Jones v Accident Compensation Corporation
[2016] NZHC 2239
•22 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-000225 [2016] NZHC 2239
IN THE MATTER of an application for special leave under
section 162 of the Accident Compensation
Act 2001BETWEEN
MICHAEL JOHN JONES Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 15 September 2016 Appearances:
Applicant on own behalf
C J Hlavac for the RespondentJudgment:
22 September 2016
JUDGMENT OF FITZGERALD J
This judgment was delivered by me on Thursday, 22 September 2016 at 1.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors: Young Hunter, Christchurch
Copy To: Applicant
JONES v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 2239 [22 September 2016]
Introduction
[1] The question for me is whether Mr Jones should be granted special leave to appeal to this Court from a decision of Judge MacLean delivered in the Auckland District Court on 12 March 2015.
[2] On 28 January 2016, Judge Sinclair decided that Mr Jones should not have leave to appeal Judge MacLean’s decision to this Court, hence this application for special leave.
Background
[3] The matter has a long history dating back to the 1970s.
[4] In or around 1978, Mr Jones consulted his then general practitioner (“GP”) regarding symptoms he was suffering, including palpitations and fatigue after exercise. His GP formed the view that these issues were psychological in nature and prescribed certain mediation, including the drug Sinequan.
[5] In the event, Sinequan exacerbated Mr Jones’ symptoms and Mr Jones ceased
taking the drug.
[6] Ultimately, in or around 1984, Mr Jones’ symptoms were diagnosed as Lown- Ganong-Levine Syndrome (“LGL-syndrome”), a physical condition.
[7] Mr Jones subsequently lodged a claim with Accident Compensation Corporation (“Corporation”), on the basis that there had been medical misadventure arising out of the events described above. I will say more later about the precise basis for Mr Jones’ claim at that time. His claim was declined by the Corporation. On review, a review officer, who had called for a number of medical reports in respect of the matter, upheld the Corporation’s decision to decline the claim.
[8] Mr Jones appealed that decision to the Accident Compensation Appeal
Authority (“Appeal Authority”) and a hearing was held before Judge Middleton. By
decision dated 3 September 1987 (“1987 Decision”), the Appeal Authority concluded that medical misadventure had not occurred and dismissed Mr Jones’ appeal.1
[9] In his written submissions on this application, Mr Jones says that in early
1989, he sought leave from the Appeal Authority to appeal the 1987 Decision to the
High Court. Leave was declined. The Appeal Authority’s decision (of 4 September
1990) (“1990 Decision”) was not in the bundle of authorities before me on this application, but at my request, Mr Jones subsequently supplied a copy.2 Mr Jones acknowledges in his written submissions on the current application that his 1989 application for leave to appeal the 1987 Decision was lodged some 16 months out of time. However, he notes that the Appeal Authority made it clear that the delay was not a factor in dismissing Mr Jones’ application.
[10] In its 1990 Decision, the Appeal Authority carefully considered the 1987
Decision and Mr Jones’ application for leave to appeal. Of note for present purposes is the Authority’s characterisation of Mr Jones’ case before Judge Middleton in the
1987 Decision, namely that:
[Mr Jones] had also submitted that his general practitioner at the time did not properly diagnose his then condition which was adversely affected by the administration of Sinequan. The appellant claimed that this failure to diagnose itself constituted medical misadventure.
[11] The Appeal Authority referred to the outcome of the 1987 Decision in the following terms:
With reference to the numerous medical reports on the file one of the doctors expressed the opinion that the appellant had suffered from a medical misadventure which had caused a substantial degree of emotional distress. However the other medical reports referred to by Judge Middleton, four in number, from four different medical practitioners, were all consistent in their opinion, although expressed in different terminology, that it would not have been unusual for the doctor concerned to have prescribed Sinequan in the condition that the appellant had presented to him. On the totality of all the evidence Judge Middleton was not persuaded that medical misadventure had occurred and accordingly he dismissed the appeal.
