NAVIN CHANDRA AND ACCIDENT COMPENSATION CORPORATION
[2024] NZHC 3002
•15 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-1629
[2024] NZHC 3002
BETWEEN NAVIN CHANDRA
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 26 September 2024 Appearances:
Applicant in person
F L Becroft for Respondent
Judgment:
15 October 2024
JUDGMENT OF WILKINSON- SMITH J
This judgment was delivered by me on 15/10/2024 at 3.30 pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors:
Medico Law, Auckland Copy to Applicant.
CHANDRA v ACCIDENT COMPENSATION CORPORATION [2024] NZHC 3002 [15 October 2024]
Introduction
[1] The applicant, Mr Chandra, suffers from a nerve injury in his right hand and arm. In April 2021, he sought cover from the Accident Compensation Corporation (the Corporation) on the basis the injury was a consequential treatment injury. Cover was declined. That decision was upheld on review.
[2] On 25 January 2024, Judge DL Henare dismissed Mr Chandra’s appeal.1 Mr Chandra sought leave to appeal the decision of Judge Henare.2 On 16 May 2024, Judge PR Spiller declined leave to appeal Judge Henare’s decision.3 On 12 June 2024, Mr Chandra filed a notice of appeal in this Court. The notice of appeal was not an application for special leave — which is required to bring an appeal in this Court. Even if the application is treated as an application for special leave, it was filed six days out of time.
[3] The first issue is whether the Court has jurisdiction to grant an extension of time permitting the late filing of an appeal. If such jurisdiction exists, only then can the Court consider an application for special leave.
[4] Mr Chandra urged me to consider the merits of the appeal regardless of the issue of jurisdiction and considered that the discussion at the hearing about jurisdiction indicated an unwillingness to consider the merits of his appeal. Unfortunately, Mr Chandra misunderstands the legal position. I am unable to consider the merits of Mr Chandra’s case in this decision unless there is jurisdiction to accept the notice of appeal out of time. Both an extension of time and special leave to appeal would be required.
Background
[5]The following is a short summary of the relevant factual background.
1 Chandra v Accident Compensation Corporation [2024] NZACC 012 [Appeal Decision].
2 As required by s 162 of the Accident Compensation Act 2001.
3 Chandra v Accident Compensation Corporation [2024] NZACC 082 [Leave Decision].
[6] On 25 March 2019, Mr Chandra suffered a fracture to his fifth metacarpal bone (the little finger on his right hand) after he tripped and fell landing on his right hand and left shoulder. Mr Chandra had been using crutches to walk at the time of the accident as he was suffering from a chronic regional pain syndrome — the result of an earlier injury. Mr Chandra received cover for the injury to his fifth metacarpal bone.
[7] During February 2020, a plate with five screws was surgically inserted into Mr Chandra’s fifth metacarpal bone to support the healing process. Mr Chandra reported that the pain persisted following the operation. The metalware was removed on 23 February 2021. During the removal a nerve block and general anaesthetic were administered. Mr Chandra sought cover from the Corporation on the basis that the use of the nerve block had resulted in a consequential treatment injury.
[8] On 3 August 2021, the Corporation declined cover. A revised decision, essentially confirming the Corporation’s first decision was issued by the Corporation on 19 May 2022. The revised decision was upheld on 5 September 2022.
[9] Mr Chandra filed a late appeal to the District Court and was granted leave to appeal out of time.4 In the District Court, Mr Chandra raised the issue of whether he consented to the use of the nerve block during the metalware removal surgery. Judge Henare concluded that Mr Chandra’s consent, even if impliedly obtained, had not been fully documented. Judge Henare found, on the balance of probabilities, that the available medical evidence did not meet the evidential threshold required to establish that Mr Chandra had suffered a consequential treatment-related injury, being a nerve injury or other physical injury because of the nerve block administered on 23 February 2021.
[10] Mr Chandra then sought leave to appeal Judge Henare’s decision. Judge Spiller found that Mr Chandra had not established sufficient grounds, as a matter of law, to sustain his application for leave to appeal. The application for leave was declined.
