Hampson v Accident Compensation Corporation HC Auckland M 661/01

[2001] NZHC 922

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY M 661/01

BETWEEN KIM MARIE HAMPSON
Appellant

AND ACCIDENT COMPENSATION CORPORATION
Respondent

Hearing: 14 September 2001

Counsel: J M Silcock and D K Tui for Respondent (in opposition)
G E Minchin for Appellant (in support)

Judgment: 1 October 2001

INTERIM RESERVED JUDGMENT OF RANDERSON J

Solicitors:
Otene and Ellis, P O Box 13-138, Onehunga, Auckland
Johnston Prichard Fee and Partners, DX CP24022, Auckland for Respondent

Introduction

[1] The appellant sustained injuries in a motor vehicle accident on 26 December 1997. She has since been endeavouring to recover weekly compensation from the respondent for the period of her injuries. All steps she has taken to date have resulted in adverse decisions, the last of which was a decision by a District Court Judge on 18 August 2000 declining her application for leave to appeal to this Court on a point of law.

[2] The final step taken by the appellant has been to apply to this Court for special leave to appeal on 9 May 2001, nearly nine months after the refusal of leave in the District Court. The respondent has since applied for an order striking out the appellant’s application for special leave on two grounds:

[a] The application is out of time (the answer to which depends in part upon whether the Accident Rehabilitation and Compensation Insurance Act 1992 applies to the application or whether the Accident Insurance Act 1998 does).

[b] The application was filed in the wrong Court (it being alleged that the application should have been lodged in the Wellington registry rather than Auckland).

Background

[3] The 1998 Act came into force on 1 July 1999. Prior to that date, the appellant had taken the following steps:

[a] She lodged a claim with the respondent for cover under the 1992 Act on 12 January 1998 which was declined on 27 March 1998.

[b] She lodged an application for review of that decision which was heard at Auckland by a review officer on 22 May 1998 and declined on 2 June 1998.

[c] She filed a notice of appeal to the District Court against the review decision on or about 26 June 1998. That appeal was heard in the Auckland District Court on 16 February 1999 and was dismissed by a decision issued on 4 March 1999.

[d] On or about 3 June 1999, she applied to the District Court for leave to appeal to this Court, such application being declined on 18 August 2000.

[4] It is common ground that all of the steps taken up to that point were taken under the 1992 Act. In particular, the application for review and the steps taken on appeal to the District Court (including the application for leave to appeal to this Court) were taken under Part VI of the 1992 Act. Section 97 of that Act deals with appeals to this Court and provides:

“97 Appeal To High Court

(1) Where any party is dissatisfied with any decision of a District Court under this Act as being erroneous in point of law, that party may, with the leave of that District Court, appeal to the High Court: Provided that, if the District Court refuses to grant leave to appeal to the High Court, the High Court may grant special leave to appeal.

(2) Every such appeal to the High Court shall be conducted in the manner prescribed by Part 5 (other than sections 71 and 71A) of the District Courts Act 1947”

[5] It is not in dispute that if s 97 of the 1992 Act applies to the application for leave to appeal to this Court, then the time limit which would otherwise apply under s 71A(4) of the District Courts Act (which prescribes a 21 day period from the date the final order is sealed in the District Court) would not apply because it is excluded by s 97(2) of the 1992 Act. In other words if the 1992 Act applies, there is no time limit prescribed by the 1992 Act or the District Courts Act for bringing the present application for leave.

The respondent’s submission on the time issue

[6] The nub of the respondent’s submission is that the 1992 Act does not apply to the present application. Rather, it was submitted that the 1998 Act applies and the application for special leave is out of time because it must be brought within 21 days of the District Court refusing leave: s 165(4) of the 1998 Act.

[7] The respondent’s argument is based on s 453(2) of the 1998 Act which provides:

“453. Review and appeal proceedings for decisions under former Acts -

. . .

(2) Part VI of the Accident Rehabilitation and Compensation Insurance Act 1992 continues in force in order to apply to an application for a review or an appeal about a decision made by the former Corporation, if the application was made or the appeal was filed before 1 July 1999.

. . .”

[8] It was submitted that although the appeal to the District Court was lodged before the cut-off date of 1 July 1999 (which would prima facie suggest that Part VI of the 1992 Act would continue to apply to any such appeal), the appeal process was effectively at an end when the District Court declined leave to appeal to this Court on 18 August 2000. The application to this Court for leave to appeal was a separate and distinct matter to which the 1998 Act was to apply. It was submitted that the reference to both a review and an appeal under s 453(2) supported that contention by indicating that the subsection was concerned with the particular stage that a review or appeal had reached before 1 July 1999.

[9] For the appellant, Mr Minchin submitted that the whole process contemplated by Part VI of the 1992 Act was to continue in force and to apply in the case of any review or appeal filed before 1 July 1999. Reference to both a review and an appeal was simply to cover the field under Part VI and to make it clear that if either of those steps had occurred before 1 July, then the remaining parts of the process under Part VI would continue to be available.

[10] I accept the appellant’s submission that s 453(2) of the 1998 Act plainly contemplates that the entire process envisaged by Part VI of the 1992 Act is to continue in any case where a review or an appeal has been filed before 1 July 1999. That follows from the plain wording of the section and I cannot see any justification for splitting up the various parts of the process in the way suggested by the respondent.

[11] The process under Part VI of the 1992 Act includes review by an officer of the respondent; the right to appeal to the District Court; the right (with leave) subsequently to appeal to this Court on a point of law; and a final right of appeal (with leave) to the Court of Appeal. It would be an unusual result if that process were commenced prior to the commencement of the 1998 Act on 1 July 1999 but was then to be continued under the procedures of the 1998 Act before the entire process available under the old Act had run its course. I am satisfied the legislature did not intend that result.

