Geary v Accident Compensation Corporation - [2014] NZCA 534

IN THE COURT OF APPEAL OF NEW ZEALAND

CA472/2014
[2014] NZCA 534

BETWEEN	IAN RUSSELL GEARY Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Court:

Wild, White and Miller JJ

Counsel:

A C Beck for Applicant
I G Hunt for Respondent

Judgment:

(On the papers)

5 November 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for review is dismissed.
BThe respondent will have costs as for a standard leave application on a band A basis with usual disbursements, unless the applicant is legally aided, in which case we make no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

The applicant would have us establish a rule that a High Court judge may not, unless there is no practical alternative, decide an application for leave to appeal his or her own decision.
The decision concerned was delivered by Gendall J on the applicant’s appeal against a District Court judgment. Gendall J largely dismissed the appeal but substantially reduced the costs awarded against the applicant in the District Court.[1] He determined that costs in the High Court would lie where they fell.[2] It is the costs decision that the applicant wishes to bring to this Court. It is said that Gendall J erred; the applicant was substantially successful, he was legally aided, he incurred substantial disbursements in pursuing the appeal, and he confronted substantial
[1]Geary v Accident Compensation Corporation [2014] NZHC 1037.
[2]Geary v Accident Compensation Corporation [2014] NZHC 1408.
non-compliance on the part of the respondent. In this Court Mr Beck indicated that he will argue Gendall J was “plainly wrong”, although that is not one of the grounds of appeal.
The matter comes before us in an unusual way. Under s 67 of the Judicature Act 1908 leave is required to bring an appeal from a decision of the High Court on appeal from an inferior court. If the High Court refuses leave, an application for leave may be made to this Court. When the applicant sought leave in the High Court the Registrar proposed to refer the application to Gendall J, in accordance with the usual practice. The applicant objected by memorandum, which was placed before Whata J as duty judge. In a minute dated 13 August 2014 Whata J declined the applicant’s request and directed that the application for leave be referred to Gendall J for decision.[3] The respondent then moved under r 7.49 of the High Court Rules (the Rules) for review of Whata J’s direction. Gendall J transferred the application for review to this Court pursuant to r 7.49(6)(b).[4]
[3]Geary v Accident Compensation Corporation HC Timaru CIV-2013-476-299, 13 August 2014 (Minute of Whata J).
[4]Geary v Accident Compensation Corporation HC Timaru CIV-2013-476-299, 27 August 2014 (Minute of Gendall J).
Accordingly, the question before us is whether Gendall J may determine pursuant to s 67 of the Judicature Act the application for leave to appeal to this Court.
As we said earlier, the applicant would have…

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: [2014] NZCA 534
Decision Date: 5 November 2014 at 3.00 pm

CaseChat Overview and Summary

Ian Russell Geary applied for leave to appeal against a decision made by Gendall J, which concerned costs awarded in a previous appeal. The Accident Compensation Corporation (ACC) was the respondent. The Court of Appeal, consisting of Wild, White, and Miller JJ, dismissed Geary's application for review. The legal issue was whether Gendall J could determine an application for leave to appeal his own decision. The Court of Appeal held that there was no rule preventing a High Court judge from deciding an application for leave to appeal their own decision unless there was no practical alternative. The Court also noted that referring a leave application to the judge who decided the matter is a routine and longstanding practice, and there was no evidence of apparent bias or unfairness.

The Court of Appeal dismissed Geary's application for review, stating that the fair-minded observer would appreciate the efficiency of referring a leave application to the judge who made the decision. The Court also noted that reasons must be given for refusing leave, and the practice of referring a leave application to the judge who decided the matter is endorsed by the High Court Rules. The Court concluded that the present application was not the occasion for reviewing the leave mechanism, and the application for leave to appeal would be referred to Gendall J for decision.

The Court of Appeal ordered that the respondent would have costs as for a standard leave application on a band A basis with usual disbursements, unless the applicant is legally aided, in which case the Court makes no order as to costs.

Orders