Goh v Accident Compensation Corporation

[2021] NZHC 3372

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-001326

[2021] NZHC 3372

UNDER

The Accident Compensation Act 2001

IN THE MATTER OF

an application for special leave to appeal pursuant to s 162 of the Act

BETWEEN

IRENE GOH

Appellant

AND

ACCIDENT COMPENSATION

CORPORATION (of Wellington) Respondent

Hearing:	23 November 2021
Appearances:	Appellant in person with M Murphy as McKenzie friend S M Bisley and L W D Kibblewhite for the Respondent
Judgment:	9 December 2021

JUDGMENT OF VAN BOHEMEN J

[reasons for decision]

This judgment was delivered by me on 9 December 2021 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:

Buddle Findlay, Auckland Copy to:

The Appellant

GOH v ACCIDENT COMPENSATION CORPORATION (of Wellington) [2021] NZHC 3372 [9 December 2021]

Introduction

[1]    Ms Goh has applied for special leave under s 162 of the Accident Compensation Act 2001 (ACC Act) to appeal a decision of Judge AA Sinclair in the District Court on 4 September 2020,1 after Judge K D Kelly in the District Court refused leave to appeal in the first instance.2

[2]    Judge Sinclair dismissed Ms Goh’s appeal against a decision of the Accident Compensation Corporation (ACC) in August 2019 refusing to review a decision it took in 2005 (the 2005 Decision) regarding Ms Goh’s entitlement to backdated weekly compensation under the ACC Act and ACC’s obligation under the ACC Act to deduct from the compensation paid to Ms Goh a proportion of the benefits Ms Goh had received from the Ministry of Social Development (MSD) in respect of the same period.

[3]    The present application and appeals are the Ms Goh’s most recent attempt to challenge the 2005 Decision. In form, the application relates to ACC’s decision of  16 August 2019, dismissing Ms Goh’s review application. In substance, it seeks a reconsideration of the 2005 Decision which has already been comprehensively considered and conclusively determined in earlier decisions of the District Court, High Court and Court of Appeal.

[4]    In addition, Ms Goh has misunderstood the factual and legal bases on which she has sought to advance her appeal – namely the rate at which her MSD benefit was abated for the purposes of the deduction made by ACC and the relevance and effect of an unrelated decision of the Human Rights Review Tribunal regarding the consistency of deductions made under s 71A of the Social Security Act 1964 with rights recognised under the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.

[5]    For these reasons, Ms Goh’s appeal is not capable of bona fide and serious argument. In addition, the appeal raises no question of general or public importance

1      Goh v Accident Compensation Corporation [2020] NZACC 119.

2      Goh v Accident Compensation Corporation [2021] NZACC 90.

and no question of private interest of sufficient importance to outweigh the delay and cost of a further appeal.

[6]    At the conclusion of the hearing on 23 November 2021, I dismissed Ms Goh’s appeal and said my reasons would follow. I also told Ms Goh that she must stop her efforts to try to revisit the 2005 Decision and that I would issue directions to ensure that any further attempt to relitigate these issues was brought to the attention of a Judge for consideration of striking out the proceeding as an abuse of process.

Background

[7]    Ms Goh suffered an injury in a motor vehicle accident on 1 August 1997. Because of that injury, Ms Goh received weekly compensation payments from ACC until March 1998 – at which point compensation ceased. From that time, Ms Goh received a Work and Income benefit from MSD.

The 2005 Decision

[8]    In August 2005, ACC accepted that Ms Goh’s chronic pain condition had been caused by the accident in 1997 and that Ms Goh was entitled to weekly compensation payments from ACC. ACC advised MSD accordingly.

[9]    On 18 November 2005, MSD informed Ms Goh that ACC had told them that ACC owed  her  weekly  compensation  for  the  period  from  15  March  1998  to 20 November 2005 (the Compensation Period). The letter advised that MSD had reviewed Ms Goh’s benefits for the Compensation Period and had found that MSD had overpaid Ms Goh $48,404.56 net. The letter also advised that ACC law required ACC to pay MSD the overpaid benefits from Ms Goh’s weekly compensation and that, once ACC had done that, ACC would pay any remaining money to Ms Goh.

