Khan v Accident Compensation Corporation HC Ak CIV 2007-485-001632

[2008] NZHC 2174

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2007-485-001632

UNDER  The Injury Prevention, Rehabilitation, and

Compensation Act 2001

IN THE MATTER OF     an appeal to the High Court pursuant to s

162 of the Act

BETWEEN  YOUMNA KHAN Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         13 February 2008

Appearances:  B O'Callahan and B Eagleson for Appellant

D Tuiqereqere for Respondent

Judgment:      25 February 2008

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

25 February 2008 at 4.00 p.m., pursuant to

r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Carter & Partners, PO Box 2137, Auckland

Legal Services, Accident Compensation Corporation, PO Box 242, Wellington
Copy to:

D Tuiqereqere, PO Box 16-204, Sandringham, Auckland

KHAN V ACCIDENT COMPENSATION CORPORATION HC AK CIV 2007-485-001632  25 February 2008

Introduction

[1]      Section 91 of the Accident Rehabilitation and Compensation  Insurance Act

1992 (“the ARCI Act”) conferred on claimants a right of appeal to the District Court against decisions made on applications under s 89 of the Act for review of decisions made by the Accident Rehabilitation and Compensation Insurance Corporation.

[2]      On  19  August  1988  that  right  was  exercised  by  the  appellant  in  this  case, after a decision by the Corporation that she was not entitled to weekly compensation, because she was not  an  “earner”  at  the  relevant  time,  had  been  upheld  on  review. Her appeal to the District Court was, however, rejected, in a decision delivered by Barber DCJ on 2 August 2005.

[3]      Section 97(1) of the ARCI Act provided that where any party was dissatisfied with any decision of the District Court as being erroneous in point of law, that party could, with the leave of the District Court, appeal to the High Court.  The High Court was empowered to grant special leave to appeal in cases where leave was refused by the District Court.   On 22 August 2005, the appellant sought leave to appeal.   That application  was  declined  by  Beattie DCJ  in  a  decision  dated  20 July  2007. In response, the appellant filed an application to this Court for special leave to appeal.

[4]      In the meantime, the appellant had also made an application for a rehearing

of the appeal that had given rise to the 2 August 2005 decision.  That application was purportedly  based  on  the  general  power  to  grant  a  rehearing  under  r 493  of  the District Courts Rules 1992.

[5]      By a decision dated 5 July 2006 Cadenhead DCJ dismissed that application.

He  held  that  there  was  no  power  to  grant  a  re-hearing,  with  the  result  that  the appellant’s rights were limited to an appeal to the High Court, or an application to Barber DCJ for the recall of his judgment on the limited grounds able to be advanced on such an application.

[6]      The appellant now appeals against Cadenhead DCJ’s determination that there was no jurisdiction to entertain the application for a re-hearing.   By agreement, the

application  for  special  leave  to  appeal  from  Barber DCJ’s  decision  has  not  been advanced, pending determination of the present appeal.

The issue

[7]      Cadenhead DCJ analysed the relevant issues in the context of the provisions

of the Injury Prevention, Rehabilitation, and Compensation  Act  2001  (“the  IPRC Act”) concerning reviews and appeals.  That was the legislation in force at the time that the appellant made her application for a re-hearing.   However, it is in fact the ARCI Act that should be applied, because the appeal to the District Court was made prior to 1 July 1999.  In those circumstances, s 391(2) of the IPRC Act provides that Part VI of the ARCI Act continued in force “in order to apply to an application for a review and an appeal about a decision made by the Corporation”.

[8]      It is common ground, however, that nothing turns on this, since the relevant provisions  of  the  ARCI  and  IPRC  Acts  are  not  materially different,  and  the  basic structure of the review and appeal process was not changed by the latter Act.   To a certain extent, however, the arguments on appeal have focused on the meaning and application of s 91(4) of the ARCI Act which provides:

Subject to this Act and any Regulations made under this Act, the appeal shall be dealt with in accordance with the District Court Rules.

