Austin v Roche Products (New Zealand) Limited

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 5/2020
[2024] NZSC 124

BETWEEN	LESLIE NORMAN AUSTIN Appellant
AND	ROCHE PRODUCTS (NEW ZEALAND) LIMITED Respondent

Court:	Glazebrook, O’Regan, Ellen France and Williams JJ
Counsel:	G J Thwaite for Appellant J A MacGillivray for Respondent
Judgment:	25 September 2024

JUDGMENT OF THE COURT

AThe stay ordered in Austin v Roche Products (New Zealand) Ltd [2021] NZSC 62 is lifted.
BThe appeal is dismissed.

C There is no order as to costs.
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REASONS

In 2020, Mr Austin was granted leave to appeal. The approved question was whether the Court of Appeal was correct to strike out his claim for compensatory damages because his injuries were not an ordinary consequence of consuming a drug, Roaccutane.[1]
[1]Austin v Roche Products (New Zealand) Ltd [2020] NZSC 49 (Glazebrook, Ellen France and Williams JJ) at [16].
In its judgment on the appeal, this Court held that s 133(5) of the Accident Compensation Act 2001 applied and that this Court has no jurisdiction. Mr Austin’s prior claim to coverage prevented him from bringing the proceedings.[2] This Court said that it would dismiss Mr Austin’s appeal one month from the date of the judgment unless he made an application under s 135 of the Accident Compensation Act 2001 to reverse his grant of cover, together with an application to this Court for a stay of this proceeding pending completion of that process.[3]
[2]Austin v Roche Products (New Zealand) Ltd [2021] NZSC 30, [2021] 1 NZLR 294 (Glazebrook, O’Regan, Ellen France, Williams and Arnold JJ) at [35].
[3]At [37]
Mr Austin made an application under s 135 and also applied for a stay to this Court, which was granted.[4]
[4]Austin v Roche Products (New Zealand) Ltd [2021] NZSC 62 (Glazebrook, O’Regan, Ellen France, Williams and Arnold JJ).
Mr Austin has been unsuccessful in his application to reverse coverage and accepts the matter is now at an end.[5] He says that the stay can now be lifted, the appeal dismissed and the security for costs returned, as no costs were ordered in the substantive judgment. Mr Austin also seeks return of the filing fee on the basis that this Court did not have jurisdiction and asks for an order that the matter be returned to the High Court for further conduct of the action.
[5]Austin v Accident Compensation Corporation [2023] NZACC 59; and Austin v Accident Compensation Corporation [2024] NZHC 1985.
The respondent agrees the stay should be lifted and the appeal dismissed with no order for costs. It says, however, that the dismissal of the appeal does not affect Mr Austin’s claim for exemplary damages but it is for the parties to pursue the resolution of that claim in the High Court. It says it is incorrect for Mr Austin to say this Court lacked jurisdiction.
We agree the appeal should be dismissed with no order for costs and that it is appropriate to refund security for costs. We agree with the respondent that it is now for the parties to pursue the matter in the High Court. [6] As Mr Austin’s application for leave to appeal was granted and the appeal was fully argued, we do not accept it is appropriate to refund the filing fee.

Result

[6]Mr Austin filed a memorandum in reply on 10 September 2024 without seeking leave to do so. We nevertheless have considered the memorandum but do not consider it necessitates any change to this judgment or the judgment on the substantive appeal. It will be for the High Court to determine the effect of those judgments in relation to the proceedings before it.

The stay ordered in Austin v Roche Products (New Zealand) Ltd [2021] NZSC 62 is lifted.
The appeal is dismissed.[7]
[7]We decide this as a panel of four under s 84 of the Senior Courts Act 2016, as Arnold J is not available.
There is no order as to costs.

Solicitors:
Tompkins Wake, Hamilton for Respondent

CaseChat Overview and Summary

Leslie Norman Austin, the appellant, brought an appeal against Roche Products (New Zealand) Limited, the respondent, concerning a claim for compensatory damages related to injuries allegedly caused by consuming Roaccutane. The appeal was initially granted, but the Court of Appeal struck out the claim for compensatory damages, ruling that the injuries were not an ordinary consequence of consuming the drug. This decision was subsequently appealed to the Supreme Court of New Zealand.

The central legal issue in this case was whether the Court of Appeal was correct in its decision to strike out the appellant's claim for compensatory damages on the grounds that his injuries were not an ordinary consequence of consuming Roaccutane. The Court had to determine whether the appellant's prior claim to coverage under the Accident Compensation Act 2001 prevented him from bringing the proceedings, and if so, whether there was any jurisdiction to entertain the appeal.

The Supreme Court found that section 133(5) of the Accident Compensation Act 2001 applied, affirming that the Court had no jurisdiction to hear the appeal as the appellant’s prior claim to coverage precluded him from bringing the proceedings. The Court also noted that the appellant had made an application under section 135 of the Act to reverse his grant of cover, but this application was unsuccessful. Consequently, the Court lifted the stay previously ordered, dismissed the appeal, and ruled that there would be no order for costs. The Court also agreed to refund the security for costs, but declined to refund the filing fee as the appeal had been fully argued.

The Court's final order lifted the stay, dismissed the appeal, and ruled that there was no order as to costs. It was clarified that the dismissal of the appeal did not affect the appellant’s claim for exemplary damages, which the parties were to pursue in the High Court.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established