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 be applied retrospectively.  On 2 August 2005, Judge Barber dismissed the appeal against the April decision to re-cease payments: DC AK 231/2005.

[7]       The next step was an application by Mrs Khan for leave to appeal to the High Court against Judge Barber’s decision of 2 August 2005.  That application was declined by Judge Beattie in a decision dated 20 July 2007: DC AK 156/2007.

[8]       Mrs Khan then brought a separate set of proceedings seeking a re-hearing of Judge Barber’s 2 August decision.  This line of cases ended with a decision of Cooper J on 14 August 2008 declining leave to appeal.

[9]       After this avenue was brought to an end, Mrs Khan pursued an application for special leave to appeal to the High Court against Judge Barber’s 2 August decision.  As we have noted, Venning J declined to grant special leave in a judgment delivered on 22 December 2008.

[10]     Mrs Khan’s next step was to seek special leave in the High Court to appeal to this Court from Venning J’s decision of 22 December 2008.  That was declined by Venning J on 11 March 2009.  It is the decision of 11 March 2009 to which Mrs Khan’s current application is addressed.

[11]     We note that although Mrs Khan was represented by counsel at the first hearing before Venning J, her husband, Mr Khan represented her at the second hearing before Venning J and in this Court.

Grounds of the application

[12]     The grounds on which Mrs Khan’s application is made can be drawn together and summarised as follows.  First, Mr Khan submits that as the Corporation did not appeal against the deemed decision, that decision stands.  Further, he says that there was no power under s 73 to stop payments.

[13]     Secondly, Mr Khan submits that Judge Barber erred in law either because he did not apply the relevant legislation or because there was no evidence to support his factual finding that Mrs Khan was not an earner, as that word is defined in the Act, at the relevant time.

[14]     The Corporation opposes the application on the basis we have no jurisdiction and even if we do, the appeal is without merit.

Do we have jurisdiction?

[15]     The right of appeal is set out in s 98 of the Act which provides as follows:

98Appeal against decision of High Court on question of law

(1)If any party to any proceedings before the High Court under this Part of this Act is dissatisfied with any determination or decision of that Court in the proceedings as being erroneous in point of law, that party may, with the leave of the Court, appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law only:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)The decision of the Court of Appeal on any appeal under this section or on any application for leave to appeal shall be final.

…

[16]     The Corporation relies on two decisions of this Court on the equivalent provision in later Acts which conclude the Court has no jurisdiction to entertain an appeal against the High Court’s refusal to grant special leave: McCafferty v Accident Compensation Corporation [2003] 16 PRNZ 843 (CA) and Elliston v Accident Compensation Corporation CA209/05 9 December 2005.  Mr Khan’s submission is that neither case applies because they were decided under differently worded legislation.

[17]     The Court in McCafferty was dealing with s 166 of the Accident Insurance Act 1998.  The only relevant difference between s 98 of the 1992 Act and s 166 of the 1998 Act is that s 166 refers to the rights of a party “to an appeal” who is dissatisfied with any decision of the court “on the appeal”, rather than to the rights of a party to the “proceedings”.  The second case, Elliston, was decided under s 163 of the Injury Prevention, Rehabilitation, and Compensation Act 2001.  That provision is in identical terms to s 166 of the 1998 Act.

[18]     In McCafferty, the Court concluded that refusal of leave was not a “determination or decision … on the appeal”: at [7]. The Court also noted that general rights of appeal do not confer jurisdiction to appeal against refusals of leave: at [8]. The Court in Elliston applied McCafferty.

[19]     In the decision which is the subject of this application, Venning J said at [22] that the issue was whether the difference in the wording between the 1992 and 1998 legislation was material.  Venning J observed at [22] that:

An argument could be mounted that “on the appeal” is restricted to a substantive decision on the appeal and thus supportive of the decision of the Court of Appeal in McCafferty and Ramsay whereas “in the proceedings” might, when read with “any determination or decision” be broad enough to apply to the decision to decline special leave to appeal.

[20]     The Judge noted that the Court’s reasoning in McCafferty at [7] suggested some weight was placed on the wording.  Venning J continued at [24]:

However the result of accepting there was jurisdiction is that the Court of Appeal would be faced with hearing an appeal from a decision of the High Court on the application for special leave to appeal as opposed to the substantive merits of the appeal itself.  That does not seem consistent with the intent of the legislature which provides several gateways to the appeal process and requires leave or special leave.  Further in the McCafferty decision itself the Court of Appeal went on at para [8] to observe:

… It is, … well established that general rights of appeal to this Court do not confer jurisdiction to appeal against refusals of leave to appeal, see for instance Seamar Holdings Ltd v Kupe Group Ltd [1995] 2 NZLR 274 and, in a context extremely similar to the present, Lane v Esdaile [1891] AC 210. Against that background, there is simply no scope for reading s 166(1) as conferring a right to appeal against a decision of the High Court refusing special leave to appeal from the District Court.

