Jones v Accident Compensation Corporation

[2022] NZHC 2083

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-735

[2022] NZHC 2083

UNDER

the Accident Compensation Act 2001

IN THE MATTER

Of an application for special leave to appeal to the High Court.

BETWEEN

CRAIG RICHARD JONES

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:

27 July 2022

Counsel:

Applicant in person

L Hawes-Gandar and F Becroft for Respondent (All by VMR)

Judgment:

22 August 2022

JUDGMENT OF MUIR J

[Re: leave to appeal]

This judgment was delivered by me on 22 August 2022 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Medico Law Limited, Auckland

JONES v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 2083 [22 August 2022]

Introduction

[1]    The applicant, Mr Jones, seeks the special leave of this Court to appeal a decision of Judge Sinclair declining an application to recall a decision by the Accident Compensation Appeal Authority (Authority). He does so having been declined leave by that Judge.

Background

[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 earnings related compensation (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 investigat 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).1 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).2 Fourthly, Mr Jones filed applications to recall the 2019 leave decision and the substantive decision. On 5 August 2021, the District Court declined the recall  application  in respect  of the  2019  leave  decision.3  On 11 August 2021, the District Court declined the recall application in respect of the substantive decision (11 August recall decision).4 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).5

11 August recall decision

[8]    Judge Sinclair identified two issues for determination in her recall decision. The first issue was whether there was jurisdiction to recall the substantive decision. The second issue was whether there was any basis for a recall.

1      Jones v Accident Compensation Corporation [2018] NZACA 3 [The substantive decision].

2      Jones v Accident Compensation Corporation [2018] NZACA 6.

3      Jones v Accident Compensation Corporation [2021] NZACC 123.

4      Jones v Accident Compensation Corporation [2021] NZACC 127 [11 August recall decision].

5      Jones v Accident Compensation Corporation [2022] NZACC 006 [2022 leave decision].

[9]    In addressing the first issue, the Judge began with an overview of the relevant transitional provisions in the Accident Compensation Act 2001 (the 2001 Act) relating to the Authority and the Accident Compensation Act 1982 (the 1982 Act). The Judge noted that the present application to recall the 2018 substantive decision was filed well after the disestablishment of the Authority on 11 April 2019 and fell outside the Authority’s limited continuing mandate to complete “all matters-in-process”.6

[10] In regard to the law governing appeal procedure, the Judge noted that pursuant to s 391(1) of the 2001 Act, Part 9 of the 1982 Act continues in force to apply to reviews and appeals brought against decisions made by the Corporation under the 1982 Act.7 The Judge observed that the operation of s 391(1) is qualified by s 391(1A) which provides that any appeals commenced after 12 April 2019 and brought under the 1982 Act must be made to the District Court. To the extent practicable, s 391(1A) requires the procedure for such appeals to be the same as under Part 5 of the 2001 Act.8

[11]   Her Honour then referred to the decision in Accident Compensation Corporation v Smith.9 In that case, the Corporation was granted leave to appeal to the High Court on the question of whether the Authority had the power to recall a sealed decision. Nicholas Davison J held that it did not have such power.10 That decision was reached on the basis that a “statutorily-constituted court or tribunal has no inherent jurisdiction beyond its power to regulate its own procedure to the extent necessary to enable it to act effectively”.11 Significantly, Davison J distinguished between powers and procedures, confirming that the Authority’s power to determine procedure does not allow it to increase its jurisdiction.12

[12]   Judge Sinclair noted that in determining a matter under Part 9 of the 1982 Act, the District Court has available to it the procedures under Part 5 of the 2001 Act.

6      11 August recall decision, above n 4, at [20]–[22].

7 At [23].

8 At [24].

9      Accident Compensation Corporation v Smith [2016] NZHC 2051, [2016] NZAR 1152.

10 At [94].

11 At [67].

12 At [69].

However, it had no greater powers than those conferred on the Authority.13 Accordingly, following the holding in Smith, her Honour concluded that there was no jurisdiction for the District Court to recall the sealed substantive decision.14

[13]   The Judge then turned to consider the second issue, explaining that even if the District Court had jurisdiction to recall, she would not have granted the application. That conclusion was based on an overview of the principles governing recall in Horowhenua County (No.2),15 an analysis of Mr Jones’ argument,16 and a finding that Mr Jones had not established a “special reason” which necessitated the granting of recall.17

The 2022 leave decision

[14]   On 19 January 2022, Judge Spiller declined Mr Jones’ application for leave to appeal against Judge Sinclair’s decision declining an application for recall.18

[15]   The Judge identified the relevant threshold question as being whether “the District Court, in considering an application for recall of a decision of the [Authority], has the power to order such recall.”19

[16]   In addressing that issue, the Judge recorded that Mr Jones did not advance any argument or reason as to why the District Court’s finding on jurisdiction was incorrect. His submissions were said to have focussed on the merits of granting recall of the

13     11 August recall decision, above n 4, at [29].

