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Jurisdiction Issue Memorandum Filed and Served

#1 User is offline   magnacarta 

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Posted 21 January 2010 - 09:18 AM

There has been a lot written about jurisdiction issues in various threads on the forum.

The following Memorandum relating to this issue has been filed in the Court and served on ACC.



MEMORANDUM REQUESTING JUDICIAL CASE TELEPHONE CONFERENCE AND DIRECTIONS


Following assistance provided to the appellant, he now finds himself in somewhat of a “Catch 22” position because it has recently become apparent that it is quite possible the District Court could conclude on the day of the Appeal hearing that it does not have jurisdiction to hear this Appeal as there has been no “review decision” which would activate an Appeal in accordance with section 149.

This is said to be a matter of some importance because while an Appeal is a rehearing it is firstly an appeal against a “review decision”.

In O’Neill v ACC CIV-2008-404-8482 High Court Auckland Heath J. said at paragraph [34]

“Judge Barber did not consider whether he had jurisdiction to hear an appeal from Mr Dunn’s observation on the merits. On one view, given the comments that Mr Dunn made in relation to jurisdiction (see para [24] above) the observations were gratuitous and had no legal effect. It is unfortunate that the Judge did not deal expressly with the jurisdictional point. Jurisdiction can never be conferred by consent.”

A question has therefore arisen as to whether the reviewer’s document dated 27 February 2009 is a “review decision” which would give the Court jurisdiction?

BACKGROUND

(1) This case has recently been reviewed by learned people.

On 16 February 2009 the appellant had filed and served an application to dismiss ACC’s application and assertions relating to jurisdiction because the appellant believed a reviewer was bound to comply with the mandated obligations in s.145 (1) and hear the substantive merits (facts) of the case and not be isolated to just a jurisdiction issue raised by ACC.

In fact, in the Edward Bushell case in 1670 Chief Justice Vaughan held that a Judge (in this case an independent adjudication reviewer) can never direct what the law was without hearing the facts.

The appellant also alleges there was an apprehension of bias against Mr Woodhouse in that the Wellington District Law Society webpage dated 12 February 2009 – Find a Lawyer - recorded a contact email address [email protected] The appellant printed-off that entry.

ACC and its counsel knew, or ought to have known, about the mandated obligations of any reviewer it allocates (s.137).

ACC took no steps to remedy the matters above by allocating another reviewer and nor has it taken any remedial steps upon receipt of this reviewer’s conclusion document dated 27 February 2009.

Reviewer’s Conclusion Document

The document of Mr Woodhouse to Review No: 134585 styles itself as “Decision” on the front page, but it is alleged that it is not a “review decision” because he did not comply with s.145 (1) or do one of the mandated things set out in s.145 (3).

A conclusion of a lack of jurisdiction is not one of the matters mentioned in that sub-section.

In Dean v ACC CA 22/06 [2007] NZCA 462 at paragraph [30] counsel argued this point.

The Court said:

“We do not accept that submission. Conventionally, a judicial body which determines that it has no jurisdiction to deal with the case before it, dismisses the case. That is the effect of what happened in this case. Although the second reviewer expressed his decision in terms of a lack of jurisdiction, he noted in the last paragraph of the decision that the review was unsuccessful and was “dismissed……..”

That is not what happened in this case.

Nowhere in the reviewer’s conclusion document does this reviewer dismiss the case – he simply declined jurisdiction to hear the review.

Why did this reviewer not dismiss the case? It is alleged that the reviewer did not dismiss the case because he knew he had not complied with the mandated provisions set out in s.145 (1).

Accordingly, it is alleged the conclusion of the reviewer is not in accordance with the mandated provisions set out in the Act and there is prejudice, a miscarriage of justice and a failure to observe the principles of natural justice.

There has been no review, review hearing or effective review decision determined on the substantive merits because the reviewer seized himself only of the issue of jurisdiction contrary to his mandated obligations in s.145 (1) and (3).

The effect of that is the substantive question as to whether the ACC letter dated 15 October 2004 is a valid, conclusive and effective “decision” at the time it was written and is according to law, remained undetermined by this reviewer of first instance.

(2) There has also been no “review decision” as to an award of expenses claimed. It is arguable that this case was not unreasonably brought but the reviewer also declined to hear the parties on that matter. He simply determined by way of a later email that the case was not reasonably brought without hearing any argument.

