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 timeframe specified under s 162 due to medical

2      At [5]–[8].

3      Gallagher-Scott, above n 1, at [9]–[11] (footnotes omitted).

incapacity or disability. She has provided the Court with several medical certificates explaining her various health issues since July 2020.

Ms Gallaher-Scott submits there is nothing in the Act that limits the High Court Rules 2016 or the inherent jurisdiction of the High Court. She adds that there is an implied jurisdiction to extend and shorten time, which extends to all procedural time limits.

And, Ms Gallaher-Scott says the District Court decision was made on the basis of incomplete evidence and numerous errors of fact. She says the case involves important questions of law — whether chronic pain symptoms should be classed as a mental injury — and the approach to pain and disorder concepts in the leading case of Teen v Accident Compensation Corporation and Telecom New Zealand.

[6]                 In addition, Ms Gallagher-Scott says for the first time that she was given advice by High Court Registry staff, before the time for seeking special leave expired, which created a legitimate expectation that an extension was available to her. She further says that these “in time” communications with Registry staff should be considered adequate notice of her intention to apply for special leave and her application should therefore be considered to have been made within the specified time limit.

Discussion

[7]                 As with my previous decision, I note that this judgment does not, and indeed cannot, consider the merits of the substantive application for leave to appeal. The reason is that having declined leave to appeal to the High Court, there is no “determination or decision” in the High Court on which leave to appeal can be granted.

[8]Section 163 of the Act provides:

163     Appeal to Court of Appeal on question of law

(1)A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

(2)If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(3)An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.

(4)The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.

[9]                 In McCafferty v Accident Compensation Corporation, the issue for the Court of Appeal was whether it could grant leave to appeal under s 166(1) of the Accident Insurance Act 1998. Importantly, the wording of s 166 of the Accident Insurance Act is identical to the wording now contained in s 163 of the Accident Compensation Act. The Court of Appeal held:4

Pursuant to s 166(1), a right of appeal to this Court is conferred only in relation to “any determination or decision of [the High Court] on the appeal”. This wording is not apt to catch a refusal to grant special leave to appeal. To put it another way, the decision of Randerson J to refuse leave to appeal was not a “determination or decision of [the High Court] on the appeal”.

[10]              The approach in McCafferty has been consistently followed by the Court of Appeal. For example, in Howard v Accident Compensation Corporation the Court said:5

There is no jurisdiction to hear the proposed appeal. A refusal by the High Court to grant special leave to appeal to that Court under s 162 of the Act is not a “determination or decision of the Court on appeal” for the purposes of  s 163 of the Act.

[11]              The Supreme Court has also confirmed McCafferty.6 It is therefore well established that s 163 of the Act does not confer jurisdiction to grant leave to appeal against a decision of the High Court refusing special leave to appeal from the District Court.

[12]              I note for completeness that the Supreme Court in Howard v Accident Compensation Corporation dismissed an argument that an applicant, despite having been declined leave to appeal in the High Court, nevertheless has a general right of appeal under the Senior Courts Act 2016. The Court said:7

4      McCafferty v Accident Compensation Corporation (2003) CA140/03, (2003) 16 PRNZ 843. That case concerned s 166 of the Accident Insurance Act 1998 which contained identical wording to  s 163 of the present Act.

5      Howard v Accident Compensation Corporation [2013] NZCA 617 at [14]. See also Ramsay v Accident Compensation Corporation [2007] NZCA 367; Lister v Accident Compensation Corporation [2011] NZCA 625; Marsh v Accident Compensation Corporation [2018] NZCA 542.

6      See for example Howard v Accident Compensation Corporation [2014] NZSC 31.

7      Howard v Accident Compensation Corporation [2019] NZSC 78.

The applicant does not seek to relitigate the law as set out in McCafferty. Rather, she wishes to argue that there is a right of appeal against the High Court decision under s 56 of the Senior Courts Act. In order to succeed, the applicant would need to convince the Court that s 56 provides for a parallel appeal process to that contained in the Accident Compensation Act. This would require the Court to accept that the specific appeal provisions in the Accident Compensation Act prevent any appeal being advanced by the applicant but that the general appeal provisions in the Senior Courts Act allow such an appeal. We do not see any realistic prospect of success in such an argument.

[13]              Unfortunately for Ms Gallagher-Scott, the result is that I have no jurisdiction to grant leave to appeal.

Result

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

Isac J

Solicitors:

Meredith Connell, Wellington for Respondent