Marsh v Accident Compensation Corporation
[2015] NZHC 3208
•15 December 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2015-409-485 [2015] NZHC 3208
UNDER s 162(3) of the Accident Compensation
Act 2001
IN THE MATTER OF
an application seeking special leave to appeal
BETWEEN
ALISTER JOHN MARSH Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 25 November 2015 Appearances:
Applicant in Person
H A Evans for RespondentJudgment:
15 December 2015
JUDGMENT OF MANDER J
Introduction
[1] This is an application for special leave to appeal to the High Court on a question of law under s 162(3) of the Accident Compensation Act 2001 (the 2001
Act).1
[2] The appeal arises from a decision by a review officer in October 2005. The appellant appealed the decision, pursuant to s 149 of the 2001 Act. In a reserved
judgment of April 2012, Judge Barber dismissed the appeal.2 Mr Alister Marsh, the
1 The Accident Compensation Act 2001 was formerly called the Injury Prevention, Rehabilitation, and Compensation Act 2001.
2 Marsh v Accident Compensation Corporation [2012] NZACC 115 [2012 DC Appeal].
applicant, then made application to the District Court for leave to appeal to the High
Court. In a written decision of July 2015, Judge Powell declined to grant leave.3
[3] Mr Marsh has identified 25 issues he submitted are points of law arising from Judge Barber’s judgment, in respect of which he seeks special leave to appeal to this Court. They are substantively the same points raised before Judge Powell. With the exception of two issues, the points raised by Mr Marsh either do not constitute issues of law, or are irrelevant to, or relate to matters that do not arise from. Judge Barber’s decision. For the reasons set out in this judgment, the test for the grant of special leave is not established and the application is declined.
Background facts
[4] Mr Marsh lodged a claim with the Accident Compensation Corporation (ACC) in March 2000. As a result of an accident, he injured his right wrist. At the time, Mr Marsh was a self-employed architect. It was agreed that Mr Marsh was incapacitated and not able to return to his pre-accident occupation as an architect.
[5] In March the following year, an orthopaedic surgeon assessed Mr Marsh’s wrist as having healed “in an excellent position” and that he had regained a good range of motion. In July, an individual rehabilitation plan was agreed which involved Mr Marsh continuing as a self-employed architect. In December 2001, Mr Marsh’s case was outsourced for case management. In January 2002, an occupational medicine specialist noted Mr Marsh was managing around 45 hours of work per week, but that some tasks were causing some pain.
[6] In March 2002, ACC received medical advice that Mr Marsh had capacity to work in relation to his pre-injury occupation, as well as other types of employment, with restricted use of his right wrist. This resulted in Mr Marsh being advised in September 2002 that he was “vocationally independent”. In a review decision of November 2002, the reviewer, Mr Vivian, concluded Mr Marsh had work capacity in
two job options. The reviewer’s decision was confirmed on appeal by Judge Beattie in May 2005.4
[7] Earlier in December 2004, Mr Marsh had been assessed for the purposes of determining whether his vocational independence had deteriorated. He was assessed as being occupationally suitable for a number of roles. A medical review of that assessment in January 2005 made some amendment to the range of occupations available, but concluded there were no outstanding treatment issues for Mr Marsh from a medical viewpoint. As a result, ACC issued a decision in relation to Mr Marsh’s vocational independence, concluding that he had vocational independence for a number of types of work.
[8] The effect of the decision was that Mr Marsh did not regain entitlement to weekly compensation. It is this decision of April 2005 which was to be the subject of the review applications heard in September of that year, and determined by Ms Askey in her decision of October 2005. In turn, Ms Askey’s decision was the subject of the appeal heard by Judge Barber, in respect of which special leave is
sought from this Court.5
[9] After the decision by ACC in April 2005, further assessments were undertaken of Mr Marsh’s vocational independence. These are not the subject of this appeal, however, they were set out in some detail in Judge Barber’s decision.6 A series of vocational and occupational assessments were carried out by various medical practitioners, which included a reassessment of the roles in respect of which it was considered Mr Marsh was capable of performing. These assessments resulted in ACC writing to Mr Marsh in September 2007, confirming he was vocationally independent and confirmed he was not entitled to payment of any weekly
compensation.
