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

[2010] NZHC 362

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2008-404-8482

UNDER  The Injury Prevention, Rehabilitation &

Compensation Act 2001

IN THE MATTER OF     an appeal pursuant to s 162 of the Act

BETWEEN  CHRISTOPHER O'NEILL Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:         31 March 2010

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

D Tuiqereqere for Respondent

A Lewis for Intervenor (Professor Windsor) Judgment:  31 March 2010

(ORAL) JUDGMENT (NO. 2) OF HEATH J

Solicitors:

M J Mercier, Legal Services, ACC, PO Box 242, Wellington 6140
Bartlett Partners, PO Box 10-852, The Terrace, Wellington 6143
Counsel:
D Tuiqereqere, PO Box 16-204, Sandringham, Auckland 1351
A Lewis, PO Box 10 242, The Terrace, Wellington 6143
Copy to:

C J O’Neill 62 Kimberhall Avenue, Mt Roskill, Auckland

O'NEILL V ACCIDENT COMPENSATION CORPORATION HC AK CIV 2008-404-8482  31 March 2010

[1]      On 29 June 2009,  Asher J granted leave  for  Mr  O’Neill  to  appeal  to  this

Court against a decision given in the District Court at Auckland by Judge Barber on

an  accident  compensation  appeal.   The  District  Court  had  dismissed  Mr  O’Neill’s appeal  against  the  Accident  Compensation  Corporation’s  declinature  of  cover. Leave   was   granted   under   s 162   of   the   Injury   Prevention   Rehabilitation   and Compensation Act 2001:

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.

[2]      Section 162(1) makes it clear that leave may only be granted on questions of law.   After hearing argument at the leave application, Asher J gave leave to appeal

on two questions:

a)        Did s 142 of the Injury Prevention, Rehabilitation and Compensation Act 2001  (the  Act)  ...  permit  counsel  for  Professor  Windsor  and  the Auckland District Health Board to be present and make submissions at the appeal hearing?

b)If not, what are the consequences of this, and, in particular, should the appeal be allowed  and the appeal decision modified or quashed?   If so,  what  indications  of  effect  should  be  given  under  s 161(2)  of  the Act?

[3]      During argument on the leave application, Mr O’Neill asked Asher J to grant leave  on  a  point  relating  to  what  is  called  a  “deemed  decision”. A  “deemed decision” arises out of s 146 of the Act.  Asher J declined to give leave on that point.

[4]      It is plain that the Judge did not understand the nature of the issue, from the material before him.  That was understandable.  Only in the course of my preparation

of an interim judgment did I realise that the “deemed decision” point arose out of an earlier judgment of Judge Beattie which, I concluded, was simply part of the appeal process which gave rise to a decision of Judge Barber, to which the leave application related.

[5]      I heard the appeal on 3 November 2009 and gave a reserved judgment on 14

December 2009.   Although I found against Mr O’Neill on the two points on which Asher J gave leave, I adjourned the appeal to seek further submissions on whether the scope of the appeal should be extended.

[6]      The additional points relate to whether there  was  a  “deemed  decision”  and questions relating to Judge Barber’s decision on the merits.  Initially, I intended to hear  submissions  on  12 February 2010. Most  regrettably, the judgment  of  14

December 2009, had not been made available to Mr O’Neill.  At the time a Registrar contacted him to ascertain whether he was to file submissions, Mr O’Neill raised that point.

[7]      As I have done in Court today, I express my apologies to Mr O’Neill for the failure to provide a copy of the judgment to him in a timely fashion.  I am satisfied, from my inquiries that, however regrettable that was, it was inadvertent.

[8]      The  history  of  the  complete  proceeding  is  unsatisfactory. From  the  time ACC  made  its  initial  decision  to  decline  cover  through  to  the  completion  of proceedings in the District Court, the series of systemic procedural irregularities that exist  do not  reflect  well  on  the  administration  of  justice.   As  I said  in  my interim decision, it has not been easy to untangle the procedural web in which Mr O’Neill has been caught.

[9]      Two review decisions and two hearings of the one appeal by different Judges has led to confusion over the scope of issues on which leave to appeal to this Court could  be  brought.   The  hearing today has confirmed  my view  that  the  interests  of justice  require  the  appeal  points  to  be  expanded,  in  order  that  all  remaining controversies between the Corporation and Mr O’Neill can be properly resolved.