[12] On the question of whether leave to appeal should be granted, the Appeal
Authority concluded:
1 Jones v Accident Compensation Corporation ACA292/86, 3 September 1987.
Applying the principles from Engel, and reviewing all the grounds advanced by the appellant, I find that no question of law is involved. Also I find that there is no question involved in the appeal which by reason of its general or public importance or for any other reason ought to be submitted to the High Court for decision. For these reasons the application for leave to appeal to the High Court is refused.
[13] Some 23 years later, in 2013, Mr Jones again sought leave from the Appeal Authority to appeal the 1987 Decision to the High Court (as well as applying for an extension of time for making the leave application).3 The Appeal Authority (Judge
Beattie) declined both Mr Jones’ applications.4
[14] Mr Jones then sought special leave from the High Court. That application came before Ellis J who issued her decision on 25 February 2014.5 Her Honour carefully reviewed the history of the matter and declined to grant special leave, both in respect of the application for an extension of time and for special leave to appeal the 1987 Decision.
[15] In the interim, on 20 January 2014, an initial ACC45 injury claim had been completed by Mr Jones’ (then) general practitioner. This recorded, under the injury details description:
SVT was misdiagnosed as anxiety and this label has continued to be seen on medical records resulting in a considerable emotional impact on [Mr Jones].
[16] By letter the following day, 21 January 2014, Mr Jones’ general practitioner
advised:
I would like to draw your attention to the following amendment to ACC45: LN2033. [Mr Jones] was first diagnosed with anxiety in 1981. He was later found to have SVT.
[17] On 24 January 2014, the Corporation acknowledged receipt of Mr Jones’
claim and said it would need to investigate it.
3 In his submissions on this application, Mr Jones noted that when applying for leave to appeal in
2013, he had forgotten his earlier application in 1989. Given the significant passage of time, that is understandable.
4 Jones v Accident Compensation Corporation [2013] NZACC 13.
5 Jones v Accident Compensation Corporation [2014] NZHC 280.
[18] On 19 May 2014, the Corporation declined the claim on the basis that it related to another claim that had already been considered and declined – being the
1987 Decision.
[19] On 21 May 2014, Mr Jones lodged an application for review of the Corporation’s decision. A reviewer upheld the Corporation’s decision, holding that the claim related to Mr Jones’ original claim which had been determined against him in the 1987 Decision. The reviewer found that Mr Jones was therefore estopped from applying for review of the Corporation’s decision of 19 May 2014.
[20] Mr Jones appealed the reviewer’s decision to the District Court. In a decision dated 12 March 2015, Judge MacLean upheld the reviewer’s decision and found that Mr Jones was estopped from bringing the review application, as the matter had already been decided in the Corporation’s favour in the 1987 Decision.6 As outlined above, Judge Sinclair then declined leave to appeal Judge MacLean’s decision to this Court.7 Mr Jones accordingly seeks special leave to appeal.
[21] A final point by way of background is that, given the passage of time since the 1987 Decision, no other files or reports concerning Mr Jones’ original claim exist, other than the decision itself.
Question of law Mr Jones seeks to appeal
[22] Mr Jones accepts that Judge MacLean adopted the correct test for issue estoppel. However, he says that the Judge erred in his application of that test to the facts.
[23] The Corporation accepts that Judge MacLean’s finding that Mr Jones was estopped from reviewing the Corporation’s 19 May 2014 decision is a question of
law.
6 Jones v Accident Compensation Corporation [2015] NZACC 63.
Test for issue estoppel
[24] It was been common ground between the parties at the hearing before Judge MacLean that the principles applicable to issue estoppel are as set out in Talyancich v Index Developments Ltd.8 In that case, the Court held:9
Issue estoppel arises where an earlier decision is relied upon, not as determining the existence or non existence of the cause of action, but as determining, as an essential and fundamental step in the logic of the judgment, without which it could not stand, some lesser issue which is necessary to establish (or demolish) the cause of action set up in the later proceedings: (Spencer Bower & Turner, The Doctrine of Res Judicata 2 ed.
149-150 para. 191).
