Marsh v Accident Compensation Corporation

[2019] NZHC 1328

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-507

[2019] NZHC 1328

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:

21 May 2019

Appearances:

Applicant in person

B E McIntosh and H A Evans for Respondent

Judgment:

13 June 2019

JUDGMENT OF COOKE J

[1]    By application dated 23 July 2018 Mr Marsh applies for special leave to appeal the decision of the District Court dated 25 August 2017.1 In that decision his Honour Judge Powell, as he then was, dismissed a decision of Reviewer M Clayton dated   14 June 2013. The Reviewer determined that the only matter to be considered by him was whether Mr Marsh’s condition entitling him to compensation had deteriorated in the period 6 April 2005 to 19 October 2005.2 The Reviewer concluded that there had been no such deterioration. On appeal the Judge agreed with that assessment.

1      Marsh v Accident Compensation Corporation [2016] NZACC 103.

2      At 5; and Review number 48148.

MARSH v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1328 [13 June 2019]

Special leave to appeal

[2]    Under s 162 of the Act a party who is dissatisfied with the decision of the District Court may seek leave of the District Court to appeal to the High Court. Leave can only be granted if the decision was “wrong in law”. If the District Court refuses to grant leave, the High Court may grant special leave to appeal under s 162(3). In the present case leave was declined by Judge Harrison in the District Court on 2 July 2018 on the basis that no serious arguable question of law arose.3

[3]    The principles to be applied when considering whether special leave is to be granted are well established. To obtain leave the applicant needs to identify a question of law arising out of the proposed appeal that is capable of serious argument. There is then a discretion applied to assess whether special leave should be granted, usually requiring an assessment of whether the leave is in the interests of justice. If the District Court has already declined leave, sufficiently special reasons justifying leave will need to be identified. The relevant considerations are identified in more detail in the earlier decisions in which this Court has declined Mr Marsh’s special leave.4

[4]    It is appropriate to record that Mr Marsh has engaged in a number of reviews and appeals to the District Court and the High Court in relation to his case overall. Most recently by judgment dated 28 September 2018, Dunningham J declined to give Mr Marsh special leave to appeal under s 162 of the Accident Compensation Act 2011 (the Act) or its predecessor legislation in relation to a number of earlier District Court decisions.5 I do not refer to this to make criticism of Mr Marsh, but rather to introduce one of the key issues arising from this application, which is to identify what the proposed question of law is, and to work out whether the question has already been considered by this court in earlier decisions. If such a question can be identified it would then be appropriate to consider whether it is a sufficiently arguable question of law, and then whether it is in the interests of justice to grant leave given all the circumstances, particularly in light of what is at stake.

3      Marsh v Accident Compensation Corporation [2018] NZACC 99.

4      Marsh v Accident Compensation Corporation [2015] NZHC 3208 at [27]–[29]; Marsh v Accident Compensation Corporation [2018] NZHC 2545 at [16]–[18].

5      Marsh v Accident Compensation Corporation [2018] NZHC 2545.

Procedural matters

[5]    Before addressing the submissions advanced by Mr Marsh for leave, I record that leading up to the hearing of the application for leave Mr Marsh filed a series of memoranda in which he requested that the hearing of the application be adjourned. By a minute dated 16 May 2019 Nation J declined the applications made to that point. When doing so the Court recorded that the application had already previously been adjourned on Mr Marsh’s application.

[6]    Following that minute Mr Marsh filed two further memoranda dated 17 and 18 May 2019 further requesting an adjournment of the fixture. At the hearing itself I heard Mr Marsh orally on these applications, but declined to grant him an adjournment.

[7]    There were two  main  grounds  for  seeking  adjournment.  The  first  was  Mr Marsh’s health, and particularly his mental health. I fully accept that Mr Marsh has significant mental health issues, and that it is exacerbated by the stress of Court hearings. Mr Marsh explained to me that his symptoms tended to get worse around the time of such hearings. Whilst I have considerable sympathy for him in these circumstances, the difficulty is that it is not foreseeable that these issues will be resolved, and in the end it is necessary to continue on to argue his case. Having heard submissions from him, I am satisfied that he was not unduly prejudiced by his health issues. He remained seated when he presented his submissions, and there was the occasional moment where he lost his train of thought. But he was otherwise able to fully engage with the Court, sometimes on highly technical legal issues, and with some skill. I am satisfied that the decision to proceed with the hearing was the appropriate one.

[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.

[9]    I also record that at the hearing itself, Mr Marsh made a request that my judgment in this matter be issued to him in draft first for comment, an application which I declined.