[10]   On 22 November 2005, ACC advised Ms Goh that she had won her review for compensation from 15 March 1998 (the 2005 Decision) and that ACC was paying her backdated weekly compensation as follows:

Total (before tax):	$95,891.90
Less the amount you owe Work and Income:	$58,453.64
Total you are owed (before tax):	$37,438.26

[11]   The sum of $58,453.64 comprised sums owing to MSD ($48,404) and the Inland Revenue Department (IRD) ($10,049).

[12]   It is common ground that ACC’s deduction of the amount owed to MSD from the sum paid to Ms Goh were taken in accordance with s 252 of the ACC Act, which requires ACC to refund to MSD any benefit payment received by a person from MSD in excess of the amount of benefit properly payable with regard to the entitlement under the ACC Act.

Ms Goh’s challenges

[13]   Since the 2005 Decision, Ms Goh has brought a series of challenges to the calculation and payment of the backdated compensation in accordance with the 2005 Decision.

First challenge

[14]   Ms Goh’s first challenge was to review MSD’s decision to review the benefits paid to Ms Goh in respect of the Compensation Period and to request ACC to deduct and refund money it had paid to Ms Goh. As a result of that review, MSD accepted that the backdated ACC payments received by Ms Goh should be treated as income. As a further result, the amount of the refund to be paid to MSD, referred to as Ms Goh’s debt to MSD, was reduced. However, Ms Goh appealed that decision, arguing that the lump sum payment received from ACC should have been treated as income only for the week it was received and not for the whole of the Compensation Period.

[15]   Ms Goh’s appeal was dismissed by the High Court.3 Asher J recorded in his decision that, as a result of Ms Goh’s review, MSD had accepted that the ACC payments received by Ms Goh should be treated as income, rather than being a direct

3      Goh v Chief Executive of the Ministry of Social Development HC Auckland CIV-2008-485-2391, 30 June 2009.

deduction, under s 71A(4) of the Social Security Act 1964.4 Asher J also recorded that, following a further review, the amount of Ms Goh’s debt to MSD had been reduced from $48,404.56 to $35,591.00.5

[16]    In considering the application of the Social Security Act and the then titled Injury Prevention, Rehabilitation, and Compensation Act 2001,6 Asher J noted that Ms Goh had had the benefit of the compensation being treated as income so that her benefit was reduced only by a percentage rather than suffering a dollar for dollar reduction as might otherwise have been the case.7 Asher J held that there had been no error in MSD retrospectively reviewing Ms Goh’s benefit and in treating Ms Goh’s ACC compensation as income for the Compensation Period.8

[17]   The Court of Appeal dismissed Ms Goh’s application for special leave to appeal and upheld the High Court’s decision.9  It said that the arguments made by  Ms Goh, if accepted, would have resulted in an unjustified windful and would entail a preposterous result.10

Second challenge

[18]   Ms Goh’s second challenge, which was brought before her appeal to the Court of Appeal on the first challenge had been decided, was to bring judicial review proceedings against IRD’s decision to decline her claim for a tax credit on the approximately $10,000 that ACC had paid to IRD in accordance with the 2005 Decision. Ms Goh argued that that sum should not have been deducted from the money paid to her and, because it had been paid to the IRD, amounted to a tax payment by her.

