Khan v Accident Compensation Corporation
[2016] NZHC 1756
•29 July 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-002750 [2016] NZHC 1756
BETWEEN YOUMNA KHAN
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 31 May 2016 (further written submissions received 7 and 13
June 2016)
Appearances:
S A Khan as agent for the applicant in person
D K L Tuiqereqere for RespondentJudgment:
29 July 2016
JUDGMENT OF PALMER J (Corrected)
This judgment is delivered by me on 29 July 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitor:
Medico Law Limited, Auckland
Copy to:
Applicant
KHAN v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 1756 [29 July 2016]
Summary
[1] Mrs Youmna Khan seeks special leave to appeal two District Court decisions that, in effect, determined she was not entitled to accident compensation. I decline to grant leave. There is no merit in the applications.
The complex context
[2] There is a complex context of compensation, convictions, claims and cases. The initial accidents were the most straightforward of the events. In June 1993
Mrs Khan fell and broke her arm. And, in October 1994, Mrs Khan suffered a lower back injury.
Compensation
[3] From June 1993 until April 1996 Mrs Khan received weekly accident compensation payments as an employee of Ideal Leather Manufacture Ltd. The Accident Compensation Corporation (ACC) eventually determined that Mrs Khan had not been an earner in June 1993 and so was not entitled to compensation payments.
Convictions
[4] In April 1996 Mrs Khan, and her husband Mr Sher Khan, were arrested and charged with using a document with intent to defraud ACC. In August 1997 they were convicted of fraud. In sentencing them to six months imprisonment and a
$1,000 fine respectively, Judge Nicholson characterised Mr Khan as “an astute and unscrupulous business man” and Mrs Khan as “a supportive wife”.1 The Khans filed, but did not pursue, appeals against their convictions. The Khans’ appeals against sentence were dismissed by the Court of Appeal in 1998.2
[5] Surprisingly, the Khans filed further notices of appeal of their convictions in
2015. The Court of Appeal treated them as applications to bring a second appeal, which it dismissed, saying the matters advanced by the Khans were all attempts to
1 See Khan v Accident Compensation Corporation [2014] NZACC 147 at [13].
2 R v Khan CA409/97, 9 March 1998.
reopen matters canvassed in their trial and first appeal.3 The Court of Appeal said that Khans’ affidavits and submissions showed “an unwillingness to accept that they had a full and fair trial and appeal and “[t]hey now need to come to terms with that reality”.4
Termination, reinstatement, termination
[6] Also in April 1996 Mrs Khan’s weekly payments were terminated. Mrs Khan sought review of that decision and ACC failed to carry out the review within the statutory timeframe. The legal consequence was that the review was deemed to be determined in Mrs Khan’s favour.5 But it was not until May 1997 that ACC advised Mrs Khan of the deemed decision in her favour. At the same time it advised her payments ceased effective from September 1996 because it was not satisfied she was
entitled to them.
[7] I should note that the Khans maintain that they were never advised of ACC’s May 1997 letter and they took proceedings against their then barrister. The proceedings were struck out by the High Court in 2009 for limitation reasons and because Allan J found the barrister had faxed them the letter and Mrs Khan had
referred to it in August 1998.6 The Khans’ further attempts to appeal that decision in
the Court of Appeal and Supreme Court were unsuccessful.7
Recovery of, and entitlement to, compensation
[8] ACC sought recovery of the compensation that had been paid. Its decision to do so was confirmed on review. Mrs Khan appealed to the District Court. In an interim decision in 2004 Judge Barber decided ACC did not have the power to cancel, retrospectively, the weekly compensation to which Mrs Khan was entitled
under the deemed decision.8 This has been the Khans’ only success in all the
litigation outlined in this judgment. The effect was that the debt claimed by ACC
3 Khan v R [2016] NZCA 165 at [22].
4 At [34].
5 Section 90(9) of the Accident Rehabilitation and Compensation Insurance Act 1992.
6 Khan v Reid HC Auckland, CIV 2009-404-1721, 30 October 2009.
7 Khan v Reid [2011] NZCA 22; Khan v Reid [2011] NZSC 58.
8 Khan v Accident Rehabilitation Compensation and Insurance Corporation [2004] NZACC 43.
was abrogated by the deemed decision as Mrs Khan was entitled to compensation until termination of the deemed decision in May 1997.
