the appellant�s vocational independence. On 13 November 2004 ACC had carried out a vocational independence occupational assessment. A total of 15 work types were identified. A vocational independence medical assessment had been carried out on 14 January 2005. The medical assessor found the appellant was able to medically sustain 5 of those work types. Therefore, on 21 January 2005 ACC issued a decision suspending the appellant�s ongoing eligibility to weekly compensation from 21 April 2005 on the basis that the appellant was vocationally independent.
[16] On 7 February 2005 Mr Williscroft wrote to the appellant stating that the information requested had not been received and that �I have recommended your entitlements be suspended effective today�. Entitlements were then ceased on that day.
[17] The respondent later became aware that it had not issued a letter with review rights in respect of the non-compliance decision. Therefore, on 23 March 2005 the respondent sent a reviewable decision letter to the appellant confirming that his entitlements had been suspended.
[18] The matter proceeded to a review hearing on 14 December 2005 in respect of both the vocational independence decision and the non-compliance decision. In respect of the non-compliance decision the respondent conceded that payments should have continued until the date of its reviewable decision letter of 23 March 2005.
[19] The reviewer upheld the respondent�s decision in respect of both the decline to provide decision and the vocational independence decision. In line with its concession at the review hearing the respondent later paid the appellant weekly compensation for the period from when it was ceased up to 23 March 2005.
[20] The appellant lodged a notice of appeal. In considering the matter further the respondent conceded that its vocational independence decision should not be upheld, and that the appeal should proceed solely on the non-compliance decision. The vocational independence decision is therefore not at issue in this appeal.
LEGISLATION

[21] Section 72 of the Injury Prevention, Rehabilitation and Compensation Act 2001 states:
�72. Responsibilities of claimant who receives entitlement

(1) A claimant who receives any entitlement must, when reasonably required to do so by the Corporation,�

(a) give the Corporation a certificate by a registered health professional or treatment provider that deals with the matters and contains the information that the Corporation requires:

( give the Corporation any other relevant information that the Corporation requires:

© authorise the Corporation to obtain medical and other records that are or may be relevant to the claim:

(d) undergo assessment by a registered health professional specified by the Corporation, at the Corporation's expense:

(e) undergo assessment, at the Corporation's expense:

(f) co-operate with the Corporation in the development and implementation of an individual rehabilitation plan:

(g) undergo assessment of present and likely capabilities for the purposes of rehabilitation, at the Corporation's expense:

(h) participate in rehabilitation.

(2) Every such claimant must give the Corporation a statement in writing about any matters relating to the claimant's entitlement, or continuing entitlement, to an entitlement that the Corporation specifies, and must do so whenever the Corporation requires such a statement.

(3) If the Corporation requires the claimant to do so, the claimant must make the statement referred to in subsection (2) as a statutory declaration or in a form supplied by the Corporation.�

[22] Section 117(3)(a) of the IPRC Act 2001 states:
�117. Corporation may suspend, cancel, or decline entitlements

...

(3) The Corporation may decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to�

(a) comply with any requirement of this Act relating to the claimant's claim....�

[23] In R v Thomas (CA 71/00, 7 June 2001) McGrath J made the following comments:
�[28] An entitlement to earnings related compensation under accident compensation legislation is a contingent rather than an absolute right. The entitlement at all times depends on the recipient�s continuing incapacity and may be terminated by the Corporation now pursuant to the 1992 Act, if the recipient is no longer incapacitated. The Corporation is expressly required to suspend or cancel payment of compensation if it is not satisfied, on the basis of information in its possession, that a person is entitled to continue to receive compensation (s73(1)). As well, on unreasonable refusal or failure of any person to comply with a requirement made under the Act, the Corporation must decline to make payments for which there is otherwise an entitlement. (s73(2)).�

[24] As the Court of Appeal states an entitlement to earnings related compensation under accident compensation legislation is a contingent rather than an absolute right.
[25] The decision of the majority of the Court of Appeal in ACC v Peck (CA 10/04, 17 December 2004) sets out the purpose behind analogous statutory provisions and the rationale for them are set out as follows:
�[32] The purpose of s 116(3) in this context is to provide a mechanism that the Corporation can use in appropriate cases to ensure compliance by persons who have entitlements with their duties to keep the Corporation informed about their condition when required. This enables the Corporation to maintain the integrity of the statutory scheme by ensuring only those eligible receive benefits under it. The terms of s 116 reflect the legislature's perception of the scope of powers needed by the statutory body with principal responsibility for the administration of the Act.

[33] Thus the power to decline to provide an entitlement, which is conditional on a person entitled acting unreasonably in the manner outlined in s 116(3), is an enforcement power given in the public interest. It is available where there has been a breach of duty. It is not given for punitive purposes but in order to ensure that the duties of persons entitled are observed, so that the scheme operates effectively.

[34] The effective management of the scheme would be frustrated if the Corporation were not empowered to refuse to pay entitlements permanently during a period of default. That could create the anomalies pointed to by Mr Barnett, where persons prolonged their entitlements by refusing to comply with requirements for periods of time. That result would in our view be inconsistent with the purpose of the legislation.

[35] The clear purpose of the power and its centrality to the effective working of the statutory scheme also limit the assistance that can be derived from the canon of construction by which judges control the exercise of expropriatory powers: cf J F Burrows Statute Law in New Zealand (3ed 2003) at 143-145.

[36] This purposive element supports the meaning of s 116(3) which treats the effect of exercise of the power to decline to provide the entitlement as final, rather than interim, during the period of default. Only that meaning carries a strong incentive for those with entitlements to facilitate the Corporation's inquiry into their continuing eligibility. Their entitlements are clearly conditional on their acting in accordance with reasonable requirements. To say that suspension alone would have this effect would water down the role of the powers concerned under the statutory scheme and create anomalous windfalls for claimants in some circumstances.�

Again, from this decision it is clear that the right to an entitlement is conditional upon a claimant acting in accordance with reasonable requirements. The power to decline to provide an entitlement, which is conditional on a person entitled acting unreasonably, is an enforcement power given in the public interest so that the scheme may be properly administered.