(3) The fact is, attempts were made by the appellant to resolve this dispute by way of mediation and within the statutory framework only to be rebuffed, firstly, by ACC and, secondly, the reviewer’s finding as to lack of jurisdiction. All of which now leaves the appellant in something of a “Catch 22” position.

(4) This is because it is quite possible that the District Court will conclude that it does not have jurisdiction as there has been no “review decision” issued which would activate an appeal in accordance with s.149.

(5) The appellant has lodged submissions to this Appeal , ACC has lodged its submissions and the appellant had lodged submissions in reply. There is also a further submission of the appellant which was served on ACC’s counsel immediately before the court hearing and were to be handed-up to the Court on the day.

This came about because following the very short notice given verbally to the appellant by the Registry of the court hearing date, (advised by telephone on Friday 4 December that the hearing was to be held on Monday 7 December 2009 at Hamilton), this further submission was about to be handed-up to the presiding Judge but Judge Beattie appeared on the bench on the day and recused himself from the case and the further submissions was not handed-up.

His Honour then suggested that the matter could be dealt with on the papers otherwise the appellant could have considerable further distances to travel in order for the Appeal to be disposed of. ACC counsel subsequently wrote to the Court rejected that course.

(6) In the circumstances outlined above, there is therefore an issue that the
District Court does not have jurisdiction to deal with this appeal given that ACC’s counsel also wrote in submissions to the review that jurisdiction can never be conferred by consent.

Section 145 confers jurisdiction upon the reviewer to “….decide the matter only on the basis of its substantive merits under this Act.” but the Court might not have that same jurisdiction because there has been no “review decision.”

Deemed Decision

(7) The way in which the reviewer undertook his review gives rise to a deemed decision because this reviewer also did not set a date for the substantive review at all (or hear the substantive merits). (see reviewer’s email dated 12 February 2009).

In O’Neil v ACC (supra) Heath J. said at paragraph [52]

“There seems to be arguable points in relation to the s.146 issue. For example, Mr Carter (expressly) did not set a date for the substantive review at all: see para [16] above. It is distinctly arguable that s.146 (1) applies to a substantive review only. See s.145 (1) and (3) set out at para [18] above.”

(8) In this case this reviewer “…did not set a date for the substantive review at
all.” - and neither did he, or would he, hear the substantive merits of the case or the issue of costs and expenses.


Signed Dated this 15th Day of January 2010
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#2 User is offline   MINI 

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Posted 21 January 2010 - 12:16 PM

Magna

Has the Court made a Telephone Conference date.

It sounds like someone is trying to have the whole case heard over the phone.

Telephone coferences with Judges to my knowledge only last 10 minutes or so. If major issues other than the point to be conferred, are bought up, they are usually greeted with a "That can be addressed in the Court".

If the problem is a matter of persons time being wasted, why dont you ask for the relevent point on if the 'decision' by the reviewer, is a decision or not, be heard on the papers?? Maybe that will allow the substantive issues to be allowed to be heard, or the matter sent back to review for a proper hearing.

Good Luck
Mini
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#3 User is offline   magnacarta 

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Posted 21 January 2010 - 02:03 PM

Thanks Mini, a judge will need to decide exactly what this is.

As was also said in the O'Neill case in the High Court Justice Heath cited above -

"It is very apparent from the history of this proceeding that it does not reflect well on the administration of justice in this country. A series of systemic procedural irregularities have brought about significant jurisdictional problems at almost every stage in the proceedings. It will not be easy to untangle the procedural web in which the appellant has been caught.

The events described by Justice Heath are strikingly similar to this case. One wonders about the continued ineptitude of reviewers give the dicta in Dean in the Court of Appeal and in O'Neill in the High Court.

The events leading to this particular Appeal have also followed a tortuous path. In considerable measure the Appellant is justified in feeling aggrieved at the way that events have gone against him.

Clearly, this case has gone off the rails - not of the Appellant's making. The cause can be sheeted home to ACC and more particularly to its allocated reviewer.
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#4 User is offline   Alan Thomas 

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Posted 21 January 2010 - 02:11 PM

Mr Dunn appears to have been the weaver of the web of which I have become ensnared for exactly the same reasons. I believe that there exists an evil strategy at work.