4 Marsh v Accident Compensation Corporation [2005] NZACC 167 [2005 DC Appeal].
5 2012 DC Appeal, above n 2.
Decision of the District Court
[10] The appeal before Judge Barber related to Ms Askey’s decision of October
2005, which considered issues raised by two review applications. The first was against ACC’s decision of April 2005, that Mr Marsh’s vocational independence had not deteriorated, and therefore weekly compensation would not be paid. The second related to Mr Marsh’s claim that he was entitled to a “deemed decision” under the Accident Insurance Act 1998 (the 1998 Act) on the basis ACC had not issued a decision on his claim for deterioration within 21 days. Section 66 of the 1998 Act provided that ACC was deemed to have accepted a claim in the absence of it complying with the stipulated time limit.
[11] This latter issue turned on whether the 2001 Act or the 1998 Act applied to Mr Marsh’s injury. Ms Askey found that the 2001 Act applied. As a result, Mr Marsh’s argument that he should have the benefit of a deemed decision fell away.
[12] In relation to the first issue, the question for Judge Barber was whether ACC had been correct, following a reassessment of Mr Marsh’s vocational independence in early 2005, to conclude he remained vocationally independent for three work types as at April 2005.
Relevant Act issue
[13] Judge Barber, in reviewing Ms Askey’s review decision, observed that she
had correctly concluded that she was bound by the decision of Judge Beattie in May
2005 (also in relation to Mr Marsh) that the 2001 Act had application to his case. Mr Marsh had argued before Judge Beattie that the 1998 Act had application by operation of s 342 of the 2001 Act, but the District Court had chosen to apply the
2001 Act. Ms Askey considered herself bound by that position, and that she must continue to assess Mr Marsh’s entitlements under the 2001 Act, because to depart from that approach would be inconsistent with recent District Court authority “which has precedence over review decisions”.7
[14] As Judge Barber observed, it followed from Ms Askey’s approach that s 66 of the 1998 Act which provided for “deemed decisions” had no application, and the reviewer had therefore concluded that Mr Marsh was not entitled to a decision under that Act, and the review dismissed.8
[15] Notwithstanding the previous approach taken by Judge Beattie to this issue, Judge Barber himself undertook his own analysis of this issue.9 He set out the relevant statutory provisions of both Acts. Part 10 of the 2001 Act provided transitional provisions relating to the competitive provision of workplace accident insurance previously provided by the 1998 Act:
Part 10
Provisions relating to transition from competitive provision of workplace accident insurance
340 Purpose of this Part
The purpose of this Part is to ensure that, despite the repeal of the
1998 Act and the 2000 Act, the orderly transition from the competitive provision of workplace accident insurance continues
and, in particular, that—
(a) claimants who suffer personal injury to which an accident insurance contract under the 1998 Act applies continue to have access to cover and entitlements; and
(b) all persons who should be contributing to the cost of claims to which an accident insurance contract applies do so; and
(c) the infrastructure and powers connected with the competitive provision of workplace accident insurance continue in place as appropriate.
341 Interpretation
(1) In this Part,—
1998 Act means the Accident Insurance Act 1998
2000 Act means the Accident Insurance (Transitional Provisions) Act 2000
accident insurance contract means an accident insurance contract entered into under the 1998 Act
8 At [34].
insurer means an insurer that was registered under the 1998 Act, while that registration continues under this Act and the insurer is still managing claims under that Act to which this Part applies; and includes—
(a) an employer who, because of a risk sharing agreement with an insurer, is responsible for providing claims management services in relation to cover and statutory entitlements for the employer’s employees:
(b) the administrator of an insurer, in the administrator’s role
under this Part:
(c) the Regulator, in the Regulator’s role of meeting obligations
of an insolvent insurer under this Part:
(d) the Regulator, in the Regulator’s role of administering the Non-Compliers Fund under this Part unless this has been transferred to the Corporation under section 345:
(e) where the context requires, the Corporation.