[9]      That  wording  is  slightly  different  from  the  equivalent  provisions  in  later legislation,  including  s 153  of  the  Accident  Insurance  Act  1998,  and  s 150  of  the IPRC Act.  The latter provides:

An  appeal  under  s 149  is  dealt  with  in  accordance  with  the  District  Court Rules made under s 122 of the District Courts Act 1947, as modified by this Act any Regulations made under it.

[10]     Although the differences between these provisions may be superficial only, it

is  appropriate  to  discuss  the  issues  raised  on  the  appeal  against  the  statutory provisions properly applicable, namely those in the ARCI Act.

[11]     The issue can be stated shortly. Rule  493  of  the  District  Courts  Rules empowers the Court to order a re-hearing where in the opinion of the Court there has

been a miscarriage of justice that justifies a re-hearing (r 493(3)). There is no provision for a re-hearing either in the ARCI Act, or in the applicable regulations made under that Act, namely the Accident Rehabilitation and Compensation Insurance (Appeals) Regulations 1992 (the “ARCI Regulations”). The question is whether s 91(4) of the ARCI Act, by providing that an appeal shall be dealt with in accordance with the District Courts Rules, had the consequence that the power under

r 493 to order a re-hearing may be applied in relation to the hearing of an appeal by the District Court against the decision on a review under s 90 of the Act.

[12]     Putting that in the context of the present case, the question is whether or not Cadenhead DCJ was correct in holding that there was no jurisdiction to order a re- hearing of the appeal conducted by Barber DCJ.

The District Court decision

[13]     Cadenhead DCJ decided that there was no jurisdiction to order a re-hearing because the District Court’s jurisdiction was appellate in nature (on appeal from the decision on the review of the Corporation’s decision). He thought that the decisions

of the Court of Appeal Rainbow Corporation  Ltd  v  Ryde  Holdings  Ltd  (1992)  5

PRNZ 493, and of the High Court in UDC Finance Ltd v Madden [2000] 1 NZLR

504  implied  that  there  was  no  jurisdiction  to  grant  a  re-hearing  in  relation  to  an earlier judgment on the basis that it was incorrect.

[14]     He thought it was significant that the Accident Compensation legislation did not itself contain an express power to modify or reverse another Judge’s decision or grant a re-hearing. He considered that, if there were to be power to order the re- hearing of a “substantive application” such power would have been expressed in the “primary statute”. In this connection, he referred by analogy to the extensive provisions set out in s 294(1) of the Resource Management Act, which enables the Environment Court to order a re-hearing of any proceedings where, after  any decision, new and important evidence becomes available or there has been a change

in circumstances that in either case might have affected the decision.  There was no comparable provision in the Accident Compensation legislation.

[15]     Referring to s 150 of the IPRC Act, he held that it should not have the result

of empowering an application for a re-hearing “by a side wind”. He referred  to Comalco NZ Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153 in which the Court of Appeal had held that general discovery was not available on an appeal

to the High Court from a decision of the Broadcasting Authority.  He considered that case turned on the absence of a specific power to obtain discovery in the Broadcasting Act itself (“the primary governing statute”), and the absence of such a power could not be overcome by the general provisions of the High Court Rules concerning discovery. The Judge applied that decision by analogy to hold that any application for a re-hearing of the subject decision could not be authorised  by  the “general provision” made for re-hearing in r 493 of the District Courts Rules.

[16]     In summary, if Parliament had intended there to be power to order a re- hearing  in  respect  of  District  Court  Appeals  under  the  Accident  Compensation legislation, it would have made appropriate provision in that legislation.

The arguments in this Court

[17]     Although in his written submissions Mr O’Callahan had addressed the issues under  the  provisions  of  the  IPRC  Act  to  which  Cadenhead DCJ  had  referred,  he accepted at the outset of the hearing in this Court that Mr Tuiqereqere had correctly pointed out that the relevant provisions were those contained in the ARCI Act, and in the ARCI Regulations.