4 Chandra v Accident Compensation Corporation [2023] NZACC 6.
[11] On 12 June 2024, Mr Chandra filed a notice of appeal of Judge Henare’s decision. As noted by Lang J even if the notice of appeal was treated as an application for special leave, it was filed out of time.5
[12] Mr Chandra says court staff gave him incorrect information which resulted in the delay in filing the notice of appeal. He says that on 17 May 2024 he received an email from a National Registry Officer regarding the need for special leave. This correspondence is not before the Court but there was no issue taken with Mr Chandra’s contention that he was given incorrect advice about the time limits and requirements for filing an appeal.
Is there jurisdiction to consider Mr Chandra’s application?
[13] Section 162 of the Accident Compensation Act 2001 (the Act) sets out the time limits for appealing to the High Court on a question of law. Section 162 provides:
162 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 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 within 21 days after the District Court refused leave.
(5)The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.
[14] Section 162(4) expressly requires that applications for special leave to the High Court are filed 21 days after the District Court refused leave. This 21-day period does not account for non-working days, court holidays, or public holidays.6
5 Chandra v Accident Compensation Corporation HC Auckland CIV-2024-404-1629, 20 August 2024.
6 Jones v Accident Compensation Corporation [2016] NZHC 973 at [8]; and Accident Compensation Corporation v Sutton [2015] NZACC 55.
[15] The District Court refused leave on 16 May 2024. Mr Chandra did not file anything in relation to the proceeding until some six days after the leave period expired. The time limit in s 162(4) has therefore not been complied with.
[16] The Corporation, relying on Armstrong v Accident Compensation Corporation, submits that since the leave period was not complied with, the Court has no jurisdiction to entertain an appeal and no jurisdiction to accept the appeal out of time.7
[17] Armstrong concerned an application for special leave that had been filed 12 days out of time after the applicant had followed an incorrect timeframe provided to him by the Tribunals Unit of the Ministry of Justice. Ellis J considered that s 162(4) is mandatory and cannot be modified by resort to the rules of the Court. Ellis J, noting the circumstances of the applicant’s case, regretfully concluded that compliance with the time limit cannot be waived considering: the generally applicable policy considerations relating to the importance of finality in litigation;8 that other provisions of the Act expressly permit or contemplate the waiving of specified time limits whereas, s 162 does not;9 and that public interest considerations are amplified in “ACC litigation” as the public cost of litigation increases when one of the litigants is a Crown entity — suggesting that time limits do not merely exist for private benefit.10
[18] Mr Chandra says that Armstrong is distinguishable as Ellis J did not consider administrative errors or delays in communication. I disagree. The reliance on misinformation resulting in filing out of time was squarely at issue in Armstrong.
[19] Mr Chandra submits that other cases support his position that the High Court has jurisdiction to permit the appeal. Mr Chandra has not pointed to any such authorities in his submissions and the neutral citations provided in his earlier memorandum supporting his application do not refer to the named cases and/or do not support the propositions he relies on them for. I understand that Mr Chandra used
7 Armstrong v Accident Compensation Corporation HC Auckland CIV-2011-485-860. The Corporation also cites to M v Accident Compensation Corporation [2018] NZHC 1919; Saipe v Accident Compensation Corporation HC Auckland CIV-2008-404-1053; and KC v Accident Compensation Corporation [2023] NZHC 2463.
8 Armstrong v Accident Compensation Corporation, above n 7, at [17].
9 At [19].
10 At [22].
Chat GPT to locate case law. Some of the cases appear to be fictional. Others are real case names, but do not refer to the issues Mr Chandra cites them for. In any event, Mr Chandra’s submissions focus on the merits of his case as they relate to the appeal of Judge Henare’s decision rather than the jurisdictional issue before me.