[25] As noted, Mr Jones does not disagree with the test adopted by Judge
MacLean; his concern it how Judge MacLean applied it.
Test for special leave
[26] There is similarly no dispute as to the principles applying to an application for special leave to appeal. Mr Jones referred to the decision of this Court in Van Helmond v ACC, where the principles were summarised as follows: 10
[12] The applicable standard to be applied in assessing applications for special leave to appeal to this Court are well known and uncontroversial. The general principle is that special leave should only be granted if a material error of law is shown as capable of bona fide and serious argument. The alleged error must have materially affected the decision under challenge. The appellant’s case must not be just arguable, but well arguable.
[13] By the terms of s 162(1) of the Act, appeals to this Court must be on a question of law. But regard must also be had to wider considerations including the general importance of the questions raised, and whether the interests of justice might be served by allowing the appeal to proceed. Although the classes of consideration are clearly not closed, it will usually be necessary for the prospective appellant that there is an issue of principle at stake, or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success.
[27] I also refer to Kós J’s decision in Murray v Accident Compensation
Corporation, where he described the test as follows:11
8 Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA).
9 At 37.
10 Van Helmond v Accident Compensation Corporation [2014] NZHC 2750.
11 Murray v Accident Compensation Corporation [2013] NZHC 2967.
[5] The proper test for special leave was set out by Dobson J in Ellwood v ACC:
An applicant for special leave is required to establish that there is a question of law that is capable of bona fide and serious argument, and that it arises in a case which involves some public or private interest of sufficient importance to outweigh the delay and cost of a further appeal. It will usually be necessary for an applicant to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there are some reasonable prospects of success.
[6] It follows that for special leave to be granted, the following criteria all must apply:
(a) the question posed is one of law;
(b) it is a question actually arising in the proceeding (as opposed to being hypothetical or abstract);
(c) it is capable of bona fide and serious argument; and
(d) it involves some interest, public or private, of sufficient importance to outweigh the delay and cost of a further appeal.
Grounds of application for special leave to appeal
[28] Mr Jones advances his application for special leave to appeal on the following six grounds:
(a) There was no solemn finding in the 1987 Decision on the issue of misdiagnosis.
(b)Any finding of medical negligence amounting to medical misadventure in the 1987 Decision was not essential to that decision, or to Mr Jones' current claim.
(c) Since the 1987 Decision, there has been new evidence which means any issue estoppel should not apply.
(d)Any findings regarding his GP’s misdiagnosis of LGL-syndrome are not essential to the current claim.
(e) Even if there is technically an issue estoppel, the fact that in
1989/1990, Mr Jones was unable to obtain leave to appeal the
1987 Decision means issue estoppel should not apply.
(f) Ultimately it is in the interests of justice that, even if there is an issue estoppel, it should not prevent Mr Jones from litigating the present claim.
[29] I address each of these grounds in turn.
There was no solemn finding in the 1987 Decision on the issue of misdiagnosis
[30] In his written submissions, Mr Jones states that “[his] present claim is for mental injury caused by physical injury as a result of failure to diagnose and treat the LGL syndrome condition”. Later in his written submissions, Mr Jones frames his present claim as “a claim for mental injury consequent on the misdiagnosis of the physical condition of LGL syndrome”. In the hearing before me, Mr Jones further confirmed that the heart of his current claim is the misdiagnosis of LGL-syndrome.
[31] Judge MacLean held that the issue of misdiagnosis had been determined in the 1987 Decision, giving rise to an issue estoppel. Mr Jones says that the 1987
Decision either did not decide that point, or did not do so in a manner sufficient to give rise to an issue estoppel.
[32] This point is really the crux of Mr Jones’ application for special leave to appeal. While I do not have to substantively determine the matter of issue estoppel (which would be the question of law for the appeal), in light of the test set out at paragraphs [26] and [27] above, I am nevertheless required to assess whether the proposed appeal has reasonable prospects of success.
