Marsh v Accident Compensation Corporation
[2018] NZHC 2545
•28 September 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000014 [2018] NZHC 2545
BETWEEN ALISTER JOHN MARSH
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 24 July 2018 Appearances:
Applicant in person
H A Evans and A F Bradford for RespondentJudgment:
28 September 2018
JUDGMENT OF DUNNINGHAM J
[1] Mr Marsh has filed an application for special leave to appeal nine decisions made by Judge Powell on appeals brought by Mr Marsh against decisions of the Accident Compensation Corporation (ACC).1
[2] Special leave is sought under s 162(4) of the Accident Compensation Act 2001 (the 2001 Act) because Mr Marsh’s applications for leave to appeal from the District Court under s 162(2) of the Act were declined by Judge Powell in a sequence of decisions issued on 16 December 2016.
1 Initially he sought leave to appeal 10 decisions but in his submissions he advises he has withdrawn the application for leave to appeal Marsh v Accident Compensation Corporation [2016] NZACC 17.
MARSH v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2545 [28 September 2018]
Background
[3] Mr Marsh’s dealings with ACC began in March 2000 when, as a result of an accident, he injured his right wrist. At the time, Mr Marsh was a self-employed architect. Initially, it was agreed that Mr Marsh’s injury incapacitated him and he was unable to work in that occupation.
[4] However, in March the following year, an orthopaedic surgeon assessed Mr Marsh’s wrist as having healed “in an excellent position” and he had regained a good range of motion. In July 2001 an individual rehabilitation plan was developed with Mr Marsh, to assist him to continue his employment as a self-employed architect.
[5] Rehabilitation progressed and, in March 2002, ACC received medical advice that Mr Marsh was able to return to his pre-injury occupation, albeit with restricted use of his right wrist. By September 2002, he was advised that he was “vocationally independent”. In a review decision dated 17 December 2002, the reviewer concluded that Mr Marsh had capacity to work in two job options and that decision was confirmed on appeal by Judge Beattie in May 2005.2 Judge Beattie also held that the assessment of Mr Marsh was undertaken when the 2001 Act was in force and that Act applied, not the Accident Insurance Act 1998 (the 1998 Act).
[6] Without rehearsing the subsequent history of Mr Marsh’s dealings with ACC in detail, there followed a series of vocational and occupational assessments by various medical practitioners which confirmed that Mr Marsh was vocationally independent and therefore not entitled to payment of weekly compensation. Mr Marsh did not agree with those decisions and has exhaustively challenged them.
[7] The only aspect of this background that I need to highlight for the purpose of this decision is that Mr Marsh considers that in a review decision dated 23 June 2003, Mr Walker, the reviewer, held the 1998 Act applied to Mr Marsh’s circumstances (the Walker review decision).3 Mr Marsh says this is an important decision, which was not appealed, and ACC should therefore be bound by this in all subsequent decisions. In
2 Marsh v Accident Compensation Corporation [2005] NZACC 167.
3 Mr Marsh’s submissions also refer to decisions by Reviewers Vivian and Findlay whom he says also assumed that the 1998 Act applied.
particular, he submits that because ACC did not issue a decision on his claim for deterioration within 21 days, as required by s 66 of the 1998 Act, he is entitled to a “deemed decision” under that Act, accepting his claim.
[8] However, on 27 May 2005, Judge Beattie dealt with an appeal by Mr Marsh of a determination that he had capacity for work and in it he ruled that the 2001 Act applied.4 Subsequently, in October 2005, Reviewer Askey issued a review decision where she concluded that she was bound by Judge Beattie’s decision holding that the
2001 Act applied to Mr Marsh.
[9] Reviewer Askey’s decision was in turn appealed to Judge Barber who undertook his own analysis of the issue of which Act applied. He, too, held that the
2001 Act applied.5 Judge Barber also concluded that Mr Marsh had vocational
independence in a number of vocations and his appeal was dismissed.