My submissions appear to be along the same lines.
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#5 User is offline   MINI 

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Posted 21 January 2010 - 04:00 PM

Yep Magna

Know the feeling well. The way the issues are twisted to suit their arguements. By the time it gets to the High Court, it can be shown by what the Judge says that he hasnt understood a bloody thing he has been told verbally and on paper. Not by me or the Crown Law. My case was heard in July. In December the Judge still hasnt got his sums right. I think the Respondent have changed what legislation they are using four times in as many years. It is no wonder no body can get a decent answer out of anyone, they either dont know, or they are covering it up.

It is becoming clear to me that us little people have a hard row to the winning post, when the opposition wants to get dirty.

Good Luck anyway, maybe you can get a Judge like Heath who is willing to look outside the square.

Mini
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#6 User is offline   Alan Thomas 

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Posted 22 January 2010 - 04:54 PM

I have asked numerous reviewers, including Mr. Dunn, on the basis of which they think they have jurisdiction to determine whether or not we have the right to have the substantial matters heard without actually hearing the substantive matters.

It appears that the reviewers are of the opinion that they can have a Pre-hearing prior to a review hearing. what is the legal basis for this claim?

An example is Mr. Dunn combining 93 review hearing applications into one Pre-hearing , not having a single hearing on any of the review hearing applications yet dispensing individual decisions based on whatever information he has gleaned from the application which is not the submissions. it is particularly disturbing when he has decided not to have jurisdiction by deciding upon matters that have already been deemed in my favor as if the decision had been made by a reviewer and I was simply seeking an enforcement of the deemed decision in regards to the delight of process from that deemed decision. He declines jurisdiction on the basis that the ACC did not make the deemed decision and therefore they can be no delay of process from a decision the ACC did not make , perhaps forgetting that a decision made as ever reviewer has made a decision is on behalf of the ACC , which in my case invariably meant that the ACC was required to acquire independent assessment so as to determine the quantum of entitlement.

The subject matter established Magna Carta is one of the more important issues that should be discussed on this forum as it affects most of the review hearing applications.
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#7 User is offline   magnacarta 

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Posted 25 January 2010 - 07:54 AM

I have established that there seems to be a large number of cases across the country where the reviewer's, - because of ACC's claims and assertions about jurisdiction, - are declining jurisdiction to hear a case contrary to the reviewer's mandated obligations in s.145.

It gets worse.

In Martin v ACC CIV-2008-485-2617 at para [20] it states: - The Corporation accepts however that an appellant at the review and District Court level is entitled to a rehearing on the merits consistent with Austin Nichols and Wildbore and a judgment given accordingly.

Clearly, a review is a rehearing of the Corporations primary decision or actions and omissions at the review level where the reviewer must consider all relevant evidence, an evaluation of that evidence and an assessment of the merits accordingly.

The approach of reviewer's in declining jurisdiction to hear a case is clearly in conflict with the approach to be taken and their mandated obligations in s.145.

And yet ACC (and reviewer's) continue to consciously disregard ACC's own acceptance of the correct approach as outlined by the Court of Appeal and High Court and continues down the path of squandering public funds and wasting scare time and resources of the claimant and the Courts by (unlawfully) declining jurisdiction to hear the case on the substantive merits.

I think that is completely dishonest.
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#8 User is offline   MINI 

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Posted 25 January 2010 - 10:19 AM

Magna

In this instance you have Judicial Review at High Court I beleive.

I know it is costly but it does give a bit of grit to your case.

Are you actually saying above that these decisions you speak of have the relevent wording by ACC to say the claimant has 'right of review'?? Or are the ACC saying that they have never made a substantive decision. I know another party that is going to say that to me shortly, so I will have to go Judicial Review.

Just about every letter I get from ACC has that on it these days.

Mini
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#9 User is offline   magnacarta 

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Posted 25 January 2010 - 10:48 AM

Hi Mini, the matter of jurisdiction of reviewer's and their practices and procedures adopted is wending its way through the Distrcit Court at this point with the question of law being -

Is the District Court entitled to form an opinion and pronounce judgment on the practices and procedures adopted by a first instance reviewer?

If necessary that can then go on to the High Court on appeal as a question of law.

In light of what ACC accepted in Martin cited above (and s.145) it seems clear that a reviewer is not empowered to decline jurisdiction to hear a case at all.

There is the further question of law relating to conducting an informal investigative review (explicitly in s.140 with reference to s.141) as opposed to reviewer's conducting an formal adversarial hearing only.