[18]     The appellant maintained that s 21(4) of the ARCI Act, which I have set out above, meant that unless there was any contrary provision in the Act itself, or in the Regulations made under it, the appeal was to be dealt with in accordance with the District Court Rules.  That meant that unless a District Court Rule was, in its terms, clearly inapplicable, it should be treated as applicable and available to the parties if they wished to rely on it.

[19]     He conceded there would be many rules in the District Courts Rules which were particularly and exclusively relevant to the civil proceedings which would not

be  applicable  in a case  such  as  the  present. As  examples, he referred to rules  in

Part II concerning the commencement and service of proceedings. Referring to Part I, however, he submitted that many of those rules would be applicable to appeals (unless there were specific provisions made in the ARCI Regulations). For example, the rules governing the shape and setting out of documents to be filed would clearly be applicable to appeals, as would provisions relevant to the enforcement of awards for costs.

[20]     Mr O’Callahan pointed out that, under s 92(1) of the ARCI Act, the appeal to the District Court from the decision on the review was itself by way of a re-hearing. Although the evidence that had been given on the review was to be brought before the  District  Court  in  accordance  with  the  provisions  of  s 92(1)(a)  and  (b),  s 92(2) explicitly empowers the District Court to hear such other  evidence  as  it  thinks  fit. That  had  in  fact  happened  in  the  present  case,  where  there  had  been  extensive evidence called at the hearing before Barber DCJ

[21]     Mr  O’Callahan  submitted  that  the  fact  that  evidence  can  be  heard  on  the appeal was an indication tending to support the applicability of r 493 of the District Courts Rules.

[22]     Mr O’Callahan also sought to derive support for his argument from the decision of the Court of Appeal in R v Smith [2003] 3 NZLR 617. In that case, after discussing English and Australian authorities, it was decided that the Court of Appeal has inherent power to revisit its decisions in exceptional circumstances, when required by the interests of justice. Such power was said (at [36]) to be “part of the implied powers necessary for the Court to maintain its character as a Court of justice”. In so holding, the Court echoed what had been said by Lord Diplock in Bremer Vulkan Schiffbau Und Maschinenfabrik v South India Shipping Corporation Ltd [1981] AC 909 at 977.

[23]     The Court of Appeal observed, also at [36], that recourse to the power to reopen must not undermine the general principle of finality. It was said that the power:

… is available only when a substantial miscarriage of justice would result if fundamental error in procedure is not  corrected  and  where  there  is  no

alternative  effective  remedy  reasonably  available.   Without  such  response, public confidence in the administration of justice would be undermined.

[24]     Mr O’Callahan submitted that the principles discussed in R v Smith offered further support for the proposition that r 493 of the District Courts Rules should be applicable  in  the  present  case,  since  the  function  that  had  been  exercised  by Barber DCJ  was  that  of  an  appellate  Court. It  was  Mr  O’Callahan’s  further submission that, should the Court decide that r 493 was not available in the case of proceedings under the Accident Compensation legislation, then r 9 should be relied on, effectively to reach the same result.  Rule 9 of the District Courts Rules provides:

If any case arises for which no form of procedure is prescribed by any Act or Rule or Regulation or by these Rules, the Court shall dispose of the case as nearly as may be practicable in accordance with the provisions of the Rules affecting any similar case or in accordance with the provisions of the High Court Rules, or, if there are no such provisions, in such manner as the Court thinks best calculated to promote the ends of justice.

[25]     As  I understood  his  argument,  Mr  O’Callahan  maintained  that  by virtue  of that rule either r 493 of the District Courts Rules could be applied on the basis that it was a rule affecting a “similar case”, or alternatively r 494 of the High Court Rules which provides that a “new trial” may be ordered where the Court is of the opinion that there has been a miscarriage of justice that justifies that course being followed.

[26]     Mr Tuiqereqere, for the respondent, argued to the contrary. He contended that the provisions in the ARCI Act and the regulations were detailed, and required little to supplement them. In his submission, the wording of s 91(4) was insufficiently explicit to require the wholesale application of the District Courts Rules. Any of those rules to be applied must first be relevant to an appeal, and also deal with procedure in relation to  the  appeal. The wording of s 91(4) was to be contrasted with the language used in statutes such as the Resource Management Act, which in s 278(1) plainly provides that the Environment Court is to have the same power that a District Court has in the exercise of its civil jurisdiction notwithstanding that the Environment Court is often exercising an appellant function.