(Ellipses in original)

[21]     Venning J at [25] said he found the reasoning of the House of Lords in Lane v Esdaile “compelling”.  We agree.  Even if Mr Khan is right that McCafferty and Elliston are not binding because of the different statutory provisions, the logic of the approach in Lane v Esdaile is irresistible.  As Mr Barnett submits, there is no general right of appeal to this Court against decisions of the High Court refusing leave to appeal.  Further, the accident compensation legislation provides specific rights of appeal and requires leave or special leave.  The statutory language should be clear if a different approach is to be followed in a case such as the present.

[22]     Finally, as Mr Barnett also submits, on the approach contended for by Mr Khan there is a potential for a multiplicity of appeals.  For example, if leave had been granted, on that approach the Corporation presumably would have a right of appeal against that decision.  That result would seem absurd.

[23]     Accordingly, we consider there is no jurisdiction to entertain the appeal and it is dismissed for want of jurisdiction.

The merits of the proposed appeal

[24]     Because we heard argument on the merits of the proposed appeal we also briefly record why it is we consider the application would also fail on the merits.

[25]     Any appeal under s 98 is limited to questions of law.  We are satisfied that neither of the proposed grounds raises any question of law and certainly none which warrants the grant of leave.

[26]     The first proposed appeal point relates to the effect of the deemed decision and of s 73 of the Act.  The short answer to this point is that there was no appeal by Mrs Khan in relation to Judge Barber’s decision on this aspect.  In any event, as Venning J said at [37] of his decision of 22 December 2008, the wording of s 73 is clear.  There is no basis to add to it the requirement the applicant suggested to Judge Barber, namely, that there must be new circumstances or facts not known to the Corporation at the time of the deemed decision.

[27]     The second proposed appeal point concerns Judge Barber’s finding that Mrs Khan was not entitled to weekly compensation as she was not an earner.

[28]     On this proposed point, Mr Khan first submits that Judge Barber has focused on whether Mrs Khan was paid wages into her bank account.  However, he says, under the Employment Contracts Act 1991 a person could be in employment without evidence of his or her salary.  In other words, he says that the wrong test has been applied.

[29]     Secondly, Mr Khan submits the Judge has not taken into account documentary evidence that showed Mrs Khan was an earner as defined in the Act.  In this context, he refers to the daily sales book and to a wages book.  The related submission is that there was no evidence to support the contrary view reached by the Judge.

[30]     These matters have all been addressed by Venning J.  Essentially for the reasons given by the Judge, we agree that the complaints are factual and do not give rise to any questions of law.

[31]     The issue addressed by Judge Barber was whether Mrs Khan had earner status.  As defined in the Act, that meant whether she was engaged in employment.  “Employment”, in turn, was defined as work engaged in or carried out for pecuniary gain or profit.

[32]     Mrs Khan’s case was that she was employed by her husband’s company so the Judge addressed that.  The Judge also went on and considered all of the evidence of her activities at the time.  The Judge had the correct test squarely before him and dealt with it.  There was no issue about what the test meant.  Rather, the question was a factual one – did Mrs Khan meet the test?  In the end, Judge Barber was not satisfied either on the basis of Mrs Khan’s oral evidence or the documentary evidence that she did.  In reaching that conclusion, it was not necessary for the Judge to refer to every individual item of evidence.  In this context, Mr Khan complains about the inability to obtain a copy of the record before the Judge but it is apparent from the decision itself that the evidence was carefully considered.  In any event, Judge Barber does refer to both the sales and the wages books.

[33]     Finally, we note that Judge Barber’s conclusion was plainly open on the facts.  As Venning J said at [29] of his initial decision:

… the Judge concluded that [Mrs Khan] was not a convincing witness.  He did not accept her evidence.  The Judge took the view she was tailoring her evidence to suit the circumstances of the case as she understood them.  The Judge referred at para [74] to having studied the agreed bundles of documents and concluded from that that there was no convincing contemporaneous or objective evidence that the applicant received earnings for the periods in question and later that in his view one could not draw any sound, compelling or convincing inference from the records available.  They seemed ambiguous.  Significantly the Judge concluded on this point:

[76]     … it should be clear that the evidence for the [applicant] contains many inconsistencies.  Many exhibits seemed to me to be fabricated and self-serving and not to relate to times material to the issues before me.

(Ellipsis in original)

Costs

[34]     There is no reason why costs should not follow the event.  The applicant must pay the Corporation costs for a standard application for leave to appeal on a band A basis and usual disbursements.