Jones v Accident Compensation Corporation

[2014] NZHC 2867

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-5215 [2014] NZHC 2867

UNDER

the Accident Compensation Act 1982

IN THE MATTER OF

an application for leave to appeal to the Court of Appeal pursuant to s 112 of the Act

BETWEEN

MICHAEL JOHN JONES Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

On the papers
Judgment:	18 November 2014

JUDGMENT OF MALLON J (Costs)

[1]      Before  me  is  a  claim  for  costs  made  by  the  Accident  Compensation Corporation (ACC) against the appellant (Mr Jones).  It follows a decision of Ronald Young J dismissing Mr Jones’ application for leave to appeal against a decision of Ellis J. As Ronald Young J has retired as a sitting Judge the claim for costs has been referred to me.  The applications relate to a decision of the Accident Compensation Appeal Authority in 1987 to dismiss Mr Jones’ appeal relating to a claim for medical misadventure.

[2]      In Ronald Young J’s decision he said “[i]n the circumstances [ACC] may consider this is a case where no costs would be sought”.  He did, however, provide a timetable for memoranda to be filed, should costs be sought.  In accordance with that timetable ACC has advised that it does seek costs.  Costs are sought on a 2B basis

and these are calculated to total $6,268.50 together with $110 in disbursements.

JONES v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 2867 [18 November 2014]

[3]      Despite the indication from Ronald Young J that costs may be inappropriate, ACC advises that it seeks costs for the following reasons:

(a)      ACC did not seek costs against Mr Jones in respect of the decision of Ellis J but put Mr Jones on notice that his further application (heard by Ronald Young J) was without merit for reasons which it set out in detail.

(b)The current proceedings are one of a large number of proceedings which Mr Jones has brought against ACC, most of which ACC says have little or no merit.

(c)      Mr Jones has now made an application to the Accident Compensation Appeal Authority in respect of the same matter that was before Ellis J and  Ronald Young  J,  which ACC  says  is  indicative  of  Mr  Jones approach generally to litigation.

[4]      Mr Jones submits that costs should not be ordered for the following reasons: (a)      He has always acted in good faith.

(b)The amount of litigation he has brought is the fault of ACC because of its attitude at the time his claim was originally considered and because he has suffered real, significant and enduring psychological consequences from his interactions with ACC since submitting his claim for medical misadventure, as is set out in a substantial report from a psychologist dated 2 July 1996.

(c)      A costs award would have to be subject to a payment plan (because Mr Jones does not have funds or assets that could be liquidated) and would cause hardship at a time when he is recovering from a serious injury and seeking to return to the workforce.

(d)A costs award would also have the potential to seriously affect Mr Jones’ mental health when he is trying to overcome all manner of obstacles and return to a productive life with quality of life.

[5]      The usual rule is that costs follow the event.1   There are some exceptions to this including if “some other reason exists which justifies the court refusing costs or reducing costs despite the principle that the determination of costs should be predictable and expeditious”.2     Moreover the specific rules relating to  costs are subject to the rule that “[a]ll matters are at the discretion of the court if they relate to costs.”3

[6]      I consider that costs should not be ordered notwithstanding that the ACC has succeeded and notwithstanding that the costs regime is intended to be predictable. The costs order sought is a substantial sum in respect of an application that, from ACC’s perspective, was not complex.  To burden Mr Jones with that order, which he is  not  in  a  position  to  pay,  would  only  be  for  the  purposes  of  holding  him accountable for pursuing a meritless application and to deter him from pursuing further meritless applications.  The nature of the application (made so long after his medical misadventure claim) indicates that, consistent with the psychologist report referred to above, Mr Jones has had long-standing difficulties.    In those circumstances a costs order to punish Mr Jones seems inappropriate and it is unlikely to serve a deterrent purpose.

[7]      In  these  circumstances  an  overall  assessment  of  the  relevant  public  and private interests involved does not favour the costs order that is sought.  That is not to say that if Mr Jones continues to pursue meritless applications costs orders should never be made. That will be a matter to be considered as and when it arises.

Mallon J

1      High Court Rules, r 14.2(a).

2      Rule 14.7(g)

3      Rule 14.1(2).