[27]     As had Cadenhead DCJ, Mr Tuiqereqere also relied on s 294 of the Resource Management Act, and its explicit conferral of power to order a re-hearing where new and important evidence becomes available or there has   been   a   change   in

circumstances that in either case might have affected a decision previously made by the Court.   In the same context, he referred to s 53(1)(a) of the Disputes Tribunals Act 1988, which also contains an express power for the District Court to quash an order  made  by  a  Disputes  Tribunal  and  “order  a  re-hearing  of  the  claim  in  the Tribunal on such terms as the Judge thinks fit”.

[28]     Mr  Tuiqereqere  argued  that  the  wording  of  r 493  itself  showed  that  it  was intended to be exercised in relation to ordinary civil claims in the District Court, and not in the context of an appeal such as the present. He relied in particular on the proviso to r 493(4) as well as the wording of r 493(6), and their  references to “plaintiff” and “defendant”. I set out the provisions of the rule below.

[29]     Finally, he argued that if the legislature had intended a power to order a re- hearing to be exercised in the context of a hearing by the District Court of an appeal, there would have been express provision to that effect. He rejected Mr O’Callahan’s argument that the District Court would have jurisdiction analogous to that discussed

in R v Smith, in the context of the ARCI Act.

Discussion

[30]     Rule 493 of the District Courts Rules provides as follows:

493     Power to order rehearing

(1)      A rehearing may be ordered only where, in the opinion of the Court, there has been a miscarriage of justice that justifies a rehearing.

(2)      An  order  under  subclause  (1)  may  be  made  on  such  terms  as  the

Court thinks fit.

(3)      Without limiting the circumstances in which the Court may hold that there has been a miscarriage of justice that justifies a rehearing, it is hereby declared that the Court may hold that there has been such a miscarriage of justice if—

(a)       The judgment has been obtained by any unfair or improper practice

of the successful party to the prejudice of the opposite party; or

(b)      Material evidence has been discovered since the hearing which could not reasonably have been foreseen or known before the hearing; or

(c)       Any  witness  has  been  guilty  of  such  misconduct  as  to  effect  the result of the hearing.

(4)      If it appears to the Court that the miscarriage of justice affects part only of the matter in dispute, the Court may give final judgment  as  to the part not so affected, and direct a rehearing as to the affected part only:

Provided  that  no  rehearing  shall  be  ordered  as  to  the  affected  part  if  the amount of damages awarded in respect thereof can be separately ascertained, and the plaintiff consents to reduce the whole sum awarded to him or her by that amount.

(5)      A  rehearing  may  be  ordered  on  any  question  in  a  proceeding, whatever  be  the  grounds  on  which  a  rehearing  is  applied  for,  without interfering with the decision upon any other question.

(6)      Where there is more than one defendant, a rehearing may be ordered against any one or more of them.

[31]     The rule is one of the rules set out in Part VII , which is headed “Disposal of Proceedings”. Sub-headings in the analysis of the rules refer to “Judgment by default”, “Judgment on admission”, “Discontinuance”, “Stay or dismissal”, “Hearing”, “Rehearing” (containing rr 493 and 494), “Evidence at hearing”, “Evidence in Trans-Tasman proceedings”, “Procedure when evidence given  by affidavit” and finally “Judgments”. The analysis and the headings it contained may

be considered in interpreting the Rules in  accordance  with  s 5(2)  and  (3) of  the

Interpretation Act 1999.

[32]     I think it is clear that most of the rules contained in Part VII of the District Courts  Rules  would  have  no  application  whatsoever  to  the  conduct  of  an  appeal under  the  ARCI  Act.   Even  the  provisions  in  relation  to  judgments  do  not  apply, because there is specific provision for judgments on appeals under the ARCI Act in the ARCI Regulations.