[10]   Further by another memorandum filed after the hearing (memorandum number 6 dated 23 May 2019) Mr Marsh raised a number of matters including a request to make further submissions. I have considered the matters raised in this further memorandum, but do not think it appropriate to allow Mr Marsh to file further submissions. Not only has Mr Marsh presented very lengthy and detailed written submissions, but there has now been a lengthy oral hearing occupying half a day.

What was decided in the proceeding sought to be appealed?

[11]   As indicated, in order to consider whether special leave to appeal is granted, it is important to be clear on what was decided by the District Court.

[12]   The decision of the Judge relates only to  the question of deterioration under  s 109(2) of the Act. The Judge refers to the initial decisions of the Corporation in relation to that issue leading up to the decision of Reviewer Clayton of 14 June 2013. He records the history of the question of deterioration, including the decision made that Mr Marsh had suffered from deterioration after 20 October 2005 so that he was entitled to have weekly compensation backdated to that date. The Judge then referred to the view taken by the Reviewer that the only remaining issue was possible deterioration in the period from 6 April 2005 to 19 October 2005.6

[13]   The Judge then recorded the Reviewer’s assessment of the factual evidence concerning that matter. He also then recorded that there had been an interim appeal

6      Marsh v Accident Compensation Corporation, above n 1 at [5].

against the Reviewer’s decision to Judge Ongley in the District Court to deal with the preliminary question of whether it was the 1998 Act or the 2001 Act that applied. Judge Ongley held that it was the 2001 Act that applied.7 Judge Powell then noted that Judge Ongley had then retired, and that he was completing the appeal originally commenced by Judge Ongley.

[14]Significantly the Judge then held:8

[9]      Throughout the pre-hearing process for this appeal Mr Marsh indicated that he still considered the issue of the applying legislation to be a relevant matter for determination in this appeal, and also sought to use this appeal as a vehicle to make collateral attacks on a range of earlier judgments and review decisions not otherwise connected to the appeal, but which were relevant to the issue of applying legislation. As I discussed with Mr Marsh at a number of pre-hearing teleconferences, as well as subsequently recording in a number of minutes, these issues could not be raised at the substantive hearing of this appeal.

[10] The reason for this was that the issue of applying legislation had by then been conclusively determined and in consequence what different reviewers may have thought about the applying legislation at different times was not relevant. First as noted, for the purposes of this particular appeal the issue of applying legislation was determined by Judge Ongley in 2014. More broadly, since Judge Ongley issued his interim judgment that the 2001 Act applied, the issue has been the subject of further consideration in both the High Court and Court of Appeal. This came about because Mr Marsh sought leave to appeal the 2012 judgment of Judge Barber referred at [2] above. I declined leave to appeal on this judgment at the same time as I issued judgments in relation to the first tranche of Mr Marsh’s appeals. Special leave to appeal Judge Barber’s 2012 judgment was subsequently refused by Mander J in the High Court with his judgment specifically approving the interim judgment of Judge Ongley in the present appeal. The High Court and Court of Appeal confirmed that no further application for leave to appeal could be entertained.

[11]   In those circumstances the sole issue to be determined in the present appeal is whether or not Mr Marsh can establish that the substantive decision of the Corporation, refusing to accept his vocational independence capacity may have deteriorated between 5 April 2005 and 20 October 2005, was incorrect.

[15]   The Judge then went through the statutory provisions concerning deterioration, assessed the evidence that had been made available, and reached a conclusion consistent with that reached by the Reviewer that “there was simply no medical evidence relating to the period from 6 April 2005 to 19 October 2005 that provides a

7      Marsh v Accident Compensation Corporation [2014] NZACC 146; Marsh v Accident Compensation Corporation, above n 1, at [7].

8      Marsh v Accident Compensation Corporation, above n 1.

basis for concluding Mr Marsh’s vocational independence may have deteriorated during that period”.9 The appeal was accordingly dismissed.

What are the questions of law?

[16]   In the decision of Judge Harrison declining leave to appeal to this Court the Judge held that no question of law requiring reference to the Court had been identified by Mr Marsh. There is accordingly an important initial question — what is the question of law (or questions of law) for which special leave to appeal is sought? No such questions of law are formulated in the application for special leave to appeal itself.

[17]   Mr Marsh filed very lengthy submissions in support of his application for special leave to appeal. He has also filed different versions of these submissions, and in his memorandum filed after the hearing he expressed a concern that I was considering a different version of his submissions from the version he had in Court.

