Marsh v Accident Compensation Corporation - [2019] NZHC 2344

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…

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: [2019] NZHC 2344
Decision Date: 17 September 2019

CaseChat Overview and Summary

The case before the High Court of New Zealand is Marsh v Accident Compensation Corporation, an appeal under section 162 of the Accident Compensation Act 2011. The applicant, Alister John Marsh, seeks special leave to appeal the Court's earlier decision that declined his application for special leave to appeal. The respondent is the Accident Compensation Corporation. The legal issues in this case include the application for costs by the Accident Compensation Corporation, the application for recall of the judgment under rule 11.9 of the High Court Rules 2016, the application for correction of accidental slips or omissions under rule 11.10, and the application for leave to appeal to the Court of Appeal.

The Court declined the application for adjournment because, although Mr Marsh has been suffering from mental health difficulties, he has been able to present detailed submissions to the Court with a significant degree of competence. The Court upheld the Corporation’s claim for costs in the amount of $10,000, which is less than what the Corporation would be entitled to on a conventional costs award. The Court found that there was no basis to recall the judgment, or act under the slips rule as Mr Marsh’s complaints about the alleged failure to provide information were well and truly before the Court when his application for leave was argued. Finally, the Court found that there is no appeal to the Court of Appeal against an adverse leave decision, and accordingly no leave to appeal to the Court of Appeal can be granted.

The final orders of the Court were that the Accident Compensation Corporation's claim for costs was upheld in the amount of $10,000, the application for recall under rule 11.9 of the High Court Rules 2016 was dismissed, the application for correction of accidental slips or omissions under rule 11.10 was dismissed, and the application for leave to appeal to the Court of Appeal was dismissed.

Orders