Howard v Accident Compensation Corporation (ACC) - [2023] NZHC 1734

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000126

[2023] NZHC 1734

UNDER The Accident Compensation Act 2001 (the Act)

IN THE MATTER OF

An application for special leave to appeal – s 163(3)

BETWEEN

MAREE EILEEN HOWARD

Applicant

AND

ACCIDENT COMPENSATION CORPORATION (ACC)

Respondent

Hearing: On the Papers

Appearances:

Applicant self-represented P McBride for Respondent

Judgment:

5 July 2023

JUDGMENT OF CULL J

[1] Ms Howard, the applicant, seeks leave to appeal the decision of Judge Henare dated 21 February 2023.1 Judge Henare declined Ms Howard’s application for leave to appeal to the High Court from the decision of Judge Spiller of 18 August 2022, in which Judge Spiller dismissed an appeal against an ACC reviewer’s decision for want of jurisdiction.2

1 Howard v Accident Compensation Corporation [2023] NZACC 25.
2 Howard v Accident Compensation Corporation [2022] NZACC 152.

HOWARD v ACCIDENT COMPENSATION CORPORATION (ACC) [2023] NZHC 1734 [5 July 2023]

[2] ACC, the respondent, opposes the application for special leave on the grounds that there is no jurisdiction to entertain this application under s 162 of the Accident Compensation Act 2001 (the Act) and there is no basis for a grant of special leave, on any of the issues that Ms Howard advances.

Background

[3] Ms Howard suffered two ACC-covered spinal injuries, the first in 2006, and the second in 2007. She worked for New Zealand Post at the time, who was an accredited employer and whose work-accident claims were managed by Care Advantage.

[4] On 27 May 2010, Ms Howard committed to and signed an Individual Rehabilitation Plan (IRP). Care Advantage sought medical advice about vocational rehabilitation for Ms Howard, and referred her to Dr Courtney Kenny, an occupational physician, for an assessment. At the appointment, Ms Howard and her husband questioned Dr Kenny’s suitability to assess her and because of their objections, agreed not to conduct the assessment.

[5] On 11 November 2010, Care Advantage wrote to Ms Howard recording what occurred. Care Advantage noted that the appointment had been arranged in accordance with s 72 of the Act. Section 72 provides that a claimant who receives any entitlement must, when reasonably required to do so by ACC, undergo assessment by a registered health professional specified by ACC, at ACC’s expense.3

[6] In its letter, Care Advantage advised that Ms Howard had been provided with information about the consequences of not attending or not completing the assessment on several occasions. Accordingly, Care Advantage made the decision under s 117 to suspend Ms Howard’s ACC entitlements. Section 117 allows ACC to decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to: comply with any requirement of the Act;4 or agree to, or comply with, an individual rehabilitation plan.5

3      Accident Compensation Act 2001, s 72(1)(d).
4      Section 117(3)(a).
5      Section 117(3)(c).

[7] Care advantage’s letter set out Ms Howard’s options for internal review through her employer, and her rights 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: [2023] NZHC 1734
Decision Date: 5 July 2023

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether Maree Eileen Howard could appeal the decision of Judge Henare, who declined her application for leave to appeal. Howard sought to challenge the District Court decision dismissing her appeal against an Accident Compensation Corporation (ACC) reviewer's decision for lack of jurisdiction. Howard argued that the District Court failed to properly construe or apply statutory provisions, failed to take into account relevant material, and made an error of law by not giving adequate reasons for his conclusion and decision. ACC opposed the application for special leave to appeal, arguing there was no jurisdiction to entertain the application under section 162 of the Accident Compensation Act 2001 and no basis for granting special leave.

The High Court considered whether there was an issue of principle at stake or a considerable amount that hinged on the decision, and whether there was a reasonable prospect of success. The Court found that Judge Henare had carefully considered each of Howard's grounds, and that the appeal was an abuse of process to relitigate the same underlying complaint that had been decided by various courts. The Court concluded that there was no basis to grant special leave to appeal from Judge Henare's decision, or against the earlier decision of Judge Spiller. The appeal was declined, and the respondent was granted leave to seek costs.

This case highlights the importance of finality in litigation and the need to ensure that scarce judicial resources are allocated sensibly. The Court emphasised that the purpose of requiring leave for certain appeals is to ensure that judicial time is allocated sensibly and that leave ought not to be granted as a matter of course. The Court also noted that the fact that special leave is required is significant and suggests that leave ought not to be granted without an extraordinary factor.

Orders