Jones v Accident Compensation Corporation
[2025] NZHC 1306
•23 May 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-377
[2025] NZHC 1306
UNDER the Accident Compensation Act 2001 IN THE MATTER
of an application for leave to appeal
BETWEEN
CRAIG RICHARD JONES
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Judgment
(on the papers):
23 May 2025
JUDGMENT OF ROBINSON J
[Application for an extension of time]
This judgment was delivered by me on 23 May 2025 at 2:00 pm pursuant to Rule 11.5 of the High Court Rules
…………………………………………………………………… Registrar/Deputy Registrar
Solicitors:
Medico Law Ltd, Auckland
Copy to:
The Applicant
JONES v ACCIDENT COMPENSATION CORPORATION [2025] NZHC 1306 [23 May 2025]
Introduction
[1] Mr Jones applies pursuant to s 111 of the Accident Compensation Corporation Act 1982 (1982 Act) for special leave to appeal a decision of the Accident Compensation Appeal Authority (Authority) dated 5 September 2018 (5 September decision).1
[2] On 18 June 2019 the Authority declined Mr Jones’ leave to appeal the 5 September decision (the 2019 leave decision).2 Mr Jones applied to this Court for special leave to appeal on 24 February 2023, by which time the statutory time period for him to do so had long since passed.3 Mr Jones therefore applies for an extension of time within which to apply for special leave to appeal.
[3]Two preliminary issues that arise are:
(a)whether the Court has jurisdiction to extend time for Mr Jones to apply for special leave; and
(b)if so, whether the Court should grant the extension.
Factual and procedural history
[4] The dealings between Mr Jones and the Accident Compensation Corporation (Corporation) concerning the calculation of earnings-related compensation (ERC) paid to Mr Jones in respect of work related injuries he suffered from 1991 to 1992 have a long and complex history. Justice Muir helpfully summarised that history in his decision dismissing Mr Jones’ application for special leave to appeal a decision of the District Court declining his application to recall the 5 September decision and the 2019 leave decision:4
1 Jones v Accident Compensation Authority [2018] NZACA 3.
2 Jones v Accident Compensation Authority [2018] NZACA 6.
3 That statutory time period was either 21 days or 28 days, depending on the proper interpretation of s 391(1) and 391(1)(a) of the Accident Compensation Act 2001 and s 111 of the Accident Compensation Act 1982, as discussed at paragraphs [5] – [8] below.
4 Jones v Accident Compensation Corporation [2022] NZHC 2083 at [2] – [7]. (footnotes omitted.)
[2] On 17 July 1991, Mr Jones sprained his back in the course of his employment as a postal assistant with the New Zealand Post Office. Mr Jones was granted cover for the injury and paid ERC for three weeks in August 1991.
[3] After returning to work, Mr Jones suffered a second workplace injury on 29 January 1992. Mr Jones was recorded as unfit for any type of work from 10 February 1992 for several weeks. No separate claim file was made up for the accident with ERC payments being processed under the July 1991 claim.
[4] On 13 April 1992, Mr Jones resumed work but injured his back within one hour of his return. He was certified as unfit to work. The injury was treated as a fresh accident event and a new claim file was opened. ERC was assessed based on an accident occurring on 13 April 1992.
[5] On 2 November 1992, Mr Jones attended a work trial and his weekly compensation was stopped. On 26 January 1993, Mr Jones was certified as unfit to work and payments restarted. The Corporation recalculated his ECR on the basis that there was a new period of incapacity from January 1993. Mr Jones sought review of that decision and in a decision dated 31 March 1994, a reviewer determined that Mr Jones had been continuously incapacitated from 13 April 1992, up to and beyond January 1993. The reviewer directed a recalculation of Mr Jones’ ECR on the basis of his earnings for the period immediately prior to his injury on 13 April 1992.
[6] In March 2015, Mr Jones again contested the calculation of his ECR with the Corporation. His claim was investigated and a new decision was issued in a decision letter dated 20 June 2017 (the decision letter). The Corporation accepted that the incapacity from 13 April 1992 was related to the incapacity in the two months preceding. For that reason, the Corporation concluded that the incapacity from 13 April 1992 was due to the 1991 back injury and he was therefore entitled to ERC based on his earnings prior to the incapacity commencing on 11 February 1992. The Corporation went on to consider whether ECR ought to be recalculated from 11 February 1992 based on a payslip from November 1991. However, it decided not to revisit the calculation.
