Herbst v Accident Compensation Corporation

[2025] NZHC 2037

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2025-485-000446

[2025] NZHC 2037

BETWEEN

MICHELLE HERBST

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	(On the papers)
Counsel:	Applicant in person
Judgment:	23 July 2025

JUDGMENT OF LA HOOD J

(Application to review registrar’s decision)

[1]    Ms Herbst’s application for a review of the registrar’s decision to reject her application for special leave to appeal (the application) under s 162 of the Accident Compensation Act 2001 (the Act) has been referred to me as Duty Judge. The application has been rejected by the Wellington registry on the basis that it was filed outside the 21-day time frame provided for in s 162(4).

[2]The registrar’s decision reads:

Thankyou for filing your Application for Special Leave to Appeal in the Wellington High Court on 27 June 2025. As you have not filed your Application in the correct court within the 21 day time frame specified in the Accident Compensation Act s162(2), unfortunately we are rejecting your Application for filing. A decision from a similar proceeding (Smith v Accident Compensation Corporation [2014] NZHC 296) provides an example of a proceeding being dismissed on grounds that an Application consistent with High Court requirements was not filed within the correct time frame.

HERBST v ACCIDENT COMPENSATION CORPORATION [2025] NZHC 2037 [23 July 2025]

If you wish to review my decision, please file an Application for a Review of a Registrar’s decision within 5 working days of this email being sent (in accordance with High Court Rule 2.11).

[3]Section 162 of the Accident Compensation Act 2001 provides:

162 Appeal to High Court on question of law

(1)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.

(2)The leave of the District Court must be sought within 21 days after the District Court’s decision.

(3)If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

(4)The special leave of the High Court must be sought within 21 days after the District Court refused leave.

(5)The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act

[4]    Ms Herbst’s appeal to the District Court against decisions declining cover under the Act was dismissed in a judgment dated 27 November 2024.1 Her application for leave to appeal under s 162(2) of the Act was declined by the District Court in a judgment dated 7 May 2025.2

[5]    I adopt Gwyn J’s description of the effect of s 162 in Carey v Accident Compensation Corporation:3

[14]      On its face, s 162(4) of the Act is mandatory in its terms and cannot be modified by resort to the rules of court. In a number of cases, including Armstrong v Accident Compensation Corporation and Crockett v Accident Compensation Corporation, this Court has concluded that the statutory time limit cannot be waived, even in special circumstances.

[15]      Similarly, the Court of Appeal in Attorney-General v Howard observed (in the context of a statutory timeframe in the Human Rights Act, expressed in the same terms as s 162(4) of the Act) that the courts cannot extend time unless the statute expressly provides that discretion.

1      Herbst v Accident Compensation Corporation [2024] NZACC 192.

2      Herbst v Accident Compensation Corporation [2025] NZACC 074.

3      Carey v Accident Compensation Corporation [2022] NZHC 2230 (footnotes omitted).

[16]      As some of the earlier cases note, r 20.3 of the Rules applies to applications for leave to appeal to the High Court. Rule 20.3(5) makes it plain that an extension to the time for filing an application cannot be given if the enactment under which the appeal is sought to be brought specifies a time limit. In effect, the power to extend in r 20.3 applies where the time limit is prescribed by the Rules themselves. If the statutory scheme has its own time limits, those limits prevail. That is the case here and s 162(4) of the Act applies.

[6]    At 8.34 am on 29 May 2025, Ms Herbst filed the application in the Auckland High Court registry because the substantive hearing of her appeal in the District Court was held in Auckland (despite the Accident Compensation Act appeals registry being based in Wellington). Her application to the District Court for leave to appeal was dealt with on the papers.