[19]   In the High Court, Woodhouse J rejected Ms Goh’s arguments and held that the deduction of tax had been properly made by MSD in accordance with s 85A of the

4 At [8].

5 At [9].

6      The title to the Act was changed in 2010 to the Accident Compensation Act 2001.

7      Goh v Chief Executive of the Ministry of Social Development, above n 3, at [16].

8 At [32].

9      Goh v Chief Executive of the Ministry of Social Development [2010] NZCA 110.

10 At [15].

Social Security Act.11 Woodhouse J noted that if Ms Goh was correct, she would have received a windfall of $10,000 and struck out the proceeding.12

[20]   The Court of Appeal dismissed Ms Goh’s appeal of Woodhouse J’s decision and held that the Ms Goh’s proceeding had been rightly struck out by the High Court as both untenable and an abuse of process.13

Third challenge

[21]   Ms Goh’s third challenge was to seek interest on the backdated weekly compensation that had been paid to her by ACC. Although ACC initially declined Ms Goh’s claim, it later agreed that interest was payable in respect of the Compensation Period on the net sum received by Ms Goh – that is, after deduction of the amount paid to MSD. Ms Goh argued that she was entitled to interest on the full amount of the backdated weekly compensation.

[22]   Judge L G Powell in the District Court dismissed Ms Goh’s appeal.14 Judge Powell held that the appeal could not succeed because the issue Ms Goh sought to argue had been decided in the High Court’s decision in Cullen v Accident Compensation Corporation,15 which had been upheld by the Court of Appeal.16

[23]   Ms Goh’s application for leave to appeal Judge Powell’s decision was dismissed by the District Court.17 Ms Goh’s subsequent application for special leave was dismissed by the High Court, which held that Ms Goh’s claim had no substantive merit and that, if Ms Goh succeeded, her bonus would be unfair to ACC and other genuinely out of pocket claimants.18

11     Goh v Commissioner of Inland Revenue HC Auckland CIV-2009-041-3258, 11 November 2009 at [29] – [30].

12     At [34] – [36].

13     Goh v Commissioner of Inland Revenue [2011] NZCA 344 at [43].

14     Goh v Accident Compensation Corporation [2014] NZACC 294.

15     Cullen v Accident Compensation Corporation [2013] NZHC 941.

16     Cullen v Accident Compensation Corporation [2014] NZCA 94.

17     Goh v Accident Compensation Corporation [2015] NZACC 191.

18     Goh v Accident Compensation Corporation [2015] NZHC 3353 at [23].

Fourth challenge

[24]   Despite Ms Goh’s lack of success in the first three challenges, Ms Goh then sought to review the 2005 Decision itself.

[25]   In April 2016, Judge Henare dismissed Ms Goh’s appeal against ACC’s decision to reject her late application to review ACC’s decision to reimburse MSD under s 252 of the ACC Act.19 Judge Henare held that Ms Goh’s argument, that ACC had unlawfully withheld payment of compensation due to her in respect of the Compensation Period so that s 252 of the ACC Act did not apply and ACC had no power to reimburse MSD, was not available on any construction of the section, which was mandatory and required ACC to reimburse MSD.20 Judge Henare agreed that  Ms Goh’s appeal amounted to a collateral attack on the Court of Appeal’s decision rejecting Ms Goh’s application to review MSD’s decision to require ACC to reimburse it for the money paid to Ms Goh.21 The Judge concluded that the proceeding was essentially a re-litigation of the  same  issues  already  unsuccessfully  pursued  by Ms Goh.22

The current challenge

[26]   The fifth and current challenge arises  from  a  second  late  application  by Ms Goh to review the 2005 Decision based on her contention that s 252 of the ACC Act discriminates against people on the grounds of employment status under the Human Right Act. This challenge was based on the finding of the Human Rights Review Tribunal in Hennessy v Attorney-General that s 71A of the Social Security Act was inconsistent with the right to freedom from discrimination affirmed in s 19 of the New Zealand Bill of Rights Act because it discriminated against persons on the ground of their employment status.23

19     Goh v Accident Compensation Corporation [2016] NZACC 95.

20     At [23] – [24].

21 At [27].

22 At [30].

23 Hennessy v Attorney-General [2019] NZHRRT 4. Section 19(1) of the New Zealand Bill of Rights Act 1990 provides that everyone has the right to freedom from discrimination on the grounds of discrimination in the Human Rights Act 1993. Section 21(1)(k) of the Human Rights Act provides that employment status, including being a recipient under the Social Security Act or an entitlement under the ACC Act, is a prohibited ground of discrimination.

