Howard v Accident Compensation Corporation - [2014] NZCA 627

IN THE COURT OF APPEAL OF NEW ZEALAND

CA618/2014
[2014] NZCA 627

BETWEEN	MAREE HOWARD Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Counsel:

Appellant in Person
P A McBride for Respondent

Judgment:

(On the papers)

18 December 2014 at 10:30 am

JUDGMENT OF RANDERSON J

AThe application for review of the Registrar’s decision not to dispense with or defer payment of security for costs is declined.
BPayment of security of $5,880 must be made within 20 working days of this judgment.

____________________________________________________________________

REASONS

Introduction

Mrs Howard appeals against a judgment of Clifford J in which he struck out judicial review proceedings she had brought against the respondent (the ACC).[1] Security for costs on the appeal was set at $5,880. On 19 November 2014 Mrs Howard applied to have security dispensed with or deferred until the determination of the appeal under r 35(6) of the Court of Appeal (Civil) Rules 2005 (the Rules). The Registrar dismissed that application on 26 November 2014. Mrs Howard has since applied for a review of that decision. I have considered the application for review under r 7(2) of the Rules and s 61A(3) of the Judicature Act 1908.

The proceedings in the High Court

[1]Howard v Accident Compensation Corporation [2014] NZHC 2431.

In the judicial review proceedings in the High Court Mrs Howard challenged a notice issued by her employer, NZ Post Ltd, which required her to attend a medical assessment under s 72 of the Accident Compensation Act 2001 (the Act). The ACC applied to strike out the statement of claim on the basis that Mrs Howard had previously challenged the s 72 notice and its effects on her entitlements under the Act. It was submitted for the ACC that Mrs Howard’s complaint in earlier proceedings had been finally dismissed and that the further proceedings by way of judicial review would amount to an abuse of process.

The High Court judgment

The High Court Judge recorded that Mrs Howard’s case focussed primarily on the alleged failure by the ACC to properly investigate what was said to be NZ Post’s lack of timely decision-making on two treatment entitlement claims lodged prior to the issue of the s 72 notice. By way of background, Mrs Howard suffered spinal injuries in 2006 and again in 2007. In consequence she was unable to work and was granted cover under the Act. A dispute arose in 2010 in relation to Mrs Howard’s requests for approval of a pain management programme under ss 48 and 49 of the Act. It was in that context that ACC issued the s 72 notice. Mrs Howard’s entitlements were later suspended under s 117(3) of the Act on the basis that she had unreasonably refused to undertake a medical assessment as required by the s 72 notice.
The Judge detailed the series of review, appeal and recall decisions that followed these events including appeals by Mrs Howard to the District Court and High Court.[2] In addition, she had applied for leave to…

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: [2014] NZCA 627
Decision Date: 18 December 2014 at 10:30 am

CaseChat Overview and Summary

In the case of Howard v Accident Compensation Corporation, the appellant, Maree Howard, sought to appeal a decision of Clifford J, who struck out judicial review proceedings against the Accident Compensation Corporation (ACC). The High Court dismissed the judicial review proceedings on the grounds that they constituted an abuse of process due to the issues being substantially the same as those previously adjudicated upon. The Court of Appeal was then tasked with determining whether the Registrar's decision to deny Mrs Howard's application to dispense with or defer the payment of security for costs was correctly made.

The legal issue before the Court of Appeal was whether the Registrar's decision to require the appellant to pay a security of $5,880 for the costs of the appeal was justified. Mrs Howard argued that her financial situation, including her reliance on superannuation and a fee waiver, justified dispensing with the security for costs. The Court of Appeal had to consider if the appeal had merit, if the security requirement was justified, and whether there were any exceptional circumstances or public interest considerations that warranted dispensing with the security.

The Court of Appeal held that the Registrar's decision to require the payment of security for costs was correct. The Court found that the appeal had little merit as the issues Mrs Howard sought to raise had already been fully determined in earlier proceedings. Furthermore, the Court determined that a solvent and reasonable litigant would not pursue the appeal, and it was not appropriate to require the ACC to defend the judgment without the protection of security for costs. The Court also noted that the relative financial positions of the parties were irrelevant, and the claimed invalidity of the security rules was without merit. Consequently, the application for review of the Registrar's decision was declined.

As a result, the appellant was required to pay the security of $5,880 for the respondent's costs within 20 working days of the judgment. The Court's decision affirmed the necessity of maintaining security for costs in appeals where the prospects of success are low and where there are no exceptional circumstances or public interest factors that would warrant dispensing with the requirement.

Orders