Pewhairangi v Ministry of Health

[2009] NZCA 25

IN THE COURT OF APPEAL OF NEW ZEALAND

CA454/2007
[2009] NZCA 25

BETWEENSHIRLEY MARGARET PEWHAIRANGI

Appellant

ANDTHE MINISTRY OF HEALTH

Respondent

Hearing:17 February 2009

Court:William Young  P, Hammond and Robertson JJ

Counsel:Appellant in person

L M Hansen for Respondent

Judgment:20 February 2009 at 2.30 pm

JUDGMENT OF THE COURT

The application for an extension of time is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by William Young P)

[1]       In early 1985 the appellant received two blood transfusions.  Some of the blood in question was contaminated by hepatitis C.  Approximately 20 years later she discovered that she was carrying the hepatitis C virus.  Although the Accident Compensation Corporation accepts that the appellant suffered personal injury caused by accident and the Crown is prepared to make an ex gratia payment to her (which we understand would be nearly $70,000), she wishes to pursue a claim for damages.  Accordingly she has issued proceedings seeking both compensatory and exemplary damages.

[2]       In a judgment delivered on 7 August 2007, Associate Judge Doogue struck out that part of her claim which seeks compensatory relief: HC TAU CIV 2006-470-95.  The claim for exemplary damages was allowed to stand.  The appellant filed an appeal against the striking out of the compensatory damages claim but she did not lodge her case on appeal in a timely way and it is now deemed abandoned under r 43(1) of the Court of Appeal (Civil) Rules 2005.  She now seeks an extension of time under r 43(2).  This is opposed by the respondent on two grounds, both of which are sound.

[3]       In the first place, this Court has no jurisdiction to hear the appeal.  Because the Associate Judge was dealing with an interlocutory application, he was exercising the jurisdiction conferred under s 26J of the Judicature Act 1908, being the jurisdiction of a Judge sitting in Chambers.  The right of appeal to this Court from judgments of Associate Judges which is conferred by s 26P(2) does not apply in the case of a decision “made in Chambers”, a description which applies to the judgment in question in this case.   Such a judgment may only be challenged by way of review before a High Court Judge under 26P(1).  All of this is discussed and explained in Talyancich v Index Developments Ltd [1992] 3 NZLR 28 (CA). In the course of the hearing, we put this problem to the appellant but she did not have any real answer to it.

[4]       Secondly it is perfectly clear that by reason of s 317(1) of the Injury Prevention, Rehabilitation, and Compensation Act 2001, a claim for compensatory damages is not available.  The appellant’s response to this problem is simply that she is not suing under that Act.  This, however, is of no significance as the statutory bar is in general terms and is undoubtedly engaged by the appellant’s claims for compensation. 

[5]       The appeal having no prospect of success, the application for an extension of time to file the case on appeal is dismissed.

Solicitors:
Crown Law Office, Wellington