[33] I have carefully reviewed the 1987 Decision, the decisions of Judge MacLean, Judge Sinclair and Ellis J, as well as the earlier decisions of the Appeal Authority. I am not satisfied that it is “well arguable” (to adopt the language from Van Helmond) that Judge MacLean erred in his application of the test for issue estoppel.
[34] In particular, having read the 1987 Decision, it is clear that there were two distinct issues put by Mr Jones to the Appeal Authority at that time:
(a) First, the alleged medical misadventure arising from Mr Jones’
adverse reaction to the drug Sinequan; and
(b) Second, the alleged medical misadventure as a result of Mr Jones’
then GP not diagnosing LGL-syndrome.
[35] That these were the two issues before the Appeal Authority is clearly demonstrated by the second paragraph of the 1987 Decision:
[Mr Jones] claims that he suffered personal injury by accident by medical misadventure in or about 1979 when he suffered an adverse reaction to the drug Sinequan which was prescribed by his doctor. He considers that he suffered a rare and grave reaction to the medication which was not the normal side effect anticipated a result which constituted medical misadventure. He has also submitted that [his GP] at the time did not properly diagnose his then condition which was adversely affected by the administration of Sinequan. He claims that this failure to diagnose itself constituted medial misadventure.
[36] This is further reinforced by Judge Middleton’s statement of the issues that he
was required to determine, namely:
… whether [Mr Jones GP] should have recognised this problem or should have referred the appellant to a specialist and whether in the circumstances the administration of Sinequan was a proper form of medication at that time.
[37] In addition, the last page of the 1987 Decision confirms that a determination was made by Judge Middleton on each of the matters that had been put before him. In this context, the Judge concluded:
While I accept this evidence as did the review officer, the basic problem seems to me that while Dr Gatman is of the view the LGL syndrome would have been obvious at an earlier stage, the other medical reports do not support this view. The whole area seems to be clouded with doubt and it does seem from the reports that because of the nature of the appellant’s complaints to Dr Dyson, it would not have been unusual for him to prescribe Sinequan in the condition that presented to him. This view is particularly reinforced by Mr Warren Smith’s report. While the appellant submits that his reaction to the drug was grave and serious, this does not appear to be the view shared by the bulk of the specialists.
[38] I am of the view that at least the first part of the above extract is focussed on whether Mr Jones’ then GP was negligent in failing to diagnose LGL-syndrome. The latter part of the above extract is then directed to the question of medical misadventure arising from Mr Jones’ reaction to the drug he was prescribed as a result of that misdiagnosis.
[39] That Judge Middleton determined both issues is not surprising, given the clear terms in which the Judge set out the issues then before him, as recorded at paragraph [35] and [36] above.
[40] Accordingly, I am satisfied that the issue of misdiagnosis of Mr Jones’ LGL-syndrome had been distinctly put in issue in the 1987 Decision and had been solemnly and with certainty determined against him. Mr Jones relied on Mr Hlavac’s acknowledgment at the hearing of the present application that the last page of the 1987 Decision was not as well worded as it perhaps could have been (with which I do not necessarily agree). However, the fact that something may not be particularly well worded does not mean that it does not determine a point.
[41] Mr Jones also placed some emphasis on the following reference in paragraph
[18] of Judge MacLean’s decision:
I further agree with the submission that this issue, which the appellant says is different from that traversed in the earlier finding, was in fact a fundamental part of it and the issue both in the original decision and at the present time was not just the immediate effect of the Sinequan but also the long term effect of Dr Dyson’s diagnosis and prescription which arose directly out of his view of the appellant’s condition.
(emphasis added)
[42] Mr Jones relies on the word “traversed”, which he says demonstrates that the issue of misdiagnosis was not distinctly in issue or determined in the 1987 Decision. I do not accept Mr Jones’ submission, which places far too much emphasis on the use of the word “traversed”. What Judge MacLean was plainly saying was that the matter raised on the current claim had been in issue and determined in the 1987
Decision, as evidenced by his conclusion on issue estoppel.
Finding of medical negligence was not essential to previous claim (or present claim)
[43] As I understand Mr Jones’ argument on this point, it is that, in light of the legal test for medical misadventure in 1987, it was not necessary to prove medical negligence. In other words, medical misadventure could arise as a result of medical mishap alone.