14 At [30].

15 At [33].

16 At [36]–[39]. Before the District Court Mr Jones’ argument was based exclusively on the proposition that in a Human Rights Review Tribunal decision post-dating the substantive decision in this case (Vivash v Accident Compensation Corporation [2020] NZHRRT 16) the Tribunal held that destruction of Mr Vivash’s physical file amounted to a breach of Information Privacy Principle 5 entitling him to compensation. Mr Jones argued that because this decision post-dates the Authority decision and infers that he might likewise have a claim for breach of his privacy, this justified reconsideration by the Authority on a recall application. This argument was rejected by Judge Sinclair on the basis (correctly in my view) that Vivash governs relief that may be available to Mr Jones under the Privacy Act 1993 but does not affect entitlements under the Accident Compensation regime.

17 At [43].

18 2022 leave decision, above n 5.

19 At [26].

Authority’s decision and certain allegations regarding the way in which his matter has been handled by the Authority and the District Court.20

[17]   Unaided by Mr Jones, the Judge proceeded to analyse the threshold question and concluded that Judge Sinclair:

[30] … correctly deduced that the District Court, now standing in place of the Authority in relation to appeals such as that of Mr Jones, did not have power under the 1982 Act to recall decisions of the Authority.

[18]   In light of that finding, Judge Spiller found it unnecessary to evaluate Mr Jones’ submissions on the merits of recall. However, the Judge did reject Mr Jones’ allegation of bias on the part of the Authority and his submission that it was inappropriate for Judge Sinclair to determine his application for recall.21

[19]   In the absence of any valid argument to the contrary on the jurisdictional issue, Judge Spiller concluded there was no point of law capable of bona fide and serious argument. Nor did Judge Spiller find any question which, by reason of its general importance, ought to be submitted to the High Court for decision.22 The application was thus dismissed.

Approach on application for special leave

[20]   Mr Jones seeks the special leave of this Court to appeal against the 11 August recall decision. The relevant test governing his application is found in s 111 of the 1982 Act:23

111. Appeal to High Court—

(l)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.

20 At [27].

21 At [31].

22 At [32].

23 Although Mr Jones advanced his application under s 162 of the 2001 Act and intituled his proceedings accordingly, his application is to be determined under s 111 of the 1982 Act by virtue of s 391 of the 2001 Act.

(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.

…

[21]   In Kenyon v Accident Compensation Corporation, Fisher J summarised the principles which apply to an application for special leave:24

(a)the purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;25

(b)although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an error of principle at stake or a considerable amount hinges on the decision and that there is a reasonable prospect of success;26

(c)the fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course;27

(d)it is for the applicant to show that leave is required in the interests of justice;28 and

(e)as leave has already been refused by the District Court there will normally have to be some extraordinary factor which has not been properly taken into account.29

24     Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].

25     Sandle v Stewart [1982] 1 NZLR 708 (CA).

26     Manawatu Co-operative Dairy Co Ltd v Lawry [1988] DCR 509 (DC) and Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43 (HC).

27     O’Loughlin v Healing Industries Ltd (1990) 2 PRNZ 464 (HC).

28     Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).

29     Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43 (HC).

Submissions

Mr Jones

[22]   Mr Jones’ written submissions on the issue of jurisdiction left me somewhat confused so I spent some time during oral argument trying to distil his essential propositions. Ultimately, I reduced these to the following statement which I recorded, read to Mr Smith and with which he agreed:

Although I understand the principle in Accident Compensation Corporation v Smith the courts must be fair and just and in this case Mr Plunket [the Authority] fell into error in a way which entitles me to redress. Because I am unable to progress an appeal from the substantive decision dated 5 September 2018, this Court should grant me leave to argue that the decision should be recalled.

[23]   Mr Jones’ stated inability to progress an application to this Court for special leave to appeal the substantive decision was said by him to derive from his failure to do so within the relevant statutory time limits which are imposed by s 162 of the 2001 Act and which Ellis J held in Armstrong v Accident Compensation Corporation30 to be incapable of waiver on an application to the High Court for special leave.31

[24]   As to the reasonable prospects of success on a recall application, Mr Jones again places significant weight on the fact that the physical file relating to his 17 July 1991 back sprain has since been destroyed by the Corporation and, as a result, he is no longer able to produce and rely on the earnings certificate which he says should have governed the outcome on the substantive decision. He repeats his arguments before Judge Sinclair in this respect.

