Millin v Accident Compensation Corporation - [2016] NZHC 1287

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-002888 [2016] NZHC 1287

UNDER the Accident Compensation Act 2001

IN THE MATTER

of an application for special leave to

appeal to the High Court pursuant to s 162 of the Act

BETWEEN

MARK MILLIN

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: On the papers

Counsel:

P G Schmidt for applicant
D K L Tuiqereqere for respondent

Judgment:

15 June 2016

JUDGMENT OF KATZ J

This judgment was delivered by me on 15 June 2016 at 11:30am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Schmidt & Peart Law, Auckland
Medico Law Limited, Lawyers, Auckland

MILLIN v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 1287 [15 June 2016]

Introduction

[1] Until some time in June 1998, Mark Millin was a seasonal worker for a company known at the time as Frucor Limited.1 He suffered a back injury on
29 June 1998 and, from that date, was unfit to work. He originally claimed that by

29 June he had commenced employment as a carpet layer. The Accident Compensation Corporation (“Corporation”) paid him weekly compensation on that basis. However, after an investigation in 2010 and 2011, the Corporation was not satisfied that he was actually employed on 29 June 1998. It issued a decision on
19 April 2011 determining that he was not entitled to weekly compensation. Mr Millin reviewed this decision. His review was dismissed.

[2] Mr Millin then appealed to the District Court. That hearing was confined to the issue whether his Frucor employment had in fact extended to 29 June 1998, taking into account holiday pay and payment for statutory holidays under s 44 of the Accident Rehabilitation and Compensation Insurance Act 1992 (“the Act”). His appeal was dismissed.2

[3] Mr Millin sought leave to appeal to this Court. His application was declined in the District Court.3 Mr Millin now seeks special leave under s 162(3) of the Accident Compensation Act 2001 to appeal on the following question: “Has the District Court correctly applied s 44 of the [Act]?” The leave application further breaks down that question as follows:

(a) As a matter of law, was Mr Millin owed two days in lieu with respect to the two days of statutory holidays he worked while employed with Frucor?

(b)Does the payment of two days of statutory holiday made on the termination of Mr Millin’s employment constitute a payment he was entitled to receive on ceasing employment for the purposes of
[s 44(2)(b) of the Act]?

1      Now known as ENZA Foods New Zealand Limited
2      Millin v Accident Compensation Corporation [2012] NZACC 392.
3      Millin v Accident Compensation Corporation [2015] NZACC 346.

[4] Mr Millin claims that the District Court Judge erred in excluding payments made on cessation of employment, which he says were payments for days in lieu for statutory holidays, when considering whether his employment extended to 29 June
1998. He says those payments have the effect of extending his employment to

29 June, not to 27 June…

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: [2016] NZHC 1287
Decision Date: 15 June 2016

CaseChat Overview and Summary

The case of Millin v Accident Compensation Corporation involves an application for special leave to appeal a decision of the District Court, which dismissed Mark Millin's appeal against the Accident Compensation Corporation's (ACC) decision to terminate his weekly compensation payments. The central issue is whether the District Court correctly applied section 44 of the Accident Rehabilitation and Compensation Insurance Act 1992 when determining the extension of Millin's employment, and consequently, his entitlement to compensation. Specifically, the question is whether Millin was owed two days in lieu for statutory holidays and whether the payment for these days constituted a payment he was entitled to receive on ceasing employment.

The legal issues before the High Court were whether special leave to appeal should be granted and if the orders sought by the parties should be made. The Court had to determine if there was a point of law of sufficient significance to warrant special leave and whether the substantive appeal should proceed. The Court had to consider the interpretation of section 44 of the Act, particularly in light of the statutory holidays worked by Millin, and whether the District Court's decision was an error of law. The Court also had to assess whether it was in the interests of justice to allow the appeal and grant the orders sought by the parties.

The High Court, Katz J, found that special leave should be granted as the case was of considerable significance to Millin, and the parties agreed that leave should be granted. The Court found that the District Court had erred in its interpretation of the statutory days payment, concluding that the $282 payment represented days in lieu for statutory holidays, which extended Millin's employment to 29 June 1998. The Court accepted that Millin was entitled to compensation from ACC from the date of his injury, 29 June 1998. The Court quashed the District Court's decision regarding the payment for the statutory days and ordered that ACC recalculate Millin's weekly compensation from June 1998.

The final orders made by Katz J were that special leave was granted for Millin to appeal to the High Court, the District Court's decision was quashed concerning its finding on the payment by Frucor for two statutory days, and Millin was entitled to weekly compensation from ACC from 29 June 1998. The Court directed ACC to recalculate Millin's compensation. The parties had agreed on the orders, and there was no issue as to costs.

Orders