O'Neill v Accident Compensation Corporation
[2015] NZHC 2823
•13 November 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1699 [2015] NZHC 2823
BETWEEN CHRISTOPHER O'NEILL
Applicant
AND
THE ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 11 November 2015 Appearances:
Applicant in person
D Tuiqereqere for RespondentJudgment:
13 November 2015
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 13 November 2015 at 3:00 pm
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
O'NEILL v THE ACCIDENT COMPENSATION CORPORATION [2015] NZHC 2823 [13 November 2015]
Background
[1] In a decision dated 31 July 2014,1 District Court Judge L G Powell held that the applicant, Christopher O’Neill, was not entitled to weekly compensation under the Accident Compensation Act 1972 (“the Act”). Mr O’Neill applied to the District Court for leave to appeal Judge Powell’s decision. In a decision dated 16 July 2015, Judge A N MacLean refused leave to appeal.2
[2] Mr O’Neill now applies to this Court for special leave to appeal Judge
Powell’s decision.
The procedural history
[3] Mr O’Neill’s eligibility for cover under the Act was the subject of litigation over a nine-year period from 2003 to 2012. In 2002, Mr O’Neill lodged a claim for cover for medical misadventure arising from surgery undertaken on 3 March 1995. The Accident Compensation Corporation (“ACC”) denied Mr O’Neill cover for personal injury. Its decision was upheld on review.
[4] Mr O’Neill appealed to the District Court. He argued that he was entitled to a deemed review decision in his favour granting cover and that the evidence supported his claim for cover. Mr O’Neill’s appeal was rejected by the District Court.
[5] On appeal to the High Court, Heath J determined on 22 December 2010 that Mr O’Neill was entitled to a deemed review decision providing cover arising from procedural events that occurred during review.3 ACC appealed to the Court of Appeal.
[6] In the meantime, and in line with the decision of Heath J, ACC considered Mr O’Neill’s entitlements under the deemed cover. In order to be entitled to weekly compensation, it was necessary for Mr O’Neill to show, among other things, that he
was in employment when his covered personal injury was suffered on 3 June 1995
1 O’Neill v Accident Compensation Corporation [2014] NZACC 176.
2 O’Neill v Accident Compensation Corporation [2015] NZACC 200.
3 O’Neill v Accident Compensation Corporation (No 3) [2011] NZAR 97 (HC).
and that he was unable to work from that date as a result of his covered personal injury.
[7] Following an investigation carried out by Dr David Ruttenberg, ACC issued a decision on 14 November 2011 declining Mr O’Neill’s application for weekly compensation on the basis that Mr O’Neill did not satisfy the statutory criteria for such an entitlement. ACC’s reason was that Mr O’Neill had not proved that he was in employment on 3 March 1995. Mr O’Neill applied for review of the decision, but was unsuccessful. He then appealed to the District Court.
[8] That was the appeal heard by Judge Powell. By the time the Judge heard the appeal, however, the Court of Appeal had issued its decision on Mr O’Neill’s cover. The Court of Appeal upheld the District Court’s substantive determination in October 2006 that Mr O’Neill did not satisfy the criteria for cover for medical misadventure.4 The Court quashed the finding of Heath J and reinstated the District Court’s decision. It held:
[28] We consider that the hearing in s 146(1) includes a hearing about jurisdiction. It follows from this conclusion that there is no deemed decision in Mr O’Neill’s favour. It is understandable that the procedural morass into which this matter had descended is a cause of frustration for Mr O’Neill. However, his case has been considered further on its merits by both the reviewer, Mr Dunn, and by Judge Barber, albeit not on a satisfactory basis from his point of view. Both Mr Dunn and the Judge had the benefit of independent medical evidence. Both concluded after reviewing the evidence, that the Corporation was correct to decline cover.
[9] In accordance with the judgment of the Court of Appeal, which was binding on him, Judge Powell found that Mr O’Neill was not entitled to deemed cover. The Judge held that the Court of Appeal decision was fatal to Mr O’Neill’s cause. The Judge said:5
A prerequisite for any entitlements (including weekly compensation) is for the claimant to have cover for a personal injury. The effect of the Court of Appeal decision is to remove the appellant’s cover for medical misadventure and thus by definition the appellant can have no entitlement to weekly compensation. As a result the present appeal must fail.
[10] Notwithstanding that finding, and for the sake of completeness, Judge Powell went on to consider whether Mr O’Neill satisfied the criteria for weekly compensation. The Judge determined:6
In the present case I am satisfied that the facts before me show that the appellant was not employed for the purposes of s 103(2) as at the date of the injury. The limited evidence available indicates that the appellant had not worked for some six to seven months before the date of his medical misadventure for which the High Court had recognised cover. While the reasons the appellant was not working are not clear, any incapacity before the date of the surgery was clearly not related to the medical adventure, while Dr Ruttenberg’s report makes it clear that the operation was in any event required to address congenital gastric issues and this is clearly unrelated to any conceivable accident or personal injury. The appellant therefore cannot meet the necessary prerequisite for entitlement to weekly compensation and had the Court of Appeal not rendered the point moot, on this ground alone I would have dismissed the appeal.
Application for leave
[11] Mr O’Neill’s application to the District Court for leave to appeal Judge Powell’s decision to the High Court was heard under s 162(1) of the Act. Judge MacLean declined the application, saying:
[12] The essence of the applicant’s case seems to remain one of trenchant criticism of the whole review process including the allegations previously mentioned but essentially, as before Judge Powell, the proposition that the ruling of the Court of Appeal has no relevance to the matter and what this case is really all about is:
The matter of a criminal conducted review and in regard to such I
am entitled to a deemed decision regardless of all else.