[27]   On 2 August 2019, the ACC reviewer dismissed Ms Goh’s application on the basis that the principle of res judicata applied. The reviewer stated:

At the heart of Ms Goh’s review application is her belief that she should have been entitled to retain her WINZ benefit and receive the full payment of the backdated weekly compensation. This issue was addressed in the Court of Appeal decision and the decision of Judge Henare dated 14 April 2016.

[28]   Ms Goh appealed that decision to the District Court. The appeal was dismissed by Judge AA Sinclair by judgment dated 4 September 2020.24

[29]   On 24 June 2021, Judge Kelly declined Ms Goh’s application for leave to appeal.25

[30]   Ms Goh has now applied to the High Court for special leave to appeal Judge Sinclair’s judgment of September 2020.

District Court Decisions

Judge Sinclair’s decision

[31]   Judge Sinclair reviewed the history of Ms Goh’s challenges to the 2005 Decision in some detail.26 The Judge noted the various comments made in the High Court and Court of Appeal about the mandatory nature of s 252 of the ACC Act and Ms Goh’s challenges amounting to attempts to secure a windfall and as constituting an abuse of process. The Judge also noted Judge Henare’s statement that the issue that Ms Goh had sought to raise on appeal before her was a collateral attack on the Court of Appeal’s decision.

[32]   Judge Sinclair recorded that Ms Goh’s substantive arguments on appeal appeared to be that:27

(a)Ms Goh disputed the validity of an ACC 172 form, which had been completed by MSD in December 2005 but which Ms Goh had found

24     Goh v Accident Compensation Corporation, above n 1.

25     Goh v Accident Compensation Corporation, above n 2.

26     Goh v Accident Compensation Corporation, above n 1, at [6] – [18].

27 At [21]. I omit reference to a claim for costs on the review hearing.

after April 2019, and which Ms Goh said showed that the reimbursement amount to MSD had been incorrectly calculated and the benefit reimbursement made by ACC had been unlawful; and

(b)The decision of the Human Rights Review Tribunal in Hennessy confirmed that an income-tested benefit revoked by the amount of an ACC entitlement was unjust, which raised questions as to whether reimbursement of the benefit payments to MSD had been justified.

[33]   Judge Sinclair also recorded that ACC’s position was that the doctrine of res judicata applied and that Ms Goh was estopped from seeking a redetermination of the 2005 decision, and that, even if res judicata did not apply, its decision to reimburse MSD was correct and the matters raised by Ms Goh did not alter that position.

[34]   Judge Sinclair found that the subject of the appeal before her was the 2005 Decision and the correctness of the benefit reimbursement by the Corporation to the Ministry and, consequently, that issue had already been determined by Judge Henare in 2016. Accordingly, Judge Sinclair found that cause of action estoppel clearly applied.

[35]   The Judge then considered whether there were special circumstances that prevented the operation of cause of action estoppel arising from the matters raised by Ms Goh. The Judge concluded there were not.

[36]   With respect to the ACC 172 form, the Judge did not accept that the form was new information and held that the arguments Ms Goh wished to raise about the form had no merit. The Judge observed that the reimbursement amount was calculated by MSD and repaid in accordance with the mandatory requirements of s 252 of the ACC Act.