(2) In this Part, unless the context otherwise requires, terms not defined in this Part but defined in the 1998 Act have, in this Part, the same meanings as in the 1998 Act.
Savings in respect of accident insurance contracts and injuries to which contracts apply
342Savings in respect of accident insurance contracts and injuries to which contracts apply under 1998 Act
(1) The 1998 Act continues to apply, despite its repeal and with any necessary modifications, for the purposes of this Part in respect of—
(a) any personal injury to which an accident insurance contract applies; and
(b) any accident insurance contract; and
(c) any obligations of an insurer in relation to work-related gradual process, disease, or infection, or to subsequent injuries.
(2) In particular, without limitation,—
(a) the 1998 Act continues to apply in respect of any personal injury suffered on or after 1 July 1999 and before 1 July
2000; and
(b) Parts 2 to 6, Part 12, and Schedules 1 to 4 of the 1998 Act continue to apply, with necessary modifications, to determine what personal injury is covered, how to make claims, what the entitlements are, and how to resolve disputes about claims; and
(c) all relevant and necessary terms of the accident insurance contract continue to have effect (whether those terms are express or are implied by the 1998 Act); and
(d) all relevant and necessary terms of any risk sharing agreement continue to have effect.
[16] Section 13(1) of the 1998 Act provided a definition of “accident insurance contract”, the relevant part of which stated:
“Accident insurance contract”—
(a) means, subject to s 278, a contract entered into under s 169 or s 176 or s 180 to provide statutory entitlements when a person suffers personal injury for which he or she has cover;
…
[17] Whether the 2001 Act applied or Mr Marsh was covered by the 1998 Act turned on whether he had an “accident insurance contract” as defined. If so, then pursuant to s 342, the 1998 Act would have application and he could claim entitlement to the benefit of the strict time limit within which an insurer under the
1998 Act was required to make an entitlement decision.
[18] Section 176 of the 1998 Act provided that a self-employed person could enter into accident insurance contracts with an “insurer”. An “insurer” was defined under that Act as follows:10
“Insurer”—
(a) means an insurer registered under s 201, while that registration continues under s 204:
(b) includes the manager (in relation to an insured for whom the manager is required to provide entitlements), except for the purposes of Parts 7 to 9 and the provisions of Part 12 associated with those parts:
…
[19] “Manager” was defined in s 278 of the 1998 Act as meaning “the
Corporation”. However, Pts 7-9 of the 1998 Act related to the competitive provision
10 Accident Insurance Act 1998, s 13(1).
of private accident insurance, and included ss 169, 176 and 180, as referred to in the
definition of “Accident Insurance Contract” under s 13(1) of the 1998 Act.
[20] Having set out the relevant statutory provisions, Judge Barber concluded as follows:11
[48] The Cover Plus agreement originally entered into by Mr Marsh, was not a contract entered into under any of sections 169, 176 or 180 of the 1998
Act. The Cover Plus agreement merely represents a statement of statutory cover, entitlement obligations and premium obligations which reflect the
provisions of the 1998 Act, which applied by default when a self employed person did not elect to enter into an accident insurance contract with an insurer under any of those sections.
[49] A contract under any of those sections, which appear in Part 7, must be with an “insurer”. This is of particular significance in relation to this appeal, because the definition of insurer expressly excludes ACC, for the purposes of part 7 of the 1998 Act. This seems to be the key issue of difference between ACC and the appellant who maintains that he has such a contract.
[21] Mr Marsh’s argument relating to the application of the 1998 Act was reliant upon him establishing that he had an accident insurance contract as that term was defined in the 1998 Act. Judge Barber found Mr Marsh produced no evidence that he had paid premiums to an insurer, apart from the Cover Plus arrangement he had through ACC which did not constitute an accident insurance contract under Part 7 of the 1998 Act. It followed therefore that Mr Marsh was not a person to whom s 342 of the Act applied. As a result, the 1998 Act had no application to Mr Marsh and he therefore could not rely upon an argument founded on s 66 of that Act relating to a deemed decision entitling him to weekly compensation.
