Marsh v Accident Compensation Corporation
[2018] NZHC 421
•14 March 2018
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV-2017-409-000014 [2018] NZHC 421
BETWEEN ALISTER JOHN MARSH
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: On the papers Counsel:
Applicant in person
H A Evans for the Respondent
Judgment:
14 March 2018
JUDGMENT OF NATION J
[1] Mr Marsh has filed documents with the High Court. In those documents, he seeks leave of the High Court to appeal 10 decisions of the District Court. The issue I deal with in this judgment is whether the applications for leave to the High Court are a nullity because they were not filed within time.
Background
[2] On 16 December 2016 in the District Court, Judge Powell issued decisions declining leave to appeal 11 decisions that had previously been made by the District Court on appeals under the Accident Compensation Act 2001.
MARSH v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 421 [14 March 2018]
[3] Mr Marsh sought to pursue his application for leave through the filing of extensive documents, filed at different times.
[4] In a minute of 28 April 2017, I directed there was to be a case management conference to discuss the future of the proceedings on 2 June 2017. In that minute, I directed Mr Marsh to file a memorandum setting out concisely which decisions he wished to appeal and the error of law he was seeking to address. I also directed ACC to file a memorandum dealing with any issues as to whether the applications for leave had been filed within time and the consequences if they contended this had not happened.
[5] The case management conference was eventually convened before Associate Judge Osborne on 30 August 2017.
[6] In his minute resulting from that conference, Associate Judge Osborne recorded that counsel for ACC accepted that the application filed on 6 January 2017 was within the 21 day period during which an application had to be filed. He noted that ACC was raising a preliminary issue as to whether applications associated with other documents had been filed within time. He set out a timetable for Mr Marsh and counsel for ACC to file memoranda as to that issue, with their submissions to then be referred to a Judge for this preliminary issue to be determined. Counsel for ACC did not seek an opportunity to present oral submissions but Associate Judge Osborne gave Mr Marsh the opportunity to request an oral hearing as to the issue.
Submissions
[7] In a memorandum of 4 September 2017, Mr Evans set out the relevant rules and authorities.1 Mr Evans referred the Court and Mr Marsh to various judgments in which the High Court held that, where legislation sets a time limit, that will prevail even if the High Court Rules provide an alternative timeframe for making the application and give the High Court the power to extend the timeframe.2
1 Accident Compensation Act 2001, ss 162(1) and (4); High Court Rules 2016, rr 1.17(1)-(2), 1.18 and 1.19(1).
2 Wyman v Accident Compensation Corporation HC Wellington CIV-2007-485-451, 23 May 2007; Siola’a v Wellington District Court [2008] NZCA 483 [2009] NZAR 23; Armstrong v Accident Compensation Corporation (2011) 20 PRNZ 834; Aalderink v Accident Compensation
[8] In Attorney-General v Howard, the Court of Appeal decision concerned the time limits for filing and service of a notice of appeal under the Human Rights Act 1993.3 That Act provided a statutory timeframe similar to the Accident Compensation Act 2001. When considering the discretion of the Court, Glazebrook J noted that the timeframes are mandatory and cannot be extended by the Courts unless the statute itself provides that discretion. She also held that the High Court could not cure any defect through the exercise of a relevant discretion conferred on the Court by the High Court Rules because the relevant statute expressly limited the time for taking the necessary steps.
[9] As directed by Associate Judge Osborne, Mr Marsh filed submissions in response on 29 September 2017.
[10] Reasonably and realistically, Mr Marsh accepted that special leave had to be “sought” by 6 January 2017. He tentatively suggested that, through a discussion which took place in Court with Judge Powell and a telephone discussion he had with someone at the High Court, he was led to believe the end date for filing the applications would be 17 January 2017.
[11] Mr Marsh advanced a number of reasons for allowing him to proceed with the applications for leave to appeal. He also asked for a live hearing to address the issues. Because my determination on this issue is one sought by Mr Marsh, it has not been necessary for me to convene such a hearing.
[12] ACC had been directed by Associate Judge Osborne to file and serve submissions in opposition, together with any affidavit evidence, by 13 October 2017 with Mr Marsh to file any submissions in reply by 20 October 2017. Counsel for ACC filed a memorandum on 22 December 2017.
[13] In that memorandum, Mr Evans said that Mr Marsh had never served a copy of any of the applications or bundles of documents that he filed on 6, 17 and 19 January 2017. He noted that ACC was not able to waive any mandatory statutory timeframe
Corporation [2013] NZHC 1913, [2013] NZAR 1003; Jones v Accident Compensation
Corporation [2016] NZHC 973.
3 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.
as jurisdiction cannot be conferred by agreement. He said it was for the Court to decide if Mr Marsh had filed all his applications for leave within time.