[37]   With respect to the argument concerning Hennessy, Judge Sinclair found that the decision in Hennessy had no relevance in the present case because Ms Goh’s situation was materially different to that of Ms Hennessy, whose income-tested benefit had been abated at 100 per cent of the payment received from the ACC as compared

with others whose benefit had been abated at 70 per cent. The Judge considered that Ms Goh’s situation was more akin to that comparator group.28 The Judge also noted that, in accordance with s 92K of the Human Rights Act, a declaration of inconsistency would not affect the validity of the 2005 Decision or the outcome of Ms Goh’s appeal.29

[38]   Finally, Judge Sinclair noted that this second late-stage review was a re- litigation of the issues already pursued by Ms Goh on multiple occasions and was plainly a re-litigation of Judge Henare’s judgment. Her Honour considered that the appeal was a collateral attack on earlier decisions and could also be dismissed as an abuse of process. Her Honour concluded:

[37] The High Court and Court of Appeal in their various decisions have gone to considerable lengths to explain to Mrs Goh the meaning and effect of s 252 and its application in her situation. There are no grounds for dispute. While Mrs Goh may not agree with the outcome, it is time to stop this litigation.

Judge Kelly’s decision

[39]   Judge Kelly dismissed the application for leave to appeal under s 162 of the ACC Act.

[40]   Judge Kelly recorded that Ms Goh’s application for leave to appeal was based on the submission that the ACC had acted wrongfully by deducting 100 per cent of the amount of her MSD benefit and should have reimbursed MSD only 70 per cent of the benefit. Ms Goh contended that, because Judge Sinclair had found that Ms Goh’s position was materially different from that of Ms Hennessy and was more akin to the comparator group whose benefit had been abated at 70 per cent, the Judge should have modified or quashed the reviewer’s decision dismissing her application for review.30

[41]   Judge Kelly said the application for leave to appeal appeared to be premised on a misreading of Judge Sinclair’s decision and of Hennessy. Judge Sinclair had not

28 At [33].

29 At [34]. Under ss 92J and 92K of the Human Rights Act, a declaration that an enactment is inconsistent with the right to freedom from discrimination affirmed by s 19 of the New Zealand Bill of Rights Act does not affect the validity, application, or enforcement of the enactment in respect of which it is given.

30 Goh v Accident Compensation Corporation, above n 2, at [19] – [20].

determined that Ms Goh’s income-tested benefit should have been abated at a rate of 70 per cent and that that question had not been before the Judge.31 Judge Kelly agreed that Hennessy was of no relevance and did not provide the Court jurisdiction to determine that Ms Goh’s benefit should have been abated such that ACC ought to have reimbursed MSD otherwise than it did.32

[42]   His Honour noted that the question of whether res judicata applied in circumstances where the appellant still contended that the original decision was incorrectly decided was not capable of bona fide and serious argument. Nor was the question of whether Mrs Goh should have been able to retain both her full benefit and the ACC pay-out calculated on a weekly basis in respect of exactly the same period. In any event, the application had been dismissed as an abuse of process – a fact which Ms Goh had not challenged.

[43]Judge Kelly concluded:

[50]   In short, as Judge Sinclair said, the meaning and effect of s 252 and   its application to Mrs Goh’s situation has been explained by the High Court and Court of Appeal and there are no grounds for dispute. The ‘one benefit’ principle has already been determined and as Judge Sinclair says, while Mrs Goh may not agree with the outcome, as she clearly does not, it is time to stop this litigation.

(footnotes omitted)

Ms Goh’s questions of law on application to High Court for special leave to appeal

[44]   In her application for special leave to appeal, Ms Goh set out two questions of law for the High Court to determine. However, in her submissions filed in advance of the hearing on 23 November 2021, Ms Goh set out two somewhat different questions, although they generally covered the same ground. At the hearing, Ms Goh confirmed that the questions in her submissions were the ones for which she sought special leave to appeal.

[45]The questions, slightly reformulated for the sake of clarity, are:

31 At [43].

32 At [44].

(a)If the benefit rate of abatement under s 71A of the Social Security Act 1964 of 100 per cent does not apply, should the benefit be refunded in full to MSD by way of s 252 of the ACC Act?

(b)Does ACC use the benefit paid by MSD to substitute for the compensation payment in a reimbursement by way of s 252(4) for a benefit refunded to MSD?

