Gallagher-Scott v Accident Compensation Corporation - [2022] NZHC 296

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-168

[2022] NZHC 296

BETWEEN
REBECCA GALLAGHER-SCOTT

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: On the Papers

Counsel:

Applicant in Person

S Kinsler and M Clarke-Parker for Respondent

Judgment:

25 February 2022

JUDGMENT OF ISAC J

[Leave to appeal]

Summary

[1] In a decision dated 23 July 2021, I declined Ms Gallagher-Scott’s application for special leave to appeal to this Court from the District Court.1 I determined that s 162(4) of the Accident Compensation Act 2001 (the Act) imposes a mandatory time limit for pursuing special leave that this Court has no jurisdiction to extend. I therefore had no jurisdiction to determine the application given it had been filed well out of time.

[2] Ms Gallagher-Scott now applies for leave to appeal that decision to the Court of Appeal. I must also dismiss this application for lack of jurisdiction. The authorities

1 Gallagher-Scott v Accident Compensation Corporation [2021] NZHC 1881.
GALLAGHER-SCOTT v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 296 [25 February 2022]

are clear that the right of appeal in s 163(1) of the Act does not apply to a refusal to grant special leave to appeal.

Background

[3] The background to this proceeding, as summarised in my July 2021 judgment, is as follows:2

In October 2013 the Accident Compensation Corporation (the Corporation) declined Ms Gallagher-Scott’s claim for cover for a work-related gradual process injury. Ms Gallagher-Scott reviewed that decision. The review was dismissed in a decision of 8 December 2014.

Ms Gallagher-Scott appealed the review decision, which was dismissed by Judge Walker in a decision dated 14 August 2018. Ms Gallagher-Scott then sought leave from the District Court to appeal to this Court. On 6 August 2020 Judge Harrison declined to grant leave.

On 8 April 2021 Ms Gallagher-Scott filed an application for special leave to appeal in the High Court. Ms Gallagher-Scott also applied for an extension of time for filing her special leave application.

On 12 April 2021 Thomas J directed that the extension of time application be determined on the papers.

[4] Section 162(4) of the Act requires special leave applications to be filed within 21 days of the District Court refusing leave to appeal. Ms Gallagher-Scott filed her application for special leave 245 days after the District Court’s decision to refuse leave. A review of the authorities confirmed that the Court has no discretion to extend the time frame imposed by s 162(4). Accordingly, I had no choice but to dismiss the application to extend the time frame for seeking special leave and, as a consequence, dismiss the substantive special leave application.

Ms Gallagher-Scott’s application

[5] In support of her current application, Ms Gallagher-Scott makes several submissions which were made in support of her application for leave to appeal to this Court. Those are summarised in my earlier judgment as follows:3
Ms Gallagher-Scott submits she was unable to file the special leave to appeal application within the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] NZHC 296
Decision Date: 25 February 2022

CaseChat Overview and Summary

Rebecca Gallagher-Scott sought leave to appeal from the High Court’s refusal to grant her special leave to appeal from the District Court’s refusal to grant her leave to appeal to the High Court. The High Court had declined her special leave application as it was filed outside the 21-day time limit imposed by s 162(4) of the Accident Compensation Act 2001. In the present proceeding, Gallagher-Scott submits that she was unable to file her special leave application within the timeframe due to medical incapacity and disability. She also argues that the District Court’s decision was based on incomplete evidence and errors of fact, and that she was given advice by High Court Registry staff that created a legitimate expectation that an extension was available.

The court was required to determine whether it had jurisdiction to grant leave to appeal from its decision refusing special leave. The statutory provisions of s 163 of the Act, which allow appeal to the Court of Appeal from a determination or decision of the High Court, were considered. The authorities were clear that the right of appeal does not apply to a refusal to grant special leave to appeal. The court noted that the Supreme Court had dismissed an argument that an applicant has a general right of appeal under the Senior Courts Act 2016.

The court dismissed the application for leave to appeal on the basis that it did not have jurisdiction to grant leave to appeal from its decision refusing special leave. The authorities established that the right of appeal under s 163 of the Act did not apply to a refusal to grant special leave to appeal, and the Supreme Court had dismissed an argument that an applicant has a general right of appeal under the Senior Courts Act 2016. The court had no jurisdiction to grant leave to appeal.

The application for leave to appeal to the Court of Appeal is dismissed.

Orders