[26] In Caverhill v ARCIC (HC Rotorua, AP 93/97, 2 October 1998) Justice Potter stated that the requirement of honesty and the provision of relevant information was essential to the operation of the statutory compensation regime.
[27] In Freeborn v ACC [1998] 2 NZLR 371 the Corporation suspected that the appellant was carrying out paid work without declaring it. It therefore called him into a meeting. The appellant declined to answer questions that were put to him but agreed to complete a statutory declaration giving answers to written questions. The Corporation then put further questions to him but he declined to provide further information, and his weekly compensation was suspended.
[28] The appellant later provided answers to those questions � he was then charged with fraud for making false declarations. The appellant sought to have the statements excluded on the grounds that they had been unfairly obtained and in breach of his right against self-incrimination. Justice Giles stated (at p 381):
�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 consequences flowing from that Act, namely suspension of a benefit through exercise of powers conferred by s 73(2). But those consequences are conferred by the Act.�

[29] The ambit of the privilege against self incrimination should not be extended for as Lord Templeman said in A.T. & T. Istel Ltd v Tully [1993] AC 45:
�Indeed, in my opinion, the privilege can only be justified on two grounds, first that it discourages the ill-treatment of a suspect and secondly that it discourages the production of dubious confessions. Neither of these considerations applies to the present appeal. It is difficult to see any reason why in civil proceedings the privilege against self-incrimination should be exercisable so as to enable a litigant to refuse relevant and even vital documents which are in his possession or power and which speak for themselves. And it is fanciful to suggest that an order on Mr Tully to say whether he has received Abbey�s money and if so what has happened to that money could result in his ill-treatment or in a dubious confession. I regard the privilege against self-incrimination exercisable in civil proceedings as an archaic and unjustifiable survival from the past when the court directs the production of relevant documents and requires the defendant to specify his dealings with the plaintiff�s property or money...�

[30] In this case the respondent is not objecting to the appellant claiming his privilege against self incrimination, but rather suspending his entitlements for failing to answer its request for relevant information. It is a privilege that the claimant has that may be waived. The election is that of the appellant. I do not see how by electing to insist upon the privilege that provides a reasonable excuse to the appellant for not answering the information details sought.
[31] It is not an absolute right to an entitlement, but rather a contingent right. If the appellant was correct that would mean that a person, who had defrauded the system could shelter behind the privilege against self incrimination and continue to receive the benefit: just as the appellant has the privilege of declining to self incriminate the respondent has the power to insist upon reasonable information from the appellant. It is open for the appellant to waive his privilege and receive the benefits of the scheme: on the fact of this case that election is for him.
SUBMISSIONS OF THE APPELLANT

[32] The primary submission of the appellant was that it was not unreasonable for the appellant to resist the provision of information, which was sought for the sole or predominant purpose of incriminating the appellant. It was submitted that the questions sought to asked by the respondent were not aimed at the continuing entitlement of the appellant or intended to assess the level of compensation payable by the respondent.
[33] It was argued that considerable information had been provided to the respondent including the provision of annual accounts for all relevant years and relating to the livestock trading undertaken by the appellant. There were also a number of recent medical reports on the appellant�s file.
[34] The appellant relied heavily upon the case of Smith (83/2001), where Judge Beattie said:
"In the present case, whilst it may be that the detection of fraud may be a possibility upon the answers given, I find that the purpose of the questions was to determine whether this appellant had a continuing entitlement, whether the entitlement if it were to continue work were to be at the same level or whether indeed there may have been an overpayment of compensation. I find that if detection of fraud is a corollary of that inquiry then there cannot be a reason to assert that the inquiry or request is unreasonable...

Mr Oliver referred to the decision of this court in Symons. That case I find can easily be distinguished on the 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 the information sought was solely for the detection of possible fraud and not one for a purpose referred to in section 64."

[35] The submission of the appellant is that it is plain that the primary purpose of the investigation was to collect information for a possible prosecution. It was only if the information provided did not meet the threshold for prosecution that the information would be used for case management.
[36] It was submitted that a claimant can withhold information which is self incriminating, supported by section 27 of the New Zealand Bill of Rights Act 1990, but cannot withhold information relating to the management of the case, and that establishing where the interface between these two areas lies is critical. The respondent sought information and was refused. It is submitted that the appellant was entitled to take a conservative approach and withhold information sought on the basis of that privilege against self-incrimination.
DECISION

[37] In my view the information sought by respondent was relevant to the issue of the appellant�s past and ongoing eligibility for weekly compensation. The questions focussed on the appellant�s business activities with Agnes Farms Ltd and with pig hunting. The questions are relevant to whether the appellant is eligible for weekly compensation, and at what quantum. The respondent�s request for information was reasonable.
[38] The financial statements do not provide answers to the respondent�s questions regarding the degree of the appellant�s personal involvement with Agnes Farms Ltd. The financial statements do not provide answers to ACC�s questions that relate to the appellant�s business activities with pig-hunting.
[39] The statements only cover the period up to 31 March 1999. The financial statements do not provide answers to ACC�s questions regarding the appellant�s physical incapacity.
[40] While answers to the questions may have raised the possibility of fraudulent activity, this does not make the questions or the requests for information unreasonable. Indeed, I am of the view, the issue of fraudulent activity makes the questions asked highly relevant and reasonable to the administration of the statutory scheme. In Thomas (519/01) I said:
�As McGrath J observes it is not an absolute right to an entitlement, but a contingent one: a claimant is under a duty of honesty in respect to the receipt of an entitlement. The structure of the legislation imposes this duty upon a claimant. Section 329 of the Accident Insurance Act 1998 expressly gives the Corporation such powers as are necessary or expedient to perform its duties of functions. In my view the Corporation has the power to cancel an entitlement, because a fraud was being committed upon it in respect to such entitlement: this power is necessary for the Corporation in order that the Corporation may fulfil its statutory function.�

[41] The obiter statements of Judge Beattie in Smith (supra) provide no support for the appellant. In most cases enquiries as to fraud go to the gist of a contingent right to entitlements and if the fact relevant information discloses the existence of a fraud on the system it is immaterial to the issue of suspension. In my view, Judge Beattie was doing no more than stating that position.
[42] The appellant�s refusal to provide answers to questions that were relevant to his ongoing eligibility to entitlements, on the grounds of a privilege against self-incrimination, was unreasonable. While such a refusal may have been reasonable for a criminal inquiry, it was not reasonable for the purpose of considering eligibility to entitlements under the legislation.
[43] The respondent cannot compel a claimant to answer questions and a claimant can always exercise the right of silence on the basis of the privilege against self incrimination. However, this does not prevent the respondent from then suspending a claimant�s entitlements under section 117(3), as the issues are separate.
[44] The respondent�s request for information was relevant to the appellant�s past and ongoing entitlements. For the reasons that I have given I dismiss the appeal. There is no order as to costs in connection with the issue argued at this appeal.