[44] The legislation then in force, the Accident Compensation Act 1982 (“1982
Act”), provided that “personal injury by accident”:
(a) [i]ncludes –
(i) The physical and mental consequences of any such injury or of the accident;
(ii) Medical, surgical, dental, or first aid misadventure.
[45] The concept of medical misadventure was not itself defined in the 1982 Act. However, that concept was clarified by the Court of Appeal in Childs v Hillock as follows:12
(a) Medical negligence or medical error is medical misadventure;
(b)A totally unforeseen adverse consequence of medical treatment is medical misadventure;
(c) An adverse consequence of such treatment which is within the normal range of medical or surgical failure attendant upon such treatment is not medical misadventure; or
(d)An adverse consequence of such treatment which is outside the normal range of medical or surgical failure attendant upon such treatment is medical misadventure.
[46] Accordingly, it is correct that a finding of medical negligence/ error was not necessary to support a finding of medical misadventure.
[47] However, the point remains that both aspects of alleged medical misadventure (namely medical negligence/error and medical mishap), were advanced by Mr Jones before the Appeal Authority in 1987. Simply because he did not need to succeed on both in order to warrant a finding of medical misadventure does not mean that both matters were not put in issue before the Appeal Authority or, importantly, determined by it.
[48] This analysis is not altered by the fact that, in order for his current claim to succeed, Mr Jones would have to satisfy both the medical misadventure requirements of the 1982 Act as well as the treatment injury requirements of the current regime (a point acknowledged by Mr Jones).13
[49] Accordingly, I do not accept Mr Jones’ argument that, because medical misadventure could have been found on the basis of medical mishap alone, a specific finding that there was not medical misadventure by way of medical negligence/error was not fundamental to the 1987 Decision. That issue was squarely before Judge Middleton and he ruled on it.
New evidence
[50] Mr Jones submits that even if there is an issue estoppel, it should not apply in this case because there is new evidence since the 1987 Decision.
[51] The new evidence is said to be the medical reports of Dr Ted Clarke (dated
21 December 1989) and Dr Ted Mason (dated 2 July 1996). Mr Jones also refers to
what he states to be “all the corroborative evidence” before the Appeal Authority in
1989 when it found that, because of his LGL-syndrome, he had been administered the drug Largactil in error on 5 January 1988.
[52] The medical reports relied on by Mr Jones confirm that he was suffering from LGL-syndrome rather than an anxiety disorder. However, the fact that Mr Jones was suffering from LGL-syndrome was before the Appeal Authority. Indeed the 1987
Decision is predicated on the basis that Mr Jones was suffering from that condition.
[53] Accordingly, I am not satisfied that there is “fresh” or “new” evidence of the
type necessary to avoid an issue estoppel which otherwise arises.
Finding regarding medical negligence not essential to current claim
[54] Mr Jones’ argument under this head appears to be that the failure to diagnose and treat his LGL-syndrome persisted beyond the original misdiagnosis by his GP, and continued until after the 1987 Decision. On this basis, he submits that, even if the question of misdiagnosis and treatment of his condition was fundamental to the
1987 Decision, it would not preclude consideration of the on-going failure to treat the condition over an entire 10 year period.
[55] It appears that Mr Jones’ reference to “an entire 10 year period” is a reference to an extract from the report of Dr Mason (at paragraph 128). This referred to the fact that testimony provided by Mr Jones and his wife about his symptoms from the late 1970s had been consistent “over a period of more than a decade”. However, as Mr Hlavac for the Corporation submits, Mr Jones’ condition was correctly diagnosed by Dr Gatman in 1984, in response to which he was prescribed beta blockers (which were largely successful in controlling his symptoms). Any effect of the misdiagnosis was therefore well known by 1987 when the matter came before the Appeal Authority.