Vocational Independence Issue
[22] Judge Barber appraised himself of the correct approach to be taken by the District Court on an appeal from a decision regarding whether a person is vocationally independent, in particular, the need to consider all relevant evidence and make an independent assessment.12 Judge Barber noted that no other contrary or critical opinions of the occupational or medical assessors’ reports had been tended by
Mr Marsh, whose own general practitioner confirmed there were no other injury
11 2012 DC Appeal, above n 2.
12 At [50]-[52], citing Martin v Accident Compensation Corporation [2009] 3 NZLR 701 (HC).
related matters outstanding which would prevent him from being vocationally independent. That independence had not deteriorated. Judge Barber concluded that Mr Marsh had vocational independence in a number of vocations. As a result, Mr Marsh’s appeal was dismissed.13
Leave to appeal declined by District Court
[23] The appellant filed in the District Court an application for leave to appeal to the High Court, under s 162(1) of the Act.14 Another Judge of that Court, Judge Powell, considered Mr Marsh’s application for leave. That application was declined.
[24] Of the 25 points identified by Mr Marsh, Judge Powell found that, with the exception of two points, the balance of the issues raised did not amount to issues of law. In relation to the two points raised by Mr Marsh considered capable of giving rise to issues of law leave was declined.
[25] The first related to whether a previous decision by a reviewer in June 2003 (the Walker decision) was binding authority to the effect that the 1998 Act had application to Mr Marsh’s case. Judge Powell did not consider the Walker decision turned on the issue of which Act applied, and that, in any case, the issue had since received further judicial consideration by a number of Judges of the District Court who held the 1998 Act had no application.
[26] Secondly, in relation to whether Judge Barber’s own determination of the issue of which Act had application to Mr Marsh’s case, Judge Powell agreed with Judge Barber’s analysis. He found no alternative conclusion as to the applicable legislative regime was tenable, and “no issue whatsoever” arose regarding Judge Barber’s conclusion that the 2001 Act applied to Mr Marsh’s injury. Leave was
therefore declined.
13 At [53]-[69].
14 2015 DC Leave Decision, above n 3.
Application to High Court for special leave
[27] Mr Marsh has now filed an application for special leave to appeal to the High Court, pursuant to s 162(3) of the 2001 Act. The approach to be taken to the application for special leave is well-established. Firstly, there is a need for a point of law to be identified. Secondly, such point of law must be capable of bona fide and serious argument.
[28] To be added to these fundamental requirements are the following related considerations when considering the issue of granting special leave:15
(a) It is ultimately a matter for the discretion of the Court, but it is necessary for the applicant to show 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.16
(b)Granting special leave is a significant step which ought not to be granted as a matter of course.17
(c) The applicant must show that leave is required in the interests of justice.18 Where leave has been refused by the District Court, the applicant will be required to show that some extraordinary factor has not been properly taken into account.19
[29] The purpose of the second appeal is not the general correction of errors but rather to clarify the law and determine whether it has been properly interpreted and
applied.20
15 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC), as applied by Stevens J
in McLean v Accident Compensation Corporation HC Auckland CIV-2007-485-2653, 2 May
2008.
16 Sandle v Stewart [1982] 1 NZLR 708 (CA); Manawatu Cooperative Dairy Co Ltd v Lawry
[1998] DCR 509; Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43.
