Larkin v Accident Compensation Corporation - [2020] NZHC 1234

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2019-485-135

[2020] NZHC 1234

UNDER the Accident Compensation Act 2001

IN THE MATTER OF

an application for leave to appeal to the Court of Appeal under s 163(1) of the Act

BETWEEN

KURTIS LARKIN (by his litigation guardian Penelope Hoare) Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: On the papers

Counsel:

T W R Lynskey and J V Copland for Appellant H B Rennie QC and C J Curran for Respondent

Judgment:

8 June 2020

JUDGMENT OF CLARK J

Introduction

[1] In a judgment delivered 26 November 2019 I dismissed an appeal by Mr Larkin against a decision of Judge Walker in the District Court at Wellington (the November 2019 decision).1 Judge Walker upheld a decision by the Accident Compensation Corporation (ACC) denying Mr Larkin back-payment of attendant care costs between 1 July 1993 and 31 March 2002 on the basis the ACC had no power to compensate Mr Larkin for that period.2 Mr Larkin, through his litigation guardian

1 Larkin v Accident Compensation Corporation [2019] NZHC 3085.
2 Larkin v Accident Compensation Corporation [2018] NZACC 177 (DC).
LARKIN (by his litigation guardian Penelope Hoare) v ACCIDENT COMPENSATION CORPORATION [2020] NZHC 1234 [8 June 2020]

Ms Penelope Hoare, now seeks leave to appeal the November 2019 decision pursuant to s 163 of the Accident Compensation Act 2001 (the 2001 Act).

[2]The applicant seeks leave to appeal on the following question of law:

Do sections 374 and 376 of the Accident Compensation Act 2001 confer any power on the respondent to compensate the applicant for constant personal attention/attendant care provided over the period 1 July 1993 to 31 March 2002?

[3] The respondent opposes the application on the principal basis that the High Court’s findings do not give rise to a question of law capable of bona fide and serious argument.

Leave principles

[4]Section 163 of the 2001 Act provides:

163 Appeal to Court of Appeal on question of law

(1) A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

…

[5] The Court of Appeal in Cullen v Accident Compensation Corp outlined the principles applicable to applications for leave to appeal under s 163 noting that the approach is the same as towards an application for leave under s 67 of the Judicature Act 1908 (now s 60 of the Senior Courts Act 2016).3 The Court will exercise the power to grant leave to appeal leave if satisfied there is an important question of law capable of serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of…

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: [2020] NZHC 1234
Decision Date: 8 June 2020

CaseChat Overview and Summary

The case of Larkin v Accident Compensation Corporation concerns an application for leave to appeal a decision of the High Court dismissing an appeal brought by Mr Larkin against a decision of Judge Walker in the District Court at Wellington. The appeal was dismissed on the basis that the Accident Compensation Corporation (ACC) had no power to compensate Mr Larkin for attendant care costs provided between 1 July 1993 and 31 March 2002. The applicant, represented by his litigation guardian Ms Penelope Hoare, seeks leave to appeal this decision on the question of law concerning the interpretation of sections 374 and 376 of the Accident Compensation Act 2001. The respondent opposes the application on the grounds that the High Court's findings do not give rise to a question of law capable of a bona fide and serious argument.

The legal issues before the court revolve around the interpretation of the transitional provisions of various Accident Compensation Acts for the purpose of backdating compensation payments. The key issue is whether the question of law raised by the application for leave to appeal is worthy of consideration and capable of serious argument. The court must consider the desirability of finality in litigation and the overall interests of justice.

In its judgment, the court found that the applicant had not met the threshold of demonstrating there is a question of law capable of bona fide and serious argument. The court rejected the arguments advanced by the applicant's counsel, finding that the High Court's interpretation of the relevant sections of the Accident Compensation Act 2001 was consistent with the purpose and intent of the legislation. The court further found that the omission of transitional provisions for entitlements under the 1992 and 1998 Acts was likely the result of the different policy framework under those Acts.

The application for leave to appeal is dismissed.

Orders