[56] Moreover I am conscious that Mr Jones’ written submissions confirm that the crux of his current claim is the failure to diagnose and properly treat the LGL-syndrome. As noted, that was before the Appeal Authority in the 1987
Decision. As also recorded earlier, Mr Jones confirmed at the hearing of this application that his new claim is focussed on that misdiagnosis. Accordingly, I cannot accept Mr Jones’ argument that issue estoppel ought not to apply on this basis.
Failure to obtain leave to appeal Authority decision
[57] This ground of Mr Jones’ application for special leave relies on observations
of the Supreme Court in Arbuthnot v Chief Executive of the Department of Work and
Income.14 Mr Jones submits that the decision confirms that a party cannot be constrained by an issue estoppel arising out of a judicial determination that he or she is unable to appeal.
[58] In Arbuthnot, the appellant had been receiving both a community wage and an accommodation supplement pursuant to the Social Security Act 1984. Subsequently, the Department of Work and Income New Zealand (“WINZ”) formed the view that, because of changes in his circumstances, Mr Arbuthnot was not entitled to either of those benefits. Mr Arbuthnot reviewed that decision, and a Benefits Review Committee (“BRC”) determined that, contrary to WINZ’s view, Mr Arbuthnot had not been living in a relationship in the nature of marriage and was therefore entitled to continuance of the community wage. It also found that WINZ had correctly concluded that Mr Arbuthnot was no longer entitled to the accommodation supplement benefit.
[59] The Chief Executive of WINZ had no right of appeal against the BRC’s determination on the community wage. Mr Arbuthnot had statutory rights of appeal, and appealed the BRC’s decision in relation to the accommodation supplement. In the hearing of that appeal before the Social Security Appeal Authority, the Chief Executive raised again the issue of Mr Arbuthnot’s conjugal status, i.e. the same issue that had been determined against the Chief Executive by the BRC. The Social Security Appeal Authority ruled that the Chief Executive was permitted to raise the issue again.
[60] Mr Arbuthnot appealed that ruling to the High Court. The High Court held that the Chief Executive was precluded by the BRC’s decision from re-arguing Mr Arbuthnot’s conjugal relationship before the Authority. The High Court’s decision was overturned by the Court of Appeal, and leave was granted to appeal to the Supreme Court.
[61] The Supreme Court first considered the scheme of the review/appeal provisions of the Social Security Act. In light of those provisions, the Court
14 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008]
1 NZLR 13.
concluded that the Social Security Appeal Authority, hearing the appeal by way of a rehearing, was required to reach a conclusion on the question before it, applying the law to the facts as it found them, without concerning itself with the conclusion reached by the BRC.
[62] The Court then considered the (alternative) argument of issue estoppel. The Court’s primary finding was that an issue estoppel can only arise from a matter determined by a judicial tribunal, which the BRC was not. Having made that finding, the Court nevertheless went on to consider what the position would have been even if the BRC had been a judicial tribunal.
[63] The Supreme Court accepted that the issue of Mr Arbuthnot’s conjugal relationship was the same before the BRC and the Authority. However, it found that an issue estoppel did not arise because:15
[T]here would be obvious unfairness in holding the Chief Executive and his Department bound in other proceedings by a finding against which he had no ability to appeal.
[64] The Supreme Court also referred to the Court of Appeal’s observations in Joseph Lynch Land Co Limited v Lynch.16 In that case, the Court of Appeal cautioned that care must be taken not to allow the doctrine of issue estoppel, which is ultimately designed to prevent injustice to one litigant (namely the unfairness of allowing relitigation of a matter which has been finally decided), from causing greater injustice to another. In this context, the Supreme Court in Arbuthnot observed:17
An over rigorous application of the issue estoppel doctrine to circumstances where there was no right of appeal, or where, as in Lynch, it was not reasonable to expect to any such right to be exercised in practise, would indeed produce unfairness disproportionate to the object of achieving finality in litigation.
