Ramsay v Accident Compensation Corporation

[2007] NZCA 367

IN THE COURT OF APPEAL OF NEW ZEALAND

CA154/06
[2007] NZCA 367

BETWEENPETER ANNAN RAMSAY

Appellant

ANDACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:8 August 2007

Court:Glazebrook, Chambers and Ellen France JJ

Counsel:A C Beck for Appellant

C J Hlavac for Respondent

Judgment:28 August 2007 at 11am

JUDGMENT OF THE COURT

A        The appeal is dismissed for want of jurisdiction.

BCosts of $3,000 plus usual disbursements are awarded to the respondent.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

Introduction  [1]
Do we have jurisdiction to hear this appeal?  [7]
Is this appeal an abuse of process?  [10]
Was John Hansen J wrong not to recall his decision?  [12]
Result and costs  [22]

Introduction

[1]       In January 1989, Mr Ramsay injured his back while working as a plumber.  He received weekly compensation for his injury, as well as treatment and rehabilitation.  In January 1999, he was selected for a work capacity assessment.  An occupational assessment was performed, followed by a medical assessment by Dr Talwar.  The Corporation then advised Mr Ramsay that he had been found to have capacity for work and that weekly compensation would cease three months from 3 February 2000.

[2]       Mr Ramsay obtained a medical report from Mr Hodgson, an orthopaedic surgeon of Dunedin, challenging Dr Talwar’s opinion.  Following an unsuccessful review application, Mr Ramsay lodged an appeal with the District Court.  The District Court issued an interim judgment dated 6 March 2001, giving Mr Ramsay an opportunity to obtain a further medical report from a suitably qualified person – Ramsay v Accident Rehabilitation & Compensation Insurance Corporation DC DUN 46/2001 AI 425/00.  Mr Ramsay did not agree with this course and issued judicial review proceedings.  These proceedings were resolved by a consent order referring the matter back to the District Court to make a decision based on the evidence heard at the appeal, including that of Dr Talwar and Mr Hodgson.  The District Court issued a final decision on 24 October 2001, dismissing Mr Ramsay’s appeal – Ramsay v Accident Rehabilitation & Compensation Insurance Corporation DC DUN 298/2001 AI 425/2000.

[3]       Mr Ramsay applied to the District Court for leave to appeal to the High Court.  That was declined on 8 May 2002 – Ramsay v Accident Compensation Corporation DC WN 122/2002 AI 425/00.  An application for special leave to appeal to the High Court was dismissed by John Hansen J on 12 December 2002 – Ramsay v Accident Compensation Corporation [2004] NZAR 1. At the leave hearing John Hansen J, with consent of both counsel, had heard argument both in respect of the application for special leave and on the substantive appeal. The main reason that special leave was declined was because of the High Court’s view that any substantive appeal would have been dismissed.

[4]       Mr Ramsay then made an application for judicial review of the original District Court decision of 24 October 2001.  The High Court struck out the proceedings, holding that review was precluded by virtue of the privative provisions in the legislation – Ramsay v Wellington District Court HC WN CIV 2004‑485‑001568  9 March 2004.  Mr Ramsay appealed to this Court but the appeal was dismissed on 4 August 2005 – see Ramsay v Wellington District Court [2006] NZAR 136.

[5]       On 14 October 2005, Mr Ramsay filed an application seeking to recall the decision of John Hansen J of 12 December 2002 refusing special leave to appeal.  On 30 June 2006, John Hansen J dismissed that application.  Mr Ramsay now appeals against that refusal. 

[6]       There are three issues that arise:

(a)Do we have jurisdiction to hear the appeal?

(b)Is the appeal an abuse of process?

(c)If these two questions are answered in favour of Mr Ramsay, was John Hansen J wrong not to recall his decision?

Do we have jurisdiction to hear this appeal?

[7]       Under s 166(1) of the Accident Insurance Act 1998, a right of appeal to this Court is conferred only in relation to any determination or decision of the High Court on an appeal to that Court.  Accordingly when special leave to appeal to the High Court under s 165(3) is declined, there is no further right of appeal and no ability to challenge the decision declining to grant special leave – see McCafferty v Accident Compensation Corporation (2003) 16 PRNZ 843 at [7] ‑ [8]. 

[8]       As there is no ability to appeal against a refusal to grant special leave, it follows that this Court does not have jurisdiction to hear an appeal against a refusal by the High Court to recall a judgment declining special leave, at least in circumstances where the application to recall challenges the correctness of the refusal of the application for special leave.  We do not consider that it makes any difference that the challenge to the correctness of the decision rests on subsequent material (in this case the decision of this Court in Ramsay v Wellington District Court) or on material existing at the time special leave was declined.

[9]       The conclusion that we have no jurisdiction to hear this appeal is supported by Supreme Court authority ‑ see Ngahuia Reihana Whanau Trust v Flight & Anor (2004) 17 PRNZ 357. In that case, the Supreme Court held that it has no jurisdiction to hear an appeal against this Court’s refusal to recall a judgment declining special leave. It is true that s 7(b) of the Supreme Court Act 2003 contains a statutory prohibition on appeals against the refusal of this Court to grant special leave to appeal and that there is no such explicit prohibition in the Accident Insurance Act. Such a provision was not needed, however, because of the limited nature of the appeal rights in s 166(1). These limited appeal rights necessarily exclude an appeal against a refusal to grant special leave – see at [7] above.

