Howard v Accident Compensation Corporation

[2018] NZHC 3342

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2018-419-000252

[2018] NZHC 3342

UNDER

the Accident Compensation Act 2001

IN THE MATTER OF

an application for special leave to appeal pursuant to s 162 of the Accident

Compensation Act 2001 (the Act)

BETWEEN

MAREE HOWARD

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

10 December 2018

Appearances:

Appellant in person (J Howard support/spokesperson for Appellant)

P A McBride for Respondent

Judgment:

17 December 2018

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 17 December 2018 at 10.00 am

pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date………………………

HOWARD v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 3342 [17 December 2018]

Introduction

[1]                 This is an application for special leave to appeal a decision of Judge Powell (as he then was) dismissing an appeal against a review decision which had been made under s 134 of the Accident Compensation Act 2001 (ACA).1

[2]                 The application for special leave is brought pursuant to s 162 of the ACA, which only permits an appeal on a question of law. It provides that:

(1)A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.

(2)The leave of the District Court must be sought within 21 days after the District Court’s decision.

(3)If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

(4)The special leave of the High Court must be sought within 21 days after the District Court refused leave.

(5)The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.

[3]                 The principles applying to special leave are well settled: the question of law must arise squarely from the challenged decision and must be capable of bona fide and serious argument.2 Even if the threshold test is satisfied, the granting of special leave involves the exercise of a discretion. The nature of the appeal and the public interest in ensuring the proper use of scarce judicial resources are relevant factors.3

[4]                 Mrs Howard does not have legal representation but, due to her various medical conditions, this Court permitted her husband to appear for her. Mr Howard has run Mrs Howard’s litigation for her in this and other proceedings. He clearly has an interest in and knowledge about the ACA. But, understandably, his understanding of broader aspects of court process, particularly the concepts of issue estoppel, abuse of process and the need for finality in litigation, is limited.

1      Howard v Accident Compensation Corporation [2017] NZACC 76.

2      Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5] e.g. Rameka v Accident Compensation Corporation [2015] NZHC 730 [2015] NZAR 685.

3      Farrelly v Accident Compensation Corporation [2016] NZHC 3153 at [2].

Application not filed in time

[5]                 Section 162(4) of the ACA requires an application for special leave to be made within 21 days after the District Court declines leave. Judge A P Christiansen declined leave to appeal on 20 June 2018.4 The last day for Mrs Howard to file her application for special leave was therefore 11 July. In this case there is an issue over whether Mrs Howard filed her application within time.

[6]                 Under the High Court Rules, which apply with all necessary modifications to s 162 appeals, an application is made by filing it in the court.5 The act of filing requires the documents to be lodged with the Court in the form required by the Rules in the proper registry. The Hamilton Registry was the registry in which Mrs Howard’s application for special leave was required to be filed because the hearing under appeal took place in Hamilton and r 20.8(1) of the High Court Rules requires, subject to any contrary enactment, a notice of appeal to be filed in the registry of the Court nearest to the place where the hearing of the matter under appeal took place.

[7]                 However, Mrs Howard sought to file the application for special leave in the Wellington Registry on 6 July 2018.6 What happened after that is unclear. Mr Howard maintains that the Wellington Registry transferred the documents to the Hamilton Registry. In an affidavit addressing the issue of filing and service, Mrs Howard has produced a document that appears to be an email from a Deputy Registrar at the Wellington Registry to Mr Howard confirming that:

… the Wellington High Court has received your documents seeking special leave to appeal however they will be forwarded to the Hamilton High Court as the appropriate court for filing.

[8]                 However, there is no evidence that documents were, in fact, sent from Wellington to Hamilton. Instead, the first document on the Hamilton Court file is a letter from Mrs Howard to the Hamilton Registry enclosing the application for special leave and other associated documents. That letter was date stamped 26 July 2018.

4      Howard v Accident Compensation Corporation [2018] NZACC 97.

5      High Court Rules 2016, r 20.3.

6      It is not clear from the documents or evidence why it was filed in the Wellington Registry. It may be because ACC has its service address in Wellington.

The only application for special leave on the Hamilton Court file is one intituled as having been filed in the Hamilton Registry and date stamped 26 July 2018.

[9]                 In these circumstances, I am bound to proceed on the basis that no documents were transferred from Wellington to Hamilton. Instead, a fresh application for special leave was filed on 26 July 2018 in Hamilton. That is several days outside the time required for the filing of the application for special leave.

