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…

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: [2018] NZHC 3342
Decision Date: 17 December 2018

CaseChat Overview and Summary

The matter before the court was an application for special leave to appeal a decision of Judge Powell dismissing an appeal against a review decision made under section 134 of the Accident Compensation Act 2001. The appellant, Maree Howard, sought to appeal the decision on a question of law under section 162 of the Act. The legal issues the court was required to decide were whether the application for special leave was filed within the required time frame and, if it was, whether special leave should be granted.

The court found that the application for special leave was not filed within the 21-day period required by section 162(4) of the Act. The court further found that even if the application had been filed within time, special leave should not have been granted. The court held that the appellant's underlying complaint was that the Accident Compensation Corporation should not have suspended her entitlements, an issue that had already been determined. The court noted that the appellant had a simpler and more straightforward course open to her, which was to approach the Accident Compensation Corporation, undertake the required assessment, and seek to have entitlements resumed and then, if appropriate, entitlements during the period of suspension met under section 117(3)(A).

The court declined the application for special leave and ordered that the Accident Compensation Corporation was to have costs on a 2B basis. The court also noted that the litigation may justify an application under section 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.

Orders