Submissions by Ms Goh

[46]Ms Goh said she never agreed with the 2005 Decision when ACC deducted

$58,453.64 from her backdated payment of $95,891.90 without her authority.

[47]   Ms Goh said that the ACC 172 form completed by MSD shows MSD paid her an income-tested benefit of $58,453.64 gross over the Compensation Period. Ms Goh then referred to the decision of the Human Rights Review Tribunal in Hennessy, the High Court’s decision in Hennessy v the Chief Executive of the Ministry of Social Development,33 and Judge Sinclair’s statement about Ms Goh’s situation being materially different from that of Ms Hennessy. Ms Goh said that Judge Sinclair’s statement suggested that the Judge had determined that the abatement rate of 100 per cent did not apply to Ms Goh. Ms Goh said that if her benefit entitlement should have been abated only at the rate of 70 per cent, she was excluded from any statutory obligation to reimburse MSD $58,453.64 in full and MSD could not refund her benefit in full to MSD. Therefore, the 2005 Decision was in question.

[48]   Ms Goh said it is necessary to clarify the abatement rate of her benefit and that this issue had not been the subject of determination in previous decisions. For that reason, Judge Sinclair was wrong to hold that the doctrine of res judicata applied and that her appeal had been an abuse of process.

[49]   Ms Goh also said that ACC’s reimbursement of the amount of her MSD benefit meant ACC was using her benefit entitlement to substitute for the payment of compensation.

33     Hennessy v Chief Executive of the Ministry of Social Development [2012] NZHC 3104.

Submission by counsel for ACC

[50]   Mr Bisley and Mr Kibblewhite said Ms Goh’s application for special leave was a further attempt to relitigate a matter that has been conclusively determined. Judge Sinclair correctly found that the decision in Hennessy v Attorney-General was not relevant. Even if it were relevant, it was not new information constituting an exceptional circumstance to avoid res judicata and was a decision of the Human Rights Review Tribunal, which, in accordance with s 92K of the Human Rights Act, could not affect the legality of the statutory provisions to which ACC was giving effect.

[51]   In relation to Ms Goh’s second question, counsel said that the question was moot as it did not suggest that any element of Judge Sinclair’s decision was wrong in law. Even if it was not moot, the question was not capable of bona fide and serious argument because the application of s 252 of the ACC Act to Ms Goh’s compensation payments was clear, as had been explained by the courts in Goh v Chief Executive of MSD,34 Goh v Chief Executive of MSD,35 and Goh v Accident Compensation Corporation.36 ACC had no discretion under that section.

[52]   In oral submissions, Mr Bisley observed that, to the extent that Ms Goh wished to challenge the calculation of the amount ACC had reimbursed to MSD, that was a decision of MSD and could not be challenged by reviewing the 2005 Decision made by ACC.

Relevant law

[53]   Section 162 of the ACC Act provides that 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. The section further provides that if the District Court refuses to grant leave, the High Court may grant special leave to appeal.

34     Goh v Chief Executive of the Ministry of Social Development, above n 3.

35     Goh v Chief Executive of the Ministry of Social Development, above n 9, at [4] and [15].

36     Goh v Accident Compensation Corporation, above n 19 at [23], [24] and [27].

[54]   As summarised by Fisher J in Kenyon v Accident Compensation Corporation, the principles relating to the grant of special leave from decisions of the District Court are that:37

(1)    The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly.38

(2)    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 principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success.39

(3)    The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course.40

(4)    It is for the applicant to show that leave is required in the interests of justice.41

(5)    If leave has already been refused by the District Court, there will normally have to be some extraordinary factor which has not been properly taken into account.42

Discussion

[55]   As Ms Goh said in her submissions, she has never agreed with the 2005 Decision. As became evident in discussion with Ms Goh at the hearing, this appeal was indeed one more attempt by Ms Goh to revisit decisions already made by the High Court and the Court of Appeal upholding the validity of the 2005 Decision and the deductions made by ACC and refunded to MSD in accordance with s 252 of the ACC Act. There can be no doubt that the principle of res judicata applies and that the decisions of Judge Sinclair to dismiss Ms Goh’s appeal and of Judge Kelly to refuse leave to appeal were correct.

