Howard’s End: Is ACC a Vexatious Litigent?

A prisoner at Paremoremo has developed a lively interest in litigation by representing himself in Court to the point where counsel of one of the defendants has written to the Solicitor-General seeking a declaration that the prisoner be declared a vexatious litigant. But could the ACC also be declared a vexatious litigant? Maree Howard writes.

Graham Palmer, a prisoner at Paremoremo has, over the past two years, brought actions against two Crown prosecutors, his former lawyer, the Superintendent of the prison, a phsychiatrist who wrote favourable reports on him and the manufacturer of a portable toilet.

The cases are invariably thrown out for want of a reasonable legal basis, but not before they have put the defendants and their counsel to needless trouble and expense.

But this same situation applies with the ACC review system where claimants and their counsel are forced to considerable trouble and expense before an adverse or perverse decision might be put right.

In the first instance, the ACC makes a decision affecting entitlements which the claimant applies to have reviewed. The review application is sent to the centralised ACC review office who then sends it back to the original decision-maker for an internal review.

There is an internal review done by the person who made the original decision and this is signed-off as correct by a senior person. OK so far.

However, the trouble begins when the senior person who is internally "reviewing" the decision is the ACC Branch Manager or other senior person who has been involved in the original decision in the first place and even offered advice and drafted the decision letters.

In no way can that process be described as fair and just. Worse, the claimant is not even involved in the internal review and is given no opportunity to make submissions in mitigation under the natural justice provisions in the NZ Bill of Rights Act before the original decision is confirmed.

After the original accusor, who also becomes the judge, internally "reviews" their own decision and will not change it, ACC then institutes further action by sending the decision to be reviewed by a reviewer allocated by Dispute Resolution Services Ltd, a wholly-owned subsidiary of ACC.

The trouble-and-expense-meter then starts ticking when the claimant invariably has to employ a lawyer and gather all the information to fight a multi-billion organisation when they are receiving only 80% of their pre-accident wage. Lawyers costs for a formal review can be anything up to $7,000.

Here is the dilemma. The legislation says that ACC 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.

Importantly, the legislation does not let ACC off-the-hook for making fair and just decisions in the first place and properly reviewing them internally before it decides not to change it and send it to another review organisation. But that's what can happen.

ACC is using the formal review process, then appeal to the District Court and the higher Courts to put things right and in doing so it is putting people and levy-payers to a great deal of trouble and expense by not having a fair and just internal review process, which involves the claimant, available in the first place.

It can be months before a claimant can receive justice through the formal review process and/or the Courts. It can be devastating both financially and mentally on the claimants and their families. Unreasonably, they weren't even involved in the internal review of the original decision which impacted on their rights and interests.

The Judicature Act 1908 says it is the person who persistently and without reasonable ground institutes vexatious legal proceedings who can be held liable.

It is ACC who starts the process of litigation by sending its decision to be formally reviewed. So it must follow that it is ACC who institutes the litigation. Because it does so on a regular basis could it now be declared a vexatious litigant and the Solicitor-General should be approached to apply to the High Court for a declaration against ACC?

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