[7]    On the information before me, it appears Ms Herbst was only made aware of the registry’s view that the application should have been filed in the Wellington registry on 26 June 2025. This is despite the Auckland registry writing to Ms Herbst, on 9 June 2025, to notify her that the application was rejected for filing because she had failed to seek leave to appeal from the District Court as required by s 162(2). This was incorrect, as Ms Herbst’s application for leave to appeal was declined by the District Court on 7 May 2025. The short point is that when Ms Herbst was made aware that the registry considered she had incorrectly filed the application in the Auckland registry, she promptly attempted to re-file it in the Wellington registry on 27 June 2025.

[8]    I do not consider that Ms Herbst’s application was invalidated by filing it in the wrong registry. Rule 20.8(5) of the High Court Rules 2016 states that filing the notice of appeal in the wrong registry does not invalidate an appeal. The rules relating to the filing of notices of appeal (r 20.8) and application for special leave to appeal  (r 20.3) are both contained in Part 20 of the High Court Rules 2016. It appears to me that r 20.8 also applies to the process for filing the application for special leave,4 as the other rules that describe the appropriate registry for the filing of documents to

4      This accords with the approach taken by Gwyn J in Carey v Accident Compensation Corporation, above n 3, at [18].

commence proceedings do not appear applicable.5 Therefore, although this is an application for special leave to appeal rather than a notice of appeal, I consider r 20.8 applies and the application is not invalid due to filing in the wrong registry. But even if I am wrong about this, I note that r 20.8(1)(a) provides that a notice of appeal must be filed in the registry of the court nearest to where the hearing took place of the matter under appeal. It appears at least arguable that the application for special leave to appeal was correctly filed in Auckland given the substantive hearing took place in Auckland.

[9]    However, there appears to be a further obstacle to Ms Herbst successfully reviewing the registrar’s decision, namely that the filing of her application at 8.34 am on 29 May 2025 appears to exceed the 21-day time limit for filing in s 162(4) by one day. As s 162(4) states that special leave “must be sought within 21 days after the District Court refused leave”, the effect of s 54 of the Legislation Act 2019 appears to be that the 21-day period commenced on 8 May and ended on 28 May 2025.

[10]   As noted in the extract from Carey v Accident Compensation Corporation set out above, there is a line of cases in this Court holding that the Court has no power to extend time under s 162(4). That line of cases is supported by the Court of Appeal’s interpretation of an equivalently worded appeal provision under the Human Rights Act 1990 in Attorney-General v Howard.6

[11]   The registry has been unable to provide me with correspondence relating to the filing of Ms Herbst proceedings in the Auckland registry, so I have had to rely on  Ms Herbst to provide me with that correspondence (which appears incomplete). Through the registry I have asked Ms Herbst’s to provide confirmation that she received the District Court leave decision on 7 May 2025 and that she filed her application for special leave to appeal in the Auckland High Court by email on 29 May 2025 at 8.34am. Rather than responding directly to these questions, Ms Herbst filed  a document setting out a chronology that includes “I booked a disability-access

5      For example, the rules relating to the commencement of proceedings by statement of claim: rr 5.1 and 5.25. And, although the application for special leave to appeal is made by interlocutory application, there are no specific rules relating to the appropriate registry for the filing of interlocutory applications (as there are usually extant proceedings).

6      Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.

transport service (Happy Mobility Taxi) for 26 May 2025 to assist with filing”, but which does not say whether she actually filed, or attempted to file, the application on that date.

[12]   I have come to the conclusion that I simply cannot resolve the issue of whether the proceedings were filed within the statutory time limit on the incomplete information available. I consider the appropriate course is to allow the review on the basis that the filing of the application does not appear to be invalid due to filing in the wrong registry. That will leave the issue of compliance with the time limit in s 162(4) for later consideration should the respondent consider it is appropriate to advance a jurisdictional argument based on it. Further, as the information before me appears incomplete and I have not heard from the respondent, this judgment does not preclude the respondent from objecting to the Court’s jurisdiction to hear the application due to any failure to file in the correct registry.

[13]   I therefore direct that the application for special leave to appeal be accepted for filing. I also direct that the registry is to serve on the respondent a copy of this judgment and all documents filed in these proceedings to date.

La Hood J