Rosenberg v Accident Compensation Corporation - [2019] NZHC 1733

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2019-488-000061

[2019] NZHC 1733

BETWEEN
REBECCA ROSENBERG

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: (On the papers)

Judgment:

23 July 2019

JUDGMENT OF VENNING J APPLICATION FOR LEAVE

This judgment was delivered by me on 23 July 2019 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Copyto: Applicant Respondent

ROSENBERG v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1733 [23 July 2019]

Introduction

[1] In a judgment delivered 24 June 20191 Toogood J dismissed Ms Rosenberg’s application for special leave to appeal against a decision of Judge J H Walker in the District Court.2 Judge Walker had dismissed her appeal under s 149 of the Accident Compensation Act 2001 (the ACA).

[2] Ms Rosenberg seeks leave to appeal to the Court of Appeal. In the absence of Toogood J the Registrar has referred the file to me as duty Judge.

Background

[3] As Toogood J recorded, Ms Rosenberg says that she has a rare craniocervical (C0-1-2) neck injury. Judge Walker dismissed her appeal against a decision of the Accident Compensation Corporation dated 6 May 2015, declining to extend cover on her claim for neck injuries suffered between 1996 and 2001.

[4] Ms Rosenberg then unsuccessfully sought leave to appeal that decision. On 9 November 2018 Judge G M Harrison dismissed her application for leave.3 The Judge concluded that none of the issues Ms Rosenberg sought to raise were questions of law. Ms Rosenberg merely disagreed with the factual findings of Judge Walker. Appeals to the High Court under s 162 of the ACA are limited to questions of law.

[5] Ms Rosenberg then prepared a special application for leave to this Court dated 25 November 2018 and served the solicitor for the Corporation, Mr Light, by email on 27 November 2018. However, although Ms Rosenberg digitally scanned the application by email to the Whangarei High Court on 25 or 26 November 2018, the original application for leave to appeal was not lodged with the Court until 7 December 2018, some 28 days after Judge Harrison’s decision refusing leave to appeal.4

[6] Section 162(4) of the ACA provides that the special leave of the High Court must be sought within 21 days after the refusal of leave by the District Court. The last

1      Rosenberg v Accident Compensation Corporation [2019] NZHC 1442.
2      Rosenberg v Accident Compensation Corporation [2018] NZACC 48.
3      Rosenberg v Accident Compensation Corporation [2018] NZACC 175.
4      There are two date stamps on the document, 7 and 10 December 2018. I have taken the earliest.

prescribed day for filing the application was therefore 30 November 2018. Toogood J held that meant that, although the notice of application had been given to the Corporation’s lawyers within the 21 day period, the application was filed out of time. The Judge dismissed the application for special leave for want of jurisdiction.

The current application

[7] In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1733
Decision Date: 23 July 2019

CaseChat Overview and Summary

Rosenberg applied for leave to appeal against a decision of the High Court which dismissed her application for special leave to appeal a District Court decision. The District Court had dismissed her appeal under section 149 of the Accident Compensation Act 2001 against the Accident Compensation Corporation’s refusal to extend cover on her claim for neck injuries. Rosenberg first sought leave to appeal to the High Court, but her application was dismissed as out of time. She now seeks leave to appeal to the Court of Appeal. The court found that it had no jurisdiction to grant leave to appeal to the Court of Appeal because there is no right of appeal against a decision of the High Court refusing special leave to appeal from the District Court. The court also found that even if it had jurisdiction, it would not have granted leave because Rosenberg’s case was determined on facts specific to her case and did not raise a question of law. The application for leave to appeal to the Court of Appeal was dismissed for want of jurisdiction.

Orders