Is this appeal an abuse of process?

[10]     Even if we are wrong to hold that we have no jurisdiction in this matter, we consider that the appeal should be dismissed as an abuse of process.  In effect, the appeal is an attempt to circumvent the finality of the refusal to grant special leave in the High Court and thus the limited appeal rights in the Accident Insurance Act.  The grounds for challenging the refusal to recall the decision declining special leave are essentially a challenge to the refusal to give special leave.

[11]     In our view, it is also an abuse of process to attempt to use this Court’s decision in Ramsay v Wellington District Court as grounds for the appeal against the refusal to recall.  The decision in that case upheld a strike-out of the judicial review application relating to the original District Court decision.  The strike-out succeeded essentially because the judicial review proceedings duplicated (albeit in a more refined manner) the matters that had already been decided in the application for special leave before John Hansen J.  It is not appropriate to use proceedings that should never have been brought as a reason for appealing against the refusal to recall the decision declining special leave. 

Was John Hansen J wrong not to recall his decision?

[12]     Given that we have decided the first two questions in the Corporation’s favour, it is not strictly necessary for us to consider the third question.  However, we make some brief comments.  The decision whether or not to recall a judgment is discretionary.  A challenge to such a decision, assuming it to be available, could succeed only if it is shown that the Judge acted on a wrong principle, that he failed to take into account some relevant matter, that he took into account some irrelevant matter or that he was plainly wrong.  Mr Ramsay would have been unable to meet that test.

[13]     Mr Ramsay’s first argument was based on this Court’s decision in Ramsay v Wellington District Court.  He maintained that this Court had held in that decision that there were arguable errors of law in the District Court decisions of 6 March 2001 and 24 October 2001, errors which John Hansen J had treated as purely factual. We do not accept this submission. This Court in Ramsay v Wellington District Court did not hold that there were arguable errors of law in the District Court decisions.  What this Court said was that, if the errors identified had occurred in the manner pleaded, then they would be errors of law.  There was no finding that the errors had occurred in the manner pleaded and it would have been totally inappropriate for there to have been such a finding in the context of a strike out application.

[14]     It is true that this Court remarked, in the context of discussing a submission on res judicata and abuse of process, that all the alleged errors had been before the High Court in the application for special leave - see at [39] of this Court’s judgment.  While the grounds in the judicial review proceedings had been broadly covered in the special leave application, however, the alleged errors before this Court in Ramsay v Wellington District Court were a refinement of the grounds covered in the special leave application.  It is not surprising, therefore, that the alleged errors outlined in the judicial review proceeding were not addressed explicitly in John Hansen J’s special leave judgment.  Mr Ramsay cannot complain that the Judge failed to address matters not squarely before him.

[15]     In any event, however the alleged errors were characterised by him, it seems to us that John Hansen J’s conclusion that any substantive appeal could not succeed was inevitable in light of the legal test accepted as correct by him (see at [38] of his special leave judgment) and the significance he placed on the fact that Mr Hodgson was not a properly accredited assessor (see at [34] of his special leave judgment).

[16]     Mr Ramsay’s second argument was that John Hansen J’s decision to deny special leave, after hearing the special leave application and the substantive appeal together, inappropriately deprived Mr Ramsay of his appeal rights to this Court.  We do not accept this submission. 

[17]     It may be that, where the alleged grounds of appeal are arguable or novel, it would be better practice for special leave to appeal to be granted, even if the appeal is ultimately dismissed.  This would preserve appeal rights to this Court.  However, there is no obligation to do this, particularly if the Judge considers the grounds of appeal are without merit.  John Hansen J in this case considered that the substantive appeal must inevitably fail.  It was clearly open to him, having come to this conclusion, to deny the application for special leave.

[18]     Mr Ramsay next criticised John Hansen J for taking into account Mr Ramsay’s refusal by him to undergo a further medical assessment, as he had been given the opportunity to do in the District Court’s interim decision of 6 March 2001.  The Judge’s comment was, however, in response to an argument that it would be unfair not to recall the judgment.  That there had been another course available to Mr Ramsay must be relevant to such an assessment, even if “fairness” could be a ground for granting a recall application.

[19]     Mr Ramsay’s final argument was that there has been a miscarriage of justice because an important point of law had not been considered properly by the High Court.  It was also submitted that John Hansen J’s decision has had an adverse impact on other accident victims.

[20]     In our view, this amounts to an assertion that the legal test used by John Hansen J was wrong.  That a decision may be wrong is grounds for an appeal, if one is available.  It is not grounds for the recall of a decision, particularly in the accident compensation context.  Under the accident compensation legislation, a decision by the High Court to refuse special leave is final.  There comes a point in all litigation where the principle of finality triumphs over the right of an unsuccessful litigant to challenge the decision.  Mr Ramsay has reached that point.  If there are adverse effects on other claimants, these must be addressed by those claimants (within the confines of the accident compensation legislation).

[21]     For the above reasons, we would have dismissed the appeal even if we had jurisdiction to hear it.

Result and costs

[22]     The appeal is dismissed for want of jurisdiction.  Costs of $3,000 plus usual disbursements are awarded to the respondent.

Solicitors:
Peter Sara, Dunedin for Appellant
Young Hunter, Christchurch for Respondent