However, the other issue that was settled is a separate matter and the costs issue would have to be dealt with by the parties.



DATED at Wellington this 24th day of May 2006



(J Cadenhead)
District Court Judge

[doppelganger]

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

[doppelganger]

and we all know this case.

Thomas V ACC 2010.

[hukildaspida]

hukildaspida, on 26 April 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.

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.

Has Martin Ashley Williscroft ACCs Project Investigations manager & very long term staff member of ACCs Fraud/ Risk Unit & it's various names, had an input into the advertisements & policy for Investigators at http://www.acc.co.nz?

If so why is Internal Staff dishonesty & fraud not been addressed by these Investigators because unless our eyes are playing tricks on us we can't see it addressed anywhere in these ads...not even in the Position Description(would someone who is a computer whizz cut n paste it so it's not lost).

It's a known fact http://www.acc.co.nz/ internal staff dishonesty does go on & has been for a very long number of years.


http://careers.acc.c...JSHL&O_p=QQEd7

Applications close Monday 31 January 2011

[hukildaspida]

hukildaspida, on 05 February 2009 - 11:12 AM, 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.

In light of the guilty plea by former longterm staff member, of http://www.acc.co.nz/ ,Malcolm MASON we would appreciate if the above audit of http://www.acc.co.nz/ INVESTIGATION UNIT was undertaken with urgency and heads within the said unit rolled.

Incidently, it appears that none of the above cases that Doppleganger has brought to our attention, were "Better at Work" for attempting to Rehabiliate themselves.

Dr Kevin MORRIS what is your answer to that as http://www.acc.co.nz/ Medical Advisor?

In the case of those in the farming community accused of http://www.acc.co.nz/ "Fraud" they were more than likely ensuring Animal Welfare was complied with and didn't have any assistance.

What proceedures has http://www.acc.co.nz/ put in place to ensure members of the Medical Profession and that of the general public are informed they can have "As and when able, according to pain, xyz hours per day/ week" on medical Certificates?

We would imagine the average person assumes they are only able to have "Fully Unfit for work" or "fully fit for work",or they would recieve no entitlements, and not the inbetween.

[hukildaspida]

Refresh.

Any chance of someone please putting up other earlier cases that the said Martin WILLISCROFT, now Project Investigations Manager at http://www.acc.co.nz has been involved in, or are they not all online?

Thanks

[hukildaspida]

Khan v Accident Compensation Corporation [2004] NZACC 43 (10 March 2004)

IN THE DISTRICT COURT
HELD AT AUCKLAND

Decision No. 043/2004
(Appeal No. AI 30/99)

UNDER The Accident Insurance Act 1998

BETWEEN Ms Y KHAN

Appellant

AND ACCIDENT REHABILITATION COMPENSATION AND INSURANCE CORPORATION

Respondent

HEARD at AUCKLAND on 11 November 2003

DATE OF THIS DECISION 10 March 2004

APPEARANCES/COUNSEL

Mr R B Hucker for appellant
Miss F Becroft for respondent

DECISION OF JUDGE P F BARBER

[1] The substantive issue is whether the appellant was an earner prior to the date of her incapacity on 18 June 1993. If not, she has no entitlement to weekly compensation for any periods thereafter. However, also at issue is the 8 July 1998 decision of the respondent that the appellant had no entitlement to weekly compensation so that the respondent raised a net debt of $36,167.35 against the appellant for compensation overpaid.

[2] There is an application on behalf of the appellant to adduce further evidence on the basis that the substantive issue, i.e. whether she was an earner, revolves around matters of fact which, for medical reasons, the appellant was unable to put before the Review Officer. I contemplated granting that application but, after quite some discussion with counsel, on 11 November 2003 it was decided to deal with this case in two parts. First, to consider, as a threshold point, the effect of a deemed decision in favour of the appellant referred to below. Second, if that does not bring an end to this matter, there needs to be a resumed hearing to deal with available evidence and consequences therefrom.

Background

[3] The appellant has cover for a right-arm injury sustained on 18 June 1993 as a result of a fall. The respondent provided physiotherapy treatment for a number of months following the accident.

[4] On 29 November 1993 the appellant's General Practitioner provided a note to the respondent advising that the prognosis for the appellant was excellent and that she would be able to return to full time work in January 1994.

[5] From 13 December 1993, the appellant made an application for weekly compensation. She indicated that her employer had been Ideal Leather Manufacturing Ltd and that she had worked for it as an employee from 1 April 1993 through to 18 June 1993. In December 1993 she provided an Earnings Certificate which indicated she had earned $500.00 per week in that employment. Accordingly, she began receiving weekly compensation.

[6] In July 1995 an ACC Internal File Note recorded that the appellant was being investigated for fraud in relation to weekly compensation payments.

[7] In November 1995 the respondent requested financial statements from the appellant for the years prior to her accident.

[8] On 12 February 1996 the respondent advised the appellant that, if she did not provide the requested information, weekly compensation would be suspended.

[9] Weekly compensation was ceased by the respondent on 17 April 1996.

[10] A File Note dated 18 April 1996 records that the appellant and her husband were arrested on that day having being charged with conspiracy to defraud the respondent.

[11] On 10 June 1996 the appellant applied for a Review of that decision of 17 April 1996. However, the Review was not set down within the required 3 month time-frame and, on 6 May 1997, the respondent advised solicitors for the appellant that, as the hearing did not proceed within the time-frame, weekly compensation was reinstated as from 17 April 1996 but “re-ceased” from 10 September 1996. That letter reads:

“06 May 1997

Mr Keith Reid
Barrister
P O Box 2205
AUCKLAND

Dear Mr Reid

RE: YOUMNA KHAN

Thank you for your letter of 23 April 1997 concerning the review application lodged in relation to the Corporation decision of 19 April 1996 to cease compensation.

I refer you to my letter of 28 January 1997 in which I advised that the matter had been referred to Head Office, for guidance on how to proceed with the application. A response from Head Office has been received.

SECTION 90(9) of the Accident Rehabilitation and Compensation Insurance Act states:

‘Where the hearing of a review has not been commenced within 3 months after the lodging of the application for review, and the delay is not caused or contributed to by the applicant, the application shall be deemed to have been determined in favour of the applicant’.

As the Hearing of the application for Review was not commenced within 3 months of lodgement the decision must be found to be in the favour of the applicant. Accordingly Mrs Khan’s compensation will be reinstated from the date of cessation on the provision of medical certification.