[10] Mr Marsh then filed an application for leave to appeal Judge Barber’s decision to the High Court under s 162(1) of the 2001 Act. Judge Powell considered
Mr Marsh’s application for leave and that application was declined.6
[11] Mr Marsh then filed an application for special leave to appeal to the High Court, pursuant to s 162(3) of the 2001 Act. That came before Mander J. Mander J identified the same two issues capable of giving rise to questions of law that Judge Powell had been able to discern from Mr Marsh’s submissions.7 The first related to the approach taken in the Walker review decision regarding the application of the
1998 Act. The second was the issue of whether the 1998 Act or the 2001 Act applied to Mr Marsh’s injury.
[12] In relation to those two issues Mander J:
(a)held there was no basis upon which Mr Marsh could advance a bona fide or serious argument that the Walker review decision could be
4 Marsh v Accident Compensation Corporation, above n 2.
5 Marsh v Accident Compensation Corporation [2012] NZACC 115.
6 Marsh v Accident Compensation Corporation [2015] NZACC 194.
7 Marsh v Accident Compensation Corporation [2015] NZHC 3208 at [30].
determinative of the issue of which Act applied in respect of
Mr Marsh’s injury;8 and
(b) concurred with Judge Barber’s and Judge Powell’s analysis of which
Act applied and came to the same conclusion, which was that the 2001
Act applied to Mr Marsh.9
[13] I outline these matters because, from Mr Marsh’s perspective, they play a significant and continuing role in the current applications for special leave.
Judgments for which leave to appeal is sought
[14] Mr Marsh initially sought leave to appeal 10 decisions of the District Court which had been issued in two tranches. The first four judgments were issued on
10 July 2015 and the second six judgments were issued on 29 January 2016.
[15] On 16 December 2016, the District Court dismissed all of Mr Marsh’s applications for leave to appeal those decisions. Mr Marsh now seeks special leave to appeal nine of those judgments saying he has withdrawn his application in respect of Marsh v Accident Compensation Corporation [2016] NZACC 17. I also note he makes no specific reference in his submissions to Marsh v Accident Compensation Corporation [2016] NZACC 14 which is one of the 10 decisions. However, out of an abundance of caution, I proceed on the basis he is seeking leave to appeal this decision as well.
Legal principles applying to applications for leave to appeal
[16] The applications for special leave are sought under s 162 of the 2001 Act. The criteria to be applied before such applications are granted were identified by Fisher J in Kenyon v Accident Compensation Corporation as follows:10
8 At [41].
9 At [47].
10 Kenyon v Accident Compensation Corporation [2002] NZAR 385 at [15].
(a)the purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;11
(b)although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success;12
(c)the fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course;13
(d)it is for the applicant to show that leave is required in the interests of justice;14 and
(e)as leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account.15
[17] Section 162 makes it clear that an appeal is only allowed on a question of law. A question of law does not arise where the Court has merely applied law, which it has correctly understood, to the facts of an individual case. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact-finding Court unless clearly unsupportable.16 Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law.17
However, issues of fact should not be dressed up as questions of law.18 That said, a
mixed question of law and fact is a matter of law.19
11 Sandle v Stewart [1982] 1 NZLR 708 (CA).
12 Manawatu Co-op Dairy Company Limited v Lawry [1988] DCR 509; Brown v Chowmein
Fashions Limited (1993) 7 PRNZ 43.
13 O’Loughlin v Healing Industries Limited (1990) PRNZ 464.
14 Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).
15 Brown v Chowmein Fashions Limited, above n 12.
16 Bryson v Three Foot Six Ltd [2005] NZSC 34; [2005] 3 NZLR 721 at [25].
17 Commissioner of Inland Revenue v Walker [1963] NZLR 339 at 353-354.
18 Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361 (CA) at [2].
19 Commissioner of Inland Revenue v Walker, above n 17, at 354.
[18] Even if a question of law is identified, the Court has a discretion as to whether leave should be granted, and leave is not to be granted as a matter of course. As was said in Cullen v Accident Compensation Corporation:20
The Court will exercise this power [to grant special leave] if satisfied that there is a serious question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice. The primary focus is on whether the question of law is worthy of consideration.
The applicant’s case
[19] A considerable difficulty with the applicant’s case was identifying the points of law he sought to raise on appeal. On 6, 17 and 19 January 2017, Mr Marsh filed four volumes of submissions comprising almost 500 pages, although significant portions of the submissions were duplicated.
[20] In a decision confirming that Mr Marsh had filed his applications for special leave to appeal in time, Nation J also directed Mr Marsh to identify succinctly:21
(a)the specific decisions in respect of which he claims the same error of law was made;
(b) the precise error of law which he says was made in those decisions; and
(c)why, in summary, he considers that there was an error of law with regard to those decisions.
[21] Nation J restricted Mr Marsh’s submissions in that regard to 10 pages. He then directed Mr Marsh to deal with the remaining errors of law in no more than a further
20 pages. He also directed Mr Marsh to focus on issues of law and not decisions as to fact and advised him that the Court would “not be assisted by reference to background
documents held by ACC or the District Court”.22
20 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].