[7] What followed the decision letter is a convoluted chain of appeals and various applications leading to the present application. First, Mr Jones sought a review of the decision letter. On 22 December 2017, Mr Jones’ application for review was dismissed by an independent reviewer (the review decision). Secondly, Mr Jones sought to appeal the review decision. On 5 September 2018, that appeal was dismissed by the Authority (the substantive decision). Thirdly, Mr Jones sought leave to appeal the substantive decision to the High Court. On 18 June 2019, the Authority declined leave to appeal (the 2019 leave decision). Fourthly, Mr Jones filed applications to recall the 2019 leave decision and substantive decisions. On 5 August 2021, the District Court declined the recall application in respect of the 2019 leave decision. On 11 August 2021, the District Court declined the recall application in respect of the substantive decision (11 August recall decision). Finally, Mr Jones made an application for leave to appeal against the 11 August recall decision. That application was also declined by the District Court on 19 January 2022 (the 2022 leave decision).
Statutory framework
[5] Under the Accident Compensation Act 1982 (1982 Act), the High Court had discretion to grant an extension of time for a party to seek special leave. Section 111 of the 1982 Act relevantly provides:
111 Appeal to High Court
(1)Where any party is dissatisfied with any order or decision of the Accident Compensation Appeal Authority, that party may, with the leave of the Authority, appeal to the High Court against that order or decision:
Provided that, if the Appeal Authority refuses to grant leave to appeal, the High Court may grant special leave to appeal.
(2)The Appeal Authority or the High Court, as the case may be, may grant leave accordingly on a question of law or if in its opinion the question involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the High Court for decision.
…
(4)Every such appeal shall be made by giving notice of appeal within 28 days after the date on which the appellant was notified of the order or decision appealed against or within such further time as the Appeal Authority or the Court may allow on application made either before or after the expiration of those 28 days.
[6] Although the 1982 Act has been repealed, s 391(1) of the Accident Compensation Act 2001 (2001 Act) provides that Part 9 of the 1982 (which includes s 111) continues to apply in respect of decisions made by the Corporation under the 1982 Act.5
[7] However, 391(1) of the 2001 Act is subject to s 391(1A) which was inserted on 12 April 2019 when the Authority was dis-established. Section 391(1A) provides that:
(1A) Subsection (1) is subject to the following qualifications:
(a)Any appeal to which subsection (1) applies that is commenced on or after [12 April 2019] must be made to the District Court and not to the Accident Compensation Appeal Authority;
5 Jones v Accident Compensation Corporation [2014] NZHC 280 at [4]. I note this case concerned a different applicant with the same name.
(b)To the extent practicable, the procedure for such an appeal is to be the same as the procedure for appeals under Part 5.
[8] Part 5 includes s 162 of the 2001 Act, which provides that an application to the High Court for special leave is to be made within 21 days. Significantly s 162 of the 2001 Act, unlike s 111(4) of the 1982 Act, does not provide for the High Court to extend the time for an intending appellant to apply for special leave. In Armstrong v ACC the Court held it has no jurisdiction to grant such an extension under the 2001 Act.6
Does the Court have jurisdiction to extend time to apply for special leave?
[9] The question that arises is whether the Court’s jurisdiction to extend the time under s 111 of the 1982 Act is still preserved by s 391(1) of the 2001 Act, or whether this is a matter of procedure which, pursuant to s 391(1A)(b), is to be the same as for an appeal under the 2001 Act. In Jones v ACC Muir J identified the issue, but did not need to determine it.7 With the passage of time the issue is increasingly unlikely to arise: it relates to applications made after 12 April 2019 to extend the time to apply for special leave to appeal decisions made under the 1982 Act.
[10] The Corporation submits that the time for bringing an application for special leave is a matter of procedure and should be dealt with in the same way as applications under the 2001 Act. If this is accepted, there is no scope for the extension of time beyond the 21 day period referred to in s 162(4) of the 2001 Act. Counsel submits this is most consistent with the wording of s 391(1A), and the Parliamentary intention behind s 391(1A) to remove previous differences and assimilate the process for appealing the Corporation’s decisions made under the different statutes.
[11] There is logic to the Corporation’s submission. However, I am not satisfied that the differences between s 111(4) of the 1982 Act and s 162 of the 2001 Act are purely procedural. Under s 111(4) of the 1982 Act, this Court had jurisdiction to extend time for an intending appellant to seek special leave to appeal. Under s 162 of the 2001 Act, it does not. Ultimately, this difference concerns the extent of an
6 Armstrong v Accident Compensation Corporation HC Auckland CIV-2011-485-860.
7 Jones v Accident Compensation Corporation, above n 4, at [38] (with reference to footnote 31).
intending appellant’s access to the Court. Issues concerning access to the Court are fundamental and substantive issues, not purely procedural. I therefore do not accept the Corporation’s submission that s 391(1A)(b) would preclude the Court from extending the time for Mr Jones to apply for special leave.
