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…

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 1328
Decision Date: 13 June 2019

CaseChat Overview and Summary

Alister John Marsh sought special leave to appeal against the decision of the District Court which dismissed his appeal against the Accident Compensation Corporation’s decision to deny his claim for compensation for a deterioration in his vocational independence. Mr Marsh argued that the legislation applicable to his case should have been the Accident Compensation Act 1998 rather than the Accident Compensation Act 2001, and that this error had a binding effect on all subsequent decisions. The Court found that Mr Marsh had not identified any arguable question of law arising from the decision of the District Court that warranted the grant of special leave to appeal. The Court noted that the issue of which Act applied had been conclusively determined in earlier decisions, and that Mr Marsh’s argument was effectively a collateral attack on those decisions. The Court also found that the argument relating to deemed review decisions did not give rise to an arguable question of law. The application for special leave to appeal was accordingly dismissed.

The case involves the interpretation of the Accident Compensation Act 2011 and its predecessor legislation, and the principles governing the grant of special leave to appeal. The Court considered the effect of section 133 of the Act, which provides that review decisions are binding unless they are appealed under section 161. The Court also considered the effect of section 146 of the Act, which provides for deemed review decisions if the review is not conducted within three months. The Court found that neither of these provisions gave rise to an arguable question of law in the present case. The Court also considered a number of other arguments advanced by Mr Marsh, but found that they did not give rise to arguable questions of law. The Court concluded that the application for special leave to appeal should be dismissed.

Orders