37     Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].

38     Sandle v Stewart [1982] 1 NZLR 708 (CA).

39     Sandle v Stewart, above n 38; Manawatu Co-op Dairy Company Ltd v Lawry [1988] DCR 509; and Brown v Chowmein Fashions Ltd (1993) 7 PRNZ 43.

40     O'Loughlin v Healing Industries Ltd (1990) PRNZ 464.

41     Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).

42     Brown v Chowmein Fashions Ltd (1993) 7 PRNZ 43.

Questions discussed at hearing

[56]   At her own election, Ms Goh took part in the hearing by telephone rather than by Virtual Meeting Room.43 Ms Goh acknowledged that she was accompanied by  Mr Murphy, who has been Ms Goh’s McKenzie friend through most of Ms Goh’s challenges to the 2005 Decision.

[57]   In an effort to explain to Ms Goh and Mr Murphy why Ms Goh’s application was misconceived and had never had any prospect of success, I asked Ms Goh to confirm that her application was based on the proposition that her MSD benefit had been abated at the rate of 100 per cent when MSD had calculated the amount to be reimbursed by ACC and deducted from the amount paid to Ms Goh, and that it should have been abated only at the rate of 70 per cent. Ms Goh confirmed that that was so, and she referred to the completed ACC 172 form as establishing that MSD paid her an income-tested benefit of $58,453.64 and had required that sum to be deducted from the compensate paid by ACC.

[58]   I pointed out to Ms Goh that, as recorded in Asher J’s judgment of 30 June 2009, MSD had reviewed the amount that ACC had to reimburse MSD and deduct from the compensation it paid to Ms Goh.44 Asher J had recorded the revised sum as being $35,591.00.45 That was slightly more than 70 per cent of the sum of $48,404.56, which Asher J had recorded as being the initial calculation of Ms Goh’s debt to MSD (after excluding the tax payable to IRD). Asher J had also recorded that this adjustment was the consequence of the compensation Ms Goh received from ACC being treated as income under s 71A(4) of the Social Security Act.46 As a consequence, the requirement of s 71A(2) that the rate of benefit payable must be reduced by the amount of compensation received did not apply. On the face of the Court decision, therefore, Ms Goh’s compensation had not been abated at 100 per cent but had been abated at an amount close to 70 per cent.

43 See Goh v Accident Compensation Corporation HC Auckland CIV-2021-404-1326, 17 November 2021 (Minute of Moore J). Ms Goh had previously sought an adjournment of proceedings until March 2022 to enable her to appear in person. Moore J declined to grant the adjournment based on the need for early finality of the application for special leave to appeal which had already been adjourned once before at Ms Goh’s request.

44 Goh v Chief Executive of the Ministry of Social Development, above n 33, at [8].

45 At [9].

46 At [8].

[59]   Ms Goh disputed these propositions by saying that the amount had been reduced to take account of depreciation claimed in respect of rental income Ms Goh had been earning. Leaving  aside  the fact  there is  no  evidence of those matters,  Ms Goh’s assertions do not accord with the Court record.

[60]   I pointed out it to Ms Goh that Judge Sinclair’s observation that Ms Goh’s situation was materially different from that of Ms Hennessy, whose benefit had been abated at 100 per cent, and was closer to that of the comparator group, whose benefit had been abated at 70 per cent, was consistent with the Asher J’s decision. I was satisfied that there could be no issue that the deduction made for Ms Goh had been inconsistent with the New Zealand Bill of Rights Act because it was the deduction at the rate of 100 per cent rather than 70 per cent that had been the basis of the Human Rights Review Tribunal’s finding in Hennessy.47

[61]   Faced with these propositions, Ms Goh asserted that the discrimination was against anyone who had received a benefit from MSD. The benefit had been paid to her lawfully. She had not done anything wrong. It was not right that that money had been taken from her. Ms Goh denied that she was seeking to obtain a windfall; she was just looking to retain what she had lawfully received. Ms Goh also said it was wrong that there had been no negative consequences for ACC for their poor decisions. Ms Goh also referred to a memorandum she had filed in Court earlier that morning about a complaint she had filed with ACC.

