Carey v Accident Compensation Corporation

[2022] NZHC 2787

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-345

[2022] NZHC 2787

UNDER

the Accident Compensation Act 2001

IN THE MATTER OF

an appeal under s 162 of the Act

BETWEEN

WILLIAM PHILLIP CAREY

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

On the Papers
Appearances:	Damien Carey for the Applicant P McBride for the Respondent
Judgment:	27 October 2022

JUDGMENT OF GWYN J

(Costs)

Solicitors:

McBride Davenport James, Wellington

Copy to:

Mr William Carey, Blenheim Mr Damien Carey

CAREY v ACCIDENT COMPENSATION CORPORATION (COSTS) [2022] NZHC 2787 [27 October 2022]

[1]                 The applicant, Mr Carey, applied to this Court for special leave to appeal a decision of the District Court relating to interest on backdated earnings-related compensation under the accident compensation regime. That appeal could be brought only with the leave of the District Court or failing that, with the special leave of this Court.1

[2]                 By agreement of the parties, I considered the application for special leave on the basis of written submissions filed by each of them  and issued a judgment dated  2 September 2022.2

[3]                 The Judgment dismissed the applicant’s application for special leave to appeal The Judgment recorded that the respondent, the Accident Compensation Corporation (ACC), is entitled to costs on a 2B basis to be fixed by me, if not agreed.3

[4]                 Costs have not been agreed. Counsel for the respondent, Mr McBride, has filed a memorandum, dated 10 October 2022, asking the Court to determine costs. Mr McBride attaches to his memorandum a schedule setting out the costs sought, which total $9,321, plus disbursements of $110.

[5]                 Damien Carey, on behalf of the applicant, has filed a memorandum in response. Mr Carey disputes ACC’s  assessment of the quantum of costs.   As I understand   Mr Carey’s submission, a reduced figure is appropriate because, in his view, ACC was only partially successful in resisting the application for special leave and a proportion of the time for which ACC seeks costs relates to the “jurisdictional” issue on which ACC was unsuccessful. He submits that ACC is therefore entitled to only one third of 2B scale costs: for the time not incurred in relation to the jurisdictional issue. The figure he arrives at is $478.

Assessment

[6]                 By way of preliminary comment, I note that much of Mr Carey’s memorandum is a criticism of the Judgment and of Judge McGuire’s judgment in the District Court.

1      Accident Compensation Act 2001, s 162.

2      Carey v Accident Compensation Corporation [2022] NZHC 2230 (the Judgment).

3 At [55].

A costs memorandum is not the appropriate vehicle to relitigate the merits of the substantive decision and I disregard those submissions in considering what costs should be payable.

[7]                 ACC opposed the  special  leave  application  on  two  grounds.  First,  that Mr Carey did not comply with the statutory time limit for filing his application for special leave. Second, that the matter which Mr Carey wished to raise in the appeal did not constitute a bona fide seriously arguable question of law.

[8]                 On the first ground I concluded that the application for special leave was filed within the mandatory timeframe in s 162(4) of the Accident Compensation Act.4 On the second ground I concluded that Mr Carey’s submission that the Interest on Money Claims Act 2016 applied to the calculation of interest on backdated earnings-related compensation paid to Mr Carey was not seriously arguable.5 I dismissed the application for special leave to appeal on that basis.

[9]                 While the High Court Rules 2016 (Rules) provide that costs are at the discretion of the Court,6 the discretion must be exercised in accordance with established principles.7 The primary principle is that costs follow the event – that is, the unsuccessful party should pay costs.8 However, the Court may refuse to make an order for costs, or reduce the costs otherwise payable, where although the party claiming costs has succeeded overall, that party has failed in relation to a cause of action or issue which significantly increased the costs of the party opposing an award of costs.9

[10]              Although ACC was ultimately the successful party in resisting the application for special leave to appeal, it was unsuccessful on its first ground of opposition (whether the application complied with the statutory time limit – what Mr Carey refers to as the jurisdictional issue). Mr Carey is correct that a substantial portion of ACC’s memoranda and submissions was concerned with the jurisdictional issue. However,

4 At [24].

5 At [54].

6      High Court Rules 2016, r 14.1.

7      Rule 14.2.

8      Rule 14.2(a).

9      Rule 14.7(d).

as Mr McBride’s memorandum for ACC notes, the Court exercised its discretion under r 1.5 of the Rules to “cure” some irregularities in the applicant’s application,10 before concluding that the application was brought in time.

[11]              In those circumstances, I conclude that some reduction in the costs otherwise payable to ACC is appropriate, but not of the magnitude proposed by Mr Carey.

Result

[12]              A 30 per cent reduction of the costs claimed by ACC is appropriate. ACC is to submit a revised schedule of costs accordingly, for certification by the Registrar.

Gwyn J

10 The Judgment, above n 2, at [24].