[14] Mr Evans drew to the attention of the Court the fact that, in the document dated 6 January 2017, Mr Marsh had stated “the appellant intends to seek special leave of the high court to appeal 10 of these decisions”. Mr Evans, having seen the documents that had been filed by Mr Marsh at the High Court through visiting the High Court, submitted that the fact three separate documents had been filed on separate dates supported ACC’s original view that the applications for leave filed on 17 and 19 January 2017 were out of time and thus a nullity. He however noted that the alternative view was that, as Mr Marsh expressed his intention to seek special leave of the High Court in 10 decisions in the document dated 6 January 2017 and that as this document was filed within the 21 day statutory period, the Court might consider that an application for leave to appeal all 10 decisions had been made in time.
[15] In his submissions of 29 September 2017, Mr Marsh said that, in his document of 6 January 2017, he had referred to the fact he was intending to seek special leave of the High Court to appeal 10 of the decisions but had said he was under duress to prepare 10 different applications for leave. By this, he meant that he could not complete his application fully, to his satisfaction, for each of the 10 applications. He asked the High Court to have regard to the asserted duress and to treat the reference that had been made to his stated intention to pursue the applications as to all 10 decisions as “Preliminary Submissions for 10 special leave applications, sufficient under the 2016 high court rules to be accepted”.
[16] Alternatively, Mr Marsh asked the Court to exercise its discretion under r 1.5(2)(b) of the High Court Rules to allow amendments to the 6 January 2017 document to “correct errors in form made under duress”. He suggested any deficiency in the substance of the 6 January 2017 document could be treated as an irregularity as going only to “form” and thus being capable of cure in this way. Mr Marsh said that, while he may have made a mistake as to how the time for filing an appeal would be calculated, he had acted diligently and in good faith.
[17] Mr Marsh also suggested the High Court could technically void the Judge Powell decisions, based on breaches of natural justice so that the 21 day application period from 16 December 2017 would be negated. Mr Marsh introduced this submission with the words “clutching at straws”.
Discussion
[18] The document Mr Marsh filed on 6 January 2017 had the cover sheet as follows:
Seeking Special Leave of High Court to Appeal to High Court Re Judge Powell
Decisions AI 91/05 & AI 124/05
Volume JPSL-F3 Original issues:
·Seeking Weekly Compensation on Grounds of Deterioration from 10 Sept 2002, and seeking a finding the 1998 Act applies, by action of a Deemed Review Decision relating to review of 10 Dec 2003 ACC decision relating to claims of 28 June 2003, 19 July 2003, & 28 July 2003.
Included are:
·Appellant’s Submission to High Court -6 Jan 2017
·Judge Powell decision 10 July 2015
·Judge Powell declining leave to appeal decision 16 Dec 2016
[19] Beneath that first cover sheet, was a 110 page document. In a banner across the intituling page were the words:
APPELLANT’S “SUMMARY” OF POINTS OF LAW WHICH LEAVE
TO APPEAL TO THE HIGH COURT IS BEING SOUGHT is attached,
seeking a deemed review decision relating to the review application re
ACC’s 10 Dec 2003 decsion)
[20]The intituling for that document began with the description:
IN THE HIGH COURT OF NEW ZEALAND
CHRISTCHURCH REGISTRY
RE APPEALS: Seeking Special Leave of High Court to Appeal
District Court Decisions ARC 91/05 & 124/05 Judge
Powell (Judge Powell declined leave to appeal in decision 16 Dec 2016, relating to 10 July 2015 Judge Powell decisions)
[21] Beneath that cover sheet was an application which gave notice that Mr Marsh was applying:
1) … to the court for orders as itemized on following pages. In essence a deemed review decision is sought re appeal of ACC’s 10 Dec 2003 decision, but the current application is firstly for “special leave of the high court” to be granted to allow the substantive issues to be considered in the high court.
2) The grounds on which each order is sought are as itemized on following pages.
[22] Attached to that application were Mr Marsh’s submissions of some 106 pages, the judgment of Judge Powell of 16 December 2016 on [2016] NZACC 330 AI 91/05 and 124/05 denying Mr Marsh leave to appeal, and a reserved judgment of Judge Powell of 10 July 2015 as to [2015] NZACC 196 AI 91/05 and AI 124/05. There is a section of the submissions between paras [216] and [238] over some nine pages which relates specifically to District Court decisions in AI 91/05 and AI 124/05.
[23] In the above ways, it could be said the application for leave filed on 6 January 2017 was an application for leave to appeal only in respect of Judge Powell’s judgment of 10 July 2015 as to decisions made by ACC on matters AI 91/05 and AI 124/05.
[24]Mr Marsh’s application for leave to appeal is an interlocutory application. Rule
7.19 says:
(1) An interlocutory application must—
(a)state the relief sought and the grounds justifying that relief; and
(b)refer to any particular enactments or principles of law or judicial decisions on which the applicant relies.
[25] The rules did not require Mr Marsh to file full submissions in support of an application for leave to appeal at the time the application was filed but, given he did file such submissions, I have regard to those submissions in determining whether an application for leave had been filed in relation to all 10 decisions which he seeks to appeal.