30 Armstrong v Accident Compensation Corporation HC Auckland  CIV-2011-485-0860,  5 September 2011.

31 Unlike the position on application to the District Court (see Siola’a v Wellington District Court [2008] NZCA 483, [2009] NZAR 23). However, in this case any appeal from the substantive decision (or associated application for leave) is governed by s 111 of the 1981 Act under which the High Court has allowed extensions to the time limit for an application for special leave to appeal (for example in Morgan v Accident Compensation Corporation [2012] NZHC 1789 Peters J granted a marginal extension and in Jones v Accident Compensation Corporation [2014] NZHC 289 Ellis J suggested that time extensions are possible for applications for special leave under s 111, but declined it on the facts of the case). The application of s 111 is however now qualified by s 391(1A) of the 2001 Act which provides that the procedures for appeals brought under the 1981 Act are, to the extent practicable, to be the same as those for appeals under Part 5 of the 2001 Act. Whether the power to waive a time limit under s 111 survives the operation of s 391(1A) is not an issue relevant to the determination of this application. Nor have any of those issues been sufficiently addressed in submissions to make any useful obiter observations.

[25]   In addition, he takes issue with a Minute issued by Powell J on 8 June 2022 in which his Honour identified “no basis” for Mr Jones’ application for the Corporation to produce the destroyed documents. Mr Jones says it is clear from the minute that he was neither given justice nor will be given justice on the missing records issue.

[26]   In the course of oral argument, he also returned to the proposition advanced before Judge Spiller, that the Authority was biased against him exemplified, he said, by rejection of the evidence he provided about earnings and conducting what he submitted was its own inquiries.

The Corporation

[27]   Ms Becroft, for the Corporation, submits that it is not seriously arguable that the District Court was wrong in finding that it did not have jurisdiction to recall the Authority’s substantive decision. In making this submission she relies on Accident Compensation Corporation v Smith in which this Court confirmed that the Authority, as a statutory body, lacked inherent jurisdiction and had no power to recall sealed decisions in the absence of an express statutory power to do so.32 Further, Ms Becroft notes that while the District Court has power to recall its own decisions, that is only possible where a decision has not yet been perfected by sealing, as the substantive decision was in this case.

[28]   Ms Becroft says that if the Court agrees with her submission on this point then that will be sufficient to dispense with the application. In the event the Court reaches a conclusion that there is a serious argument that the District Court had jurisdiction to recall the Authority’s decision, then Ms Becroft submits that it would not be in the interests of justice to grant special leave. In support of that submission Ms Becroft draws attention to Judge Sinclair’s view that there is no special reason to justify recall of the substantive decision, even if jurisdiction existed to order it.

[29]   In addition, Ms Becroft says that in order to reverse the District Court’s discretionary decision and order recall, this Court would need to be satisfied that the District Court based its decision on a wrong principle, failed to consider a relevant

32     Accident Compensation Corporation v Smith, above n 9.

matter, considered an irrelevant matter or was plainly wrong. She submits that neither of those grounds can be made out and that in dismissing the application for recall, Judge Sinclair appropriately considered the grounds raised by Mr Jones in support of his application for recall and correctly applied the legal principles governing recall applications as laid out in Horowhenua Counties v Nash (No.2).33

Discussion

[30]   Accident Compensation Corporation v Smith establishes an unambiguous principle with which I respectfully agree for the reasons enunciated by Davison J. The Authority does not, on an account of an absence of statutory authority, have the power to recall its sealed decisions. Simply, the recall of a sealed decision is an exercise of substantive power that requires jurisdiction; it is not something that can be sourced by necessary implication from the inherent procedural powers which arise from and support the statutory jurisdiction of the Authority.

[31]   On that basis Judge Sinclair did not err in declining Mr Jones’ application for recall. Moreover, for the reasons her Honour explained, the District Court, standing in the stead of the Authority, had no greater powers than the Authority in this respect.34 There is accordingly no seriously arguable question that the District Court was wrong in the conclusion that it reached.

[32]   At one level that resolves Mr Jones’ application. However, he relies on various obiter observations of Davison J in Smith where the Judge discusses the High Court’s inherent jurisdiction to grant recall, even of a sealed judgment, in what he describes as sufficiently “exceptional” cases to “disturb the principles of finality and limited jurisdiction”.35

33     Horowhenua County v Nash (No.2) [1968] NZLR 632 (SC).

34     11 August recall decision, above n 4, at [29].

35     Accident Compensation Corporation v Smith, above at n9, at [83].

[33]   In the High Court the starting point is that once a judgment is sealed it must stand for better or worse, subject of course to any further rights of appeal.36 However, as noted in McGechan on Procedure, this Court:37

… retains an inherent power to correct errors, in exceptional circumstances, in the interests of justice, even where a judgment has been sealed.