[9] In a further decision in 2005 Judge Barber decided that Mrs Khan had not proved, on the balance of probabilities, that she had been an earner in June 1993 and was not entitled to compensation after May 1997.9
[10] Mrs Khan applied for leave to appeal Judge Barber’s 2005 judgment. That was refused by Judge Beattie in July 2007.10 Mrs Khan has subsequently launched three series of persistent challenges to Judge Barber’s 2005 decision:
(a) Mrs Khan applied for a rehearing of the appeal that had given rise to Judge Barber’s 2005 decision. That was dismissed for want of jurisdiction by Judge Cadenhead in July 2006.11 She then appealed Judge Cadenhead’s decision which Cooper J declined in the High Court in February 2008.12 In August 2008 Cooper J declined Mrs Khan’s application for leave to appeal that decision to the Court of Appeal.13
(b) Mrs Khan also applied to the High Court for special leave to appeal
Judge Beattie’s July 2007 decision. Venning J declined that.14
Mrs Khan applied for special leave to appeal that decision to the Court of Appeal which Venning J also declined.15 Mrs Khan applied to the Court of Appeal for the same special leave and was rejected for
want of jurisdiction by that Court.16
9 Khan v Accident Compensation Corporation [2005] NZACC 231.
10 Khan v Accident Compensation Corporation [2007] NZACC 156.
11 Khan v Accident Compensation Corporation [2006] NZACC 162.
12 Khan v Accident Compensation Corporation Auckland HC, CIV 2007-485-1632, 25 February
2008.
13 Khan v Accident Compensation Corporation Auckland HC, CIV 2007-485-1632, 14 August
2008.
14 Khan v Accident Compensation Corporation Auckland HC, CIV 2007-485-1632, 22 December
2008.
15 Khan v Accident Compensation Corporation Auckland HC, CIV 2007-485-1632, 11 March
2009.
16 Khan v Accident Compensation Corporation [2009] NZCA 260.
(c) Most recently, in 2014 Mrs Khan applied to the District Court to set aside Judge Barber’s decisions in 2004 and 2005. Judge Powell declined those applications on 27 February 2015.17 Judge Harrison declined leave to appeal from Judge Powell’s decision.18 Mrs Khan now seeks special leave from the High Court to appeal Judge Powell’s
decision.
Compensation for the second injury
[11] In 2006 a different, but related, round of litigation began. Mrs Khan applied for accident compensation from May 1997 for the separate back injury she suffered in October 1994. ACC declined the claim and a review upheld that decision. In dismissing the appeal Judge Beattie relied on Judge Barber’s 2005 decision as creating an estoppel and held that Mrs Khan did not have earner status in 1993.19
[12] The Khans then offered further evidence of Mrs Khan’s earner status which was also declined by ACC in July 2007. That decision was upheld on review. Judge Ongley declined the further inevitable appeal to the District Court.20 Judge Ongley made clear that Mrs Khan’s deemed entitlement in 1996-1997 did not establish that Mrs Khan had earner status.21 He found the evidence “falls well short of establishing, on the balance of probabilities, that [Mrs Khan] was an earner immediately before the date of her second injury on 26 October 1995.”22 In another decision on 27 February 2015 Judge Powell declined Mrs Khan’s application to appeal Judge Ongley’s decision.23 Judge Ongley’s decision is the second decision which Mrs Khan seeks special leave to appeal here.
Appearance
[13] Mr Khan appeared on behalf of his wife in the hearing before me. He said his wife was unable to attend because of the condition of her health. No objection
17 Khan v Accident Compensation Corporation [2015] NZACC 53 (Judge Powell’s judgment).
18 Khan v Accident Compensation Corporation [2015] NZACC 391.
19 Khan v Accident Compensation Corporation [2007] NZACC 17.
20 Khan v Accident Compensation Corporation [2014] NZACC 147 (Judge Ongley’s judgment).
21 At [33].
22 At [98].
23 Khan v Accident Compensation Corporation [2015] NZACC 52.
was taken. He appears to have done the same in previous hearings. However, Mr Khan’s lack of focus in his oral and written submissions, his attitude in the court and his apparently obsessive interest in the subject matter mean that I consider it is not obvious leave should be granted to him to do so in any future hearings.
Law on applications for special leave to appeal
[14] Section 162(3) of the Accident Compensation Act 2001 (the Act) empowers the High Court to grant special leave to appeal a decision of the District Court as being wrong in law, where the District Court has declined leave to appeal.
[15] In Jones v ACC, drawing on summaries by Toogood J in Cullen v ACC,24 and by Fisher J in Kenyon v ACC,25 I summarised the relevant authorities as follows:26
(a) The appeal can only be made on a question of law and it is for the appellant to show that leave is required in the interests of justice.
