Howard v Accident Compensation Corporation
[2015] NZCA 395
•26 August 2015 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA618/2014 [2015] NZCA 395 |
| BETWEEN | MAREE HOWARD |
| AND | ACCIDENT COMPENSATION CORPORATION |
| Court: | Ellen France P, Wild and Cooper JJ |
Counsel: | Appellant in Person |
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.
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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 leave to appeal to the Supreme Court.[10]
[3]Howard v Accident Compensation Corporation [2012] NZACC 73; Howard v Accident Compensation Corporation [2012] NZACC 218 [second DC decision].
[4]Howard v Accident Compensation Corporation [2012] NZACC 333.
[5]Howard v Accident Compensation Corporation [2012] NZACC 313; Howard v Accident Compensation Corporation [2012] NZACC 388.
[6]Howard v Accident Compensation Corporation [2013] NZHC 188 (in respect of second DC decision, above n 3, only).
[7]Howard v Accident Compensation Corporation [2013] NZHC 1004.
[8]Howard v Accident Compensation Corporation [2013] NZCA 617.
[9]This was raised in opposition to the application by the Accident Compensation Corporation to seal the judgment at n 8 above. In a minute dated 11 February 2015, Stevens J advised the application for this Court to depart from its costs award was declined.
[10]Howard v Accident Compensation Corporation [2014] NZSC 31, (2014) 21 PRNZ 815.
Following the filing of this appeal, security for costs was fixed at $5,880, to be paid by 26 November 2014.
On 19 November Mrs Howard applied to dispense with security for costs. The Registrar refused that application, directing that security be paid by 24 December.
On 5 December Mrs Howard applied, under r 7(2) of the Court of Appeal (Civil) Rules, for review of the Registrar’s decision. Justice Randerson declined that application in a judgment delivered on 18 December.[11] He directed that security must be given within 20 working days, which it is agreed was by 5 February 2015.
[11]Howard v Accident Compensation Corporation [2014] NZCA 627 [CA security for costs decision].
In the course of his judgment Randerson J stated:
[10] I am satisfied that there are no valid grounds to interfere with the Registrar’s decision declining to dispense with security for costs. The principal reason for this conclusion is that the appeal appears to have little merit. On the face of the judgment in the High Court, the issues Mrs Howard would seek to raise in the judicial review proceedings have already been fully determined under the processes available under the Act including full ventilation through the available appeal process. As Clifford J pointed out, s 54[12] was raised in Mrs Howard’s unsuccessful application to this Court for leave to appeal.[13]
[12]A reference to s 54 of the Accident Compensation Act 2001 — which requires the Corporation to make reasonable conclusions in a timely manner.
[13]Decision under appeal, above n 1, at [34] and [35].
On 12 January Mrs Howard applied to the Supreme Court for leave to appeal against Randerson J’s judgment.
On 9 February Mrs Howard made the present application.
The Supreme Court dismissed Mrs Howard’s application for leave to appeal in a judgment delivered on 11 March.[14] In doing so it stated that Randerson J had correctly applied the approach to security for costs the Supreme Court had set out in Reekie v Attorney-General and held “no point of principle is involved and we see no risk of a substantial miscarriage of justice”.[15]
[14]Howard v Accident Compensation Corporation [2015] NZSC 25 [SC leave decision].
[15]Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737; SC leave decision, above n 14, at [5].
On 18 March Mrs Howard applied to the Supreme Court to recall its judgment. On 28 April 2015 the Supreme Court delivered a further judgment, declining to recall its earlier judgment.[16]
[16]Howard v Accident Compensation Corporation [2015] NZSC 48.
Thus, since 11 March — over five months now — Mrs Howard has been in default of the requirement that she give security for the costs of this appeal.
Analysis of submissions
Mr McBride submits Mrs Howard has made no attempt to confer with the respondent as to the contents of the case on appeal and has taken no steps (or at least none of which the respondent is aware) to prepare the case on appeal. He points out the obligations spelt out in rr 39 and 40 of the Court of Appeal (Civil) Rules to prepare and file the case on appeal are separate and independent from the obligation (unless dispensed with) to give security for costs. Mr McBride submits that, had rr 39 and 40 been complied with, and once security was given, the case could be filed and application for a fixture made. In all the circumstances, he submits the application for an extension should not be granted and the appeal be deemed abandoned.
