O'Neill v Accident Compensation Corporation HC Auckland CIV 2008-404-8482

[2011] NZHC 283

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-8482

BETWEEN  CHRISTOPHER O'NEILL Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         (on the papers)

Counsel:         C J O'Neill, Appellant, in person

B Corkill QC for Accident Compensation Corporation
A Lewis for Professor J Windsor

Judgment:      1 April 2011

JUDGMENT (NO. 4) OF HEATH J

This judgment was delivered by me at 2.00pm on 1 April 2011 pursuant to Rule 11.5 of the High Court

Rules

Registrar/Deputy Registrar

Solicitors:
Bartlett Partners, PO Box 10-852, Wellington
Counsel:

B A Corkill QC, PO Box 5606, Wellington

A Lewis, PO Box 10-242, Wellington
Copy to:
Accident Compensation Corporation, PO Box 242, Wellington

Mr C O’Neill

O'NEILL V ACCIDENT COMPENSATION CORPORATION HC AK CIV 2008-404-8482 1 April 2011

The application

[1]      The Accident Compensation Corporation (the Corporation) seeks leave to appeal to the Court of Appeal against a judgment I gave on 22 December 2010, in favour of Mr O’Neill.  The parties have agreed that I may determine the application on the papers.

Background

[2]      On 22 December 2010, I allowed Mr O’Neill’s appeal against the District Court’s dismissal of a challenge he had made to the refusal of cover.  I held that Mr O’Neill was entitled to a “deemed decision” in his favour, under s 146 of the Injury Prevention Rehabilitation and Compensation Act 2001 (the Act).[1]

[1] O’Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 22 December 2010. The Act has been renamed the Accident Compensation Act 2001. 

[3]      The Corporation seeks leave to appeal to the Court of Appeal.  Jurisdiction is conferred by s 163(1) of the Act:

163  Appeal to Court of Appeal on question of law

(1)    A party to an appeal before the High Court under section 162 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.

...

[4]      Mr Corkill QC, for the Corporation, submits that my judgment focussed on the correct interpretation to be given to s 146(1) of the Act and, therefore, raised a question of law fit to be considered by the Court of Appeal.

[5]      Mr Corkill has referred me to Knight v Accident Compensation Corporation[2]

as  an  illustration  of  the  exercise  of  the  s 163(1)  jurisdiction.    In  stating  the appropriate  test,  Randerson J  took  the  view  that  the  principles  applicable  to  an

application for leave to bring a second appeal under s 67 of the Judicature Act 1908 should apply.[3]  With respect, I agree.

[2] Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006 per Randerson J.

[3] Ibid, at para [18].

[6]      Those principles are set out in authorities such as Waller v Hider.[4]   Delivering the judgment of the Court of Appeal in that case, Blanchard J said:[5]

[4] Waller v Hider [1998] 1 NZLR 412 (CA).

[5] Ibid, at 413.

.... the test is well established. The appeal must raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of the further appeal: Rutherfurd v Waite; Cuff v Broadlands Finance Ltd. In the latter case the Court also remarked that in the end the guiding principle must be the requirements of justice.  (citations omitted)

Should leave to appeal be granted?

[7]      To my knowledge, my judgment of 22 December 2010 is the first occasion on which this Court has pronounced on the “deemed decision” provision contained in s 146 of the Act.  The issue was narrow: it was whether s 146(1), in its reference to “the date for the hearing” meant a date of hearing fixed for the purpose of considering the merits of the review, as opposed to one convened to deal solely with a jurisdictional point.[6]   After analysing the provision, I held that the former was the appropriate interpretation, meaning that Mr O’Neill was successful in his appeal.

[6] O’Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 22 December 2010 at para [24].

[8]      While my decision was reached on “a very narrow ground”, I accept that the contrary argument is seriously arguable.  Because it arises in the context of dispute resolution provisions contained in Part 5 of the Act, which have the potential to affect every New Zealander who suffers personal injury by accident, the issue of law must be regarded as of sufficient public importance to outweigh the cost and delay of a further appeal.

[9]      In saying that, I am conscious that Mr O’Neill’s private rights to enforce a judgment in his favour are significant.   He has spent a significant amount of time

challenging various decisions made in the course of consideration of his claim for

compensation.  He became embroiled, through no fault of his own, in a procedural quagmire that, as I said in an earlier judgment, did “not reflect well on the administration of justice in this country”.[7]   The time it has taken to get Mr O’Neill’s claim to this stage (it was first formulated in November 2002) is excessively long.

[7] O’Neill v Accident Compensation Corporation HC Auckland CIV-2008-404-8482, 14 December

2009 at para [3].

[10]     Nevertheless, there is a public interest of high significance in ensuring that the deemed decision provision of the Act is correctly interpreted and applied to all cases with which the Corporation deals.  In those circumstances, I am satisfied that leave to appeal should be granted, notwithstanding the considerable weight that would  otherwise  be  given  to  the  factors  that  weigh  in  favour  of  Mr  O’Neill’s position.

[11]     An appeal under s 163(1) must be brought by way of case stated.  Mr Corkill has provided a draft case in the form set out in the schedule to this judgment.   I consider that the draft case stated adequately captures relevant facts to be considered by the Court of Appeal and the issue of law.

Result

[12]     The application for leave to appeal is granted.   The appeal and case stated

shall be filed in the Court of Appeal and served on Mr O’Neill on or before 8 April

2011.

[13]     Thereafter,  the  Court  of Appeal  (Civil)  Rules  apply.    I would,  however, encourage the Corporation to ready the appeal for hearing as soon as possible.  Some expedition is appropriate, in the circumstances I have described.

[14]     The Registrar shall forward a signed copy of the case stated to both Mr Corkill and to Mr O’Neill.  That is the version of the case stated that Mr Corkill’s instructing solicitors must file.

[15]     While  Professor  Windsor,  through  Mr  Lewis,  retains  an  interest  in  the outcome of the proceeding, he abided the decision of the Court on the application for leave to appeal.

[16]     I make no order as to costs.

P R Heath J

Delivered at 2.00pm on 1 April 2011