[34]   In the relatively recent decision of Herron v Wallace,38 the High Court reviewed the relevant authorities and observed that the predominant consideration must be the public interest in there being an end to litigation. However, it also recognised that absolute finality of litigation is unsafe and that a Court may exercise its inherent jurisdiction to recall or rescind a judgment after it has been sealed:39

(a)to rectify a slip rule or omission;

(b)to set aside a judgment (usually by separate action) where it was obtained by fraud;

(c)where fresh evidence not previously available has come to light which is material to the outcome of the case;

(d)where it was a judgment by consent; and

(e)where a supplementary judgment is necessary to cover a matter not previously dealt with.

[35]   I note at the outset that this relates to the inherent jurisdiction of the High Court to recall its own sealed judgments. However, in his seminal article, The Inherent Jurisdiction of the Court, Professor I H Jacob suggests that the High Court has “power under its inherent jurisdiction to render assistance to inferior courts to enable them to administer justice fully and effectively”.40 So, in substance, he suggests that this Court

36 Farquhar v Property Restoration Ltd CA186/89, 27 May 1991 at 5.

37 Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR11.9.01(7)] citing R v Smith [2003] 3 NZLR 617, (2002) 20 CRNZ 124 (CA) at [28]–[36] and Clements v Clements [2019] NZHC 204 at [5].

38 Herron v Wallace [2016] NZHC 2426, (2016) 23 PRNZ 620.

39 At [33].

40 I H Jacob “The Inherent Jurisdiction of the Court” (1970) 23 CLP 23 at 48.

might on appeal “lend” its inherent jurisdiction (for example, a power to recall its own sealed judgment) to an inferior court or, in this case, the Authority. In that sense, although Judge Sinclair’s decision was, in the context of what she decided, in my view correct, it might not necessarily be definitive on further appeal or on application for leave to this Court.

[36]   However, even if any such “lending” by the High Court of its inherent jurisdiction is possible, it is not in my view seriously arguable that there are sufficiently exceptional circumstances to justify doing so in this case.

[37]   Mr Jones argues that if it does not, 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.

[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. I refer in that respect to my observations at footnote 31 above.

[39]   Moreover, the submission entails an unacceptable element of reverse engineering. Any inability to now obtain leave to appeal would be the result of Mr Jones’ own failure to make such an application in a timely way, instead electing to pursue a recall application. As Ellis J pointed out in Armstrong v Accident Compensation Corporation, the generally applicable policy considerations relating to the importance of finality in litigation are particularly acute in the context of a statutory provision that provides that an appeal may only be brought with special leave.41 The Court should therefore be especially alert, on a special leave application, to any attempt to use the process to run a “back door” appeal that would not otherwise be available.

41 At [17].

[40]This then segues into an obvious problem with Mr Jones’ current application

— his argument that the Authority’s decision is tainted by bias is an appellate point, not a recall point. Self-evidently, the Court will not order recall of a judgment for bias only for it to be decided again by the same, ex hypothesi, biased decision-maker.

[41]   Likewise, Mr Jones’ related argument that the Authority decided the case not on the evidence advanced by him but on the basis of its own inquiry42 was and is an appellate point.

[42]   So, too his third point based on the fact that a subsequent decision of the Human Rights Review Tribunal has recognised that destruction of a Corporation file may constitute a breach of the Privacy Act 1993. This could not, on any basis that is reasonably arguable, found a recall application in circumstances where the documents have, it is agreed, been destroyed.43 Recalling the decision and returning it to the relevant decision-maker would have no foundation in logic. The decision-maker would still be required to make a decision without the documents.

[43]   Moreover, as Judge Sinclair pointed out in her decision, whether or not destruction of Mr Jones’ 1991 claim file was in breach of Information Privacy Principle 5 and whether or not relief may therefore be available to him under the Privacy Act does not affect the question of entitlements under the Accident Compensation legislation. In short, this case concerns a different jurisdiction, different legislation and a different potential remedy — one which may still be open to Mr Jones to pursue.

[44]Put another way, none of the points Mr Jones raises begin to fit within the

Hermon v Wallace formulation. Recall is a misconceived remedy in that context.

[45]For these reasons, I am satisfied that:

42 Contrary, says Mr Jones, to the principles established in Maulder v Accident Compensation Corporation SC Wellington M270/79, 23 October 1979 and Accident Compensation Corporation v Langhorne HC Auckland CIV 2011-404-415, 12 October 2011.

43 The document destruction in this case was held to have been done “in accordance with the normal business practice of disposing of records some years, usually 10, after they were last used”: The substantive decision, above n 1, at [45].

(a)The decision of Judge Sinclair was correct.

(b)Even if in its inherent jurisdiction this Court had the power to order recall of the Authority’s substantive decision, there is no reasonable prospect that it would do so in this case.

Result

[46]I dismiss the application.

[47]   In the unlikely event any issue as to costs arises, memoranda are to be exchanged on the following timetable:

(a)Memorandum of Corporation by 12 September 2022.

(b)Memorandum of Mr Jones by 26 September 2022.

Muir J