To force a claimant into judicial review in the High Court of these matters makes the first instance review process nugatory.
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#10 User is offline   MINI 

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Posted 25 January 2010 - 11:04 AM

Magna

Of course you are right, no one should have to go the Judicial Review, at all. One would think it can get sorted now with the likes of the Martin case about and if I was the Judge answering your question I would have to agree with the Martin case is conclusive as to the independent nature of the Review which has to be taken. Therefore no doubt the Judge will toss it back to the Reviewer for another hearing.

This will be a massive win for yourself and the claimant, especially if ACC are saying they never made a decision in the first place.

This will have been cleared up to help a lot of the 720 just been kicked off and DRSL will not be able to do that too them.

Hopefully it doesnt get held up too long. Answers are needed post haste.

Good Luck
Mini
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#11 User is offline   Alan Thomas 

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Posted 25 January 2010 - 01:04 PM

I guess this is what we are talking about.


In this case I had asked the ACC to make a reviewable decision subsequent to deemed decision, which ACC acknowledged was in my favor which meant that the ACC was required to determine its liability to transport me to and from hospital , fund medical assessments for the determination of my incapacity and to make properly formed decisions regarding incapacity etc. etc.

Instead of the ACC issuing a reviewable decision they place my request before the reviewer, as if I had made a review hearing application, which they know that the reviewer will invariably say he has no jurisdiction, from which the ACC will then claim there is a review hearing decision in their favor , preventing them from determining their liability unless I go to the district court to ask the district court to unravel this situation and as we know from the Cadenhead decisions he was only too willing to be bamboozled.

what a wicked the web they weave

Attached File(s)


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#12 User is offline   doppelganger 

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Posted 25 January 2010 - 01:11 PM

the biggest problem is that there is too many fingers to get burnt of the legislation is followed.

Section 137 (2).

137 Corporation to engage and allocate reviewers
(1) The Corporation must engage as many persons as it considers necessary to be reviewers under this Part.
(2) As soon as practicable after receiving an application for review, the Corporation must arrange for the allocation of a reviewer to the review even if it considers that there is no right of review in the circumstances.
(3) If for any reason the Corporation has to allocate a new reviewer to a review, the Corporation must do this as soon as practicable after becoming aware of the need to allocate a new reviewer.
Compare: 1998 No 114 s 138

the problem is that the ACC think that they can decide that whether or not there is jurisdiction or not. There job is to administer the Act not deceide ifthere is jurisdiction or not.

If the Corporation decides to here a matter on Jurisdiction then the Corporation hasn't arranged to a reviewer to review the application with a reviewer.

When the ACC aranges to hear on the jurisdiction then section 146 can apply.

146 Deemed review decisions
(1) The reviewer is deemed to have made a decision on the review in favour of the applicant if—
(a) the date for the hearing has not been set within 3 months after the review application is received by the Corporation; and
(B) the applicant did not cause, or contribute to, the delay.
(2) The date of the deemed decision is 3 months after the review application is received.
Compare: 1998 No 114 s 149
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#13 User is offline   Gloria Mitchell 

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Posted 25 January 2010 - 02:25 PM

View PostMINI, on Jan 25 2010, 12:19 PM, said:

Magna

In this instance you have Judicial Review at High Court I beleive.

I know it is costly but it does give a bit of grit to your case.

Are you actually saying above that these decisions you speak of have the relevent wording by ACC to say the claimant has 'right of review'?? Or are the ACC saying that they have never made a substantive decision. I know another party that is going to say that to me shortly, so I will have to go Judicial Review.

Just about every letter I get from ACC has that on it these days.

Mini


A cc made a decision on my knee replacement and sent it to me along with of course.....the advice I cn review.....of course I did not review a decision to pay for surgery that I had requested......and so......when several months down the track, after I had the surgery and could see the wood stacking up in the trees, I wrote to acc and said thankyou for reversing the previous decisions and making a
"new" decision to grant knee replacement previously denied. Now please tend to the formalizing of the issues and reinstating the erc for that period of time the injury had been denied. They quickly spat the dummy.....stated no new decision had been made and as I had not made application to review the decision to grant the surgery within the alloted time frame, I was out of time to review it now.

Man do they twist the wording and the legislation to suit themselves.

the next letter was a decision letter they said posted with review rights......then when I went to review reviewer said it was not a decision letter and there was no jurisdiction to review. The previous letter which was the granting of request...new decision to accept previously denied request for surgery is a decision letter and acknowledged by reviewer who said same thing no jurisdicton.

They simply play with our lives.......not quite sure how they get away with it in this day and age of educated peoples.

Gloria.
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