Khan v Accident Compensation Corporation - [2009] NZCA 260

IN THE COURT OF APPEAL OF NEW ZEALAND
CA155/2009
[2009] NZCA 260
BETWEENYOUMNA KHAN

Applicant

ANDTHE ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:16 June 2009

Court:Hammond, Arnold and Ellen France JJ
Counsel:S Khan on behalf of the Applicant

A D Barnett for Respondent

Judgment:23 June 2009 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for special leave to appeal is dismissed for want of jurisdiction.
BThe applicant must pay the respondent costs for a standard application for leave to appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Ellen France J)
Introduction
[1]       This is an application for special leave to appeal against a decision of Venning J declining to grant special leave to appeal to this Court: HC AK CIV‑2007-485-1632 11 March 2009. The application to Venning J related to an earlier decision of His Honour dated 22 December 2008 in which the Judge dismissed an application for special leave to appeal to the High Court, the District Court having previously declined leave.
[2]       The initial question is whether we have jurisdiction to deal with the appeal. We have concluded we do not. Our reasons follow:
Background
[3]       The lengthy procedural history is summarised in Venning J’s decision of 11 March 2009 at [9] to [18]. We need only note the key events.
[4]       Mrs Khan, the applicant, injured herself on 18 June 1993. She successfully sought earnings-related weekly compensation from the respondent (“the Corporation”). Compensation payments commenced in December 1993 but ceased in April 1996 following an investigation into possible fraud by Mrs Khan and her husband in relation to the claim to the Corporation for compensation (“the April decision”). Mrs Khan and her husband were subsequently convicted of falsely using documents for pecuniary advantage and the convictions were upheld on appeal by this Court: R v Khan CA409/97, CA416/97 9 March 1998.
[5]       Mrs Khan applied for a review of the April decision to cease payments. That review was deemed to be successful by operation of statute (“the deemed decision”). That was because ACC did not set the review down for hearing within the statutory time-frame: s 90(9) of the Accident Rehabilitation and Compensation Insurance Act 1992 (“the Act”). The Corporation did not appeal against the deemed decision. Rather, in May 1997, the Corporation acted under s 73 of the Act and decided, again, to stop paying compensation. The Corporation based its decision on information which, it said, led it to believe the earnings details provided for the assessment were incorrect. The Corporation also raised a debt of $36,167.35 against Mrs Khan on the basis that she was not entitled to compensation. The Corporation’s decisions to cease payment and to raise a debt were upheld by review officers.
[6]       Mrs Khan appealed to the District Court against the decision to re-cease payments and against the raising of the debt. She succeeded on the latter point as Judge Barber concluded, in a preliminary decision dated 10 March 2004, that s 73 could not…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] NZCA 260
Decision Date: 23 June 2009

CaseChat Overview and Summary

In Khan v Accident Compensation Corporation, the Court of Appeal dismissed an application for special leave to appeal a decision by Venning J declining to grant special leave to appeal to the High Court. The applicant, Youmna Khan, sought compensation from the respondent, the Accident Compensation Corporation, after she was injured in 1993. Compensation payments were made but ceased in 1996 following an investigation into possible fraud. Khan applied for a review of the decision to cease payments, which was deemed successful by statute, and compensation payments resumed. The Corporation later decided to stop payments again based on new information, leading to Khan's appeal to the District Court. After multiple unsuccessful appeals, Khan sought special leave to appeal to the High Court against Venning J's decision of 11 March 2009, which was dismissed. The court found it had no jurisdiction to hear the appeal as the statutory provisions did not provide a right to appeal against refusals of leave. The court also found the proposed grounds for appeal were factual, not legal, and did not warrant special leave. The applicant was ordered to pay the respondent's costs for the appeal.

Orders