Renton v Accident Compensation Corporation

[2015] NZHC 1356

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2015-485-000288 [2015] NZHC 1356

IN THE MATTER

of an appeal under s 72 of the District

Courts Act 1947

BETWEEN

NIGEL RENTON Appellant

AND

ACCIDENT COMPENSATION CORPORATION

First Respondent

S BISHARA Second Respondent

Hearing:	15 June 2015
Counsel:	A C Beck for Appellant I G Hunt for First Respondent A A Lewis for Second Respondent
Judgment:	15 June 2015

JUDGMENT OF COLLINS J

Summary of judgment

[1]      I  am  dismissing  Mr  Renton’s  appeal  from  a  decision  of  Judge  Powell delivered in the District Court on 2 April 2015.   In his decision, Judge Powell ordered Mr Renton to file by 8 May 2015 any further evidence he wished to rely upon in support of his appeal.   Judge Powell directed that if Mr Renton did not comply with this deadline, the appeal would be determined on the basis of the

evidence that was before the Court.

RENTON v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 1356 [15 June 2015]

Context

[2]      On 22 April 1997 Mr Renton lodged a claim for cover with the Accident Compensation Corporation (ACC).   His claim alleged he had suffered a medical misadventure when he attended the Dunedin Hospital’s Accident and Emergency Department on either 27 February 1997, 2 March 1997 or 16 March 1997.   The essence of Mr Renton’s claim was that medical staff had failed to diagnose that he

suffered “florid papilledema”1 which led to Mr Renton suffering “optic atrophy”.2

[3]      On 29 May 1998, ACC declined Mr Renton’s claim.

[4]      Mr Renton sought a review of ACC’s decision.  That application prompted further inquiries by ACC’s medical misadventure unit.

[5]      On 4 September 2003, the reviewer confirmed ACC’s original decision that

Mr Renton had not suffered a medical misadventure.

[6]      On  21  September  2006,  Mr  Renton  filed  a  notice  of  appeal  alleging

Professor Bishara, a neurosurgeon, who examined Mr Renton in his clinic on 4

March 1997, had failed to provide the standard of care reasonably expected of a neurosurgeon.

[7]      On 15 November 2010, the District Court granted Mr Renton’s application to

bring a review out of time. That decision was made by consent.3

[8]      The review hearing commenced on 14 September 2011 but did not conclude because an issue arose about evidence that had not been properly disclosed.   The resumed hearing took place on 2 August 2012 and 21 December 2012.

[9]      A review decision was issued on 12 February 2013.  The reviewer concluded the evidence presented to him did not establish Professor Bishara had committed an error,  and  that  Mr  Renton  had  failed  to  establish  he  had  suffered  a  medical

misadventure.

1      Extensive swelling of the optic disc.

2      Degeneration of the optic nerve.

3      Renton v Accident Compensation Corporation [2010] NZACC 204.

[10]     In  reaching  his  decision  the  reviewer  noted  that  while  Mr  Renton  had adduced evidence from an ophthalmologist, the allegations were against Professor Bishara, who is a neurosurgeon.  Professor Bishara had provided an expert opinion from Mr Balakrishnan, a neurosurgeon. The reviewer said:4

The question I must consider is not what should be expected of an ophthalmologic expert, it is what is expected of a specialist neurosurgeon. The primary evidence I have available which meets that requirement, is that from Mr Balakrishnan, who is not at all critical of the care and diagnosis provided by Professor Bishara in this case.

[11]     Mr Renton  filed a notice of appeal  in  the District  Court  at  Dunedin  on

12 February 2013.

[12]     If Mr Renton wished to adduce additional evidence at the hearing of his appeal, he needed to apply “promptly” to the District Court for leave to adduce that evidence.5     Submissions in support of Mr Renton’s appeal needed to be filed by

12 August 2013.6

[13]     On 27 August 2013, counsel for Mr Renton advised the District Court that further medical evidence was being sought.

[14]     On 25 November 2013, counsel for Mr Renton advised he was still seeking further medical evidence and was not yet in a position to file submissions.

[15]     A case management conference was conducted on 15 May 2014.   At that conference directions were issued requiring Mr Renton to file any further evidence he wished to rely on by 1 August 2014.

[16]     The 1 August 2014 deadline was not met.  On 13 February 2015, following a further case management conference, Judge Powell issued further directions saying Mr Renton would have one final opportunity to file additional evidence in support of his appeal.  Judge Powell gave Mr Renton until 8 May 2015 to file any additional

evidence he wished to rely upon.

4      Application for a Review by N Renton, Review No: 1165A, 15 January 2013 at 36.

5      The Practice Note of the Chief District Court Judge effective 1 December 2007: Accident

Compensation Appeals District Court Registry at [10].

6 At [4].

[17]     In his minute of 13 February 2015, Judge Powell said:7

If [the medical] reports or the submissions on behalf of the appellant are not filed as has been directed in this minute the appeal will, without further notice to the appellant or mention in Court, stand dismissed.