21 Marsh v Accident Compensation Corporation [2018] NZHC 421 at [39].
22 At [40] and [41].
[22] Regrettably, those directions were not complied with. While Mr Marsh did, indeed, file a “short version”, which almost complied with Nation J’s restriction as to page length, he also filed a 120 page “long version”. In subsequent submissions filed (purportedly in reply to ACC’s submissions), he repeatedly exhorted me to read the “long submission” to understand his case (which I have). Those long submissions occupied about twice as many pages as did the nine decisions appealed from.
[23] In both his long and short submissions Mr Marsh identifies 42 points of law which he says are common to all the decisions he seeks leave to appeal to the High Court. He also then identifies between three and 11 specific points of law in relation to eight of the decisions he seeks leave to appeal. However, even a cursory glance at the points of law demonstrates the difficulty the Court has had in identifying the legal issues Mr Marsh wishes to raise.
[24] Many of the “points of law” are simply general submissions. For example, the first point of law (described in submissions as POL – 1) reads as follows:
The appellant submits mandatory statutory Conditions Precedent must be complied with for all decisions, and the conditions precedent vary from decision to decision depending on the date and context of each individual decision.
[25] Similarly, the second point of law (POL – 2) reads as follows:
The appellant submits a judicial error of law does not change the law and become a binding precedent for all future decisions for the same claimant, or different ACC claimants.
[26] Whether or not these submissions are correct, they do not assist me to identify whether there has been an error in the way the Judge has applied the law to the facts raised in the individual cases.
[27] In considering the points of law raised by Mr Marsh in relation to the individual decisions, similar problems arise. Many of the points of law are again submissions on what Mr Marsh says the law is. For example, the point of law described as POL – B1 asserts simply “the legislation provides for reviewers to make a binding decision on applying legislation”.
[28] Mr Marsh also makes submissions on how he says the law should be applied to the facts in his case. For example, the point of law described by Mr Marsh as POL – E4 states:
As the appellant is self employed the means of calculating the impact of time off work for treatment is complex, and the appellant submits that it should be based on end of year earnings, not on a time basis.
[29] Some of the points of law purport to make statements of fact about earlier decisions. For example, the point of law described as POL – B2 simply states
“Reviewer Stringleman as a preliminary matter ruled” the 1998 Act applied.
[30] It is apparent from reading the points of law asserted that Mr Marsh is not focussing on the decisions he wishes to appeal, but on the entire history of his dealings with ACC and the various review decisions made, to argue that the decisions appealed from cannot stand.
[31] Given the sprawling nature of Mr Marsh’s challenges to the decisions, I propose, instead, to consider each individual decision in light of the general and specific points of law alleged by Mr Marsh in his “long submission”, to reach a view as to whether:
(a) there are identified questions of law to be determined; and
(b)they reach the threshold that would justify granting special leave to appeal.
[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.23 That approach was subsequently accepted by Judge Ongley24 and Judge Powell25 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.
Marsh v Accident Compensation Corporation [2015] NZACC 195
[36] The issue in this appeal was whether a letter from ACC dated 15 June 2004 constituted a fresh decision which gave rise to review rights and therefore allowed
Mr Marsh to challenge an earlier decision of ACC requiring him to repay $621.10 which had been overpaid in weekly compensation.
[37] In his analysis of the evidence before the Court, and the letter in question, Judge Powell concluded that the letter did not comprise a decision. It was, as the reviewer had pointed out, simply a restatement of a decision that had already been
23 Marsh v Accident Compensation Corporation, above n 5.
24 Marsh v Accident Compensation Corporation [2014] NZACC 146.
25 Marsh v Accident Compensation Corporation, above n 6.
made to require repayment of that sum. Furthermore, that decision had been the subject of an unsuccessful appeal by Mr Marsh to the District Court.26
[38] I therefore accept ACC’s submission that there is no seriously arguable question of law that could arise from the facts of this appeal. It was entirely open to the Court to determine that the letter of 15 June 2004 was not a fresh decision giving rise to review rights, but was simply an administrative response by ACC. There are no grounds to grant special leave to appeal this decision.
Marsh v Accident Compensation Corporation [2015] NZACC 196
[39] The issue in this appeal is whether ACC’s letter of 4 November 2004 constituted a fresh decision which gave rise to review rights. Mr Marsh in fact succeeded on appeal because the District Court accepted his argument that the letter was one which carried review rights because it revoked a decision made on
10 December 2003 due to error. That was an outcome which Mr Marsh had sought.
[40] However, Mr Marsh’s submission went further. He argued that the revocation of the 10 December 2003 decision should result in a deemed decision on his application pursuant to s 66 of the 1998 Act. Judge Powell held that:
[13] This could not possibly be the consequence of the 4 November 2004 decision … [as] it is beyond any dispute that Mr Marsh’s injury stood to be administered under the Accident Compensation Act 2001, and under the 2001
Act there is no mechanism to obtain deemed decisions on entitlements.