(b)The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly.
(c) Special leave is a matter for the discretion of the Court and ought not to be granted as a matter of course.
(d)It will normally be necessary to show that there is an issue of principle, or a considerable amount, at stake and that there is a reasonable prospect of success.
Issue 1: Timeliness of application
[16] Mr Tuiqereqere, for ACC, objects to the applications on that basis that they are out of time. They were filed in the High Court on 20 November 2015, some eight months out of time. The decisions of Judge Powell declining the application to
set aside Judge Barber’s decision, and declining leave to appeal Judge Ongley’s
24 Cullen v Accident Compensation Corporation [2013] NZHC 941.
25 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC).
26 Jones v Accident Compensation Corporation [2016] NZHC 707 at [6].
decision to the High Court, were both made on 27 February 2015. On 23 November
2015, as duty judge, I granted an extension until 7 December 2015. But Mr Tuiqereqere submits that I did not have discretion to do so. He says the applicant’s affidavit detailing steps taken in March 2015 to file the application do not make it clear that the application was delivered to the High Court or that it was an application for special leave to appeal.
[17] In relation to this preliminary issue I note that I granted the extension “because of the apparent efforts to file an application for special leave on time”. That was based on an affidavit by Ms Khan of 21 September 2015 attaching copies of the relevant documentation said to have been sent to the High Court by courier from Australia on 10 March 2015 and signed for by a registry staff member at
10.24am on 12 March 2015 (supported by a courier tracking print-out), a notice being faxed and emailed to the Court and a follow up letter of inquiry as to receipt being sent on 13 March 2015. On the basis that those documents were genuine, I treated, and treat, the requirement for filing the special applications in time as being satisfied.
Issue 2: Judge Powell’s refusal to set aside Judge Barber’s judgment
Issues
[18] Judge Powell declined Mrs Khan’s applications to set aside Judge Barber’s decisions in 2004 and 2005. However, instead of addressing the factors relevant to special leave to appeal of Judge Powell’s decision, Mr Khan’s submissions are primarily directed to attacking Judge Barber’s decisions. His written submissions of
14 May were supplemented by further submissions, dated 29 May 2016, tabled at the hearing. Neither are particularly coherent and largely consist of a selective rehashing of the chronology of events not all of which is relevant to the issues.
[19] I understand the issues raised in Mrs Khan’s submissions to be whether, in
2004 and 2005, Judge Barber had jurisdiction to decide on the 1996 deemed decision in Mrs Khan’s favour, to confirm ACC’s decision of May 1997 and to determine whether Mrs Khan was an earner, as well as the implications of “new evidence” about Judge Barber’s 2005 decision.
[20] There is nothing in the “new evidence” point. Mr Khan points to an unremarkable memorandum from Judge Barber to the Accident and Insurance Appeals Registry between his 2004 and his 2005 decisions.
[21] It might seem odd that Mr Khan seeks to challenge Judge Barber’s 2004 decision, since that is the only judicial decision that has favoured Mrs Khan; but he does.
Submissions
[22] The only submission I can discern of any weight in relation to the issues raised about Judge Barber’s jurisdiction is that r 7.26 of the District Court Rules required the registry to allocate a hearing date and r 7.36 required Judge Powell to give the parties an opportunity to be heard before making his decision. These rules concern interlocutory orders. Mr Khan appears to submit that Judge Powell erred in law in dealing, on the papers, with the applications to set aside Judge Barber’s decisions.
[23] In response, for ACC, Mr Tuiqereqere notes that Mr Khan had emailed the District Court registry on 17 February 2015 expressing concern about potential delay occasioned by Mrs Khan’s submissions being copied to Mr Tuiqereqere and stating “Mrs Khan submission should be submit (sic) to Judge for decision”. In response, on 18 February 2015, the Registry confirmed that “the matter is now before a judge for determination and a decision will be issued in due course”. Mr Tuiqereqere submits that the applications here were not interlocutory and there is nothing wrong with the Court’s practice of deciding post-judgment applications, and applications for leave to appeal to the High Court, on the papers unless a party expressly requests a hearing. He also says that if there was a contravention of the rules that would not nullify the decision, under r 1.8.