[18]   I read Mr Marsh’s written submissions seeking to identify questions of law that might be capable of a grant of special leave. At the hearing I then made an effort to understand the points Mr Marsh was making, and tried to address with him what the potential questions of law were, and whether they justified the grant of special leave. I will not attempt to address all the arguments that are raised in the various versions of the written submissions that have been filed, and neither would it be appropriate to do so. What is necessary is to identify the potentially qualifying questions of law arising from the decision under appeal, particularly in circumstances where the District Court has declined leave because no such questions had been identified.

Effect of section 133

[19]   The first potential question of law raised by Mr Marsh I was able to identify arises from the effect of s 133 of the Act which provides:

9      Marsh v Accident Compensation Corporation, above n 1, at [18].

133    Effect of review or appeal on decisions

(1)A decision by the Corporation on a claim continues to be of full effect even though—

(a)      an applicant has made a review application relating to the decision; or

(b)      any other proceeding relating to the decision has been commenced.

(2)A review decision continues to be of full effect, unless subsection (3) applies, even though—

(a)      an appellant has filed a notice of appeal relating to the review decision; or

(b)      any other proceeding relating to the review decision has been commenced.

(3)A review decision ceases to be of full effect if all the parties to the review agree to a variation of it for the benefit of the claimant.

(4)A review decision is subject to section 161 (the court’s powers to determine an appeal).

(5)If a person has a claim under this Act, and has a right of review or appeal in relation to that claim, no court, Employment Relations Authority, Disputes Tribunal, or other body may consider or grant remedies in relation to that matter if it is covered by this Act, unless this Act otherwise provides.

[20]   Section 133(2) and (4) means that review decisions are binding unless they are appealed under s 161. Mr Marsh argues that as a consequence of this provision (or if necessary the equivalent provision in the 1998 Act, s 134), earlier decisions made in statutory reviews which determined that the 1998 Act applied to his case created a binding foundation for all future assessments which were then required to apply to the 1998 Act. Ultimately Mr Marsh’s point is that his entitlements should have been assessed under the 1998 Act, not the 2001 Act.

[21]   I accept that the purpose of a provision such as s 133 is to provide some certainty for the recipient of compensation and the Corporation. If a decision is made that compensation (or lack of it) is to be assessed on a certain basis, then that basis must continue, and if either the claimant or the Corporation wishes to challenge it, it must do so through the appeals process — hence the reference in s 133(4) to appeals under s 161.

[22]   Mr Marsh’s key point is that an earlier review decision of Reviewer Walker dated 23 June 2003 determined that the 1998 Act applied to his claims. It was not appealed by the Corporation. For this reason all subsequence decisions, including the present decision in relation to deterioration, have proceeded on an erroneous basis. All his claims should have been accessed under the 1998 Act as a consequence of Reviewer Walker’s decision. Mr Marsh used other concepts to describe this point, including res judicata and issue estoppel.

[23]   In the present case the Reviewer, and then Judge Ongley on the interim appeal, and then Judge Powell in the present decision concluded that the 2001 Act rather than the 1998 Act applied. Judge Powell recorded that Judge Ongley’s decision had effectively been upheld by the High Court. But Mr Marsh wishes to contend on appeal to this Court that this is misconceived, and the effect of s 133 has not been properly recognised. In effect Mr Marsh is challenging the earlier interim judgment of Judge Ongley dated 11 June 2014. Judge Powell was completing the appeal following Judge Ongley’s interim decision that the 2001 Act applied. I accept that Mr Marsh is able to challenge the substance of Judge Ongley’s determination to the extent that it affects the present proceeding.

[24]   Judge Ongley directly considered the effect of the decision of Reviewer Walker. He found:10

[9]Three relevant points emerge from Mr Marsh’s claim that Mr Walker made a binding determination that the 1998 Act applied to his claim:

(a)      Mr Walker decided as a question of law that Mr Marsh had an accident insurance contract because such contracts included contracts with the Corporation (as distinct from an insurer);

(b)      Mr Walker finally decided the review on a different point, namely that Mr Marsh’s letter to Catalyst was not an application for any entitlement, but an argument about a previous decision;

(c)      A Reviewer’s decision on a question of law is not binding, either on the District Court or on other Reviewers.

[25]   I accept that the view expressed in [9(c)] is at least capable of argument. It might be said that the point of s 133 is to provide certainty for the participants, and

10     Marsh v Accident Compensaiton Corporation, above n 7.

that once a Reviewer had decided that the 1998 Act applied to Mr Marsh’s entitlements, then the Corporation had to appeal that if it was to be contested. That determination could not be collaterally attacked in a separate proceeding.

