Khan v Accident Compensation Corporation

[2016] NZHC 2216

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002750 [2016] NZHC 2216

BETWEEN

YOUMNA KHAN

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	On the papers
Appearances:	Applicant in person D K L Tuiqereqere for Respondent
Judgment:	20 September 2016

JUDGMENT NO 2 OF PALMER J (Rehearing and costs)

This judgment is delivered by me on 20 September 2016 at 11 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitor:

Medico Law Limited, Auckland

And to:

Applicant

KHAN v ACCIDENT COMPENSATION CORPORATION (NO 2) [2016] NZHC 2216 [20 September 2016]

appeal two District Court decisions regarding her entitlement to accident compensation.1      I  characterised  the  application  as  “the  latest  in  a  long  line  of attempts to challenge the finality of issues that have been decided by the courts”.2

Application for rehearing

[2]      Mrs Khan now applies under rr 20.19 and 7.49 of the High Court Rules for a rehearing.  I decline this application because:

(a)      Rule  20.19(3)(a) and  (6) concern the relief a court  may grant  on appeal.  That does not apply here.  Rule 7.49 entitles a court to vary or rescind  an  interlocutory  order  if  satisfied  it  is  wrong.    But  the judgment of 29 July 2016 was not an interlocutory order.  And I am not satisfied the judgment is wrong; I am satisfied it is correct.

(b)      Mrs  Khan  submits  her  husband,  who  appeared  at  the  hearing  of

31 May 2016  “as  her  agent”,  sought  an  adjournment  to  engage a lawyer but I refused the application.  None of the court records, my notes nor Mr Tuiqereqere’s notes, indicate there was any such application or decision.   If an application for adjournment had been made I can see no reasons why it should have been granted.   The

31 May hearing was set down on 1 March 2016.   Mr Khan, who travelled from Australia for the hearing, began the hearing by explaining he had been relying on a barrister to come from Australia but he had another commitment.

(c)      A new argument, which is not documented before me, that a Notice of Opposition was not filed in the District Court in 2014, could not justify  reopening  District  Court  decisions  of  2004  and  2005  or

rehearing this case.

1      Khan v Accident Compensation Corporation [2016] NZHC 1756.

The  Khans  have  made  persistent  but  futile  efforts  to  challenge  Judge

Barber’s 2004 and 2005 decisions. That must stop.

Costs

[4]      In the judgment of 29 July 2016 I indicated I could see no reason why costs should not follow the event “on a category 2 basis or even, possibly, on an indemnity basis”.4     If the parties could not agree on costs I granted leave for them to file memoranda.

[5]      ACC seeks an award at a scale rate on a category 2 basis amounting to

$5,373.38.  Mrs Khan’s husband, Mr S A Khan, appeared as her agent at the hearing.

He opposes the costs sought by ACC.

[6]      Mr Khan submits he “made application for further extension of time to check the District Court rules enabling to counsel submits (sic) his submission to the court” and  that  I granted  an  extension  as  well  as  a right  to  reply to  the respondent’s subsequent submissions.  He suggests judgment was issued before the reply to the reply was filed.

[7]      This is not relevant to costs.  Furthermore, it is not correct.  Court records and my notes of the hearing indicate I permitted Mr Khan, on behalf of Mrs Khan, to file and serve further written submissions by 5 pm Friday 4 June 2016 although he sought only until Thursday 3 June 2016.  I permitted ACC to file and serve further written submissions in reply by 5 pm Friday 10 June 2016.  I did not permit a further reply to the respondent’s submissions.  As recorded in my judgment, 14 pages of additional  submissions  accompanied  by  an  affidavit  and  exhibits  were  filed  on

7 June 2016 and were taken into account.5

3 At [26].

4 At [32].

Palmer J