17 O’Loughlin v Healing Industries Ltd (1990) 2 PRNZ 464 (HC).
18 Avery v No 2 Public Service Appeal Board and Others [1973] 2 NZLR 86 (CA).
19 Brown v Chow Mein Fashions Ltd (1993) 7 PRNZ 43 (HC).
20 Waller v Hider [1998] 1 NZLR 412 (CA).
Mr Marsh’s application for special leave
[30] Mr Marsh sought to submit that he had identified points of law which he argued should be the subject of a grant of special leave. These are substantially the same points raised and argued before Judge Powell. Mr Marsh filed extensive written submissions and made oral argument before me in support of his application. Many of the points raised by Mr Marsh either do not arise out of Judge Barber’s decision, or are not capable of constituting questions of law. Insofar as I am able, I have identified the same two categories of issue capable of giving rise to questions of law which Judge Powell was able to discern from Mr Marsh’s submissions. The first relates to the approach taken in the Walker decision regarding the application of the 1998 Act. The second being the stark question of whether the 1998 Act or the
2001 Act applied to Mr Marsh’s injury.
The Walker review decision
[31] Mr Marsh submitted that the Walker decision of June 2003 held that the 1998
Act applied to Mr Marsh. He submitted the reviewer, Mr Walker, had found he had no jurisdiction under the 2001 Act. Accordingly, Mr Marsh argued the reviewer, Ms Askey, and Judges Barber and Powell were wrong in law not to have applied the earlier ruling in the Walker decision. Because ACC had chosen not to appeal the Walker finding, the decision was binding on both ACC and the Courts in terms of the applicable statute.
[32] Mr Marsh further submitted that Judge Beattie who applied the 2001 Act in his 2005 decision had represented that his decision ought not to be taken as a precedent in terms of which Act applied, limited as it was to the known situation as at June 2002 regarding Mr Marsh’s position. Mr Marsh sought to submit that as the focus of Judge Beattie’s decision was limited to the period up until that time, the
2003 Walker decision remained unaffected by Judge Beattie’s decision in 2005. Mr Marsh further submitted that ACC in 2003 had accepted the application of the Walker decision, and therefore his injury fell under the 1998 Act. As a result, the approach taken by reviewer Askey, and subsequently by Judges Barber and Powell was wrong in law, as they were now estopped from applying the 2001 Act.
[33] Mr Marsh’s submission that the Walker review decision was binding on Judge Barber is flawed. The District Court cannot be bound by the decision of a reviewer, and the issue ends there.
[34] In any event, as Judge Barber himself observed, the Walker decision did not turn on the issue of which Act applied. That question was not directly required to be addressed by the review decision. As noted by Judge Powell, the Walker decision was concerned with whether a letter from Mr Marsh to ACC in November 2002 constituted an application for entitlements. Because reviewer Walker concluded that it was not, jurisdiction was declined to consider Mr Marsh’s application. Any comment or conclusion reached by reviewer Walker regarding whether the 1998 or
2001 Act applied was therefore in the nature of obiter observations.
[35] However, the short point, disposing of Mr Marsh’s argument, is that District Court Judges cannot be bound and were under no obligation to follow a decision by a reviewer regarding the legal question of which Act applied. This is to be contrasted with the position of reviewer Askey in October 2005 who, in light of the approach taken by Judge Beattie in his decision of May 2005, was bound to adopt the same approach as the District Court.
[36] Mr Marsh’s argument under this heading repeated a submission he previously made before Judge Ongley in a related proceeding taken by him, where he again submitted that reviewer Walker had made a binding determination that the 1998 Act applied to his claim.21 Unsurprisingly, Judge Ongley observed that a reviewer’s decision on a question of law is not binding, either on the District Court or on other reviewers.
[37] Mr Marsh argued before Judge Ongley, as he did before me, that “cause of action estoppel” applied. In this regard, Mr Marsh submitted that ACC, himself and subsequent reviewers had all relied on the Walker decision regarding the application of the 1998 Act. Judge Ongley rejected Mr Marsh’s argument and found there was no cause of action estoppel in his favour. As Judge Ongley noted, the only “cause of
action” that could be said to arise in the context of the 2003 Walker decision was a
21 Marsh v Accident Compensation Corporation [2014] NZACC 146 [2014 DC Appeal Decision].
claim to entitlement for a reassessment of capacity to work. Mr Marsh failed in that claim, and any cause of action estoppel would necessarily be limited to prevent the repetition of the same claim.
[38] Nor, as Judge Ongley concluded, did the Walker decision give rise to an issue estoppel in the appellant’s favour. The issue decided by reviewer Walker was that a letter, which did not contain or make reference to any evidence, was not capable of constituting an application for reassessment. Any finding by reviewer Walker to the effect the 1998 Act applied was not central to his decision, nor a finding on a matter of law that estopped the District Court from coming to an alternative view.