[26]   But the decisive point against Mr Marsh is that this was not what Reviewer Walker ultimately found. As Judge Ongley held, the decision actually made by the Reviewer hinged on a different point, and on that point the Reviewer found in the Corporation’s favour. Mr Marsh cannot contend that the Corporation was obliged to appeal Reviewer Walker’s decision. The Corporation could not appeal as it had succeeded. Section 133 cannot be interpreted so that it deems the reasoning or analysis conducted by a Reviewer on the way to dismissing an application on other grounds as binding.

[27]   There is a further closely related feature. The sole matter in issue in this proposed appeal is the question of deterioration for the identified period. The reality is that Mr Marsh’s argument is a more profound argument directed to his ACC entitlements overall. The decision concerning the relevant Act to be applied on the deterioration question is not something that can operate independently of all previous decisions on Mr Marsh’s entitlements. It is not a discrete question that arises on the question of deterioration. For that reason I agree with the conclusion of Judge Powell that the earlier decisions involving Mr Marsh’s cover, including decisions of this Court, have conclusively determined the fundamental question concerning the applicable Act. Mr Marsh’s argument was potentially relevant to those earlier decisions. It cannot now be advanced in relation to a residual issue in a way that undermines those previous decisions. That would be inconsistent with the very principles of res judicata on which Mr Marsh relies.

[28]   In the course of his submissions Mr Marsh also made reference to review decisions by other review officers, and in particular a decision by Reviewer Findlay. I understood Mr Marsh to say that Reviewer Findlay had concluded that the decision of Reviewer Walker had been binding on him. If that was the case that may not have been a correct view. But in any event the decision of Reviewer Findlay has not been addressed in this proceeding in either the decisions of Reviewer Clayton, Judge Ongley or Judge Powell. For that reason it would not be something that could be the

subject of special leave to this Court even if a question of law could be identified as arising from that kind of review decision.

[29]   Finally it is significant that Dunningham J has already effectively determined that Mr Marsh’s arguments on this issue do not warrant special leave in the earlier decision declining that leave. She held:11

[32]However, at the outset I address Mr Marsh’s assertion that a decision of an ACC reviewer that proceeded on the basis that the 1998 Act applied to Mr Marsh’s case binds all future decision-makers, including higher Courts.

[33]First, as both Judge Barber and Mander J noted, the Walker review decision did not turn on the issue of which Act applied. Second, there have been a number of subsequent decisions that have directly addressed this matter. A factual finding has been made that Mr Marsh did not have an “accident insurance contract” under the 1998 Act and therefore the savings provision contained in s 342 of the 2001 Act (which refers to the continued application of the 1998 Act in respect of any personal injury to which an accident insurance contract applies), does not apply in Mr Marsh’s situation. That finding was made by Judge Barber in the District Court. That approach was subsequently accepted by Judge Ongley and Judge Powell in the District Court. Mander J also revisited the issue in his decision on the application for special leave to appeal to the High Court.

[34]The matters having been discussed exhaustively in those decisions, with the decision that the 2001 Act applied resting on a factual finding that there was no accident insurance contract, I do not consider Judge Powell was in error to proceed on the basis the 2001 Act applied in the decisions for which leave to appeal is sought. Furthermore, having been substantively considered by Mander J of this Court, it is not an issue that would warrant special leave being granted to appeal. This Court has already given its considered opinion on this issue.

[35]That, in my view, extinguishes the primary ground on which leave to appeal is sought. However, I now also turn to each individual decision, and the specific grounds raised by Mr Marsh, to see whether any other issue arises which amounts to a question of law which would warrant the grant of special leave to appeal.

[30]   For all these reasons I conclude there is no question of law arising from this point for which leave could be granted. I do not need to consider whether if there were leave should be granted.

11     Marsh v Accident Compensation Corporation, above n 5 (footnotes mitted).

Deemed review decisions

[31]   The next argument advanced by Mr Marsh that might be capable of being identified as a question of law for which special leave could be granted arises from the effect of the following provision in the Act:

146    Deemed review decisions

(1)The reviewer is deemed to have made a decision on the review in favour of the applicant if—

(a)      the date for the hearing has not been set within 3 months after the review application is received by the Corporation; and

(b)      the applicant did not cause, or contribute to, the delay.

(2)The date of the deemed decision is 3 months after the review application is received.

