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…

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: [2025] NZHC 2037
Decision Date: 23 July 2025

CaseChat Overview and Summary

Michelle Herbst, an applicant, sought a review of a registrar's decision to reject her application for special leave to appeal, which was filed outside the 21-day timeframe stipulated in section 162(4) of the Accident Compensation Act 2001. The Wellington registry dismissed her application on the grounds of the untimely filing. Herbst's appeal to the District Court against decisions declining cover under the Act was dismissed on 27 November 2024, and the District Court subsequently declined her application for leave to appeal on 7 May 2025. The Wellington registry rejected Herbst's application for special leave to appeal, citing the 21-day time frame requirement.

The legal issues before the court included whether the application was correctly filed in the Auckland High Court registry instead of the Wellington registry, and whether the application was filed within the statutory 21-day period as required by section 162(4) of the Act. The court examined Rule 20.8(5) of the High Court Rules 2016, which states that filing the notice of appeal in the wrong registry does not invalidate an appeal. Although Herbst's application was filed in the wrong registry, the court held that Rule 20.8 likely applies to the process for filing the application for special leave, given the similarity between the rules for filing notices of appeal and applications for special leave. Furthermore, the court noted that it was arguable that the application was correctly filed in Auckland as the substantive hearing of her appeal took place there. However, the more critical issue was whether the application was filed within the 21-day timeframe, which the court concluded it was not, as it was filed one day late.

The court held that the statutory time limit in section 162(4) of the Act could not be extended, consistent with previous case law and the Court of Appeal's interpretation in Attorney-General v Howard. The court determined that it could not resolve the issue of whether the application was filed within the statutory time limit due to incomplete information. The court decided to allow the review on the basis that the application did not appear to be invalid due to the incorrect registry filing, leaving the time limit issue for later consideration if the respondent chose to object based on it. The court directed that the application for special leave to appeal be accepted for filing and that the registry serve a copy of the judgment and all documents filed in the proceedings to date on the respondent.

Orders