[39] The issue of estoppel in the context of Mr Marsh’s argument relating to the application of the Walker decision was reviewed by Judge Powell. He referred to the Court of Appeal’s decision in Joseph Lynch Land Co Ltd v Lynch which concluded that it was essential for any finding of estoppel, that the point had previously been
distinctly put in issue and “solemnly and with certainty” determined.22 Furthermore,
that the issue was one which was necessary to the previous determination. In that case, a proposition not advanced by a party had been found to be determinative against the other party. The Court of Appeal in rejecting that the same issue could not be raised anew, observed that whether a decision was capable of creating an estoppel required determination of whether, in the circumstances, it was reasonable to regard the earlier decision as being a final determination of the issue which one of
the parties now wishes to raise.23
[40] Judge Powell drew the following conclusions from the application of the principles identified by the Court of Appeal regarding issue estoppel to Mr Marsh’s argument on this point, and with which I respectfully agree. Firstly, it was not evident from reviewer Walker’s decision that he had received any real argument as to which Act applied, noting instead that the substantive issue for him was the status of Mr Marsh’s letter, rather than the applicable legislation which was not determinative of the question he had to resolve. Secondly, because of the success achieved by
ACC at the review hearing, whereby the reviewer determined Mr Marsh’s letter did
22 Joseph Lynch Land Co Ltd v Lynch [1995] 1 NZLR 37 (CA) at 41.
23 At 43.
not constitute an application for entitlements, it was not necessary for ACC to have pursued any appeal regarding the question of the applicable legislation. Any such appeal would likely have been considered moot by the appeal Court given the reviewer’s substantive finding dismissing Mr Marsh’s application for review.
[41] It follows therefore that I am in agreement with the District Court that there is no basis upon which Mr Marsh could advance any bona fide or serious argument that reviewer Walker’s decision of June 2003 could be determinative of the issue regarding which Act applies in respect of his injury.
Judge Barber’s assessment of which Act applied
[42] Mr Marsh’s argument that he was entitled to a deemed decision under s 66 of the 1998 Act is dependent upon whether the provisions of that Act or the 2001 Act apply. Judge Barber directly examined that issue. His reasoning I have already set out at [13]-[21].
[43] Judge Powell reviewed Judge Barber’s approach, noting that it had been recently accepted and applied by Judge Ongley in his 2014 decision, to which I have already referred. I, too, conclude, as the District Court did, that once Judge Barber found as a fact that Mr Marsh did not have an accident insurance contract for the purposes of the 1998 Act, then as a matter of law the Court had no alternative other than to find the 2001 Act had no application. While ACC is defined as a “manager” and therefore included in the wider definition of an “insurer”, ACC is expressly excluded as an “insurer” for the purposes of Pts 7-9. The Cover Plus agreement entered into by Mr Marsh with ACC was not therefore capable of constituting an accident insurance contract. It was not a contract entered into under Part 9 (ss 169,
176 or 180) of the 1998 Act.
[44] In the absence of Mr Marsh having an “accident insurance contract” under the 1998 Act, the savings provision contained in the 2001 Act (s 342) which makes reference to the continued application of the 1998 Act in respect of any personal injury to which an accident insurance contract applies, has no application to Mr Marsh’s situation. No other interpretation is reasonably available. There is no scope to take issue with Judge Barber’s conclusion that the 2001 Act applies to Mr
Marsh’s injury. It follows that the issued raised, while one of law, is not capable of
bona fide and serious argument.
[45] Mr Marsh, in the points he submitted for the purpose of obtaining special leave, made numerous critical references to Judge Barber having “retrospectively” ruled the 2001 Act to have application, which he maintained was counter to the approach taken prior to the Walker decision which, on Mr Marsh’s argument, was that the 1998 Act had application. Mr Marsh submitted that if the 2001 Act was retrospectively ruled to apply, he has been disadvantaged by being denied 2001 Act rights in 2003 which, as I understand his submission, would have resulted in him having taken a different approach to his claim.