[32]   This provision appears to create a strong legislative requirement for reviews sought under ss 134–148 of the Act to be determined promptly. These provisions generally create a reasonably tight procedure for the conduct of such reviews.

[33]   Mr Marsh’s argument is that he duly sought reviews of earlier decisions, including decisions under which the Corporation sought to apply the 2001 Act rather than the 1998 Act, but that the reviews were not conducted within the timeframe described by s 146. For that reason he argues that the reviews are deemed to be determined in his favour, and accordingly it has been determined in his favour that the 1998 Act rather than the 2001 Act applies.

[34]   The factual basis for that submission is not clearly apparent. But Mr Marsh says that this forms part of his complaint that he has not had full and proper disclosure of documents that would allow him to demonstrate his point. For that reason he makes the point that it would be unfair for the application for special leave to be declined on that basis.

[35]   There are three related reasons why no seriously arguable question of law arises from this point irrespective of the factual position.

[36]   First, as I have already held in relation to s 131, the only effect that a particular decision has, whether it is a deemed decision or an actual decision, relates to the entitlement under the Act that is in issue. So if there is a deemed review decision under s 146, all that it would determine is that Mr Marsh must be given the entitlement in question. It does not conclusively determine the more general issue on whether the 1998 Act or the 2001 Act applies. Just as with s 133, s 146 could only deem the actual outcome, not the suggested reasoning by which it might have been reached.

[37]   Secondly, the decisions that are the subject of Mr Marsh’s proposed appeal, particularly the decision of Judge Powell, have not addressed an alleged deemed review decision of this kind. They have simply determined the question relating to the additional period of potential deterioration under the Act’s provisions. As already indicated it would not be appropriate for this Court to give special leave to address a point that was not alive in the proceedings to date.

[38]   Thirdly, any decision in relation to the period of deterioration that is strictly in issue in this case could not be used as a mechanism to collaterally challenge the earlier determinations made about Mr Marsh’s general entitlements as addressed in the many other reviews and appeals he has had under the Act’s provisions. So even if some question of law could be identified, it could only have limited scope. It would not be appropriate to grant special leave for that kind of argument.

[39]   For these reasons no arguable question of law is identified arising from this issue. I do not need to consider the discretionary factors to decline leave on this matter.

Other arguments

[40]   In his written and oral arguments Mr Marsh made a number of other points. As indicated I do not intend to individually address those further points. All of them involve one or more of the following:

(a)Issues that do not arise specifically from the decision that Mr Marsh proposes to appeal, that is the decision of Judge Powell in relation to the period of deterioration.

(b)Attempts to address the broader question of Mr Marsh’s entitlements overall, particularly relating to the suggested application of the 1998 Act, and accordingly involve a collateral attack to the outcome of previous decisions.

(c)Matters that involve contested questions of fact, rather than questions of law, or general criticism of previous decision-makers.

(d)Matters that have already been addressed as not warranting special leave to appeal by Mander J or Dunningham J.

(e)Issues that, in any event, do not strike me as being arguable questions of law (to the extent that I have been able to understand them).

[41]   In addressing the remainder of Mr Marsh’s arguments in this way, it would be appropriate to respond to one consistent theme of his submissions. He was very critical of the way that his claims had previously been dealt with by the Courts. The essence of that criticism was the suggestion that questions of efficiency, and the preservation of scarce judicial resources, were treated as more important than the justice of his case. He said the Courts had failed to take the time to fully understand his arguments under the detailed provisions of the Act.

[42]   As indicated, I made an effort not only to read Mr Marsh’s lengthy written submissions in advance, but at the hearing that occupied half a day (the majority of time involving Mr Marsh’s oral submissions) I attempted to understand his arguments in exchanges with him for the purposes of identifying potential questions of law that were capable of the grant of special leave to appeal. More generally Mr Marsh has had two High Court Judges consider his case in recent times where special leave to appeal was declined.12 If an arguable question of law meeting the requirements for special leave to appeal had been identified, such leave would have been granted. I have listened very carefully to Mr Marsh’s oral arguments after reading his written submissions and had a number of exchanges with him in an attempt to fully understand

12     See above n 4.

his case. I have not been able to identify a question of law that meets the requirements for leave to appeal.

[43]Accordingly the application for special leave to appeal is dismissed.

[44]   If there is any issue as to costs I will receive memoranda, first from the Corporation within 10 working days (10 pages maximum) and then Mr Marsh 10 working days later (10 pages maximum).

Cooke J

Solicitors:
Young Hunter, Christchurch

Copy to: Mr Marsh