Khan v Accident Compensation Corporation - [2016] NZHC 1756

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 Respondent

Judgment:

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…

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: [2016] NZHC 1756
Decision Date: 29 July 2016

CaseChat Overview and Summary

Mrs Youmna Khan sought special leave to appeal two District Court decisions that denied her entitlement to accident compensation. The High Court declined to grant leave, finding no merit in the applications. The case involved complex issues of compensation, convictions, claims, and multiple court proceedings. Mrs Khan initially received compensation for injuries in 1993 and 1994 but later faced fraud charges related to her compensation claims. Despite a deemed decision in her favor in 1996, the Accident Compensation Corporation (ACC) terminated her payments, and subsequent appeals and litigation did not favor her. The court found that the applications for special leave to appeal were out of time and lacked merit, as the District Court judge had correctly declined to set aside prior judgments and denied an appeal based on insufficient evidence of Mrs Khan's earner status. The court also rejected the notion that the judge lacked an independent mind, emphasizing that his decision was well-reasoned and supported by the evidence. The High Court concluded that the applications for special leave to appeal were declined, and costs were to follow the event.

Orders