[46] It is apparent from the record that this argument replicates a submission made before the same Judge on appeal from Judge Beattie’s 2005 decision. The District Court is not bound by the earlier comments of a reviewer, or rulings made in the review jurisdiction. Similarly, insofar as Mr Marsh relies on representations made to him by ACC regarding the application of s 342 of the 2001 Act to his case, and therefore the application of the 1998 Act, Judge Barber was undoubtedly correct in his finding that the District Court cannot be bound by a decision of the ACC or by its interpretation of legislation. That principle is indisputable, and any argument based on a contrary proposition is not available.
[47] The District Court on appeal, as with the reviewers, can only deal with the discrete issues that are presented to it for resolution. Mr Marsh has not taken issue with Judge Barber’s identification of the two issues which he had to resolve on the appeal from reviewer Askey’s decision in respect of the two review applications before her. Essential to resolution of Mr Marsh’s contention that he was entitled to a deemed decision pursuant to s 66 of the 1998 Act was a determination of whether or not that Act had application to Mr Marsh’s injury. That issue was directly addressed by Judge Barber. Leaving to one side the approach taken by Judge Beattie in his
2005 decision, or potentially contrary interpretations alleged by Mr Marsh by reviewers or ACC itself, as a matter of orthodox statutory interpretation, Judge Barber found the 2001 Act had application to Mr Marsh’s case. Both Judge Powell’s
and my review of the approach taken to that statutory interpretation exercise have come to the same conclusion.
[48] The other issue on appeal dealt with by Judge Barber was ACC’s decision in April 2005 that Mr Marsh’s vocational independence had not deteriorated. Judge Barber revisited that decision, and from his own independent review of the evidence concluded that Mr Marsh had vocational independence which had not deteriorated at the material time of ACC’s determination. That decision, based upon questions of diagnosis and fact, does not give rise to questions of law. As alluded to by Judge Barber, there was no evidential basis to challenge the opinions relied upon by ACC, other than what appeared to be Mr Marsh’s own views and interpretation of the specialist’s evidence. Such considerations are questions of fact, and no arguable
question of law arises from that part of Judge Barber’s decision.24
Other points raised by Mr Marsh
[49] Mr Marsh made complaint of failures to be supplied with information which he claimed to be entitled to under both the ACC legislation and the Privacy Act
1993. Other procedural complaints were made relating to the approach taken by the reviewer and by Judge Barber, on the basis that each came to their decisions while requests for information were pending.
[50] It is apparent that both reviewer Askey and Judge Barber arrived at their decision on the basis of the formal medical information and other vocational specialist reports available to ACC, the reviewers and Mr Marsh himself. Judge Barber comprehensively reviewed this information in his judgment, and even extended his consideration to material which was not strictly encompassed by the appeal before him, but which he reviewed for the purpose of completeness.
[51] It is apparent that the issues which Judge Barber identified he was required to review, and in respect of which no challenge was made, were able to be appropriately addressed without reference to any further documentation. In
particular, the issue relating to Mr Marsh’s entitlement to a deemed decision under
24 McVeagh v Accident Rehabilitation and Compensation Insurance Corporation [2000] NZAR 1 (HC); Aalderink v Accident Compensation Corporation [2014] NZHC 3071.
the 1998 Act turned upon an issue of statutory construction. The correctness of ACC’s decision of April 2005, that Mr Marsh’s vocational independence had not deteriorated, required Judge Barber to assess the specialist evidence upon which that decision was based. As I have already noted, Judge Barber went further and reviewed more recent information relating to further reassessments, carried out after the date of the review decision the subject of the appeal. As Judge Barber commented, no other contrary or critical opinions of these reports were tendered in contradiction of their conclusions.
[52] It is apparent therefore that Mr Marsh’s complaint regarding access to documentation does not bear on the decisions Judge Barber was required to make, and could not therefore be relevant to the identification of questions of law, in respect of which leave should be granted for a further appeal.
