Howard v Accident Compensation Corporation

[2013] NZHC 1004

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-2692 [2013] NZHC 1004

UNDER  the Accident Compensation Act 2001

IN THE MATTER OF      an application for leave to appeal to the Court of Appeal on points of law under section 163 of the Act

BETWEEN  MAREE HOWARD Applicant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         10 April 2013

Counsel:         J Howard (with leave to present argument for M Howard) P McBride for respondent

Judgment:      7 May 2013

RESERVED JUDGMENT OF WILLIAMS J

[1]      Mrs Howard   filed   three   applications   consequent   on   my   decision   of

15 February  2013  refusing  her  special  leave  to  appeal  against  a  decision  of Judge R Joyce QC refusing leave to appeal against a decision of Judge D A Ongley. The background to the matter is fully set out in my judgment.

[2] Mrs Howard now applies for leave to appeal my dismissal of her application. She also applies pursuant to r 7.49 of the High Court Rules for an order rescinding my initial decision. There is also an informal application pursuant to s 13 of the

Interpretation Act 1999 to correct errors in my judgment.

MAREE HOWARD V ACCIDENT COMPENSATION CORPORATION HC WN CIV-2012-485-2692 [7 May

2013]

[3] Section 13 of the Interpretation Act cannot apply in these circumstances. The correction sought by Mrs Howard is not minor. It is a reversal of the decision. Section 13 does not contemplate such a wide power in the Court when I have, as in this case, discharged my function on the original application.

[4]      As to the application under r 7.49, that too must fail.  Although review under this rule is an alternative to appeal, it is not an appeal in disguise.  Review will generally be appropriate only where argument was truncated, some relevant point of evidence was overlooked, there has been a material change of circumstances or some other special circumstance has arisen.  It is not an opportunity to re-litigate the same issues.  Appeal is the appropriate course in those circumstances.  Here, the applicant does indeed wish to re-litigate my core conclusions.  Rule 7.49 is not a procedure available to her.

[5]      Before  turning  to  the  crucial  application  for  special  leave,  I  note  two preliminary points.

[6]      First,  I  heard  this  application  by  telephone  conference.     This  was  at Mr Howard’s request.   He and Mrs Howard (who is, of course, physically unwell) asked to be relieved of the obligation to travel six hours from Ohura to Wellington, with all the attendant costs and discomforts, in order to argue the matter.  I accepted that this was appropriate.

[7]      Second, as with the original application for special leave to appeal to this

Court, I granted Mr Howard leave to argue the case on behalf of his wife.

[8]      For the Authority, Mr McBride indicated he would abide both decisions.

[9]      On  the  substantive  application  before  me,  Mr Howard  filed  lengthy  and substantive submissions, both in the application itself, a memorandum in response to the Authority’s notice of opposition, a memorandum for first call telephone conference and a memorandum in response to various documents filed on behalf of the Authority.

[10]     I  must  say,  with  no  lack  of  respect,  that  these  documents  articulated

Mrs Howard’s case rather more cogently than had been the position at the hearing on

11 February 2013.

[11]     Nonetheless, I take the view that Mr McBride is correct in his submission that the position is covered by the decision of the Court of Appeal in Lister v Accident Compensation Corporation.1   The ratio in that case is that a refusal by this Court to grant leave to appeal is not a determination or a decision for the purposes of s 163 of the Accident Compensation Act 2001.

[12]     By the time of the Lister decision, the Supreme Court had delivered its decision in Siemer v Heron, in which that Court, on different facts and in a different statutory context, took the view that there is an appeal as of right to the Court of Appeal against any interlocutory decision of the High Court without restriction.2

[13]     The Court of Appeal in Lister had this to say:

Whether this Court may one day be persuaded to reconsider the principle applied  in  these  cases  (as  a  result,  for  example,  of  the  decision  of  the Supreme Court in Siemer v Heron) is not something on which we need to speculate in the context of the present application.

[14]     It follows that, despite Siemer, an application for special leave is not “an appeal before the High Court” for the purposes of ss 162 and 163 of the Accident Compensation Act.  There is therefore no jurisdiction in this Court to grant leave to appeal to the Court of Appeal under s 163.

[15]     It will be for the Court of Appeal to reconsider the matter if that Court is so moved.

[16]     The application must be dismissed accordingly.

Williams J

1      Lister v Accident Compensation Corporation [2011] NZCA 625.

2      Siemer v Heron [2011] NZSC 133.

Solicitors:

McBride Davenport James, Wellington for respondent

Copy to:

M and J Howard, 9 Kakapo Street, Ohura 3926