[10]              In several High Court decisions dealing with this same issue under s 162, the approach has consistently been to recognise that there is no ability for the Court to extend or waive the time limit in s 162(4) and, moreover, that the absolute time limit is consistent with the high threshold required for special leave. The law is clear that, in these circumstances, the application is to be treated as having been filed out of time and, further, that there is no jurisdiction to extend that time.7 There is no provision for the extension of the time frame provided in s 162(5). In Attorney-General v Howard, the Court of Appeal took the view that the courts cannot extend time for filing unless there is an express statutory provision allowing it to do so.8

[11]              On the facts before me, Mrs Howard’s application for special leave was brought out of time and must fail for that reason alone. However, the history of this matter makes further steps likely and I therefore proceed to explain why, even if the application had been filed within time, I would have refused to grant special leave.

Why the application for special leave would have failed in any event

Background

[12]              Maree Howard suffered two spinal injuries in 2006 and 2007 which were both covered by the ACA. By October 2010, however, a stalemate existed between her and Care  Advantage  Ltd  (CAL),  which  managed  the  work  accident  claims  for   Mrs Howard’s then employer, NZ Post. In essence, Mrs Howard wished to be referred to  an  orthopaedic  surgeon  and  to  have  treatment  including  physiotherapy  and

7      M v Accident Compensation Corporation [2018] NZHC 1919 at [4]; Crockett v Accident Compensation Corporation [2018] NZHC 2432 at [14]–[16], referring in part to Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 in the context of the Human Rights Act 1993.

8      Attorney-General v Howard, above n 7, at [100].

acupuncture. CAL was reluctant to do that until Mrs Howard had been assessed by an occupational specialist. Mrs Howard did not regard this as sensible.

[13]              In October 2010, CAL required Mrs Howard to attend an assessment by an occupational specialist.9 Although Mrs Howard attended the appointment, the assessment did not proceed, apparently because of Mrs Howard’s concern about the assessor’s (Dr Kenny) suitability. That led to Mrs Howard’s entitlements being suspended for unreasonably refusing or failing to permit an examination.10 In a letter dated 11 November 2010, CAL advised that:

You were provided on several occasions with information on the consequences of not attending and completing this assessment. I therefore regret to advise that we decline to provide entitlements, effective from Friday 26 November 2010.

[14]That letter led to the following pieces of litigation:

(a)Application to review the decision to suspend entitlements. The reviewer held that CAL’s decision to require Mrs Howard to attend the occupational assessment was reasonable and that she had unreasonably failed to comply with that requirement.

(b)Appeal against the reviewer’s decision, which was dismissed by Judge Ongley.11

(c)Application for leave to appeal to the High Court, which Judge Joyce QC declined.12

(d)Application for special leave to appeal to the High Court which Williams J declined.13

9      Accident Compensation Act 2001, s 72.

10     Accident Compensation Act 2001, s 117(3).

11     Howard v Accident Compensation Corporation [2012] NZACC 218.

12     Howard v Accident Compensation Corporation [2012] NZACC 388.

13     Howard v Accident Compensation Corporation [2013] NZHC 188.

(e)Application to the High Court for leave to appeal to the Court of Appeal against the refusal to grant special leave, which Williams J declined.14

(f)Application to the Court of Appeal for special leave to appeal, which was dismissed.15

(g)Application to the Supreme Court for leave to appeal, which was dismissed for want of jurisdiction.

(h)Application to the Supreme Court to review the Registrar’s decision, which was dismissed.16

(i)Application to the Supreme Court to revoke the Registrar’s decision, which was dismissed.17

[15]              Having exhausted the available avenues in relation to those proceedings, Mrs Howard commenced fresh proceedings by way of judicial review seeking to set aside the 18 October 2010 notice that required her to attend the occupational assessment. Mrs Howard’s claim was struck out as an abuse of process.18 Clifford J identified two aspects to Mrs Howard’s claim. The first was a challenge to the s 72 notice. He considered the validity of the s 72 notice had already been determined by Judge Ongley, with the result that it would be an abuse of process to re-litigate that issue.

[16]              The second aspect was a challenge to the failure to make a decision on the two requests for treatment made on 1 and 30 March 2010. Noting that there had been no express determination of that issue in earlier proceedings, Clifford J nevertheless considered that the claims were clearly part of the subject matter of the earlier litigation, could have been the subject of review or appeal in that earlier litigation and

14     Howard v Accident Compensation Corporation [2013] NZHC 1004.

15     Howard v Accident Compensation Corporation [2013] NZCA 617.

16 Howard v Accident Compensation Corporation [2014] NZSC 31, (2014) PRNZ 815 records at [6] and fn 6 that this occurred by way of a letter from McGrath J, dated 14 February 2014, who confirmed the Registrar's decision.

17     Howard v Accident Compensation Corporation, above n 16.

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

that it would therefore be an abuse of process to allow that issue to be litigated in separate proceedings. I respectfully agree with that conclusion.