Section 73(1) of the Act states:

‘The Corporation shall, if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant, or allowance under this Act, suspend or cancel that payment for treatment, service, or related transport, or the payment of compensation, grant, allowance, or provision of rehabilitation’.

Accordingly compensation will be re-ceased from 10 September 1996 in accordance with Section 73(1) of the Act (three months from the date of the review application lodgement).

This decision is based on the fact that the Corporation holds information that leads it to believe that the earnings details provided for the assessment of weekly compensation are incorrect. As you are aware this matter is set for trial on 28 July 1997.

If you are not satisfied with this decision, or there is something you do not understand, you should contact us immediately and discuss your concerns. We will explain the decision and will explain your right to ask that the decision be reviewed.

If you do want a decision to be reviewed a request must be made in writing using a special form which is available from our office. The written request for a review must be received within three months from the date of this letter.

Yours sincerely

Lesley Parker

TEAM LEADER.”

[12] During the following two years, the appellant had limited contact with the respondent in respect of the weekly compensation issue pending the outcome of the criminal matter. In 1997 both the appellant and her husband were convicted of fraud on charges of using documents with intent to defraud in breach of Section 229A of the Crimes Act 1961. The documents were an application for entitlement and an Earnings Certificate, both in the name of the appellant, prepared to obtain ACC payments. On 9 March 1998 the Court of Appeal issued a judgment upholding those convictions entered by the High Court.

[13] On 16 February 1998 Mr M Williscroft, of the respondent, wrote to the appellant confirming that weekly compensation would not be reinstated.

[14] On 11 March 1998 the appellant applied for a Review of that decision.

[15] By letter of 23 April 1998 the respondent advised the appellant that Mr Williscroft’s letter was not a decision for the purposes of the Act. That letter was addressed to the appellant's husband (presumably, as agent for the appellant) and reads:

“23 April 1998

Mr S Khan
2/207 Mt Albert Rd
Mt Albert
Auckland

Dear Mr Khan

I refer to the review application lodged on 11 March 1998, in relation to Martin Williscrofts’ letter to you of 16 February 1998.

This letter was issued as information only and was not a decision made by the Corporation.

The decision initially made by the Corporation in relation to your wife’s loss of earnings was made in 1994. [Presumably that should be “1996”]. The time limit to review the decision was within 3 months from the date the assessment sheets were forwarded to your wife.

The findings at the trial were that your wife received no earnings during that time and was not your employee.

Martin Williscroft’s letter to you of 16 February 1998 was not a new decision and as such does not attract review rights.

During my discussions with you, following the conclusion of the trial, you advised that documents were presented to the Court detailing the true level of pre-incapacity earnings for your wife, which had been drawn up by your accountant. I do not hold a copy of these documents, but invite you to submit them to me for further consideration.

After submission, I will review the information provided and look at the establishment of any entitlement your wife may have or had. I will however need to ensure that any decision issued, is not in contravention of the findings of the Court.

The calculation of the overpayment will be held in abeyance for 4 weeks, pending the presentation to the Corporation of original documentation in support of a recalculation.

Accordingly the application for review has not been accepted as valid.

I await the documents confirming the accurate pre-incapacity income.

Yours sincerely

Lesley Parker

Branch Liaison Officer.”

[16] On 15 June 1998 Mark Trelevan, solicitor for the respondent in respect of the criminal matter, wrote to the respondent advising the details of the conviction as follows:

“Count 1 related to the application for entitlement signed by Youmna Kahn signed on 13 December 1993. Count 2 related to the Earnings Certificate from Ideal Leather Manufacturer Limited concerning Mrs Kahn which was received by ACC on or about 23 December 1993. The verdicts reflect the fact that the Kahns deliberately used those documents knowing the information contained in them was false.

On the application for entitlement the information that they knew was false was the claim that Youmna Kahn worked for Ideal Leather Manufacture Limited between 1 April 1992 and 18 June 1993. On the Earnings Certificate the information that they knew was false was the claim that Youmna Kahn earned $500.00 per week or $26,000 between 1 April 1992 and 18 June 1993 and she worked 40 hours per week for that company.

Judge Nicholson, QC had to consider the role of Mrs Kahn in imposing sentence. At page 3 he notes he made a finding of fact that Mrs Kahn ‘did not act in business on her own account during the relevant periods nor was she an employee of Mr Kahn’s businesses and companies. Rather she was a supportive wife who gave some assistance in the running of the business affairs but took her reward in the way that many wives often do, just simply by sharing in the benefit of the other husband’s business activities’”.

[17] A 19 June 1998 File Note of the respondent records that the appellant was advised that the respondent had reached its entitlement decision on the basis of information supplied by the appellant at a meeting on 11 June 1998, and as well as the sentencing notes of Judge Nicholson.

[18] By letter of 8 July 1998 the respondent advised the appellant that it was raising a debt of $36,167.35 for weekly compensation paid. That letter reads:

“Dear Mrs Khan

This letter is to inform you that the Corporation has raised an overpayment in relation to your claim for the accident on 18 June 1993.

The value of the overpayment is as follows;

Gross 59136.45

PAYE 15126.33

Nett 44010.12

The nett overpayment needs to be recovered from you and represents the total nett weekly compensation paid on your claim.

` The basis of the decision in relation to the raising of the overpayment is as follows.

As you are aware, the Corporation instigated a prosecution against you on the basis that it believed the earnings details provided in support of your claim for weekly compensation were fraudulent.

The result of the prosecution being two convictions against you in terms of Section 229A of the Crimes Act 1961, for using two documents with intent to defraud.

The Court of Appeal upheld these convictions in a judgment given on 9 March 1998.

Judge Nicholson QC made a finding of fact at sentencing that you did not act in business on your own account during the relevant period nor were you an employee of your husband’s businesses or companies. Rather that you were a supportive wife, who gave assistance in the running of the business affairs but took your reward simply by sharing in the benefit of your husband’s business activities.

During my meeting with your husband on 11 June 1998, I asked for details of your employment activities prior to your injury in June 1993. Mr Khan detailed your employment activities involving a combination of self employed and employee.

These details however are in contradiction to the finding of fact presented by Judge Nicholson QC.