[13] The applicant goes on in his written submissions to assert that:
Apart from the fact that [Judge] Powell’s decision has no validity and a deemed decision exists, a superior Court ruling that sets in concrete the deemed decision for which precedent exists and notes the invalidity and criminality in this matter will be this appeal succeeding.
[14] There seems to be some inherently illogical propositions in that submission but I take it from that, that the applicant considers that the Appeal Court decision only applies from the date that it was given and has no effect on what happened beforehand.
[15] This is a fundamental misconception of the whole appeal process. The legal and practical reality is that whatever happened in the lead up
through various District Court decisions, a High Court decision and review is all subsumed in the Court of Appeal decision which effectively backdates the whole issue to the relevant time and in effect states that as a matter of law there was never cover.
[16] As Judge Powell noted in his findings, cover is an essential prerequisite before any consideration of entitlements can arise. Without cover there is no entitlement.
[17] The ancillary question of the circumstances and particularly the evidence relating to employment at the time immediately prior to the injury are just that, ancillary, and do not need to be further adjudicated upon. Suffice to say however that perusal of the review proceedings, including Judge Powell’s decision, clearly show there is absolutely no evidence to begin to get over the threshold of proof of employment at the time or immediately prior to the injury. Accordingly, the application for leave to appeal is dismissed.
Special leave to appeal – principles
[12] Section 162 of the Act provides:
162 Appeal to High Court on question of law
(1) A party to an appeal who is dissatisfied with the decision of a 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 and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 72 of that Act.
[13] The circumstances where special leave may be granted were considered by this Court in Kenyon v ACC.7 In that decision, Fisher J accepted the following summary of the effect of the authorities relating to special leave as follows:8
(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1
NZLR 708 (CA)
7 Kenyon v ACC [2002] NZAR 285 (HC).
(b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that 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: Sandie, - Manawatu Co-op Daffy Company Limited v Lawry [1988] DCR 509; Brown v Chowinein Fashions Limited (1993) 7 PRNZ 43
(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O'Loughlin v Healing Industries Limited (1990) PRNZ 464
(d) It is for the Applicant to show that leave is required in the interests of justice: Avery v No. 2 Public Service Appeal Board [1973] 2
NZLR 86 (CA)
(e) As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chow/nein Fashions Limited (supra).
Deemed review decisions
[14] Much of Mr O’Neill’s present argument turns on s 146 of the Act, which
provides:
146 Deemed review decisions
(1) The reviewer is deemed to have made a decision on the review in favour of the applicant if—
(a) the date for the hearing has not been set within 3 months after the review application is received by the Corporation; and
(b) the applicant did not cause, or contribute to, the delay.
(2) The date of the deemed decision is 3 months after the review application is received.
Mr O’Neill’s submissions
[15] Mr O’Neill advanced the following arguments in support of his submission that special leave ought to have been granted:
(a) No review ever took place and so he is entitled to a deemed decision pursuant to s 146 of the Act. This is because, since the reviewer had played a role in Mr O’Neill’s case prior to the review, the reviewer
was not legally entitled to sit on the review.9 This renders the review
a nullity, according to Mr O’Neill.
(b)Irrespective of the Court of Appeal’s decision, or Judge Powell’s consideration of the substance of Mr O’Neill’s entitlement to weekly compensation, the deemed decision prevails. The Court of Appeal’s decision is irrelevant because it has no bearing on the deemed decision in this particular case. Furthermore, Judge Powell’s decision is invalid because it is an appeal from something that never occurred (that is, the invalid review).
(c) Mr O’Neill received an entitlement under s 67 of the Act when he
received the deemed decision.
[16] Mr Tuiqereqere submits simply that Mr O’Neill has no prospect whatsoever of succeeding with an appeal to the High Court: he is not eligible to receive any entitlement in the light of the Court of Appeal’s decision on cover.
Discussion
[17] Mr Tuiqereqere is right. There is no issue of principle at stake and no reasonable prospect of success on an appeal. I state the reasons briefly.
[18] Section 146 operates only if the review hearing has not been set down within three months of a review application being lodged. That was not the case here; the review was set down in time. Whether the reviewer should have sat or not is irrelevant to whether a review was set down and decided in time. The matters Mr O’Neill complains of do not bring s 146 into play because the review hearing was not a nullity, even if defective.
[19] In any event, Mr O’Neill’s dissatisfaction with the review was addressed
when he exercised his right of appeal to the District Court. That appeal proceeded by way of rehearing, at which the issue of the reviewer’s standing could have been
9 Accident Compensation Act 2001, ss 138–140.
argued but was, in any event, irrelevant to the appellate decision on the merits of
Mr O’Neill’s claim.
[20] Judge Powell did not have a conflict of interest or any prior involvement in the case and was competent to hear the appeal. The forum allowed Mr O’Neill to express his case on the substantive matter, irrespective of what had occurred on the review.
[21] Under a deemed review decision, a claimant is entitled to what he or she would have received had the review been decided in his or her favour. A deemed review decision could not, in any event, have given Mr O’Neill weekly compensation, because of the Court of Appeal’s binding determination that Mr O’Neill does not have cover. The Court of Appeal’s decision is fatal to the claim.
[22] Section 67 of the Act provides:
67 Who is entitled to entitlements
A claimant who has suffered a personal injury is entitled to 1 or more entitlements if he or she—
(a) has cover for the personal injury; and
(b) is eligible under this Act for the entitlement or entitlements in respect of the personal injury.
[23] There is no statutory basis for Mr O’Neill to receive weekly compensation on the medical misadventure claim in the absence of cover. That is the position no matter what error there may have been in the review procedure. For these reasons, Mr O’Neill’s claim cannot possibly succeed.
Result
[24] I dismiss the application for special leave to appeal to the High Court.
…………………………….
Toogood J
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