[20] Mr Chandra also relies on principles contained in the High Court Rules 2016 as authority for the Court accepting a late filing.11 Mr Chandra refers to the objective of the High Court Rules which is to “secure the just, speedy, and inexpensive determination of any proceeding or interlocutory application.”12 He refers to the right of the Court to make any orders or directions necessary to secure the just determination of the proceeding. This principle, as contained in the High Court Rules, applies to orders and directions made during case management or pre-trial conferences,13 and is not applicable in this matter.
[21] Mr Chandra refers to r 1.5 of the High Court Rules which states that non‑compliance with the rules does not nullify the proceeding, or a step taken in the proceeding. This rule provides no assistance as Mr Chandra’s non-compliance with the Act is the determinative factor in this proceeding rather than any non-compliance with the High Court Rules. Mr Chandra further refers to rules within the High Court Rules that permit the Court to exercise its discretion to accept a late filing where there is reasonable cause for a delay. Rule 1.19 permits extension of time limits imposed by the High Court Rules but does not permit extensions of a time limit specified in another Act.
[22] Mr Chandra cites s 27(1) of the New Zealand Bill of Rights Act 1990 saying that any decision denying his appeal on procedural grounds violates his right to natural justice. Mr Chandra contends that the delay occurred because he was provided incorrect information by court staff. He therefore says that dismissing the application for special leave on procedural grounds would be disproportionate and unjust.
11 Mr Chandra is self-represented and was aided in the preparation of his submissions by Chat GPT. The rules Mr Chandra cites to do not exist and are likely “hallucinations” of Chat GPT. To assist Mr Chandra I have cited the relevant rules within the High Court Rules 2016 that capture the essence of the rules he purports to rely on.
12 High Court Rules 2016, r 1.2.
13 High Court Rules 2016, rr 7.2 and 7.8.
However, the New Zealand Bill of Rights Act does not override the clear wording of s 162(4).14
[23] The question of whether the Court has a discretion to extend the time limit prescribed by s 162 of the Act is well settled. A significant volume of case law acknowledges that the time limit in s 162(4) is absolute and that there is no ability for the Court to extend or waive the time limit.15
[24] The matter was addressed as recently as last year in KC v Accident Compensation Corporation where Churchman J said:
[6] Counsel notes that s 162(4) of the Act has been considered by the High Court on numerous occasions and, on each occasion it has been considered, the Court has always concluded that if the timeframe is not complied with, there is no discretion to extend it.
[7] The leading case in this area is Saipe v ACC. That case explained why the wording in s 162 was mandatory and that if special leave was not sought within 21 days, the High Court had no jurisdiction to extend it.
[8] Even in a situation where ACC has incorrectly advised an applicant of the wrong time limit for appealing, and the applicant was within the time limit erroneously advised by ACC, that there was still no jurisdiction to extend the time.
Outcome
[9] It is clear that the High Court has consistently held that there is no jurisdiction to extend the time for the filing of an appeal of this nature, even in circumstances where there has been the slightest of delay, or where the reason for the failure to file the appeal in time was the fault of ACC in providing incorrect advice.
(footnotes omitted)
14 Gallagher-Scott v Accident Compensation Corporation [2021] NZHC 1881 at [22].
15 See authorities discussed in Gallagher-Scott v Accident Compensation Corporation [2021] NZHC 1881 including: Howard v Accident Compensation Corporation [2018] NZHC 3342; Rosenberg v Accident Compensation Corporation [2019] NZHC 1442; and Crockett v Accident Compensation Corporation [2018] NZHC 2432. See also Wyman v The Accident Compensation Corporation of New Zealand HC Wellington CIV-2007-485-451, 23 May 2007 and Siola’a v Wellington District Court [2008] NZCA 483, [2009] NZAR 23 which considered the analogous provisions in the now repealed Injury Prevention, Rehabilitation, and Compensation Act 2001.
[25] I am not willing to depart from the settled authority. There are safeguards to ensure that leave is available where there are genuine questions of law to be considered. Mr Chandra has already had the merits of his application considered by the District Court. This Court has no jurisdiction to consider the merits of a further application for special leave filed out of time.
Result
[26] I am willing to treat the notice of appeal as an application for special leave, but the application must be declined.
Wilkinson-Smith J
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