Marsh v Accident Compensation Corporation
[2019] NZHC 2344
•17 September 2019
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2018-409-507
[2019] NZHC 2344
UNDER the Accident Compensation Act 2011 IN THE MATTER OF
an appeal under section 162 of the Accident Compensation Act 2011
BETWEEN
ALISTER JOHN MARSH
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: On the papers Appearances:
A J Marsh applicant in person
H A Evans and B E McIntosh for Respondent
Judgment:
17 September 2019
JUDGMENT OF COOKE J
(Costs, applications for recall/slip, leave to appeal)
[1] In my judgment of 13 June 2019 I declined Mr Marsh’s application under s 162 of the Accident Compensation Act 2011 for special leave to appeal to this Court.1 By memorandum dated 24 June 2019 the Corporation has sought costs in relation to Mr Marsh’s unsuccessful application. By a series of memoranda, including his most recent memorandum (No 22) dated 9 September 2019, Mr Marsh has asked me to recall my judgment under r 11.9 of the High Court Rules 2016, or exercise the power to correct accidental slips or omissions under r 11.10. In that memoranda he has also sought leave to appeal to the Court of Appeal. This judgment deals with those matters.
1 Marsh v Accident Compensation Corporation [2019] NZHC 1328.
MARSH v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2344 [17 September 2019]
Application for adjournment
[2] In my judgment of 13 June 2019 I set a timetable for the filing of memoranda in relation to costs. In the memoranda filed by Mr Marsh following judgment he has asked that the determination of costs, and the determination of his anticipated applications for recall and under the slip rule, should be adjourned because his depression and physical health difficulties mean that he is unable to properly present submissions to the Court on those issues at this time.
[3] I have declined those adjournment applications, including most recently in my minute of 5 September 2019. I do so again. As indicated in the principal judgment, I accept that Mr Marsh has been suffering from mental health difficulties.2 But as I indicated at the time I was concerned that there was no foreseeable end to the impediments that Mr Marsh faced, and that in any event he was able to present detailed submissions with a significant degree of competence. I remain of that view. Mr Marsh has been raising his health concerns and seeking adjournments since May of this year, and the detailed arguments he has been able to advance, as well as in the twenty-two memoranda he has filed, illustrate that he has been able to competently advance his position. Indeed he has done so with assiduousness.
[4] As I indicated I would in my minute, I will proceed to determine the Corporation’s costs application notwithstanding that Mr Marsh has elected not to file any submissions in relation to that matter.
Costs
[5] By memorandum dated 24 June 2019 the Corporation has set out its claim for costs. It has done so in a fuller way than would normally be the case so that Mr Marsh can understand the costs regime and the way that the costs claim is calculated. The Corporation indicates that it is entitled to scale costs of $13,246.60, albeit counsel advise it is willing to limit its claim to an award of $10,000.
2 At [5]–[10].
[6] The Corporation identifies a claim on a Category 2 basis, involving a daily recovery rate of $2,230. That seems to me to be appropriate. It then makes assessments based on Band B for time allowances. Again that appears to me to be appropriate.
[7] The allowances then contemplated by the principal steps required to respond to an appeal are then calculated. That includes commencing a response to an appeal (step 53, 0.5 days) and preparation of written submissions for the appeal (step 56, 3 days). It then claims for the appearance at the appeal itself, and solely for principal counsel (step 57, 0.5 days). This totals four days resulting in costs of $8,920.
[8] The Corporation then makes claims for allowances under steps 10, 11 and 12 in relation to preparing for case management conferences, filing memoranda, and appearing at case management conferences. As is explained in the memorandum of counsel, there were very many such steps, including because of the adjournments that Mr Marsh sought. In paragraph 19 of counsel’s memoranda counsel list nine minutes issued by Judges in the management of the case. The Corporation’s ultimate costs claim of $10,000 involves claiming less than allowing one claim under each of steps 10, 11 and 12 on top of the $8,920 calculated above. In other words the Corporation is seeking less than it would be entitled to on a conventional costs award. It’s offer to do so seems to me to be appropriate. The various memoranda that Mr Marsh has filed perhaps reflect the difficulties he is facing in terms of his mental, and physical health issues. Confining the Corporation’s allowance to one allowance for each step, resulting in a total allowance of one day would be appropriate. Indeed the award of
$10,000 is less than such an award.
[9] In those circumstances I uphold the Corporation’s claim for costs in the amount of $10,000.
Application for recall under the slips rule
[10] In his memorandum no 22 dated 9 September 2019 Mr Marsh has again indicated that he wishes to make an application under the slips rule (r 11.10) or under the recall rule (r 11.9).
[11] In doing so he has listed a series of memoranda stating, “I request that Justice Cooke read every line of each of the following documents, particularly the first one, as they all clearly relate to issues of error and omissions from Justice Cooke decision, and the ACC costs claim, and my request for leave to higher appeal”. He then lists 19 such memorandum, including one that he says he is still writing which has not yet been filed. Over the following three and a half pages he then makes submissions.