[41] Furthermore, as Judge Powell noted, a reassessment eventually took place, followed by other reassessments, decisions, reviews and appeals and there is “accordingly no further action that can be taken in respect to the 4 November 2004 decision and no point in referring the application back to any reviewer for further consideration”.27
[42] Again, the gist of Mr Marsh’s points on appeal is that various provisions of the
1998 Act applied and a deemed decision should have resulted. For the reasons already given, I consider that view is untenable.
26 Marsh v Accident Compensation Corporation, above n 2.
27 At [15].
[43] Accordingly, I decline special leave to appeal this decision.
Marsh v Accident Compensation Corporation [2015] NZACC 197
[44] The issue in this appeal again was whether a letter from ACC to Mr Marsh dated 11 December 2003 constituted a fresh decision giving rise to review rights. Again, Judge Powell, after reviewing authorities on what constituted a fresh decision, agreed that in one respect the letter did comprise a decision that ought to have given rise to review rights. That issue was whether the 1998 or the 2001 Act applied to
Mr Marsh’s claim.
[45] However, Judge Powell concluded that:
[16] As the issue of applying legislation is now settled there is no conceivable utility in referring the decision contained in the Corporation’s letter of 11 December 2003 back to review, nor indeed requiring any further action in relation to the letter, as the decision is clearly correct.
[46] Mr Marsh notes, however, that Judge Powell made the following observation:28
Had Mr Marsh been allowed to review that decision at the time the issue of the applicable legislation which has gone on to plague the relationship between Mr Marsh and the Corporation for the next 12 years might have been clarified to the benefit of both parties.
[47] Mr Marsh appears to consider that this amounts to an acknowledgment that he was entitled to a deemed decision under the 1998 Act at the time. It does not. It simply reflects the reality that had the issue been clarified sooner, it may have avoided this issue clouding the relationship between Mr Marsh and ACC.
[48] That said, it is clear that the issue of which legislation applied was clearly identified early in the piece and has been the subject of decisions which Mr Marsh has participated in, which have all come to the view that the 2001 Act applies.
[49] Again, because the issue in question has been conclusively determined, no seriously arguable question of law arises and this application for special leave to appeal is dismissed.
28 At [14].
Marsh v Accident Compensation Corporation [2015] NZACC 198
[50] Again, this decision dealt with appeals regarding whether two letters from ACC to Mr Marsh, dated 16 January 2004 and 4 March 2004, constituted decisions which gave rise to review rights. This appeal turns on factual findings that neither letter constituted a decision, with Judge Powell noting that:
Mr Marsh was not able to articulate any basis for why either of these letters constituted any form of decision in their own right, nor could he identify any practical consequence that would result, as opposed to the letter simply referring to other decisions made by the Corporation with which Mr Marsh had taken issue.
[51] Mr Marsh’s submissions shed no light on why he says this decision raises an issue of law. While he considers the letters in question “are full of proven error/lies” and the letter of 16 January 2004 was a “decision not to issue a decision”, it seems
Mr Marsh’s concerns are more with what ACC has said in these letters, rather than Judge Powell’s finding, which appears entirely open to him, that these letters did not constitute decisions which gave rise to a right of review.
[52] Accordingly, there is no question of law arising from the decision and this application for special leave to appeal is dismissed.
Marsh v Accident Compensation Corporation [2016] NZACC 14
[53] At issue in this appeal is whether an application for review filed by Mr Marsh, which sought a deemed decision under the 1998 Act, was correctly determined as having been made under s 134(1)(b) of the 2001 Act, and then dismissed because, by the time it was heard, decisions on the entitlements sought by Mr Marsh had been determined by ACC.
[54] This is yet another instance where Judge Powell, based on his own and other judges’ reasoning, determined that the reviewer had correctly determined that the 2001
Act applied, and therefore dismissed Mr Marsh’s application for review.
[55] Given my view that this question has been canvassed and determined, both in the District Court and this Court, and a common view reached, I consider this is not a
question of law for which special leave to appeal ought to be granted and I decline to do so.
Marsh v Accident Compensation Corporation [2016] NZACC 15
[56] This appeal also concerns the issue of whether Mr Marsh was entitled to a deemed decision under the 1998 Act or not.