[33]     Those Regulations are, as Mr Tuiqereqere submitted, extensive, even if not complete.  They include regulations as to the form of an appeal, a direction that it be filed in the District Court at Wellington, time limits for appeal, the contents of the notice of appeal, and service of it. There is provision for cross appeals, directions in relation to the documents that are to be lodged with the Registrar of the Court, procedural provisions enabling the Court to give directions as to the conduct of the hearing, stipulations as to the right of parties to be heard and in relation  to

representation at hearings.  Regulation 15 provides that every appeal shall be by way

of  re-hearing, and deals with how evidence given at the review hearing is to be brought before  the  District  Court. Notwithstanding  those  provisions,  regulation 15(2) provides that the Court may hear such other evidence as it thinks fit, whether or not that evidence would be otherwise admissible in a Court of Law.

[34]         Regulation 16 contains a statement of the powers of the Court on hearing an appeal: it may confirm, modify or revoke the decision appealed against, or it may dismiss the appeal. There is a power to remit matters back to the person who heard the  review for further consideration, and with directions as to any re-hearing, re- consideration or determination “of the whole or any part of the  matter that is  so referred”.

[35]     Regulation 18  deals with notification of the decision  of  the  Court,  by  the

Registrar.

[36]     Such is the comprehensive nature of the ARCI Regulations, that it is difficult

to find any of the rules set out in Part VII which need to be applied to supplement the procedures that they contemplate (leaving aside rr 493 and 494 which are the subject

of the present argument). I note that r 482 of the District Courts Rules contemplates applications to dismiss proceedings for want of prosecution and there is no express equivalent of such a rule in the ARCI Regulations. However, there does not need to

be  such  a  power  in  the  context  of  a  scheme  which  envisages  the  Registrar  of  the Court  fixing  the  time  and  place  for  the  hearing  of  an  appeal  (Regulation 12)  with express power in Regulation 17 for an appeal to be dismissed if the appellant does not  appear.  In  my view,  the  comprehensiveness  of  the  rules  set  out  in  the  ARCI Regulations tends against the application of rr 493 and 494 in the context of appeals under the ARCI Act.

[37]     Both parties found support for their respective positions in Regulation 3 of the ARCI Regulations. That regulation expressly stated that Part IX of the District Courts Rules shall not apply to appeals brought under s 91 of the Act. Part IX of the District Courts Rules deals with appeals. Obviously, it was not necessary for the rules in  Part  IX  to  be  applied  in  the  case  of  appeals under the ARCI Act, having

regard to the comprehensive nature of the regulations themselves.  Mr Tuiqereqere saw that provision as confirmation of the limited role to be played  by the  District Courts Rules.  Mr O’Callahan contended that the express exclusion of Part IX of the Rules implied the availability of the rest of the Rules, as and where appropriate.

[38]     In fact, there are substantial numbers of rules contained in other parts of the District Courts Rules which would have no application either.  However, it must be accepted that it was intended that some of the rules should be available and applied where  appropriate,  otherwise  s 91(4)  of  the  ARCI  Act  would  not  have  provided (subject to the Act itself, and to the ARCI Regulations) for any appeal to be “dealt with in accordance with the District Court [sic] Rules”).

[39]     The difficulty that arises because of the drafting technique adopted is that it is then necessary in the case of any particular rule to ask whether it was intended that it

be available for use in the context of an appeal under the ARCI Act.  I have already recorded my view that the placement of r 493 in Part VII of the District Courts Rules puts it in a part where, on the face of it, none of the other rules in the part can have application to appeals under the ARCI Act.  Indeed, in my view, Part VII as a whole consists of rules which are really only appropriate in respect of proceedings that have been  commenced  by  statement  of  claim  pursuant  to  r 112  of  the  District  Courts Rules.

