O'Leary v Health Funding Authority CA167/04

[2004] NZCA 351

IN THE COURT OF APPEAL OF NEW ZEALAND

CA167/04

BETWEEN

LIAM JOSEPH O'LEARY

Appellant

AND

HEALTH FUNDING AUTHORITY

Respondent

Hearing:         18 October 2004

Coram:Anderson P Hammond J William Young J

Appearances: C J Hodson QC for Appellant

C T Gudsell for Respondent Judgment: 18 October 2004

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

[1]        This is an application for leave to appeal out of time from a judgment delivered by France J on 31 July 2003. Leave to appeal was declined by France J in  a judgment she released on 28 July this year.

[2]        The appeal is concerned with the regime for payment for general medical services under the Health and Disability Services Act 1993. The real issue, at least  at this point in the process, is whether recording requirements imposed under the relevant s 51 notice are of evidential significance only or whether they are a pre-requisite for payment (or successful opposition to a claim for recovery).

[3]        Quite what the Judge held on this issue is not entirely clear. Her conclusions as to process and her award of costs to the appellant might suggest that she found in his favour. On the other hand, a perhaps literal reading of her judgment would suggest that she found in favour of the respondent.

O'LEARY V HEALTH FUNDING AUTHORITY CA CA167/04 [18 October 2004]

[4]        After the judgment was released, the differences between the appellant and the respondent on this issue became apparent.

[5]We grant leave to appeal; this for the following reasons:

1.The underlying question seems to us to be well arguable.

2.Because of the ambiguity in the judgment, the task of those who must deal with the underlying dispute downstream of the High Court judgment is going to be difficult and this has the potential to throw up further litigation.

3.The underlying issue is one of significance given its fiscal implications and for other cases involving similar questions which are currently awaiting hearing.

4.The ambiguity in the judgment makes it understandable that the appellant (who may well have assumed that he had won the case) did not appeal in a timely way.

[6]Costs on the present application are reserved.

Solicitors:

Bartlett Partners, Wellington for Appellant Fiona Wakefield, Christchurch for Respondent