[18]     On 20 March 2015, counsel for Mr Renton sought an enlargement of time to file a medical report from Mr Aspoas, a neurosurgeon.  Mr Aspoas had advised on

18 March 2015 that he would be able to prepare a report in “three months’ time”. Mr Renton’s counsel therefore sought to enlarge the time for filing Mr Aspoas’s report to 30 June 2015.

[19]   On 2 April 2015, Judge Powell conducted a further case management conference.  At that conference Judge Powell issued a further minute in which he reconfirmed Mr Renton would have to file any additional evidence by 8 May 2015. At the same time, Judge Powell said that if Mr Renton failed to adhere to this deadline, he would be precluded from filing any further evidence and the appeal would be heard and determined without it.8

[20]     Mr Renton appeals Judge Powell’s decision of 2 April 2015.  The grounds of

appeal allege Judge Powell erred by holding that:

(1)      there was no basis for granting an extension of time;

(2)      the appellant should be confined to evidence filed by 8 May 2015;

and

(3)      Mr Renton had exhausted his “last chance opportunity”.

Mr  Renton’s  notice  of  appeal  explains  he  will  be  materially  prejudiced  by

Judge Powell’s decision of 2 April 2015.

7      Renton v Accident Compensation Corporation DC Dunedin ACR089/13, 13 February 2015 at

[9].

8      Renton v Accident Compensation Corporation DC Auckland ACR89/13, 2 April 2015 at [5].

Legal principles

[21]     Mr Beck, counsel for Mr Renton, submitted Mr Renton was able to appeal Judge Powell’s decision of 2 April 2015 as of right.  Mr Beck relied on the Supreme Court’s judgment in Siemer v Heron to support that proposition.9

[22]     I note, however, the Supreme Court in Siemer v Heron was concerned with determining if Mr Siemer could appeal a High Court interlocutory decision under s 66 of the Judicature Act 1908.   Mr Renton’s appeal is governed by s 162 of the Accident Compensation Act 2001. That section 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.

[23]     Thus, while Siemer v Heron explains that s 66 of the Judicature Act 1908 provides for an appeal as of right from interlocutory decisions of the High Court, appeals from the District Court involving ACC claims should comply with s 162 of the Accident Compensation Act 2001.

[24]     Notwithstanding   the   leave   requirements   of   s   162   of   the   Accident

Compensation Act 2001, I have elected to proceed on the basis of examining the

substantive issues raised by Mr Renton’s appeal.

9      Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309 at [31].

[25]     Mr  Beck  accepted  the  appeal  was  from  the  exercise  of  Judge  Powell’s judicial discretion.  Therefore, the criteria for a successful appeal requires Mr Renton to establish Judge Powell’s decision:10

(1)       involved an error of law or principle; or

(2)       took into account an irrelevant consideration; or

(3)       failed to take into account a relevant consideration; or

(4)       was plainly wrong.

Analysis

[26]     In my assessment, the decision reached by Judge Powell was correct.  Judge Powell did not make an error of law or principle.  Nor did he fail to take into account a relevant consideration or take into account an irrelevant consideration.   Judge Powell’s decision was not plainly wrong.

[27]     I have considerable sympathy for the predicament in which Mr Renton is. However, he has known since at least 13 February 2013 that he needed to obtain an expert opinion from a neurosurgeon if he was to have sound grounds for pursuing an appeal.   It would appear that Mr Aspoas was not engaged until March 2015 after approaches to another neurosurgeon proved to be unsuccessful.

[28]     Mr Renton has failed by a considerable margin to adhere to the timetables put in place by the District Court.  He has done so knowing that the consequences could result in him being denied the opportunity to adduce any further evidence.   It is significant Mr Renton has not pointed to any convincing reason why he has not progressed his appeal with the diligence expected of an appellant.

[29]     Whilst justice should always prevail over finality,11 Mr Renton has had more than sufficient time to obtain evidence (if any is available) in order to pursue his

10     May v May (1982) 1 NZFLR 165 (CA); K v B (Alt cit Kacem v Bashier) [2010] NZSC 112, [2011] 2 NZLR 1 at [32].

appeal.  The delays to date have been inordinate and now genuine prejudice is being suffered by Professor Bishara, who has explained he is now 86 years old and in failing health.12    It is unreasonable for the allegations against Professor Bishara not to be resolved.

[30]     The effect of Judge Powell’s decision and this judgment is that Mr Renton must decide if he wishes to pursue his appeal in the District Court relying only on the evidence that exists or abandon his appeal altogether.

[31]     I make no order as to costs.

D B Collins J

Solicitors:

Peter Sara Lawyer, Dunedin for Appellant

Young Hunter, Christchurch for First Respondent

11     Ras Behari Ltd v King-Emperor (1933) 50 TLR 1 at 2 per Lord Atkin: “Finality is a good thing;

but justice is a better”.

12     Affidavit of S N Bishara, 25 May 2015 at [2]-[3].