[10]     The three points identified in my interim decision, on which I heard argument

in relation to expansion of the grounds of appeal, are:

a)        Whether there was a “deemed decision”, for the purposes of s 146 of the Act, resolving issues in favour of Mr O’Neill.

b)Whether  Judge  Barber  had  jurisdiction  to  deal  with  a  substantive appeal,  having  regard  to  observations  made  in  (what  I  termed)  the Dunn review.  Those comments are set out at para [24] of my interim judgment.

c)        If Judge Barber did have jurisdiction, did he err in his approach to the appeal, by considering whether a “personal injury” had been suffered when  that  point  had  not  been  the  subject  of  reliance  in  either  of ACC’s purported decision letters.

[11]     Mr Tuiqereqere, for ACC, opposed extending the grounds of appeal.  In short

he submitted that the leave issue had been resolved finally by Asher J and the Court was functus officio.  If those arguments were not accepted, Mr Tuiqereqere proposed the addition of further points relating to my jurisdiction to extend the matters that Mr O’Neill could argue before the Court.

[12]     I decline to reserve expressly issues of jurisdiction to extend the appeal points. As I indicated to Mr Tuiqereqere during argument, those would be rulings in the course of an appeal  hearing  in  this  Court. If Mr  O’Neill  were  ultimately successful, it would be open to the Corporation to seek leave to appeal to the Court

of Appeal, if it considered I had erred in doing so.  However, just like the position in

the  District  Court,  there  is  no  decision  capable  of  being  appealed  until  the  appeal itself is determined.

[13]     I formed the view, during the course of the hearing, that I should extend the appeal points.  For that reason, I did not hear orally from Mr O’Neill on the issues.  I had, however, read his written submissions before the hearing.

[14]     I consider that jurisdiction to extend the time to appeal is available, once this Court has become seized of an appeal through the  grant  of  leave  under  s 162. Section 162 does not refer to specific approved appeal points, though the articulation

of such points usually occurs for reasons of efficiency.   Nevertheless, it is common

for  approved  points  to  be  amended  before  judgment  is  given,  if  they  do  not satisfactorily record the true controversies with which the court must deal on appeal. An example is the decision of Ronald Young J in Nelson v Accident Compensation Corporation[1].

[1] (2008) 19 PRNZ 108 (HC).

[15]     In my view, once leave has been granted it is open to the High Court to extend or to amend grounds of appeal if, on a review of relevant evidence and the record below, such a course is in the interests of justice.  The general principle which

is captured in r 1.9 of   the   High   Court   Rules,   incorporated   into   Accident

Compensation appeals by s 162(5) of the Act, is to allow all amendments necessary

to determine the real issues between the parties: see Wright Stevenson & Co Ltd v Copland[2]. The   modern   trend   is   to   allow   amendments   where   there   is   no demonstrable prejudice: Elders Pastoral Ltd v Marr[3].

[2] [1964] NZLR 673 (SC).

[3] [1987] 2 PRNZ 383 (CA).

[16]     The history  of  this  proceeding  means  that,  despite  the  obvious  delay  in bringing matters to a conclusion, the interests of justice require the additional points

to be argued. My view on the jurisdiction of the Court is confirmed by the way in which the Supreme Court approached a similar issue  in  Paper  Reclaim  Ltd  v Aotearoa International Ltd[4]. Although s 13 of the Supreme Court Act 2004 allows

that Court to grant leave to appeal, it is common for the Court to approve grounds of

appeal.   In  Paper  Reclaim  Ltd,  the  Court  dealt  with  an  application  to  extend  the grounds  of  appeal. While  the  application  was  unsuccessful,  the  Court  did  not comment adversely on any jurisdictional issue.

[4] [2007] NZSC 1

[17]     Accordingly, the importance of the additional points to Mr O’Neill, coupled with their seriously arguable nature, lead me to the view that the grounds should be extended.   It is necessary to adjourn the appeal for further argument to be advanced on those points.

[18]     I considered whether to appoint amicus curiae.   Mr O’Neill opposed that, in

his  written  submissions.   Having  reflected  on  the  issue,  I consider  that  the  factual matters  on  which  I  have  already  been  addressed,  coupled  with  the  ability  to  test submissions  to  be  made  by  Mr  Tuiqereqere  on  the  law,  means  that  the  need  for amicus is not present.

[19]     I adjourn  the  appeal  until Thursday 1  July 2010  at 10am,  when  I will hear argument on the remaining issues.  One day is allocated for that hearing.

[20]     Written submissions from ACC shall be filed and served on or before 14 May

2010, together with a paginated bundle attaching all documents from the record to which reference will be made.  A separate bundle of authorities should also be filed and served.

[21]     Submissions,  in  writing,  from  Mr  O’Neill,  together  with  any  additional documents to which he wishes to refer, shall be filed and served on or before 18 June 2010.

[22]     Costs reserved.

P R Heath J