[40]     There are other considerations which, in my view militate against application

of r 493 in the current context.    First, I mention the scheme provided by the ARCI Act (and its successors) for dealing with claims such as that made by the appellant in this  case. After the initial decision by  the  Corporation,  there  is  provision  for  a review. Section  89(1)  of  the  ARCI  Act  provided  that  any  claimant  who  is dissatisfied with a decision of the Corporation could apply to the Corporation for a review of the decision.

[41]     Section 90(1) required the Corporation to appoint persons to hear each review, directing that the reviewing person must act independently in conducting the hearing. From the decision on the review, there was a right of appeal to the District Court against any decision under s 90 of the Act. Section 91 itself contained various

procedural provisions in relation to appeals,  some  of  which  were  repeated  in  the

ARCI Regulations.  Section 91(8) empowered the District Court to confirm, modify

or revoke the decision appealed against, or to dismiss the appeal.

[42]     Section 97 of the Act then provided for an appeal from the decision of the District Court to the High Court. Such appeals were on the basis that the decision of the District Court was “erroneous in point of law”. There is then further provision

for an appeal to the Court of Appeal against the decision of the High Court, again on

a question of law.   There is a leave procedure in respect of both appeals from the District Court to the High Court, and from the High Court to the Court of Appeal. In each case, if leave is refused by the Court against whose decision the  appeal  is intended to be brought, the Appellant Court may grant special leave.

[43]     This extensive statutory regime providing for an initial decision, a review, a full re-hearing in the District Court followed by appeals to the High Court and the Court of Appeal again tends against the view that it would have been intended that there be a right to a re-hearing of the appeal in the District Court. It is to be remembered that in the case of a proceeding commenced by statement of claim, any

re-hearing granted under r 493 of the District Courts Rules would be a re-hearing of what was a first instance decision. On the other  hand, if the rule were applied in relation to the determination of an appeal by the District Court, the re-hearing granted would be in relation to the appeal hearing, not the first instance or even in this case, the second instance decision. I think it unlikely that a re-hearing was intended at that point, where there is the substantial protection afforded by further rights of appeal.

[44]     This detailed legislative provision for  rights  of  review  and  appeal  adds support to Mr Tuiqereqere’s argument that had the legislature intended that there be

a right to apply for a re-hearing of the appeal in the District Court there would have been express statutory provision for it.  Further, in view of the substantial number of District Court Rules which can plainly have no application to procedures under the ARCI  Act,  I  am  not  convinced  by  Mr  O’Callahan’s  argument  that  s 91(4)  was intended to have the result that r 493 would apply to appeals.

[45]     I observe here that r 493 is plainly the intended equivalent in the District Courts Rules of  r 494 of the High Court Rules. I consider it clear that the  latter could not be used to seek a rehearing of an appeal given not only its placement in the rules, but also its specific references to “a  new  trial”,  and  to  jurors,  verdicts  and witness misconduct.  The drafting is only apt to refer to the trial of civil actions.  The wording of r 393 of the District Court Rules is perhaps less clearly limited to the trial

of civil actions, but only to the extent that the provision for civil jury trials in the High Court makes that explicable.   Otherwise, the wording of the rule does suggest that it is limited to hearings of claims commenced by statement of claim.

[46]     I reject also Mr O’Callahan’s argument based on R v Smith. I consider it plain in the context of the discussion in that case that the power held to exist was one which was peculiarly related to Courts of Appeal either at the top of a hierarchy of Courts or, in circumstances where the final Appellate Court can only be approached

by leave and leave was unlikely to be given, a Court of Appeal immediately below the highest Court has effectively made the final decision.   In such circumstances, it has been reasoned that it would be most unsatisfactory if that Court’s final decision could  not  be  re-opened  in  the  face  of  evidence  suggesting  that  there  had  been  a material miscarriage of justice.

[47]     That reasoning cannot be applied to a District Court hearing an appeal under the Accident Compensation legislation. First, it is plainly not a final Appellate Court. Secondly, it is highly unlikely that circumstances giving rise to a miscarriage of justice could not be corrected on appeal to the High Court.   As was observed by

Goddard J in Works Civil Construction Ltd v ARCIC [2001] 1 NZLR 721 at [41];

…it is difficult to accept that any profound procedural error, such as failure

to  observe  natural  justice  or  the  fettering  of  a  discretion,  does  not  equally amount to an error of law.