Section 42(1) of the Accident Rehabilitation and Compensation Insurance Act 1992 states;

Calculation of weekly earnings where earner had both earnings as an employee and other earnings during the 12 months before commencement of incapacity---(1) This section applies only to earners who are earners immediately before the commencement of the incapacity and who had both earnings as an employee and earnings other than as an employee during the 12 months immediately preceding the commencement of incapacity.

In your case the Corporation does not accept that you were an earner immediately prior to the commencement of incapacity, nor that you were self employed or an employee during the 12 months preceding incapacity. This being the case you had no entitlement to weekly compensation payments.

Accordingly the total nett weekly compensation payments made to you now constitute a debt to the Corporation and the Corporation intends to seek recovery of this from you within the terms of Section 77(1) of the Act. Section 77(1) states;

Recovery of overpayments and unpaid premiums by Corporation---

(1) If any person receives any sum of money from the Corporation ---

(a) Which is in excess of the amount to which he or she is entitled

under this Act; or

( To which he or she is not entitled---

the sum of money shall, except to the extent that it is recovered under subsection (3) of this section, be a debt due to the Corporation and may be recovered by way of proceedings or deducted from any amount thereafter payable to that person (whether or not in respect of the same personal injury).

Consideration is still being given to imposing a penalty within the terms of Section 77(4). A separate decision will be issued to you in relation to this in due course.

Initially the Corporation will make partial recovery of the overpayment by withholding the Independence Allowance payments due to you from 1 March 1995 to the current time. The value of this is $7842.77 and being withheld from the overpayment leaves a balance of $36167.35 outstanding.

If you are not satisfied with this decision, or there is something you don’t understand, please contact me and discuss your concerns. I will explain the decision and your right to have it reviewed. If you wish to apply for a review, your application must be made in writing within three months of the date of this letter. You can obtain an ARC33 (Application for review) from any ACC Branch Office or Customer Services Centre.

The Corporation requires a reassessment of your Independence Allowance entitlement to be made. This is in line with changes made to the 1992 Act in 1997. A separate letter is attached concerning this and what ACC requires you to do.

Yours sincerely

Lesley Parker

Branch Liaison Officer.”

[19] The appellant applied for a review of that decision (of 8 July 1998) on 12 August 1998.

[20] In May 1999 solicitors for the appellant filed additional evidence on behalf of the appellant which included IRD records, notes from the appellant's chartered accountants, financial statements of Ideal Leather Manufacturing, and other correspondence.

[21] The Review was heard on 28 April 1999 before Mr Cornwall, Reviewer, who issued a decision on 22 June 1999 confirming the respondent’s decision.

[22] The appellant filed a Notice of Appeal against the Reviewer’s decision. However, it seems that in the months following the filing of the Notice of Appeal the appellant fell ill and did not file submissions as requested by the Registrar. Over the following years, several attempts were made to schedule the hearing and the appellant declined various scheduled hearing dates. On 20 May 2002 Middleton DCJ (Decision No. 132/02) struck out the appeal for want of prosecution. In June 2002 the appellant contacted the Registry and advised her intention to apply for leave of the District Court to appeal the matter to the High Court. At that point in time the appellant was advised that it might be more prudent to apply for a rehearing of the matter. Thereafter, the matter was apparently reinstated and the parties were advised of this by an 11 June 2002 letter of the Registry. Hence, the appeal hearing of 11 November 2003 before me.

The Relevant Sections of the Accident Rehabilitation and Compensation Insurance Act 1992 (now repealed)

“73. Suspension, cancellation, or refusal of compensation and rehabilitation - (1) The Corporation shall, ... if not satisfied on the basis of the information in its possession that a person is entitled to continue to receive any treatment, service, rehabilitation, related transport, compensation, grant or allowance under this Act, suspend or cancel that payment for treatment, service or related transport, or the payment of compensation, grant, allowance, or provision of rehabilitation ... “.

“90. Reviews - ... (9) Where the hearing of a review has not been commenced within 3 months after the lodging of the application for review, and the delay is not caused or contributed to by the applicant, the application shall be deemed to have been determined in favour of the applicant.”

The Submissions for the Appellant on the Jurisdictional Issue

[23] Mr Hucker submitted that the respondent failed to action the appellant's review application against its decision of 17 April 1996 (i.e. to cease compensation payments from that day) within the requisite three month time limit in terms of s.90(9) of the 1992 Act so that there is a deemed decision in favour of the appellant. That is correct.

[24] He submitted that the decision was whether to continue compensation or not and the respondent has erred in subsequently exercising rights to cease the grant of compensation under s.73(1) which anticipates that a new circumstance has arisen or new information has come to hand not evident at the time the decision was made to continue compensation or at any time a decision was made to cease compensation. He submits that the wording of s.73(1) provides that the respondent shall “if not satisfied on the basis of the information in its possession” suspend or cancel an entitlement; and once satisfied as to the information, the certainty sought to be created by the legislation mitigates in favour of an interpretation of there being continuity.

[25] Mr Hucker referred to the deemed decision having occurred as at 10 September 1996 and submitted that no new circumstances have arisen after that date which would have justified the respondent revisiting the decision. He put it that although the appellant's conviction occurred in 1997, the respondent had already acted on the basis that the conviction had been established and he submits that the respondent is endeavouring to circumvent s.90(9) contrary to law by applying s.73(1).

[26] Mr Hucker submitted that it is not open to the respondent to defeat a deemed decision by subsequently issuing a new decision under s.73 unless there is a new circumstance or fact which was not known to the respondent at the time the original deemed decision took place. He submitted that in the present case there has been no new circumstance. He referred to the respondent knowing that the appellant and her husband were arrested on 18 April 1996 and charged with conspiracy to defraud the respondent and to the respondent having this knowledge when the deemed decision took place.

[27] Mr Hucker submitted that the effect of the deemed decision must have been that, up to the respondent applying s.73 on 6 May 1997 (but as at 10 September 1996), the appellant was entitled to weekly compensation and a debt back cannot be claimed by the respondent for compensation paid prior to 6 May 1997.

[28] Mr Hucker submitted that there has been no error in assessing entitlement needing to be corrected under s.73 as there has been no information obtained by the respondent, and that the only error has been the administrative error of the respondent in not providing a Review Hearing within three months of the lodging of the application for review.

[29] Mr Hucker referred to the matter of cover not being in issue but merely the matter of quantum of the appellant's earnings at material times.

[30] Mr Hucker also submitted that non-acceptance of his said submission as to the interpretation of s.73 undermines the intention of s.66 of the Act which requires timely decisions from the respondent.

