Jones v Accident Compensation Corporation

[2016] NZHC 973

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-225

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

(transferred to AUCKLAND REGISRY

CIV-2016-404-19 [2016] NZHC 973

IN THE MATTER

of an application for special leave under

s 162 of the Accident Compensation Act
2001

BETWEEN

MICHAEL JOHN JONES Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	(on the papers)
Appearances:	Appellant in person C J Hlavac for the Respondent
Judgment:	16 May 2016

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 16 May 2016 at 2:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Parties / Solicitors: The Appellant

Mr C J Hlavac, Young Hunter, Solicitors, Christchurch

JONES v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 973 [16 May 2016]

[1]      Mr  Jones  has  filed  an  application  for  special  leave  to  appeal  against  a decision of Judge D A Ongley dismissing two appeals by Mr Jones from review decisions which confirmed decisions of the Accident Compensation Corporation.1

Special leave is sought under s 162(4) of the Accident Compensation Act 2001 (the Act) because an application for leave of the District Court under s 162(2) was declined by Judge G M Harrison.2

[2]      The Corporation seeks an order dismissing the application on the grounds that it was filed out of time and there is no discretion to extend time.  Submissions were filed by the Corporation in support of that application and Mr Jones responded. It was agreed that I should determine this question on the papers.

[3]      Section 162 of the Act, so far as relevant, is as follows:

162     Appeal to High Court on question of law

(1)       A party  to  an  appeal  who  is  dissatisfied  with  the  decision  of  a 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.

…

The facts

[4]      The  most  relevant  facts  are  those  relating  to  the  date  of  filing  of  the application and what Mr Jones has said in that regard.  There was no affidavit from Mr Jones, but I have decided that there will be no prejudice to the Corporation if I take account of what he said in his memorandum.  This evidence is supplemented by

the court file.

1      Jones v Accident Compensation Corporation [2015] NZACC 36.

2      Jones v Accident Compensation Corporation [2015] NZACC 403.

[5]      The District Court decision dismissing the application for leave was made on

22 December 2015.   In consequence, applying s 162(4), Mr Jones’ application for leave should have been filed in the High Court on 12 January 2016.  It was in fact filed on 13 January 2016.

[6]      Mr Jones said that he sent the document by courier, from Auckland, on 11

January.    But  it  was  couriered  to  the  street  address  of  the  District  Court  in Wellington, not the High Court.  There is some suggestion by Mr Jones that there may have been a mistake by the person assisting him at the Grey Lynn Post Centre in Auckland, who put the street address of the District Court on the package.   For reasons  I  will  come  to,  the  cause  of  the  error  is  not  material  because  of  the mandatory nature of the provisions.  But it is in any event apparent from other things Mr Jones says in his memorandum that he knew his application had to go to the High Court. He did not suggest otherwise.

[7]      The  documents  on  the  court  file  record  that  the  application  reached  the District Court in Wellington on 12 January.  The High Court registry in Wellington received the documents from the District Court in Wellington on 13 January, with a covering note from a Deputy Registrar of the Wellington District Court stating that the documents were received at the District Court on 12 January 2016.

Evaluation

[8]      The interpretation and application of s 162, and in particular in this case subsection (4), is clear.   The following points, relevant to the main arguments advanced by Mr Jones, come from the clear meaning of the words used in s 162(4) and a number of decisions.3

(a)       The 21 days begin to run from the day after the date of the decision.

3      Siola’a v Wellington District Court [2008] NZCA 483 (Siola’a); Reden-Oldfield v ACC HC Whangarei CIV-2005-485-185, 8 December 2005; Zhang v ACC HC Auckland CIV-2005-404-

7101, 27 October 2006 (statement at [8] disapproved in Siola’a at [34], but otherwise approved by the Court of Appeal in Siola’a at [20]); Wyman v ACC HC Wellington CIV-2007-485-451, 23

May 2007; ACC v Sutton [2015] NZACC 55 (Sutton); Saipe v ACC HC Auckland CIV-2008-
404-1053, 20 June 2008 (Saipe).

(b)21 days is not 21 working days.   In consequence, no allowance is made for court holidays, as defined in r 3.2 of the High Court Rules, unless the last day for filing falls on a court holiday, in which case s 35(6) of the Interpretation Act 1999 applies.  Section 35(6) has no application in this case.

