Howard v Accident Compensation Corporation - [2015] NZCA 395

IN THE COURT OF APPEAL OF NEW ZEALAND

CA618/2014
[2015] NZCA 395

BETWEEN	MAREE HOWARD Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Court:

Ellen France P, Wild and Cooper JJ

Counsel:

Appellant in Person
P A McBride for Respondent

Judgment:

(On the papers)

26 August 2015 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time to apply for the allocation of a hearing date and file the case on appeal is dismissed.
BThe substantive appeal is deemed abandoned.
CThe appellant is to pay the respondent’s costs as for an application for leave to appeal on a band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wild J)

Introduction

This is an application by the appellant under r 43(2) of the Court of Appeal (Civil) Rules 2005 for an extension of time to file the case on appeal and apply for the allocation of a hearing date. It is opposed by the respondent.
By consent, we are dealing with this application on the papers.

Background

The substantive appeal, filed on 29 October 2014, is against a judgment of Clifford J delivered in the High Court at Wellington on 3 October 2014.[1]
[1]Howard v Accident Compensation Corporation [2014] NZHC 2431 [decision under appeal].
Justice Clifford struck out Mrs Howard’s statement of claim for judicial review as being an abuse of the process of the High Court. Having compared the allegations Mrs Howard was making in that statement of claim with the earlier decisions, which we set out in [5] below, Clifford J held:[2]
… I conclude that Mrs Howard not only could have raised the specific issues she raises earlier, but doing so now, four years later in an attempt to collaterally challenge earlier judgments, is abusing the court’s processes. That abuse arises because those specific issues have in substance also already been addressed. To the extent they have not, that is because Mrs Howard did not raise them when she should have and it is contrary to the interests of finality, efficiency and economy of litigation to raise those issues now given the protracted path this dispute has taken.
[2]At [36].
The reference in that passage to “earlier judgments” includes the following:
(a)statutory reviews under the Accident Compensation Act 2011;
(b)two appeals to the District Court;[3]
(c)an application for recall of the second of the District Court decisions;[4]
(d)applications to the District Court for leave to appeal to the High Court on the matters at (b);[5]
(e)an application to the High Court for special leave to appeal to that Court;[6]
(f)an application to the High Court for recall of its decision regarding special leave to appeal, and an application to the High Court for leave to appeal to the Court of Appeal;[7]
(g)an application for special leave to the Court of Appeal;[8]
(h)applying to have this Court depart from its costs award;[9] and
(i)an application to revoke the decision of the Registrar, confirmed by McGrath J, not to accept her application for…

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: [2015] NZCA 395
Decision Date: 26 August 2015 at 3 pm

CaseChat Overview and Summary

The case of Howard v Accident Compensation Corporation is an appeal brought by Maree Howard against the Accident Compensation Corporation. The substantive appeal, filed on 29 October 2014, contests a judgment delivered by Justice Clifford in the High Court at Wellington on 3 October 2014. The Court of Appeal dismissed the appellant's application for an extension of time to file the case on appeal and apply for the allocation of a hearing date, deeming the appeal abandoned. The Court also ordered the appellant to pay the respondent's costs as for an application for leave to appeal on a band A basis with usual disbursements.

The primary legal issues before the Court of Appeal were whether the appellant's application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 should be granted and whether the substantive appeal should be deemed abandoned. The Court found that the appeal had little merit and that the appellant had not fulfilled her obligations under the Court of Appeal rules. The appellant had not prepared or filed the case on appeal, and she had not given security for the costs of the appeal as required, remaining in default for over five months. The Court concluded that the appellant had not demonstrated a proper basis for an extension of time under r 43(2), leading to the dismissal of her application and the abandonment of the appeal.

The reasoning of the Court of Appeal was based on several factors. Firstly, the appeal was assessed to have little if any merit, as the issues raised had already been determined in earlier proceedings. Secondly, the appellant had not provided security for the costs of the appeal, remaining in default since 11 March 2015. Thirdly, the case on appeal had neither been prepared nor filed. Fourthly, the appeal was treated as having been abandoned under r 43 because the appellant did not apply for the allocation of a hearing date and file the case on appeal by the fixed period. Lastly, the appellant could not comply with r 43 while in default of her obligation to pay security for costs. Given these circumstances, the Court found that the appellant's application for an extension of time should be dismissed, resulting in the appeal being deemed abandoned as of 20 February 2015. The Court also ordered the appellant to pay the respondent's costs as for an application for leave to appeal on a band A basis with usual disbursements.

Orders