[31] Mr Hucker submits that due to the deemed decision in favour of the appellant there has been no debt.

The Submissions for the Respondent

[32] Miss Becroft put it that the starting point on this jurisdictional threshold issue is the 8 July 1998 decision of the respondent raising a debt which started this appeal. She submitted that the deemed decision issue relates to a completely different period. She submitted that the deemed decision, accepted by the respondent on 6 May 1997, has no relevance to the respondent’s decision of 8 July 1998.

Reasons for Decision

[33] This appeal is against the 8 July 1998 decision of the respondent when it “raised an overpayment in relation to your claim for the accident on 18 June 1993” for a net sum of $36,167.35. The claim for that debt is based on the appellant having no entitlement to the compensation she received up to 17 April 1996. The threshold submission for the appellant is that the deemed decision confirms her claim to compensation and s.73 cannot be applied to suspend or cancel that entitlement. I do not know why the respondent did not appeal the deemed decision of 6 May 1997 (but occurring as at 10/9/96) rather than rely on s.73 of the 1992 Act.

[34] In relation to the respondent’s decision of 8 July 1998, the Review Officer’s reasoning was as follows:

“I have decided to confirm the ACC’s decision.

This is because there has been nothing of any substance placed before me to provide a basis to vary the decision by the ACC.

The issue has been considered by the Courts and in this regard I note that the Appeal to the Court of Appeal was not brought on the substantial issue relating to fraud, but related to faulty process. This in any event was dismissed.

I consider I have no authority to provide any finding which differs from that already decided by the Courts. If there has been evidence of such a nature to show new evidence was available which provided a basis for reconsideration of the debt, I would have revoked the ACC’s decision and referred the matter back to the ACC for further consideration.

There has been no information placed before me to provide a basis for this. While the Court did make a finding in mitigation for Mrs Khan, that she had been subject to Mr Khan’s management of her claim against ACC, nonetheless this does not provide a basis to find that Mrs Khan was entitled to the payments which she received and which now have been raised as a debt.

Accordingly for the reasons provided the ACC decision is confirmed, and the review application is unsuccessful.”

[35] I am not bound by the Court findings of other jurisdictions. The appellant is entitled to endeavour to prove, on the balance of probabilities, that she was an earner at material times and entitled to the compensation for which repayment is sought. Prima facie, it would seem difficult for her to do this even to the standard of proof of the balance of probabilities. However, for the present, counsel wish to confine matters to the effect (if any) of the deemed decision on the respondent’s said decision of 8 July 1998.

[36] I do not accept Mr Hucker’s submission that it is not open to the respondent to defeat a deemed decision by subsequently issuing a new decision pursuant to s.73 (of the 1992 Act). Nor do I accept his submission that, before s.73 can be relied upon, there needs to be a new circumstance or fact not known to the respondent at the time the original deemed decision took place. In any case, it seems to me that a better understanding of the situation by the respondent would be a new circumstance, and that is what happened in the present case.

[37] It was put to me that there are decisions of this Court (e.g. Grimes 94/02; Govind 310/02) finding that s.73 does not give the respondent power to revoke or revise a deemed decision under s.66. But Grimes and Govind relate to the situation of deemed acceptance of a claim under s.66 of the 1998 Act due to the insurer failing to make a timely decision on that claim and to s.73, as it is worded in the 1998 Act, relating to a decision of the insurer made “in error”. I am dealing with the situation of a failure of the respondent to file a Review leading to a deemed Review decision (under s.99(9) of the 1992 Act) in favour of the appellant and, more particularly, to the wider version of s.73(1) (set out above) under the 1992 Act. The said cited cases pivoted on this Court considering administrative failure not to be an “error” as used in s.73 of the 1998 Act.

[38] In terms of the reference to s.66, which requires prompt decision-making by the respondent in relation to claims, that concept cannot permanently overcome lack of entitlement. In terms of the 1992 Act, the wording of s.73 seems to me to be quite clear that if the respondent was not satisfied, on the basis of the information in its possession at any point in time, that a person is entitled to continue to receive compensation, then the respondent shall suspend or cancel payment of that compensation. However, I agree that the effect of a deemed decision must be that up to the issue of a new decision under s.73 (in this case on 6 May 1997), and subject to appeal or High Court review, there is an entitlement to weekly compensation where cover is not in dispute.

[39] Also, I do not see how the application of s.73 can be backdated to 10 September 1996 as the said letter of 6 May 1997 purports to do. I see this as an important aspect of this case. The respondent does not appear to have acted under s.73 of the 1992 Act until 6 May 1997. I appreciate that the deemed decision occurs by operation of statute as at 10 September 1996 even though not conceded, or notified, by the respondent until 6 May 1997. However, the application of s.73 is not automatic and requires exercise of a discretion, or consideration, by the respondent.

[40] As already indicated, I reject Mr Hucker’s argument that s.73(1) imposes a requirement of new matters coming to the knowledge of the respondent before it can cancel compensation. Section 73(1) of the 1992 Act simply indicated that if, at any time and from time to time, the respondent considers from information in its possession that a person is not entitled to compensation, then the respondent must suspend or cancel payment of that compensation. However, it seems to me that s.73(1) cannot be applied retrospectively so that, in the present case, the s.73 decision does not take effect until the issue of the respondent’s letter of 6 May 1997. It follows that due to the deemed decision of 10 September 1996, which overcame the respondent’s decision of 17 April 1996 to cease compensation, the respondent was required to continue compensation payments until the issue of the said letter of 6 May 1997 which properly, in my view, applied s.73 as it read under the 1992 Act.

It is submitted for the respondent that the deemed decision of 6 May 1997 has no relevance to the decision in issue of 7 July 1998 and, if it did, it was “ultra vires”. It seems to me that the relevance of the deemed decision (unless it can be reversed) is that it abrogates the debt claimed by the respondent on 8 July 1998. Also, a deemed decision pursuant to statute could not be “ultra vires”.

[41] As I understand matters, the repayment sum referred to in the said letter of 8 July 1998 is calculated to 17 April 1996 so that the appellant has no debt to the respondent and further compensation is owing to the appellant for the period 17 April 1996 to 6 May 1997.

[42] Accordingly the appellant must succeed. However, I reserve leave to apply as to the arithmetical calculations and consequential matters flowing from my said findings, and as to costs. With the purported debt having been cleared, I am not sure whether the appellant wishes to proceed on the issue of whether or not she was an earner at material times. As already indicated, I do not know why the respondent has not appealed to this Court the deemed decision of 6 May 1997 (but occurring as at 10/9/96), made at the Review level, nor sought leave to do so out of time.