[62]   Whatever the merits of that complaint, it has no bearing on Ms Goh’s application for special leave.

Analysis

[63]   My exchanges with Ms Goh confirmed that, as found by Judge Sinclair and by Judge Kelly, Ms Goh’s application to review the 2005 Decision, and her effort to appeal the decision declining that review, was an attempt to relitigate matters already decided by the Court of Appeal and the other courts.

47     Hennessy v Attorney-General, above n 23, at [12].

[64]   There was no adequate factual basis for Ms Goh’s application. Even if there had been, it could not support the granting of special leave under s 162 of the ACC Act which is restricted to questions of law. The information in the ACC 172 form did not amount to fresh evidence and had been superseded by the review of the amount that Ms Goh owed to MSD as recorded by Asher J. Ms Goh’s contention that her situation was analogous to that of Ms Hennessy was wrong in fact. Even if there had been some similarity with Ms Hennessy’s situation and Ms Goh had been discriminated against on the grounds of her employment status in the calculation of the amount to be refunded to MSD, that would not have affected the operation of s 252 of the ACC Act which required ACC to refund to MSD the amount as calculated by MSD. That had been made clear in the High Court decision in Hennessy, where Heath J referred to the Court of Appeal’s decisions concerning Ms Goh and had noted that the Court of Appeal had held that s 71A of the Social Security Act 1964 and s 252 of the ACC Act were designed to prevent a beneficiary from receiving a double payment under the two Acts.48

[65]   Ms Goh’s contention that ACC had used the money it had deducted from the amount of her compensation to meet its obligations to pay her compensation was wrong as a matter of fact and law. Section 252 required ACC to refund to MSD the money it had deducted from her compensation. ACC had not taken money away from Ms Goh. All that had happened was that a proportion of the amount Ms Goh had received from MSD had been deducted from the backdated compensation for the same period for which she had received the MSD benefits.

[66]   For all these reasons, with respect to Ms Goh’s application for special leave to appeal, I find that:

(a)There is no issue of principle at stake;

(b)There is no significant sum that hinges on the decision;

(c)There is no prospect of success; and

48     Hennessy v Chief Executive of the Ministry of Social Development, above n 33, at [30].

(d)Ms Goh’s second application to review the 2005 Decision and to appeal the decision declining that review are an abuse of process.

Result

[67]   I dismiss Ms Goh’s application for special leave to appeal Judge Sinclair’s decision.

Costs

[68]ACC has sought costs on Ms Goh’s application for special leave to appeal.

[69]   While it is not usual to award costs against a litigant in person who has been in receipt of a benefit, I consider an award of costs is appropriate in this case. Ms Goh has pursued a meritless appeal in the face of strong directions from both Judge Sinclair and Judge Kelly that it was time to stop this litigation.

[70]I award costs to ACC on a 2B basis.

[71]   If ACC and Ms Goh are unable to agree costs, they may file and serve memoranda of no more than five pages.

[72]Any memorandum by ACC is to be filed and served by 4 February 2022.

[73]Any reply by Ms Goh is to be filed and served by 18 February 2022.

Direction to Court registrars

[74]   Ms Goh’s challenges to the 2005 Decision have taken up an inordinate amount of judicial time.

[75]I direct that any further proceeding which is filed by Ms Goh and which

appears to be an attempt again to revisit the 2005 Decision should be referred to a Judge for consideration as to whether it should be struck out for abuse of process.

G J van Bohemen J