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 support of the application for leave to the Court of Appeal Ms Rosenberg says Toogood J’s judgment did not address all the points she wished to raise. The short answer to that is that the Judge dismissed the application on the basis that the Court had no jurisdiction to deal with the application as it was out of time.

Appellate pathway

[8]                 The appellate pathway for decisions in relation to accident compensation is provided by the ACA. Section 163 provides for appeals to the Court of Appeal on questions of law:

163     Appeal to Court of Appeal on question of law

(1)A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

(2)If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(3)An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.

(4)The decision of the Court of Appeal on any application for leave to appeal, or on an appeal under this section, is final.

[9]                 There is, however, no jurisdiction for this Court to grant leave to appeal to the Court of Appeal against a decision of the High Court refusing to grant leave to appeal from the District Court.5

5      McCafferty v Accident Compensation Corporation (2003) 16 PRNZ 843.

[10]              In McCafferty v Accident Compensation Corporation the Court of Appeal confirmed that there was no scope for reading the relevant statutory provision “any determination or decision of [the High Court] on the appeal”:6

as conferring a right of appeal against a decision of the High Court refusing special leave to appeal from the District Court.

[11]              For that reason, there is no basis for this Court, on this application, to grant leave to Ms Rosenberg to appeal to the Court of Appeal. There is no jurisdiction to do so. There is no right of appeal against Toogood J’s decision refusing special leave.

Alternative pathway?

[12]              As Ms Rosenberg is a litigant in person I have considered whether there is an alternate appellate pathway under s 60 of the Senior Courts Act 2016. That section provides:

60 Appeals against decisions of High Court on appeal from District Court, Family Court, or Youth Court

(1)The decision of the High Court on appeal from the District Court, the Family Court, or the Youth Court is final unless a party, on application, obtains leave to appeal against the decision to the Court of Appeal.

(2)An application under subsection (1) for leave to appeal to the Court of Appeal must be made to the High Court or, if the High Court refuses leave, to the Court of Appeal.

(3)If leave to appeal is obtained under subsection (1), the decision of the Court of Appeal is final unless a party obtains leave to appeal against that decision to the Supreme Court.

(4)If there is non-compliance with any procedural rules in relation to an application or appeal under this section before the Court of Appeal, the court may dismiss the application or appeal or deal with it in any other manner and on any terms that the court decides.

(5)Subsections (1) to (4) are subject to Part 4.

[13]              In Osborne v Auckland City Council the Court of Appeal held that a further appeal from the High Court pursuant to s 67 of the Judicature Act 1908 (the predecessor of s 60 of the Senior Courts Act 2016) may be precluded or limited by a

6 At [8].

specific provision in another statute.7 The Court referred to s 163 of the ACA as a specific example of a statutory provision that could preclude the application of s 67 (now s 60).

[14]              In short, Court of Appeal authority confirms that s 60 cannot provide an alternative pathway for an appeal. There is no right of appeal to the Court of Appeal under that section from the decision of Toogood J declining to grant special leave to appeal to this Court.

Merits

[15]              Even if there was jurisdiction to appeal, the Court would not have granted leave. On the jurisdiction issue, the statutory wording relating to the time period for filing the application is mandatory and cannot be varied by this Court or waived by the parties, even if the Corporation was willing to waive it, which Mr Light confirmed to Toogood J it was not.8

[16]              The substantive issue that Ms Rosenberg seeks to appeal on is a matter of personal concern to her but it does not raise an issue of law. Judge Walker’s judgment is a comprehensive judgment. It makes it clear Ms Rosenberg’s case was determined on the facts specific to her case. The basis of the factual findings was reviewed by Judge Harrison in his decision declining leave to appeal to this Court. No question of law arises.

Result

[17]              The application for (special) leave to appeal to the Court of Appeal is dismissed for want of jurisdiction.

Venning J

7      Osborne v Auckland City Council [2012] NZCA 199. Not in issue before the Supreme Court in [2014] NZSC 67.

8      Siola’a v Wellington District Court [2008] NZCA 483, [2009] NZAR 23; and Attorney-General v Howard [2010] NZCA 58.