[26] It is appropriate, when considering whether an application for leave had been filed in respect of all 10 decisions, to look at the substance of the documents filed rather than just the form. This is consistent with r 1.5 and the obligation on the Court to consider the consequences of non-compliance in accordance with what it thinks just, while nevertheless recognising the constraints that are on it through the mandatory time limits imposed by the Accident Compensation Act.
[27] I consider that, through para [3] of his submissions, associated with the application for leave to appeal on 6 January 2017, Mr Marsh did file an application for leave to appeal the 10 decisions referred to. That paragraph began:
General introduction to submissions: The following issues and points of law in section A have common relevance to all or most of the current 10 applications for leave to appeal – they are general in nature, and many relate to breaches of Natural Justice: Judge Powell issued the following 11 leave to appeal decisions on 16 Dec 2016, which all have the same statutory application date for special leave applications to the high court. The appellant intends to seek special leave of the high court to appeal 10 of these decisions.
[28]He then referred to those decisions. He described them as:
District Court Hearing ARC 26/05 Judge Powell District Court Hearing ARC 71/05 Judge Powell
District Court Hearing ARC 91/05 & 124/05 Judge Powell District Court Hearing ARC 438/06 & 446/06 Judge Powell District Court Hearing ARC 418/07 Judge Powell
District Court Hearing ARC 171/09 Judge Powell District Court Hearing ARC 437/12 Judge Powell District Court Hearing ARC 436/12 Judge Powell District Court Hearing ARC 12/14 Judge Powell
[29]Mr Marsh went on to explain that, in his submissions, he had included sections
(a) to (i), (covering some 94 pages) which he said were “more or less general to all 10 special leave application, although emphasis, time specific relevance, and context change for each appeal”. He also said he was requesting individual live hearings on different days for each application.
Conclusion
[30] The application for leave to appeal filed with the High Court on 6 January 2017 is thus an application to appeal the 10 decisions in respect of which leave was sought as set out in the submission filed by Mr Marsh on 6 January 2017.
[31] The fact Mr Marsh did not serve copies of his original application and subsequent submissions on the solicitors for ACC has made it difficult to progress the proceedings but does not mean the application was not filed within time. Rule 7.19(3) states that an interlocutory application is made by filing it in the Court. As noted in McGechan, “It is no longer necessary that the application be served within the time limit as well”.4
[32] Rule 7.22 required Mr Marsh to “promptly serve a copy” of his application or applications on ACC. If the position was as stated in counsel’s submissions, he failed to do this, but ACC has not made any application to strike out the application for leave to appeal on that basis. Through counsel’s memorandum for the first case management conference, ACC has addressed the merits of the application.
[33] The applications for leave to appeal were thus filed within time and are not a nullity.
Future course of the proceedings
[34] On 6, 17 and 19 January 2017, Mr Marsh filed four volumes of submissions comprising 110 pages, 111 pages, 126 pages and 147 pages respectively. The first 102 pages of the submissions were the same. As a result, I issued directions in several minutes requiring Mr Marsh to file focused memoranda detailing the precise decisions and precise alleged errors of law that he wished to pursue through an appeal to the High Court.
[35] On 16 August 2017, Mr Marsh filed documents described as “brief submission to High Court for seeking special leave application” relating to five District Court decisions.
4 McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at HR20.3.03.
[36] In his detailed memorandum of 28 August 2017 for a case management conference, Mr Evans helpfully set out for ACC what he considers was the issue before the District Court Judge in relation to each of the decisions which Mr Marsh is seeking leave to appeal. He also makes a submission for ACC as to why leave should not be granted to appeal the relevant decision.
[37]The applications for special leave now have to be set down for hearing.
[38] I now direct that Mr Marsh is to file any further submissions in relation to the applications by 20 April 2018.
[39] It is apparent from the documents Mr Marsh has already filed that he wishes to argue that the same error of law was made in a number of the decisions he is seeking to appeal. In his submissions, Mr Marsh is to identify succinctly:
(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.
Mr Marsh’s submissions in this regard are to be no longer than 10 pages.
[40] In the balance of his submissions, Mr Marsh is to deal with the remaining errors of law which he contends arise out of the decisions that he seeks to appeal. He is to identify the specific decision to which his application relates and the specific error of law that he relies on, with a summary as to why he considers there was the claimed error in that part of the decision. His submissions in relation to those further claimed errors of law are to be no more than 20 pages.
[41] I make it clear that the Court will not be concerned with submissions as to the process by which the Judges reached the decisions, or decisions as to fact. Mr Marsh must be careful to ensure his submissions do not include arguments as to such matters. Given the limited basis on which Mr Marsh might obtain leave to appeal, his
submissions must address and relate to decisions as to the law included in the decisions that he seeks to appeal. The Court will not be assisted by reference to background documents held by ACC or the District Court. The submissions should thus be made with reference to the District Court decisions that are the subject of Mr Marsh’s applications, which have now been filed with the Court by ACC.
[42]ACC are to file its submissions in reply by 18 May 2018.
[43] The applications are to be set down for hearing for half a day after 18 May 2018.
Solicitors: Young Hunter, Christchurch Copy to: A J Marsh.
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