[12] I conclude that Part VI of the 1992 Act continues to apply and that there is no time limit for bringing an application for special leave to appeal to this Court under the 1992 Act or the District Courts Act.

Part X of the High Court Rules

[13] That is not the end of the matter, however, because it appears to me that Part X of the High Court Rules may well apply. Although I raised this issue during the hearing, neither the Court nor counsel had the opportunity to consider it in any detail. Rule 701 provides:

“701. Application of this Part

(1) This Part shall apply to all appeals to the Court under any enactment (other than appeals under the District Courts Act 1947 or the Summary Proceedings Act 1957 or the Arbitration Act 1996).

(2) This Part shall not apply to any appeal or reference for the opinion of the Court by way of case stated.

(3) This Part shall apply subject to any specific provision contained in the Act conferring the right of appeal.”

[14] It seems to me that Part X is not excluded by r 701(1) because the appeal for which leave is sought is not “under” the District Courts Act 1947. The right of appeal is conferred by s 97 of the 1992 Act. Section 97(2) simply provides that every appeal under s 97 is to be conducted in the manner prescribed by Part V of the District Courts Act (other than ss 71 and 71 A). Of course, by virtue of r 701(3), Part X of the High Court Rules applies subject to any specific provision contained in the Act conferring the right of appeal. It follows that to the extent that Part V of the District Courts Act is to be applied by virtue of s 97(2) of the 1992 Act, those provisions would override any contrary provision in Part X of the Rules.

[15] Viewed in this light, rr 704 and 705 of the High Court Rules appear prima facie to be relevant. By r 704(b), any notice of appeal must be filed and served in accordance with r 703 within one month of the decision from which the appeal is brought (in any case where, as here, the enactment conferring the right of appeal does not specify an appeal period). The Court may extend the time prescribed for appeal or for taking any step in relation to an appeal in certain circumstances, including any case where the enactment conferring the right of appeal does not limit the time prescribed for appeal: r 705(1)(b).

[16] Rule 704 does not deal expressly with the situation where the grant of leave is a necessary first step before an appeal may be brought. However, my present view is that any application for leave to appeal (where such is required) would also need to be brought within one month of the date of the decision under appeal where no other specific time limit is provided. Where that does not occur, the Court may extend time under r 705(1)(b).

[17] It would follow that the proper course is for the appellant to apply under r 705(2) for an extension of time in which to bring the application for special leave to bring her appeal. Any such application would need to be supported by an affidavit explaining the delay and any other relevant material. A draft notice of appeal setting out the grounds for appeal should also be filed. Those two applications could then be considered together.

[18] As counsel have not had the opportunity of addressing the position under Part X of the Rules, this decision will be delivered on an interim basis subject to the right of either side to make further submissions on this additional point.

The correct place for filing of the appeal

[19] The respondent’s submission was that s 72 of the District Courts Act requires that an appeal be lodged with the Registrar of the High Court whose office is nearest by the most convenient route to the District Court from which the appeal is made. It was submitted that the decision under appeal was delivered in the District Court at Wellington on 4 March 1999 and that the appeal (including any application for leave to appeal) should have been filed in the Wellington registry of this Court.

[20] I accept that by virtue of the Accident Rehabilitation and Compensation Insurance (Appeals) Regulations 1992 (SR 1992/275) which were in force at the time the decision was given in the District Court, any appeal under the 1992 Act was to be lodged with the Registrar of the Court in Wellington. Although a hearing could have been conducted in the District Court in another place, reg 18 required that the decision be delivered by the Registrar of the District Court at Wellington.

[21] In fact, that is what occurred in this case. The hearing was in Auckland but the decision was issued through the Wellington registry and was so intituled. It follows that the application for leave to appeal should have been filed in the Wellington registry of this Court and not in Auckland.

[22] However, in terms of r 707(3), the Court has power to correct an error of this type and may direct that the notice of appeal be filed in the proper office or that all documents filed in the appeal be transferred to the proper office or to such other office as would be convenient to the parties. Prima facie, it would appear to be appropriate for an order to be made under that rule directing that the application for leave to appeal and all other documents relevant to the appeal be filed in the Auckland registry. In effect, that would simply confirm what has happened in fact. The appellant would need to include an application for such an order in the application for an extension of time.

Conclusion

[23] In summary:

[a] I find that Part VI of the Accident Rehabilitation and Compensation Insurance Act 1992 continues to apply to the appellant’s appeal lodged before 1 July 1999 and confers the appellant’s right to apply to this Court for special leave to appeal. By virtue of s 97(2) of that Act, no time limit is prescribed for that purpose under that Act or the District Courts Act 1947.

[b] Prima facie, r 703 of the High Court Rules imposes in that case a default time limit of one month from the date of the decision under appeal. But in terms of r 704 the time for filing the appeal or for taking any other step in relation to the appeal may be extended upon application.

[c] The application for leave to appeal should have been filed in the Wellington registry of this Court but, prima facie, this irregularity can be cured by an application for an order under r 707(3) of the High Court Rules.

[24] As the application of Part X of the High Court Rules was not fully developed in argument, the respondent may make further submissions in writing on that issue within 14 days of the date of delivery of this decision. The appellant may file any submissions in reply within 14 days after service of the respondent’s submissions.

[25] If both parties accept the Court’s present view about the application of Part X of the High Court Rules, the Court should be advised in writing within 14 days of the date of delivery of this judgment. The appellant should then file and serve the further applications contemplated by this decision within 14 days after notification to the Court. In that case, the respondent’s application to strike out the appeal would be treated as dismissed.

[26] Costs are reserved.