McCafferty v Accident Compensation Corporation Ca140/03

[2003] NZCA 245

IN THE COURT OF APPEAL OF NEW ZEALAND

CA140/03

BETWEENBERNADETTE MARY MCCAFFERTY

Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:16 October 2003

Coram:Gault P
Panckhurst J
William Young  J

Appearances:  G Minchin for Appellant

D Tuiqereqere and N Lawson for Respondent

Judgment:16 October 2003 

Reasons:31 October 2003

REASONS FOR JUDGMENT OF THE COURT 
DELIVERED BY WILLIAM YOUNG J

Introduction

[1]       This was a purported appeal by way of case stated from a decision of Randerson J declining Mrs Bernadette McCafferty leave to appeal from a decision of the District Court dismissing Mrs McCafferty’s appeal from a review officer’s decision upholding a refusal of the Accident Compensation Corporation not to pay her compensation for loss of earnings. 

[2]       When the case was called for argument, we discussed with counsel whether we had jurisdiction to hear the appeal.  At the conclusion of this discussion, we were of the view that this Court had no jurisdiction to entertain the purported appeal and accordingly we dismissed it.  It is, however, appropriate for us to record briefly the reasons for our conclusion. 

The legislative provisions governing appeals to this Court

[3]       The relevant right to appeal to this Court is provided for by s166, Accident Insurance Act 1998.   To put that section in context, however, it is necessary to refer to s165 as well.  The two sections provide:-

165     Appeal to High Court on question of law

(1)     A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.

(2)     The leave of the District Court must be sought under Part 5 of the District Courts Act 1947 and within 21 days after the District Court's decision.

(3)     If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

(4)     The special leave of the High Court must be sought under Part 5 of the District Courts Act 1947 and within 21 days of the District Court's refusing leave.

(5)     Sections 72 to 78A of the District Courts Act 1947 apply, with any necessary modifications, to an appeal to the High Court under this section.

166     Appeal to Court of Appeal on question of law

(1)     A party to an appeal before the High Court under section 165 who is dissatisfied with any determination or decision of the court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

(2)     If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(3)     An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.

(4)     The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.

The relevant history of the present litigation

[4]       The background to the “appeal” to this Court is summarised in para [1] above.  Some brief amplification, however, is appropriate.

[5]       Having been refused leave to appeal in the District Court, Mrs McCafferty then applied for special leave to appeal to the High Court under s165(3). This application for special leave was out of time but Randerson J extended the time for the making of the application.  However, in a full judgment delivered on 11 April 2002 he dismissed the application for special leave essentially on the basis that if the application were granted the appeal would fail.  In effect he treated the application for special leave as if it were the appeal.  He could, equally, have allowed the application for leave to appeal but then dismissed the appeal. 

[6]       In a judgment delivered on 5 August last year Morris J granted leave to appeal to this Court.  From the terms of his judgment, it is apparent that the issue of jurisdiction was not raised. 

Why there is no jurisdiction to hear the proposed appeal

[7]       Pursuant to s166(1), a right of appeal to this Court is conferred only in relation to “any determination or decision of [the High Court] on the appeal”.  This wording is not apt to catch a refusal to grant special leave to appeal. To put it another way, the decision of Randerson J to refuse leave to appeal was not a “determination or decision of [the High Court] on the appeal”. 

[8]       Given that Randerson J could equally have granted leave to appeal and then dismissed the appeal, this jurisdictional issue might be thought to be technical.  It is, however, well established that general rights of appeal to this Court do not confer jurisdiction to appeal against refusals of leave to appeal, see for instance Seamar Holdings Ltd v Kupe Group Ltd [1995] 2 NZLR 274 and, in a context extremely similar to the present, Lane v Esdaile [1891] AC 210. Against that background, there is simply no scope for reading s166(1) as conferring a right of appeal against a decision of the High Court refusing special leave to appeal from the District Court.

Solicitors:
Otene and Ellis, Auckland, for Appellant
Legal Services, Wellington, for Respondent