Decision
[24] I agree with Mr Tuiqereqere’s submissions. Rules 7.26 and 7.36 do not apply to the applications here because they were not interlocutory. And there was no need for Mrs Khan’s application to be heard in person. The rules of natural justice must
be interpreted in the context in which they are applied. They do not require a hearing to have been held here and Mr Khan did not request one; he requested expedition.
[25] Furthermore, as noted above, the Khan’s application is the latest in a long line of attempts to challenge the finality of issues that have been decided by the courts. Judge Powell’s judgment states “[t]he applicant has not identified any relevant statutory provision by which I have the jurisdiction to set the interim and final judgments aside as sought, still less any provision in either the Accident Compensation legislation or the District Court Rules”.27 He concluded that he had no jurisdiction to set aside the judgments and no jurisdiction to entertain an application for recall before also concluding that there was no substantive basis to do either anyway.28 Judge Powell repeated Venning J’s advice to the Khans that the judgments of Judge Barber are final and considered that the application to revisit the judgments is simply an abuse of process. Judge Harrison upheld Judge Powell’s decision. 29
[26] Judges Powell and Harrison must be right. The Khans have made persistent but futile efforts to challenge Judge Barber’s 2004 and 2005 decisions. That must stop.
Issue 3: Judge Ongley’s denial of appeal
[27] Judge Ongley decided that Mrs Khan was not an earner immediately before the date of her second injury on 26 October 1995.
Submissions
[28] Mr Khan’s submissions on behalf of Mrs Khan on this application were of a similar quality to those on the first application. The closest his written submissions dated 14 May 2016 come to making a point relevant to the application was in
submitting that the appeal arises from ACC’s decision of 26 April 2006 rather than
27 Judge Powell’s judgment, above n 17, at [3].
28 Judge Powell’s judgment, above n 17, at [5] and [10].
29 Khan v Accident Compensation Corporation, above n 18.
one of 16 July 2007. That is manifestly incorrect, as is stated in the first sentence of
Judge Ongley’s decision and made evident later in the judgment.30
[29] On 7 June 2016 Mr Khan subsequently filed 14 pages of further written submissions accompanied by an affidavit of Mrs Khan and exhibits. Parts of the submissions appear to be passages from Judge Ongley’s decision. The submissions appear to be aimed at supporting a submission Mr Khan made at the hearing, that, on the facts, the true and only reasonable conclusion contradicts Judge Ongley’s
decision which is an error of law in an Edwards v Bairstow sense.31 They also
suggest that Judge Ongley “did not have Independent mind”.32
Decision
[30] Judge Ongley’s decision involves a careful traversal and weighing of the evidence before him of: earnings; Mrs Khan’s affidavit and statements; Mr Khan’s evidence; evidence of Mr Kuldip Singh, Mr Indergit Singh, Mrs Mareyam Metar and Ms Saadya Metar; the fraud convictions; Judge Barber’s conclusions; the ACC records; and the 1997 trial evidence. Judge Ongley concluded that “no significant weight can be placed on assertions of earnings immediately before the date of the
appellant’s injury without supporting documentary evidence”.33 He found:34
It is quite likely that the appellant was involved to some extent in her husband’s business. It is quite likely that she and her husband believe that she is entitled to weekly compensation because of that involvement. But the Accident Compensation Act 2001 is precise as to the matters that must be established for entitlement to weekly compensation. The evidence in this case falls well short of establishing, on the balance of probabilities, that the appellant was an earner immediately before the date of her second injury on
26 October 1994.
[31] Judge Ongley clearly approached the issues with an independent mind. To the extent that the additional evidence was not before Judge Ongley, it is not a basis for overturning his decision. To the extent it was before Judge Ongley, I do not
consider it comes close to substantiating the claim that his decision is contradicted
30 Judge Ongley’s judgment, above n 20, at [1], [21] and [22].
31 Edwards v Bairstow [1956] AC 14 (HL) at 36, per Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [24]-[28].
32 Submissions dated 3 June 2016 at [1.20].
33 Judge Ongley’s judgment, above n 20, at [96].
34 At [98].
by the true and only reasonable conclusion on the evidence. I am satisfied that none of the grounds for granting special leave to appeal from Judge Ongley’s decision are satisfied.
Result
[32] The applications for special leave to appeal Judge’s Powell’s judgment and Judge Ongley’s judgment are declined. I see no reason for costs not to follow the event on a category 2 or even, possibly, on an indemnity basis. If the parties cannot agree on the nature or amount of costs then ACC has ten working days from the date of this judgment to file a memorandum. Mrs Khan will have ten working days from that to file a memorandum in response.
Palmer J
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