Curgenven v Accident Compensation Corporation

[2023] NZHC 2033

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000422

[2023] NZHC 2033

UNDER

the Accident Compensation Act 2001

IN THE MATTER OF

a special leave application pursuant to s 162 of the Act

BETWEEN

SARAH CURGENVEN
Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

1 August 2023

Counsel:

BR Hinchcliff for Applicant

FL Becroft and LD Hawes-Gandar for Respondent

Judgment:

3 August 2023

JUDGMENT OF DOWNS J

This judgment was delivered by me on Thursday, 3 August 2023 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

ACC and Employment Law, Auckland. Medico Law Ltd, Auckland.

CURGENVEN v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2033 [3 August 2023]

The case

[1]    Sarah Curgenven seeks special leave to appeal to this Court in relation to compensation concerning an injury in 1994. Ms Curgenven contends her case raises arguable questions of law. The respondent contends no such questions arise.

Background

[2]    I do not repeat the background identified by Judge P R Spiller1 in  the  District Court or Judge D L Henare2 in declining leave to appeal. It is sufficient to say this. Ms Curgenven suffered a motor vehicle accident 6 July 1994. The accident left her with significant problems with both ankles. Ms Curgenven sought and was granted weekly compensation. On 23 April 2010, Ms Curgenven sent the respondent a letter from an accountant dated 26 July 1994. The letter said:

When Sarah started on 16 May 1994 at A Taste of Kapiti she also started getting paid for her work as Gosling Gear. Sarah was paid $430.00 gross per week. This was earned by working 25 hours per week at A Taste of Kapiti and 17 hours per week at Gosling Gear. A total of 42 hours a week. Up until this time the Gosling Gear business had not been providing her an income. Her income in the previous 12 months had been received only in the form of a standard student allowance as she studied NCB at Polytech.

Although Sarah is stated as being the owner of Gosling Gear the business’ accounts were run through my client’s accounts as she was only 17 years old when she started the business and at the time was not eligible for any business banking assistance. As the Gosling Gear business was being run through my client’s business accounts that would mean she is an employee of the business, which should be reflected in the amount that you and ACC will be compensating her with.

[3]    On 31 May 2010, the respondent confirmed its earlier weekly compensation decision. Thereafter, Ms Curgenven and the respondent continued to engage about her entitlements. In 2019, the  respondent  accepted,  on  the  basis  of  the  letter,  that Ms Curgenven was entitled to be treated as if she had been in fulltime employment. However,   the   respondent    was   not   satisfied   Ms   Curgenven    was   receiving

$430 per week as that figure as unsupported by any other documentary evidence, including anything from the Inland Revenue Department.  Ms Curgenven challenged

1      Curgenven v Accident Compensation Corporation [2022] NZACC 196.

2      Curgenven v Accident Compensation Corporation [2023] NZACC 26.

that decision. Judge P R Spiller found against Ms Curgenven. Judge Henare declined leave to appeal.

Principle

[4]Section 162 of the Accident Compensation Act 2001 provides:

162   Appeal to High Court on question of law

(1)A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the  District Court, appeal to the High Court.

(2)The leave of the District Court must be sought within 21 days after the District Court’s decision.

(3)If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

(4)The special leave of the High Court must be sought within 21 days after the District Court refused leave.

(5)The High Court Rules 2016 and sections 126  to  130  of  the  District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.

[5]    As will be apparent, an appeal to this Court is confined to a matter of law. Special leave is required if the District Court has declined leave.

[6]The leading case in relation to special leave remains that of Fisher J in

Kenyon v Accident Compensation Corporation, in which the Judge said:3

In his helpful submissions Mr Corkhill summarised the effect of the authorities relating to special leave as follows:

(a)   The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA).

(b)   Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principal at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle, Manawatu Co-operative Dairy Co  Ltd  v  Lawry  [1988] DCR  509,  Brown  v  Chow  Mein  Fashions  Ltd   (1993) 7 PRNZ 43.

3      Kenyon v Accident Compensation Corporation [2002] NZAR 385 at [15].

(c)   The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O’Loughlin v Healing Industries Ltd (1990) 2 PRNZ 464.

(d)   It is for the Applicant to show that leave is required in the interests of  justice:  Avery  v  No  2  Public  Service  Appeal  Board [1973] 2 NZLR 86 (CA).

(e)   As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chow Mein Fashions Ltd.

I am grateful for that summary, and agree with it.

The proposed questions

[7]    On behalf of Ms Curgenven, Mr Hinchcliff says the case raises no fewer than four questions of law:

(a)If Accident Compensation Corporation is found to have incorrectly determined an amount of weekly compensation and the Inland Revenue Department records are not available for the period in question, can other records available from around the date of incapacity be used to determine weekly compensation payment amounts?

(b)Is Accident Compensation Corporation allowed to profit from its mischief, as business, bank and Inland Revenue Department records were unavailable at the time the mischief was corrected?

(c)Did the District Court err by not relying on the contemporaneous accountant evidence?

(d)Did the District Court correctly apply schedule 1, clause 34 of the Act?

Analysis

[8]    The first and second questions cannot attract special leave. Neither arises on the facts. The District Court did not find weekly compensation was incorrectly determined. Nor did that Court find there had been any “mischief” by the respondent.

Moreover, neither question is one of law. I respectfully agree with Judge Henare both are “questions of fact dressed up as questions of law”.4

[9]    The third question may be a question of law, but it is not reasonably arguable the District Court erred. Judge Spiller concluded the absence of supporting documentation—for example, documents lodged with the Inland Revenue Department or bank statements—meant the respondent had not erred in declining to act on the letter alone. Plainly, that conclusion was open on the evidence. The fourth question reformulates the third with reference to the statute. Doing so does not advance the case.

[10]In short, the case raises no arguable question of law.

Result

[11]The application for special leave is declined.

[12]I shall determine costs if these cannot be agreed.

……………………………..

Downs J

4      Curgenven v Accident Compensation Corporation, above n 2, at [54].