(c)      Section 162(4) (and s 162(2)) is mandatory.  The High Court has no discretion to extend the time.

(d)Rule 20.3(5) of the High Court Rules makes provision for the Court to extend the period for bringing an application for leave to appeal, but this power can only be used if the enactment under which the appeal is sought to be brought either permits the extension, or does not limit the time prescribed for making the application.   Neither exception applies to applications for leave under s 162.

[9]      If there was discretion to extend time the circumstances I have described would support the granting of an extension.   The reason for the delay has been explained.   It was a simple mistake in relation to a  document that was in fact addressed to the High Court.  The length of the delay was inconsequential.  There is no suggestion of any prejudice to the respondent.  In addition, and without intending any criticism  of  the  Deputy Registrar  in  the  District  Court,  it  may be  that  the document could have been delivered from the District Court to the High Court on

12 January.  Given the location of the two registries, it probably would have taken no more than five to ten minutes on foot to get the document from the District Court to the High Court.

[10]     Because there is no discretion for the Court to extend time, on the application of the party seeking leave, I asked the respondent if it would, in the circumstances outlined,  waive  the  time  requirement.    The  question  of  waiver  had  not  been addressed in the earlier written submissions.   Mr Hlavac, for the respondent, submitted that the Corporation cannot waive the time limit.   He referred to the

decision of this Court in Armstrong v Accident Compensation Corporation.4   Justice Ellis held that, when an application to the High Court under s 162(4) is filed out of time, the statutory consequence of late filing cannot be waived.   A contrary conclusion was reached by the Court of Appeal in Siola’a,5  but the decision in that case related to an application for leave to the District Court under s 162(2) and the application of the Inferior Courts Procedure Act 1909.

[11]     Although the decision in Armstrong is not binding on me, this is not an occasion to review it. As I made clear to Mr Hlavac, waiver was entirely a matter for the Corporation, and there was no suggestion that the Corporation would be prepared to waive the point if it had the power to do so.

[12]     As there is no discretion to extend time, Mr Jones’ application for leave

cannot proceed.

[13]     Although that conclusion disposes of the application, I will comment briefly on some other submissions of by Mr Jones.  Acting on his own behalf he presented clear and careful submissions.

[14]     Mr Jones submitted that, if there was discretion to allow an extension of time, “it would be hard to see a worthier case for an exercise of that discretion”. As I have already noted, the facts I have recorded, in the absence of any apparent prejudice to the Corporation, would provide strong grounds for the granting of leave if there was discretion.  But an important point needs to be made.  This is that, on an application for an extension of time there would be need not only to explain the delay, but also to establish that there is at least a reasonably arguable case on a point of law.  It is not appropriate to go into the merit of the substantive issues that Mr Jones would have wanted to advance, but the reality is that he has already been unsuccessful on his application on his general appeal to the District Court, and then on his application to

the District Court for leave to appeal on a point of law.

4      Armstrong   v   Accident   Compensation   Corporation   HC   Auckland   CIV-2011-485-0860,

5 September 2011 (Armstrong).

5      Siola’a, above n 3.

[15]     Mr Jones sought to rely on an argument advanced by the Corporation in Sutton.6    As Mr Jones notes, the argument was unsuccessful in the District Court. That did not, of course, prevent Mr Jones from adopting the same argument in this Court, but it is contrary to the decisions I have already referred to, and in particular the decision of the Court of Appeal in Siola’a, binding on this Court.

[16]     Mr  Jones  argued  that  the  words  “must  be  sought”  in  s 162(4)  (and  in s 162(2)) are to be interpreted as referring to the point of time when the applicant evinces an intention to seek leave, so that he sought leave when he despatched the application by courier on 11 January.  This argument was rejected by Venning J in

Saipe.7   Mr Jones submitted that Saipe could be distinguished, but if I concluded that

it could not, he invited me to come to a different conclusion.   I am satisfied that Saipe  is  not  distinguishable  and  that  the  decision  is,  with  respect,  undoubtedly correct.

[17]     There were some further arguments advanced by Mr Jones.   I have taken account of them, but they do not assist on the essential question as to whether his application was out of time.  Unfortunately for him it was and the application must

therefore be dismissed.

Woodhouse J

6      Sutton, above n 3, at [6]-[7].

7      Saipe, above n 3.