Hollis v Accident Compensation Corporation

[2014] NZHC 530

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-009118 [2014] NZHC 530

BETWEEN  CLAIRE HOLLIS Applicant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:                   20 March 2014

Counsel:                  A C Beck for Applicant

P A McBride for Respondent

Judgment:                20 March 2014

JUDGMENT OF COLLINS J

Introduction

[1]      The question I have to consider is whether Ms Hollis should be granted special leave to appeal to this Court from a decision of Judge Joyce delivered in the Wellington District Court on 10 August 2012.

Context

[2]      This question arises in the context of Judge Ongley deciding on 3 October

2013 that Ms Hollis should not have leave to appeal Judge Joyce’s decision to this

Court.

Background

[3]      Ms Hollis wants the Accident Compensation Corporation (ACC) to pay her interest  on  backdated  payments  of weekly compensation.  The period  to  which

Ms Hollis’ claim relates is from 2 November 1998 to 13 April 2003.

HOLLIS v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 530 [20 March 2014]

[4]      Ms Hollis became entitled to weekly compensation after a protracted series of investigations which ultimately led ACC to determine in April 2003 Ms Hollis was unable to work due to a neck and shoulder injury.

[5]      ACC calculated Ms Hollis’ entitlement to backdated weekly compensation payments on 24 July 2003.  On 24 April 2004 Ms Hollis received $30.76 as interest on backdated weekly compensation after it was decided ACC had delayed paying Ms Hollis her backdated weekly compensation. The backdated interest was for a one month period.

[6]      Ms Hollis unsuccessfully applied to review that decision.  She then appealed that decision to the District Court.  That appeal was dismissed by Judge Beattie on

21 February 2005.

[7]      Judge Beattie had before him a claim by Ms Hollis that she was entitled to interest on her backdated weekly compensation for the period 2 November 1998 to

27 April 2003.

[8]      Judge Beattie dismissed Ms Hollis’ claim for interest.  In doing so he applied

s 114(1) of the Accident Compensation Act 2001 (the Act). That section provides:

114Payment of interest when Corporation makes late payment of weekly compensation

(1)       The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within 1 month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment.

...

[9]      In applying s 114 Judge Beattie said:1

Section 114 is clearly limited to an assessment of when it was that the Corporation was in receipt of the information necessary for it to calculate and make the payments.  That must be [a] question of fact in each case and there  is  now  a  considerable  body  of  jurisprudence  on  what  might  be expected  to  be  the  information  necessary.    See  the  decision  of  Justice

1      Budgen [Hollis] v Accident Compensation Corporation DC Napier 48/2005, 21 February 2005 at [22].

Paterson in Barnett v ACC (Auckland High Court AP64/SWO2) being the most recent authority on this point.

[10]     Ms  Hollis wishes to pursue an  argument  that  the approach  which  Judge Beattie took to s 114 of the Act was not consistent with subsequent decisions of the Court of Appeal in Accident Compensation Corporation v Kearney and Accident Compensation  Corporation  v  Miller.2   The  Court  of Appeal  has  now  held  that inquiries under s 114 of the Act should focus upon when the necessary information was available.  ACC cannot rely on its error in failing to request information as a

reason for declining to make interest payments.

[11]     On 12 September 2006 Judge Ongley heard an application by Ms Hollis for leave to appeal out of time what she considered to be the deficiencies in the decision not to pay her more backdated interest on her backdated weekly compensation. Judge Ongley declined Ms Hollis’ application because her proposed appeal raised issues  that  should  have  been  addressed  in  the  appeal  which  was  heard  by Judge Beattie.

[12]     On 22 September 2010 Ms Hollis wrote to ACC asking that her entitlement to backdated interest be reconsidered.  That request was declined and she applied for a review.   That review was unsuccessful.   Ms Hollis appealed to the District Court. That appeal was dismissed by Judge Joyce on 10 August 2012.   In his judgment Judge Joyce examined Ms Hollis’ claim and the law relating to res judicata and issue estoppel.  Judge Joyce concluded:3

When Ms Hollis sought to reopen matters with her application to the Corporation on November 2010 she sought to reopen what was by then fully and finally litigated history.   Her application was in collision with long established principles of res judicata, of issue or action estoppel and their ilk.

[13]     On 3 October 2013 Judge Ongley declined Ms Hollis’ leave to appeal Judge

Joyce’s  decision  to  this  Court.    Judge  Ongley  also  concluded  that  Ms  Hollis’

proceeding offended the principles of res judicata and issue estoppel.

2      Accident Compensation Corporation v Kearney [2010] NZCA 327; Accident Compensation

Corporation v Miller [2013] NZCA 141, [2013] 3 NZLR 312 (CA).

3      Hollis v Accident Compensation Corporation [2012] NZACC 268 at [66].

Principles governing applications for special leave to appeal

[14]     The principles relating to the grant or withholding special leave to appeal to this Court from decisions of the District Court are well established.   In Kenyon v Accident Compensation Corporation, Fisher J stated that:4

(1)       The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly.5

(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.6

(3)       The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course.7

(4)       It is for the applicant to show that leave is required in the interests of justice.8

(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.9

Decision

[15]     Ms  Hollis’ application  for special  leave to  this  Court  asks  this  Court to embark on a consideration of issues that Judge Ongley has already ruled ought to have been considered in Ms Hollis’ appeal that was heard and determined by Judge Beattie in 2005.  Ms Hollis did not seek leave to appeal Judge Ongley’s September

2006 decision.  Instead, she has endeavoured to reopen issues that Judge Beattie and Judge Ongley either determined or should have been asked to determine almost a decade ago.

[16]     In  his  very  helpful  submissions  Mr  Beck,  counsel  for  Ms  Hollis,  has submitted that Judge Joyce and Judge Ongley have misapplied the law of res judicata

and issue estoppel.  The essence of his submission is that the District Court has not

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

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

6      Sandle v Stewart, above n 5; Manawatu Co-op Dairy Company Ltd v Lawry [1988] DCR 509;

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

7      O’Loughlin v Healing Industries Ltd (1990) PRNZ 464.

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

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

applied s 114 in the way the Court of Appeal has said it should be applied and that therefore issue estoppel and res judicata are not truly engaged in this case.

[17]     Mr Beck may be right when he says the concepts of issue estoppel and res judicata are not breached by Ms Hollis’ most recent claims.  However, I do not have to consider that issue because I am very satisfied that it is an abuse of process for Ms Hollis to pursue issues years out of time that she has had every opportunity to pursue.

[18]     Even more fundamentally, Ms Hollis’ application for special leave to appeal lacks the attributes I would expect to be satisfied of before granting special leave.  In particular:

(1)       Ms Hollis has not demonstrated a reasonable prospect of success. (2)           Ms Hollis’ application does not raise an issue of principle.

(3)Ms Hollis has not demonstrated that the interests of justice dictate that special leave be granted.

Conclusion

[19]     Ms Hollis’ application for special leave to appeal Judge Joyce’s decision of

10 August 2012 is dismissed.

[20]     Ordinarily I would award ACC costs on a scale 2B basis.  However, Mr Beck has advised that Ms Hollis has applied for legal aid in relation to today’s hearing. Mr Beck asked that I reserve questions of costs.  I will not reserve the question of costs because I do not believe it is in the interests of the parties for this matter to continue to linger in any way.  Instead, I will exercise my discretion and make no order for costs.  I do so in the hope that this litigation is now finished.

D B Collins J

Solicitors:

Hazel Armstrong Law, Wellington for Applicant
McBride Davenport James, Wellington for Respondent