_____________________________
Judge P F Barber
District Court Judge
WELLINGTON AI30-99.doc(nl)

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URL: http://www.nzlii.org...CC/2004/43.html

[hukildaspida]

Sharryn Williscroft(Carter)

Memories from State Insurance Takapuna...

I started as a numbering clerk, did telephonists duty and transfered to claims. Mrs Nielson was my first supervisor Mr Graham was manager and Barry James was assistant manager Peter Grenfell was claims manager. I transfered to Orewa when they opened a District Office in 1980 but later came back to Takapuna and was appointed to senior claims clerk when Len Beehre left and that position became vacant. Trish Walker was claims manager then.I also remember Patricia Ward was one of the typists in the earlier years and also Patsy Coster.Claims parties were legendary.

hukildaspida, on 13 July 2010 - 04:56 PM, said:

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/

[hukildaspida]

Martin Ashley Williscroft was a Fisheries Officer in Whitianga Coromandel region in the late 1970's to early 1980's before he moved up there to Auckland.

It's understood his family were involved in the fisheries industry & may have had Goverment assistance to set themselves up in business in Whitianga.

It's understood he moved from his previous address where both he & Sharyyn Carter were neighbours (a couple of doors away from each other when
she was working at State Insurance who managed http://www.acc.co.nz claims) a couple of years earlier into the former marital home, of his now wife, Sharryn, nee Carter then Greenwood, when her relationship with Wayne Greenwood ended in the early 1980's.

In our opinion it sounds like a case of "homewrecking" & all a bit sordid.

It is not uncommon for dsyfunctional attitudes & relationships & controlling behaviour to carry over into the workplace & be inflicted on those whom rely on these same people for Professional standards & service.

This information by the way has all come from credible sources.

[hukildaspida]

Small world we live in.

Someone closely associated with http://www.acc.co.nz recently informed us that there should be ongoing random audits of the work & staff in the Investigation/Fraud Unit department as there are still skeletons in it that need to be addressed.

Audits that staff & investigators are not made aware of until they have been completed so as to ensure transparency & integrity in the corporation.

This is particularly so in the North Island where the input from ACC clients was not as high as that of those in the South Island in relation
to the Martin Report.

We understand some rotten eggs associated with http://www.acc.co.nz Investigation Unit to this day have remained unaccountable for their misconduct.

Is Martin Williscroft still employed at ACC?

Or has his past of "doctoring" files finally caught up with him?

[hukildaspida]

An update on Michael Cruickshank's case.

Michael if you are on ACCforum and object to this decision been placed on here please send us a PM and we will remove it.

Judge Martin Beattie has recalled his decision of 14 November 2011

Very interesting explanation that others may find helpful especially where factually incorrect information or misleading information has been passed on to other parties.

Has anyone at http://www.acc.conz been made accountable for this and been fired if inappropriate conduct has occurred?

Who were the staff members involved in the, to quote Judge Beattie "It is the case that Counsel for the Respondent, Mr A D Barnett, has agreed to the fact that there were slips and errors in the facts in the judgment and he has agreed, on behalf of the respondent, to the request' made by the appellant's advocate for a recall of the judgment.?"

We await with interest for the next development.

Cruickshank v Accident Compensation Corporation [2013] NZACC 114 (22 April 2013)

Last Updated: 30 April 2013

http://www.nzlii.org.../2013/114.html.

DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR RECALL OF JUDGMENT

[1] This appeal was heard by me on 25 October 2011, and following which a reserved judgment was delivered dated 14 November 2011, whereby the respondent's two primary decisions relating to suspension of the appellant's entitlements was confirmed. Subsequent to that decision the appellant's legal advisor, Mr David Heperi, made an application for a recall of that judgment on the basis that certain errors had been made in the facts of the case upon which the appeal decision was made.
[1] It is the case that Counsel for the Respondent, Mr A D Barnett, has agreed to the fact that there were slips and errors in the facts in the judgment and he has agreed, on behalf of the respondent, to the request' made by the appellant's advocate for a recall of the judgment.
[1] In those circumstances, I do not propose to engage in comment on the matters which have been raised by Mr Heperi, in view of it being the case that the respondent is agreeable to a recall of the judgment.

2

[4] Accordingly, therefore, I rule that my decision made on 14 November 2011, is hereby recalled, and for this appeal to be set down for a hearing before a judge other than myself following receipt of advice from counsel for the parties as to a suitable date for such hearing.

DATED this 22nd day of April 2013

M J Beattie
District Court Judge

doppelganger, on 07 August 2010 - 11:21 PM, said:

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.

[hukildaspida]

Sharryn nee Carter then Greenwood is understood to have had her right-hand pinky broken when her then husband, Wayne Greenwood, went to defend himself when she attacked him with a pair of scissors in around 1982.

Does she have a claim either dated back to when State insurance
http://www.state.co.nz/ managed http://www.acc.co.nz claims or from when ACC managed claims and is it covered under the 1982 or 1972 Act?

If so is this claim still active?

Has she ever been placed under "investigation" or does she have "VIP treatment & a VIP File" because she has been married to http://www.acc.co.nz Martin Williscroft since the 1980's?

We would like to believe ACC are acting with integrity and transparency with all claims.

hukildaspida, on 13 July 2010 - 04:56 PM, said:

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/

[hukildaspida]

Possible claim names to be investigated include but not limited to following the names:

Sharryn Carter,

Sharryn Greenwood,

Sharryn Williscroft

And of course a street address search of her current address, parents address etc, which should be on files if files exist on her.

We are reliably informed that the aforementioned named person has a history of dishonesty, including stating to her former husband that she was staying at her parents home from Friday through to Monday when in fact she was having a sexual relationship with Martin Williscroft http://www.acc.co.nz ACC Fraud Unit Examiner, throughout the course of her first marriage.

As an aside how many Long Term claims are there in existence belonging to http://www.acc.co.nz ACC Staff members and their families?

hukildaspida, on 04 September 2013 - 10:41 AM, said:

Sharryn nee Carter, then Greenwood is understood to have had her right-hand pinky broken when her then husband, Wayne Greenwood, went to defend himself when she attacked him with a pair of scissors in around 1982.

Does she have a claim either dated back to when State insurance
http://www.state.co.nz/ managed http://www.acc.co.nz claims or from when ACC managed claims and is it covered under the 1982 or 1972 Act?