[48]     That approach was endorsed by John Hansen J in Howard v ACC [2003] NZAR 577, at [48]. It is relevant to recall also that, in the case of an appeal from the District Court, the High Court would have power to hear further evidence if it was of the view that that would be appropriate in the interests of justice. That power would

be either derived from r 716 of the High Court Rules, or an inherent power.   As to the former, previous authorities based on the wording of r 718 in its previous form

(eg. Schier v Removal Review Authority (1998) 12 PRNZ 477; Terrace Tower (NZ) Pty Ltd v Queenstown Lakes District Council [2001] 2 NZLR 388) may no longer state the law. There does not now appear to be any confinement to general appeals only of the open language now used in r 716(3) enabling the High Court to grant leave for further evidence to be adduced if there are “special reasons for hearing it”. If I am wrong in that conclusion, then the inherent powers of this Court would enable further evidence to be called, and leave would likely be granted if it could be shown that it was necessary to avoid a miscarriage of justice aring from the District Court’s decsion.

[49]     If there were any difficulty in framing the relevant argument as an  error of law, then an application for review to the High Court could be made.  Although there

is a privative clause in the accident compensation legislation (it was s 89(7) of the ARCI Act) it would not prevent an application for review being made in cases where the issue sought to be pursued could not be asserted on appeal as an error of law: see Ramsey v Wellington District Court [2006] NZAR 136 (CA) at [33].

[50]     Having regard to all of these considerations, it does not seem likely that the legislature  intended  the  District  Court  to  have  power  to  order  the  rehearing  of  an appeal under the ARCI Act.

[51]         Mr O’Callahan relied on the decision of the Court of Appeal in Comalco New Zealand Ltd v Broadcasting Standards Authority (1995) 9 PRNZ 153 as an authority establishing that an appeal would fall within the definition of “proceeding” in r 3 of the District Court’s Rules.  “Proceeding” is there defined as meaning an application

to the Court “for the exercise of the civil jurisdiction of the Court”.  In Comalco, the Court of Appeal held that under the High Court Rules, an appeal from the Broadcasting Standards Authority was to be treated as a civil proceeding, noting at

159 that proceedings must be either civil or criminal, and that there was no middle ground.   I accept in the circumstances that the appeal is a proceeding, but that does not take the appellant very far.

[52]     The  decision  in  Comalco  however, is relevant for a different reason. The

Court held that notwithstanding that the appeal was a proceeding, general discovery

was not available because it was only possible to obtain discovery after a statement

of defence had been filed. No  statement  of  defence  was  required  to  be  filed  in  a proceeding commenced by notice of appeal.  It was for this reason, that it was only possible to obtain particular discovery under  r 300. Thus  the  case  illustrates  that classification of an appeal as a “proceeding” does  not have the result  that  all procedural rules are applicable in relation to it.

[53]     Finally,  I  do  not  consider  that  r 9  can  be  resorted  to  so  as  to  create  what would  be  a  substantial  new  right  for  appellants  not  otherwise  provided  for  in  the legislation.  Given the comprehensive nature of the rights of review and appeal given by  the  ARCI  Act  and  Regulations  this  is  not  a  case  where  it  can  be  said  that something that is necessary to do justice between the parties has been omitted.  Nor do I think that an analogy could properly be drawn to rules dealing with any “similar case”  given  the  special  procedures  so  extensively  provided  for  in  the  legislation. There is no High Court rule that could be regarded as applicable.

Outcome

[54]     For the reasons I have given, I am of the view that the learned District Court

Judge was correct when he held that there was no jurisdiction to grant an application for re-hearing of the appeal determined by the District Court in this case.

[55]     Consequently, the appeal is dismissed.

[56]     The respondent is entitled to its costs in accordance with Category 2 Band B. Any dispute as to the quantum of those costs may be determined by the Registrar.