When she sought an extension on 9 February, Mrs Howard based her application on the fact she was awaiting the decision of the Supreme Court on her application for leave to appeal against Randerson J’s judgment. That remained the basis of the submissions she filed on 20 February in support of the present application. In those submissions she also took issue with Mr McBride’s assertion that she had made no attempt to confer about the case on appeal nor taken any steps to prepare the case. However, it appears to us that the matters Mrs Howard then refers to are directed to her substantive grievances, rather than to preparation and filing of her case on appeal. It may be that Mrs Howard has wrongly interpreted the consultation requirement in r 39(1) as a requirement to consult about the substance of the case. In fact it is a requirement to consult about the content of the case on appeal — about which documents are included in the case.
On 27 July Mrs Howard filed “updated submissions” for the hearing, then scheduled for 24 August (but since vacated). Those further submissions are, as Mr McBride submits, again directed largely to Mrs Howard’s substantive grievances. She also directs criticisms at the Supreme Court, for what she alleges is its failure to apply proper principles in declining to recall the judgment it delivered on 11 March.
In the course of her further submissions, Mrs Howard stated:
… a minimum $100 will need to be saved each week for more than 12 months to pay the $5,880 amount.
That appears to suggest Mrs Howard will require a further extension of about 59 weeks before she can give the $5,880 security for costs fixed. But Mrs Howard does not expressly seek such an extension.
However, in those further submissions Mrs Howard did seek directions as to how she should go about consulting with the respondent as to the preparation of the case on appeal, as required by r 39(1).
On 9 August Ellen France P declined to give any directions, pointing out that Mrs Howard was free to consult in the usual way with counsel and solicitor for the respondent as to preparation of the case on appeal, as required by r 39(1).
In summary, five factors suggest Mrs Howard’s application should not be granted:
(a)Little merit: We assess that there is little if any merit in this appeal. As Clifford J concluded, the issues Mrs Howard seeks to raise in this appeal have already been determined, or would have been had Mrs Howard raised them in her earlier proceedings as she should have. This proceeding is an attempt to have the Courts revisit matters and Clifford J rightly struck it out as an abuse of the Court’s processes. In his judgment of 18 December 2014 Randerson J reached the same view, observing that this appeal “appears to have little merit”.[17] In dismissing Mrs Howard’s application for leave to appeal from that judgment the Supreme Court stated Mrs Howard had “not raised anything which satisfies us that Randerson J’s conclusion is arguably wrong”.[18] So, all Judges of the two appellate courts who have considered this appeal, albeit in a preliminary way, agree it has little if any merit.
(b)Security not given: Mrs Howard’s application to dispense with security has been dismissed and she has been in default of paying security for the costs of this appeal, at least since 11 March — over five months. She appears to submit that she will need a further 59 weeks approximately to pay security.
(c)Case on appeal neither prepared nor filed: Although this appeal was filed on 29 October 2014 — approaching 10 months ago — we are satisfied Mrs Howard has not consulted with the respondent about preparation of the case on appeal as required by r 39(1) and she has not filed it.
(d)Appeal deemed abandoned under r 43: Subject to any extension of time granted under r 43(2), this appeal is treated as having been abandoned because Mrs Howard did not apply for the allocation of a hearing date and file the case on appeal by 20 February 2015, that is by the period fixed in rr 43(1) and 43(5).[19]
(e)Cannot comply with r 43: Mrs Howard cannot apply for the allocation of a hearing date (although she could attend to preparation and filing of the case on appeal) while she remains in default of her obligation to pay security for costs: r 37(2).
Result
[17]CA security for costs decision, above n 11, at [10].
[18]SC leave decision, above n 14, at [4].
[19]The three month period stipulated in r 43(1) was extended by 22 days to account for the period between 25 December and 15 January: r 43(5).
Given those circumstances, Mrs Howard has not made out any proper basis for an extension of time under r 43(2), and we dismiss her application to grant one. The consequence is that this appeal is deemed abandoned as of 20 February 2015 and is at an end.
Mrs Howard is to pay the costs of this application as for an application for leave to appeal on a band A basis with any usual disbursements.
Solicitors:
McBride Davenport James, Wellington for Respondent
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