If so is this claim still active?

Has she ever been placed under "investigation" or does she have "VIP treatment & a VIP File" because she has been married to http://www.acc.co.nz Martin Williscroft since the 1980's?

We would like to believe ACC are acting with integrity and transparency with all claims.

[hukildaspida]

It is observed in Martin Williscroft's Linkedin Profile that he has omitted to include his career history for an approximate ten year period between October 1994 to March 2004.

Martin Williscroft would you please explain "Why"



Martin Williscroft

Investigator, Fraud Specialist, Pro-active Problem Solver

Location
Auckland, New Zealand
Industry
Insurance

http://nz.linkedin.c...roft/7a/415/51a

Martin Williscroft's Overview

Current

* Investigator at Accident Compensation Corporation (ACC)

Past

* Investigation Projects Manager at Accident Compensation Corporation (ACC)
* Senior Examining Officer at Accident Compensation Corporation (ACC)
* Investigator at Commerce Commission

* Senior Fishery Officer at Ministry of Fisheries

see less

see all
Education

* Association Of Certifide Fraud Examiners
* New Zealand Institue of Management
* University of Auckland

Recommendations

1 person has recommended Martin
Connections

35 connections

Martin Williscroft's Summary

At one level or another fraud is prevalent in every business. My experience also tells me that fraud management by companies and organisations is often misaligned with their core business. Knowing this I'm able to identify and develop counter-fraud strategies that will minimise your risk and enhance your business practices and reputation.

I am a pro-active problem solver who gets results. Highly skilled and qualified at fraud identification and risk management. Able to work effectively within organisations to help them identify and reduce internal and external fraud which in turn positively impacts on bottom line results. Led multi-disciplinary teams in complex investigations resulting in significant, sustainable outcomes.

Able to work effectively across complex organisations to conceptualise, develop and deliver new initiatives.

Martin Williscroft's Experience
Investigator
Accident Compensation Corporation (ACC)

Government Agency; 1001-5000 employees; Insurance industry

January 2011 – Present (3 years)

Responsible for the detection, investigation and prosecution of fraud. My knowledge and experience has enabled me to identify substantive and complex frauds when generally applied examination techniques and standards have often been ineffective.
Investigation Projects Manager
Accident Compensation Corporation (ACC)

Government Agency; 1001-5000 employees; Insurance industry

October 2006 – January 2011 (4 years 4 months) Auckland, New Zealand

Identify, develop and implement projects to prevent and minimise ACc fraud. As part of this role to developed the ACC Counter Fraud strategy and completed intelligence review for ACC.

Senior Examining Officer
Accident Compensation Corporation (ACC)

Government Agency; 1001-5000 employees; Insurance industry

March 2004 – September 2006 (2 years 7 months)

Developed and lead a high performing team of fraud investigation professionals increasing sustainable outcomes and recoveries by 560 percent in 18 months through mentoring, example; and cross matching of complimentary skills and strengths.


Investigator
Commerce Commission

Government Agency; 51-200 employees; Government Administration industry

July 1989 – October 1994 (5 years 4 months)

Investigation and prosecution of offences against the Fair Trading and Commerce Acts. Development of industry guidelines and introduced Administrative Settlements to address non-compliance and provide redress for affected parties

Senior Fishery Officer
Ministry of Fisheries

1984 – 1989 (5 years)

Developed, trained and lead a team of Fishery Officers to encourage and enforce, as necessary, compliance with the legislation in both amateur and commercial fisheries. Planned, lead and successfully completed the first covert enforcement action against black marketing of illegally caught fish within the Auckland region.
Martin Williscroft's Skills & Expertise

1. Investigation
2. Data Analysis
3. Risk Assessment
4. Conflict Resolution
5. Conflict Management
6. Conflict Prevention
7. Communication Skills
8. Creative Problem Solving
9. Problem Management
10. Team Management
11. Leadership
12. Staff Development
13. Staff Management
14. Cultural Awareness
15. Private Investigations

Martin Williscroft's Education
Association Of Certifide Fraud Examiners
Certified Fraud Examiner, Fraud Investigation

New Zealand Institue of Management
Diploma of Frontline Management

University of Auckland
COP Competion Law

Martin Williscroft's Additional Information

Interests:

Tramping and exploring the native bush and forests, dog obedience training, fishing and woodwork

Contact Martin for:

* career opportunities
* consulting offers
* new ventures
* job inquiries
* expertise requests
* business deals
* reference requests
* getting back in touch

[not their victim]

very interesting scenario going on with the fraud squad right now

refusing to release files!

fact!

as everyone else says: "if you got nothing to hide, dont hide anything!"

so why wont they release said files?

[unit1of2]

Because they'll be sifting through those said files removing what they see as damaging to them. Anything that could lead someone to quiry the activities they have undertaken on the claimant..

[Alan Thomas]

not their victim, on 04 December 2013 - 11:21 AM, said:

very interesting scenario going on with the fraud squad right now

refusing to release files!

fact!

as everyone else says: "if you got nothing to hide, dont hide anything!"

so why wont they release said files?

not their victim

The ACC fraud unit has never released its fraught files.

That is not a new situation.

How it works is ACC speculate a different scenario to what the medical profession have described and no matter how bizarre that different scenario it is they will find someone in the community who is crazy enough To give an opinion to support the scenario. The ACC fraud unit then uses that member of the public as a witness in a fraud trial.

The fraud unit either make a decision themselves or instruct the case manager to make a decision of the entitlement.

The ACC fraud unit rely upon a section in the privacy act not to release the information they claim to possess on the basis that it was not in the public interest. The public interest being the prosecution of a fraud.

Even after the fraud trial the ACC fraud unit will not release the information and will eventually lose the information. This includes information gathered by search warrant handed to them by the police. The ACC fraud in simply do not given back at the information is going to support the defence against their allegation.

The ACC fraud unit has been working by this process for almost 2 decades and getting away with it because no one will come to the rescue of someone accused of fraud.


not their victim
The site was set up to give those who have been falsely accused a voice and to encourage other fellow claimants to stand united in order that all ACC decision-making occurs in accordance with legislated criteria rather than this very murky world of ACC allegations of fraud whereby the ACC fraud unit actively prevent the possibility of defence.

[Huggy]

I got every page of my 2000 pages fraud file minus a legally privileged letter that was later released when they cocked up and emailed it to me.

[Alan Thomas]

Huggy your good result is very very uncommon.