[57] For precisely the same reasons as special leave has been declined on the previous decision, I decline it for this decision.
Marsh v Accident Compensation Corporation [2016] NZACC 16
[58] Again, this appeal involves the question of whether Mr Marsh was entitled to a deemed decision under the 1998 Act, contrary to the stance taken by ACC. For the same reasons as the last two decisions, I am satisfied that that question of law has been comprehensively determined and there is no case to grant special leave to appeal.
Marsh v Accident Compensation Corporation [2016] NZACC 18
[59] This appeal concerns a decision by Reviewer Clayton declining jurisdiction to hear a review brought by Mr Marsh on the basis that his 4 November 2002 claim had already been heard and determined in the Walker review decision in 2003. Reviewer Walker had dismissed Mr Marsh’s application for review and his request that his weekly compensation continue, noting that there was no medical certification to show that Mr Marsh’s condition had deteriorated to the point where he should no longer be considered as having capacity for work. Reviewer Clayton considered Mr Marsh was seeking to relitigate the same issues and facts as Reviewer Walker had addressed and therefore declined to consider them.
[60] Judge Powell noted that it was difficult to understand the rationale behind the filing of this appeal given Mr Marsh had consistently argued that Reviewer Walker’s
2003 decision with regard to the legislation applicable to his injury was correct and binding on all other subsequent decision-makers, and yet now effectively challenged it on other matters. Judge Powell also noted that Reviewer Walker’s conclusions that the 1998 Act applied were “in the nature of obiter comments and in any event not
binding on subsequent decisionmakers, much less either the District or the
High Court”.29
[61] The only question of law arising was whether Judge Powell was right to reaffirm that the 2001 Act applied. For the reasons already given, this question of law does not warrant the granting of special leave to appeal and I decline to do so.
Marsh v Accident Compensation Corporation [2016] NZACC 19
[62] In this appeal Mr Marsh challenged the decision of ACC regarding the payment of interest on weekly compensation which, in 2013, was backdated to
20 October 2005. ACC agreed to pay interest to Mr Marsh but only from 6 November
2012, rather than the earlier date contended for by Mr Marsh of 20 October 2005.
[63] This was one of the lengthier decisions by Judge Powell and it resulted in him substituting the date of 17 December 2008 for the 6 November 2012 date contended for by ACC. In reaching this view, Judge Powell considered ACC’s liability to pay interest as set out in s 114 of the 2001 Act, and the leading authority on interpretation of that section, being the Court of Appeal decision in Accident Compensation Corporation v Miller.30 In applying the legislation to the circumstances arising in this case, Judge Powell reached the view that it was only at 17 December 2008 that ACC had “all necessary information” needed to make the payment to Mr Marsh, and so held that interest was to run from this date. In Mr Marsh’s submission on the appeal involving ACR 436/1231 (which he says is withdrawn), he appears to refer to this decision and says he “understands why [J]udge Powell did not award interest for [this] limited period”, being between 2005 and 2007.
[64] I accept Mr Evans’ submission that that decision was a factual one. It involved an assessment of the various medical reports before the Court and then an assessment as to when all the necessary information was present. The only aspect in which
Mr Marsh was unsuccessful was that he was unable to persuade the Judge that interest
should be backdated to 2005, rather than 2008. That, however, was purely a question
29 At [16].
30 Accident Compensation Corporation v Miller [2013] NZCA 141, [2013] 3 NZLR 312.
31 Being Marsh v Accident Compensation Corporation [2016] NZACC 17.
of fact and not one of law, and Mr Marsh’s submissions do not identify any error of law that would warrant the grant of special leave to appeal.
Conclusion
[65] Despite the voluminous submissions filed by Mr Marsh, I accept the respondent’s submissions that the sole legal issue raised by Mr Marsh is that the 1998
Act applies to his claims and not the 2001 Act. That is an issue that has been conclusively determined against Mr Marsh, including in the decision of Mander J in this Court, and it is not sufficiently arguable to warrant granting special leave to appeal.
[66] The balance of the submissions made by Mr Marsh are either his own observations or submissions on the law, or they raise disputed factual issues regarding his treatment by ACC or the decisions made in respect of his claim. They do not raise any arguable questions of law, let alone one which would warrant granting special leave to appeal.
Costs
[67] ACC has sought to be heard on costs. An application for costs can be made by the respondent within 20 working days of the date of this decision. Mr Marsh then has a further 15 working days in which to file a memorandum in response.
[68] Costs memoranda are to be limited to 10 pages in length.
Solicitors:
Young Hunter, Christchurch
Copy To: Mr Marsh
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