Should the Court extend the time for Mr Jones to apply for special leave?
[12] Having determined that the Court has jurisdiction to extend the time for Mr Jones to seek special leave to appeal, I turn to consider whether the Court should exercise its jurisdiction to do so.
[13] The Court has previously held the following factors are relevant in determining whether to grant an extension of time under s 111(4) of the 1982 Act:8
(a)the length of the delay;
(b)the reasons for the delay;
(c)the strengths and merits of the appeal; and
(d)any prejudice arising to the Corporation in the event that an extension is granted.
[14] Unsurprisingly, the factors are very similar to the factors the Court will take into account when asked to exercise its discretion to allow appeals out of time.9
[15] Counsel for the respondent points out that under s 111 of the 1982 Act, Mr Jones was required to file his application for special leave by 16 July 2019, being 28 days after the Authority declined to grant leave. But Mr Jones did not apply for special leave until 22 February 2022. This three year and seven-month delay is significant.
[16] Counsel for the Corporation submits there is no good reason for that delay. During that time Mr Jones was highly active. He has challenged the Authority’s
8 Jones v Accident Compensation Corporation, above n 5, at [10], citing McDougall v Accident Compensation Corporation (1983) 4 NZAR 85 (HC).
9 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38].
decision by applying for the decision to be recalled. He applied for special leave to appeal the decisions declining recall. He has made complaints about counsel and the Authority member, and sought remedies through the Privacy Commissioner and the Human Rights Review Tribunal.
[17] Counsel submits that even if Mr Jones mistakenly thought he could not seek an extension of time to apply for special leave, this does not explain why he did not make the application in time in the first place. Nor does it explain why he did not apply for an extension of time until seven months after Muir J’s judgment on 22 August 2022 that indicated that he may be able to do so.
[18] Counsel submits that Mr Jones has a history of delay. Counsel points out that the Authority’s decision declining Mr Jones leave to appeal records that he had failed to provide submissions as directed, despite a previous warning and an extension of time.10
[19] In terms of the merits of the appeal, counsel submits that Mr Jones’ complaints focus on the Authority’s factual findings and assessment of the evidence, but do not appear to raise any important questions of law or public significance to justify granting special leave. On the other hand, counsel responsibly accepts that the Corporation would not be significantly prejudiced by an extension of time.
[20] There is merit in each of these submissions. However, it does appear that from 16 July 2019 until 22 August 2022 Mr Jones might mistakenly, but not unreasonably, have believed that he was unable to apply for an extension of time. In Jones v ACC Muir J noted that:11
[37] Mr Jones argues that if [the Court does not grant his application for special leave to appeal the decisions not to recall the Authority’s 5 September decision] then there is no remedy available to him because his right to seek special leave of the High Court to appeal the substantive decision has long expired. He says that if the Corporation is unable or unwilling to waive the time limit on such application, then there is no other vehicle for him to address his alleged injustices than for this Court to allow him leave to appeal the recall decision and in due course grant that appeal.
10 Jones v Accident Compensation Corporation, above n 2, at [13].
11 Jones v Accident Compensation Corporation, above n 4.
[38] But that assumes s 162 of the 2001 Act applies when any application for leave to appeal the substantive decision would be governed by s 111 of the 1982 Act.
[21] Although not a complete answer, this goes a long way towards explaining Mr Jones’ lengthy delay in seeking an extension of time.
[22] I also note that since Muir J’s decision, Venning J has declined Mr Jones’ application for judicial review of the 5 September decision, largely on the grounds that, if he has a remedy at all, it is by way of appeal. .12
[23] Although there may prove to be merit in the Corporation’s submission that Mr Jones’ complaints are factual and do not raise significant legal issues, at this stage the Court should only consider the merits of Mr Jones’ application for special leave in a relatively superficial way.13 Without further assistance I am not presently in a position to carry out even that level of assessment.
[24] Although the matter is finely balanced, I am satisfied it is appropriate pursuant to s 111(4) of the 1982 Act to extend the time for Mr Jones to apply for special leave to appeal the Tribunal’s decision dated 5 September 2018. The matter is to be listed in the Civil Appeals List so that appropriate directions can be made to determine that application for special leave to appeal.
Result
[25] The time for Mr Jones to apply for special leave to appeal the Authority’s decision dated 5 September 2018 is extended to 28 February 2023. Costs are reserved.
Robinson J
12 Jones v Accident Compensation Authority [2025] NZHC 534 at [48].
13 Almond v Read, above n 9, at [39].
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