KC v Accident Compensation Corporation

[2023] NZHC 2463

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-181

[2023] NZHC 2463

BETWEEN

KC

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

CIV-2023-485-182

BETWEEN

KC
Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

On the papers:

Counsel:

Applicant in person

F Becroft for Respondent

Judgment:

4 September 2023

JUDGMENT OF CHURCHMAN J

Background

[1]        The applicant wishes to appeal two decisions of the District Court, the first a decision of 27 January 20231 and the associated application to the District Court for

1      KC v ACC [2023] NZACC 11.

KC v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2463 [4 September 2023]

leave.2 The second decision is a decision of the District Court dated 29 November 20223 and its associated decision to decline leave of 2 February 2023.4

[2]        The respondent has raised a preliminary jurisdictional point which is that the time for the filing of appeals of this nature is mandatory and that the High Court lacks jurisdiction to extend that time.

[3]        Following my minute of 25 July 2023 that the matter would be dealt with on the papers, both parties have filed written submissions.

Analysis

[4]        The applicant argues that in each case, she was only out of time by a matter of days rather than months or years. She submits that her case is serious, she has had difficulty obtaining legal assistance and has been seriously disadvantaged.

[5]        The respondent refers to s 162 of the Accident Compensation Act 2001 (the Act) which provides:

162     Appeal to High Court on question of law

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

[6]        Counsel notes that s 162(4) of the Act has been considered by the High Court on numerous occasions and, on each occasion it has been considered, the Court has always concluded that if the timeframe is not complied with, there is no discretion to extend it.

2      KC v ACC [2023] NZACC 30.

3      KC v ACC [2022] NZACC 224.

4      KC v ACC [2023] NZACC 20.

[7]        The leading case in this area is Saipe v ACC.5 That case explained why the wording in s 162 was mandatory and that if special leave was not sought within     21 days, the High Court had no jurisdiction to extend it.

[8]        Even in a situation where ACC has incorrectly advised an applicant of the wrong time limit for appealing, and the applicant was within the time limit erroneously advised by ACC, that there was still no jurisdiction to extend the time.6

Outcome

[9]        It is clear that the High Court has consistently held that there is no jurisdiction to extend the time for the filing of an appeal of this nature, even in circumstances where there has been the slightest of delay,7 or where the reason for the failure to file the appeal in time was the fault of ACC in providing incorrect advice.

[10]Accordingly, these two applications are dismissed for want of jurisdiction.

Churchman J

Solicitors:

Medico Law Limited, Auckland for Respondent

5      Saipe v ACC HC AK, CIV-2008-404-1053 10 April 2008, Venning J.

6      Armstrong v ACC HC WN, CIV-2011-485-0860 5 September 2011, Ellis J.

7      CM v ACC [2018] NZHC 1919.