The present proceedings

[17]              Mrs Howard applied under s 134(1)(b) of the ACA for a review of the Corporation’s failure to respond promptly to treatment claims made during the period of suspension. The reviewer declined jurisdiction because the Corporation had no obligation to make entitlement payments during the suspension period.

[18]              Mrs Howard appealed the reviewer’s decision. Mrs Howard advanced her appeal on the basis that there had not been any decision about her claims for treatment costs and no judicial determination of those claims and that, in any event, she was entitled to lodge a claim for reinstatement of suspended entitlements and did so, thereby engaging s 117(3B). Judge Powell dismissed the appeal. He considered that the appeal was essentially a collateral attack on the original suspension decision which was now “utterly beyond dispute”.19 Moreover, since the suspension decision had not been revoked, the Corporation was under no obligation to provide any entitlement so s 117(3B), which is only engaged when entitlements are no longer suspended, could not assist.

[19]              Mrs Howard applied unsuccessfully for leave to appeal the District Court’s decision.20 She now applies to this Court for special leave to appeal.

[20]              Before me, Mr Howard raised two main arguments. The first was that he had put substantial material before Judge Powell which related to the underlying circumstances giving rise to the suspension and, although it was discussed during the hearing, it was not referred to in the Judge’s decision. This ground does not raise any question of law, much less one that would justify special leave being granted. Although judges are required to give reasons for their decisions, it is not possible, and they are not required, to refer to every piece of evidence or submission raised in argument. It is evident from Judge Powell’s decision that he regarded the underlying

19     Howard v Accident Compensation Corporation, above n 1, at [7].

20     Howard v Accident Compensation Corporation, above n 4.

factual material as having little, if any, relevance to the legal issues arising in the appeal before him. All of those issues had already been considered and determined in the previous proceedings and it would have been inappropriate and unnecessary for him to embark on an extensive consideration of them.

[21]              Mr Howard’s second broad area of challenge was that the Judge had misinterpreted s 117(3). He argued that the wording of s 117(3), under which the Corporation was entitled to “decline to provide any entitlement”, did not mean that it was entitled to decline “all entitlements”. This argument is untenable because, in ordinary language, a power to decline “any” must extend to every entitlement. In any event, the same argument was raised and dismissed summarily by Williams J in relation to the application for special leave.21 It is therefore not open to Mrs Howard to raise it again. In submissions, Mr Howard emphasised the need to determine each proceeding on its own merits. This does not, however, include allowing the same argument that has already been decided between the same parties to be raised again in other proceedings. That would be contrary to the principle of issue estoppel or res judicata. As the Court said in Danone Asia Pacific Holdings Pte Ltd v Fonterra Co- Operative Group, the general principle is “that a party and its privies should not be twice vexed in the same matter”.22

[22]              Nor could there be any error in relation to s 117(3B) because that provision, plainly, relates to a period after the Corporation has resumed providing entitlements. That is not the case here.

[23]              No matter how Mr Howard frames his arguments, the underlying complaint in this case and in all of the other proceedings involving Mrs Howard’s claim is that the ACC should not have suspended her entitlements. Rightly or wrongly, that issue has now been determined. Mr Howard does not seem to grasp that finality in litigation relates to the substantive complaint. Once a substantive issue has been raised and determined in litigation between the parties it cannot be raised again. Advancing it in

21     Howard v Accident Compensation Corporation, above n 13, at [28].

22 Danone Asia Pacific Holdings Pte Ltd v Fonterra Co-operative Group [2014] NZCA 536 at [18] citing, inter alia, Johnson v Gore Wood & Co (a firm) [2002] 2 AC 1 (HL) at 31 per Lord Bingham and at 60 per Lord Millett. See also Bhanabhai v Commissioner of Inland Revenue [2007] 2 NZLR 478 (CA) at [59]–[61].

the guise of some other form of proceeding or framed as another kind of complaint cannot disguise its true nature.

[24]              I note also, as Judge Powell did, that Mrs Howard has a much more straightforward and inexpensive course open to her. It is, and always has been, open to her to approach the ACC, undertake the assessment that was required and seek to have entitlements resumed and then, if appropriate, entitlements during the period of suspension met under s 117(3)(A). For some reason, Mr Howard was extremely resistant to this idea.

[25]              It is of serious concern that precious court resources continue to be taken up in advancing essentially the same argument in different forms. This litigation may justify an application under s 166 of the Senior Courts Act 2016, which is intended to restrain the unwarranted and vexatious use of the court process for cases that have no merit.

Result

[26]The application for special leave is declined.

[27]The Corporation is to have costs on a 2B basis.

P Courtney J