Herbst v Accident Compensation Corporation

[2019] NZHC 2953

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-485-312

[2019] NZHC 2953

UNDER

the Accident Compensation Act 2001

IN THE MATTER

of an application under s 162 of the Act to appeal to the High Court on a question of law

BETWEEN

MICHELLE HERBST

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

8 November 2019

Appearances:

Applicant in person

F L Becroft for the Respondent

Judgment:

12 November 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 12 November 2019 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties:

The Applicant

Ms F L Becroft, Medico Law Ltd, Auckland

HERBST v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2953 [12 November 2019]

[1]                   This is an application for special leave to appeal against an interim judgment of the District Court dated 31 October 20171 and a minute dated 7 June 2018.2

[2]                   The applicant, Ms Herbst, applied for leave to appeal in the District Court on 25 January 2019. This was outside the 21 day period mandated in s 162(2) of the Accident Compensation Act 2001 (the Act). On 1 May 2019 Judge G M Harrison struck out the application for leave to appeal on the basis that the District Court had no jurisdiction to extend time unless the Accident Compensation Corporation (ACC) waived compliance with the time limit under s 3 of the Inferior Courts Procedure Act 1909, which had not occurred.3

Factual background

[3]                   Ms Herbst suffered multiple injuries in a car accident on 5 March 2015.  ACC has accepted cover for some injuries but declined cover in other respects.

[4]                   The District Court’s 31 October 2017 interim judgment concerned an appeal against ACC’s decision dated 13 May 2016 to decline cover for post-concussion syndrome (PCS) and chronic pain. The District Court’s judgment addressed whether there was jurisdiction because further decisions had been made since ACC’s decision in May 2016. A review of the May 2016 decision in October 2016 had determined that the decision was correct at the time it was made but noted that further cover decisions would be issued in due course. In July 2017 ACC issued two further decisions, a decision on 12 July 2017 declining cover for PCS and a decision on 14 July 2017 declining cover for chronic pain. Ms Herbst nevertheless chose to pursue her appeal against the earlier May 2016 decision.

[5]                   The District Court Judge concluded that developments, including further medical reports, since the provisional May 2016 decision, superseded it. The July 2017 cover decisions became the new decisions. It made sense for the July 2017 decisions to be tested at review.

1      Herbst v Accident Compensation Corporation [2017] NZACC 132.

2      Herbst v Accident Compensation Corporation DC Auckland ACR 373/16, 243/17, 244/17, 302/17 minute of Judge A P Christiansen, 7 June 2018.

3      Herbst v Accident Compensation Corporation DC Auckland ACR 373/16, 1 May 2019 minute of Judge G M Harrison.

[6]                   The Judge considered that the reviewer could have quashed the May 2016 decision. Upholding it left Ms Herbst with no choice but to appeal the review decision. Given that Ms Herbst had indicated her intention to challenge the July 2017 decisions, the Judge concluded that the Court’s jurisdiction in relation to the appeal from the May 2016 decision was as to whether ACC had sufficient evidence to determine cover. The issue appeared moot but could be argued fully at a hearing.

[7]Following that interim judgment, Ms Herbst discontinued the appeal.

[8]                   Following review, in February 2018 the reviewer quashed ACC’s 14 July 2017 decision and granted cover for the pain disorder.

[9]                   In April 2018 Ms Herbst sought to reinstate her appeal. The minute of Judge Christiansen dated 7 June 2018 noted that Ms Herbst’s right to challenge the substantive issues was preserved by the other proceedings and refused reinstatement of the appeal.

[10]               At that time, a review decision in relation to ACC’s 12 July 2017 PCS decision was pending.

Submissions

[11]               Ms Herbst submitted that she sought  leave  to  appeal  on  a  legal  issue.  She should have received cover for her spinal and brain injuries. She is in need of cover for transport costs, help at home and rehabilitation. She has recently had to move home to be nearer to public transport.

[12]               She also raised concern that some of the specialists who had provided reports worked at the hospital where she was assessed, and that review decisions needed to be taken by someone independent.

[13]               Ms Becroft, counsel for ACC, submitted that special leave to appeal should be refused as this Court has no jurisdiction where the appeal is out of time.

[14]               Ms Becroft responsibly acknowledged the underlying issues. This is a large and complex claim. There are 17 appeals in the District Court. Ms Becroft advised that ACC has proposed mediation and offered to pay for Ms Herbst to engage a lawyer. Ms Herbst now has cover for chronic pain (following the February 2018 review decision). One of the pending District Court appeals relates to ACC’s decision to decline cover for PCS.

Statutory framework for further appeals

[15]Section 162 of the Act 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 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.

Discussion

[16]               This Court cannot grant special leave to appeal. As Judge Harrison stated, the District Court had no jurisdiction to extend the 21 day time for an application for leave to appeal unless ACC waived compliance. Applying s 162 of the Act and the Court of Appeal’s decision in Siola’a v Wellington District Court and ACC,4 the Judge was correct to strike out the application for leave to appeal.

[17]               A decision striking out the application for leave to appeal on the basis there is no jurisdiction is not a decision refusing to grant leave to appeal.5 In those

4      Siola’a v Wellington District Court and ACC [2008] NZCA 483, [2009] NZAR 23 at [33].

5      Goh v ACC [2014] NZHC 533 at [15]; and Le Pine v ACC [2014] NZHC 538 at [16].

circumstances, the District Court has not refused to grant leave in terms of s 162(3) of the Act, so this Court has no power to grant special leave to appeal.

Result

[18]The application is dismissed.

Gault J