[65] The Supreme Court also referred to the House of Lords’ decision in
Arnold v National Westminster Bank Plc.18 In that case, the House permitted tenants
15 At [29].
16 Joseph Lynch Land Co Limited v Lynch [1995] 1 NZLR 37 (CA).
17 Arbuthnot v Chief Executive of the Department of Work and Income, above n 14.18 Arnold v National Westminster Bank plc [1991] 2 AC 93, [1991] 3 All ER 41 (HL).
to relitigate a question which had already been determined against them in proceedings relating to an earlier rent review. The Supreme Court in Arbuthnot observed that the House in Arnold appeared to have been influenced by the fact that, on the first occasion the tenants had wished to appeal the point in issue, but had been refused leave to do so.
[66] However, it is clear from the House of Lords’ decision that the House considered both the underlying decision which was said to give rise to the issue estoppel, as well as the refusal to grant leave to appeal from it, to be wrong. In the leading judgment, Lord Keith said the following:19
In the instant case there was no right of appeal against the judgment of Walton J because he refused to grant a certificate that the case included a question of law of general public importance. There can be little doubt that he was wrong in this refusal as is shown by the large volume of litigation on the construction of rent review clauses in the decisions in that field which I have mentioned earlier. I consider that anyone not possessed of a strictly legalistic turn of mind would think it most unjust that a tenant should be faced with a succession of rent reviews over a period of over 20 years all proceeding upon a construction of his lease which is highly unfavourable to him and is generally regarded as erroneous. … There is much force also in the view that the landlord, if the issue cannot be reopened, would most unfairly be receiving a very much higher rent than he would be entitled to on a proper construction of the lease.
(emphasis added)
[67] His Lordship went on to conclude:20
I am satisfied, in agreement with both courts below, that the instant case presents special circumstances such as to require the respondents to be permitted to reopen the question of construction decided against them by Walton J, that being a decision which I regard as plainly wrong.
(emphasis added)
[68] The present case is quite different from that before the Supreme Court in Arbuthnot and the House of Lords in Arnold. Unlike the Chief Executive of WINZ in Arbuthnot, Mr Jones did have the ability to appeal the 1987 Decision, albeit he required leave to do so. He sought but was declined such leave (both in 1990 and
again in 2013). Unlike in Arnold, there is no evidence or suggestion that the 1987
19 At 110.
20 At 111.
Decision is plainly wrong. Indeed, the Appeal Authority in 1990 expressly concluded that:
[I]n my view , it was open to the Appeal Authority [in the 1987 Decision] to make a finding [rejecting Mr Jones’ claim] on the evidence which was placed before him.
[69] Similarly, in her decision of 25 February 2014, Ellis J concluded that the Judge’s application of the law to the facts in the 1987 Decision was clearly based on the numerous medical opinions before him.
[70] Accordingly, I am not satisfied that there is any unfairness or injustice of the type found in Arbuthnot and Arnold which would permit the reopening of the issue in question.
Interests of justice
[71] Finally, Mr Jones submits that:
…. taking a wide and general view of the overall legal and factual situation in this case, it would be very unfair if the decision and findings of Middleton DCJ were to prevent me making a claim for mental injury consequent on the misdiagnosis of the physical condition of LGL syndrome. Much has developed since 1987 and it appears that the question of [my GP’s] management of the LGL syndrome was not considered broadly enough by Middleton DCJ for finding of estoppel to do justice at the present time.
[72] However, this is simply a further way of Mr Jones putting what is really the crux of his application for special leave to appeal, namely that the issue which arises on his current claim was not determined in the 1987 Decision (or at least was not the subject of a certain and solemn finding). I have already set out above the reasons why I reject this argument.
[73] Ultimately, I accept the Corporation’s submission that Mr Jones’ present claim, which was lodged in January 2014, is in substance an attempt to relitigate the same issue that was determined against him in the 1987 Decision. In the absence of some extraordinary factor which has not properly been taken into account,21 I view
the interests of justice as pointing to finality in litigation.
21 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15](f).
Result
[74] The application for special leave to appeal is dismissed.
[75] Neither party addressed the matter of costs, either in their written submissions or at the hearing. On that basis, I do not understand any issue as to
costs to arise.
Fitzgerald J
4
1