[53] A number of the points sought to be made by Mr Marsh related to criticisms of the approach taken by Judge Beattie in his 2005 judgment, or limitations, which it was contended Judge Beattie had himself placed upon his analysis, which Mr Marsh submitted undermined Judge Barber’s reliance on that judgment. Judge Beattie’s decision was the subject of an application for leave to appeal by Mr Marsh, which
was dismissed by Judge Barber in 2008.25 Judge Beattie’s decision therefore stands
on its face as authority for the propositions contained within it, insofar as they may be relevant to or have application to other proceedings. It was open to Mr Marsh to make submissions in an effort to persuade Judge Barber to take an alternative view to that taken by Judge Beattie in 2005. Reviewer Askey, however, was bound by that earlier District Court decision.
[54] Judge Barber himself recognised that he was not bound by the earlier decision of Judge Beattie in 2005, and set about his own analysis of the issue regarding the application of the relevant Act. It follows therefore that whatever criticisms Mr Marsh may have in the approach taken by Judge Beattie in the earlier decision, the fact remains that Judge Barber conducted his own legal analysis. The merits of his decision therefore turns on the approach which Judge Barber himself
took to this issue in his decision of April 2012. Beyond the potential questions of
25 Marsh v Accident Compensation Corporation [2008] NZACC 219 [2008 DC Leave Decision].
law already identified and considered, the other points raised by Mr Marsh in his submissions relating to Judge Beattie’s decision are not ones capable of valid argument before this Court.
[55] Mr Marsh in a number of the points he claimed as giving rise questions of law were no more than criticisms of Judge Barber’s analysis and approach to various occupational assessments carried out over the years. In particular, Mr Marsh referred to the approach taken to a Dr Turner’s assessment in 2005 and the way in which, in Mr Marsh’s words, Judge Barber “backdated” Dr Turner’s medical assessment to an earlier time. There are also various criticisms of the approach taken by ACC to the assessments it received, its subsequent actions in response to these assessment reports, and the way in which they were applied to Mr Marsh’s case. Analysis of these reports and the approach taken by reviewers and Judges while other assessments were pending is also the subject of some focus by Mr Marsh in his submissions.
[56] The difficulty for Mr Marsh is that the issues he attempts to identify are all factual matters which cannot constitute errors of law. As I have already observed, questions of diagnosis and assessment and the analysis of that material are not capable of supporting the grant of special leave on a point of law. It is clear that Mr Marsh places ACC’s approach, and indeed those of various reviewers and the District Court over the years to the interpretation of those reports and their application to his case in issue, however, they do not give rise to questions of law.
[57] The other category of issue on which Mr Marsh seeks to rely are those which relate to the procedural way in which the two review applications were dealt with by reviewer Askey at a single hearing, and the procedural steps which that entailed. Such criticisms are not addressed in Judge Barber’s decision and, in any event, the pursuit of such points would be self defeating. As Judge Powell observed in his decision, issues relating to the vires of the review process are misconceived because in the absence of a valid review decision no appeal could have arisen for Judge Barber’s consideration in respect of which the present application for special leave is made. Procedural errors which do not give rise to any substantive or weighty issues of principle will not attract leave.
Conclusion
[58] Having reviewed the matters put forward by Mr Marsh in support of his application for special leave, I am not satisfied that any provide a proper basis upon which special leave can be granted. In respect of those matters which are capable of constituting points of law, I have concluded that none are capable of bona fide and serious argument, and that the conclusions reached by the District Court in respect of those identified questions have been correctly answered.
[59] The other points raised by Mr Marsh are not capable of giving rise to questions of law and do not justify further examination by this Court. Insofar as they constitute identification of claimed errors of process, or dispute is taken with the approach by either the reviewer or Judge Barber, these are not capable of founding arguable errors of law, let alone giving rise to issues of principle which would warrant the grant of a second appeal.
[60] It follows therefore that Mr Marsh’s application for special leave to appeal
Judge Barber’s reserved decision is dismissed.
Solicitors:
Young Hunter, Christchurch
Copy to:
H A Evans
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