[12] The jurisdiction to recall a judgment under r 11.9 is of reasonably limited compass. The jurisdiction was set out by Wild CJ in Horowhenua County v Nash (No
2) in the following terms:3
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[13] The slips rule, r 11.10 is similarly limited. The rule is used sparingly and the finality of judgment is not to be likely weakened.4 The rule is designed to correct minor errors or omissions of a technical nature — the “clerical mistake” or “accidental slip or omission” referred to in the rule. It is not designed to re-open substantive arguments.
[14] A key matter raised by Mr Marsh in his most recent memorandum, and his earlier memoranda (and indeed in his submissions) is the alleged failure by the Corporation to provide relevant documents to him. His most recent memorandum relies on s 154 of the Accident Compensation Act 2001 which provides:
154 Corporation’s duty to make record available
(1)On receiving a copy of the notice of appeal, the Corporation must provide to the Registrar any of the following that exist:
(a)a copy of the decision appealed against; and
3 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).
4 BNZ v Mulholland (1991) 4 PRNZ 299.
(b)the record of the review hearing; and
(c)all documents, items, and exhibits relating to the review that are in the custody of the Corporation or the reviewer; and
(d)a copy of any notes made by, or by direction of, the reviewer relating to the hearing of the review.
(2)A person who had a right to be present and heard at the hearing of the review may request the Corporation to provide any of the items described in subsection (1) that exist, and the Corporation must comply with the request as soon as practicable.
[15] Mr Marsh says this provision has clearly been breached, including by Judges Ongley and Powell and by me. He says that Justice Dunningham had already ruled that a breach of s 154 could lead to the grant of leave to appeal.
[16] In the principal judgment the question of the receipt of information by Mr Marsh was dealt with me in responding to his requests for an adjournment. I held as follows:5
[8] The second basis for the adjournment was Mr Marsh’s claim that he has not been provided with documentation he has been seeking relating to the decisions made about his case. This has been a consistent theme of Mr Marsh’s complaints. As I said to him at the time, the criticism of the lack of information provided to him appeared to be part of the substance of his proposed appeal. And in any event seeking further information is not directly relevant to the decision of the District Court which is sought to be appealed here. Whether there is a question of law arising from the decision of the Court that warrants special leave is to be determined based on the decision that has been made. That is not affected in any direct way by obtaining further documentation about his overall case. For that reason also the application for an adjournment on this basis was declined.
[17] There is plainly a duty on the Corporation to provide information relevant to the appeal. But it nevertheless remains necessary for the grant of special leave to appeal to identify what has been decided in the proceedings subject to the application of leave, and then identify the question of law for which leave is sought. A general complaint that not all information has been provided in the procedural steps relating to the proposed appeal does not demonstrate that the requirements for the grant of special leave are established. The Court can take that into account, appreciating
5 Marsh v Accident Compensation Corporation, above n 1, at [8].
that it is said there is an information deficiency, but the tests for leave must still be established.
[18] In any event Mr Marsh’s complaint about the alleged failure to provide information was well and truly before the Court when his application for leave was argued. It is not something that has not been overlooked in a manner justifying recall, and neither does it involve a slip or omission. What Mr Marsh is doing is remaking that same point he has been continuously making in the earlier memoranda, and in the written and oral submissions he has already made. The fact that Mr Marsh disagrees with the Court’s assessment does not mean the judgment should be recalled, or that there has been an error contemplated by the slips rule.
[19] The balance of Mr Marsh’s memorandum of 9 September 2019 makes other criticisms of more detailed factual matters in relation to his case. These points also do not engage the recall jurisdiction or the slips rule.
[20] I am conscious that Mr Marsh contends that he has only advanced his position in a preliminary way. But I am satisfied there is no basis to recall the judgment, or act under the slips rule.
Application for leave to appeal to Court of Appeal
[21] Finally in his memorandum Mr Marsh makes an application for leave to appeal my decision to the Court of Appeal.
[22] The relevant right provision regulating any further appeal is s 163 of the Accident Compensation Act 2001 which 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.
(2)If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.
(3)An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.
(4)The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.
[23] As is apparent from the terms of the legislation, there is only a right of appeal to the Court of Appeal (with leave) on a decision of the High Court on an appeal under s 162. Here the High Court has declined leave to bring such an appeal. There is accordingly no decision of the High Court that can be appealed to the Court of Appeal under s 163. It is clear that there is no appeal to the Court of Appeal against an adverse leave decision.6 Accordingly no leave to appeal to the Court of Appeal can be granted, even if the form of the application had been appropriate.
Cooke J
Solicitors:
Young Hunter, Christchurch
Copy to: Mr Marsh
6 McCafferty v Accident Compensation Corporation (2003) 16 PRNZ 843; [2004] NZAR 97 (CA).
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