Rosenberg v Accident Compensation Corporation - [2019] NZHC 1442

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

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

CIV-2018-488-133

[2019] NZHC 1442

IN THE MATTER
of an application under Section 162 of the Accident Compensation Corporation

Act 2001

BETWEEN

REBECCA ROSENBERG

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

On the papers

Appearances:

Applicant, Self-represented C Light for Respondent

Judgment:

24 June 2019

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 24 June 2019 at 3.00 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

ROSENBERG v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 1442 [24 June 2019]

Introduction

[1] Rebecca Rosenberg has applied to the Court under s 162(3) of the Accident Compensation Act 2001 (the ACA or the Act) for an order seeking special leave to appeal against the decision of Judge J H Walker dated 16 March 2018,1 dismissing her appeal under s 149 of the Act. An application to the District Court for leave to appeal to this Court was dismissed on 9 November 2018 by Judge G M Harrison.2

[2] I have decided that this Court does not have jurisdiction to determine Ms Rosenberg’s application for special leave.

Background

[3] Ms Rosenberg says that she has a rare craniocervical (C0-1-2) neck injury. She wishes to challenge Judge Walker's decision dismissing 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. The grounds of challenge are set out in the special leave application.

[4] Ms Rosenberg’s special leave application to this Court was dated 25 November 2018 and was served on the solicitor for the Corporation, Mr Light, by email on 27 November 2018. But it was not filed in this Court until 10 December 2018, 31 days after Judge Harrison’s decision refusing leave to appeal.

[5] 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 prescribed day for filing and service of the application, therefore, was 30 November 2018. That means, regrettably, that although notice of the application had been given to the Corporation's lawyers within the 21-day period, the application was filed in this Court out of time.

[6] On 6 February 2019, Ms Rosenberg applied to have the proceeding adjourned. She was overseas and sought an adjournment of the proceeding until she returned to

1 Rosenberg v Accident Compensation Corporation [2018] NZACC 48.
2 Rosenberg v Accident Compensation Corporation [2018] NZACC 175.

New Zealand, which she hoped to do "in about September/October this year”. Ms Rosenberg said she did not have the money to return at that time but hoped somehow to be able to do so. Ms Rosenberg described other difficulties with her immediate return.

[7] A copy of Ms Rosenberg's application for an adjournment was served on the Corporation. In his memorandum to the Court, Mr Light pointed out that the…

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 1442
Decision Date: 24 June 2019

CaseChat Overview and Summary

In Rosenberg v Accident Compensation Corporation, the High Court of New Zealand was required to determine whether it had jurisdiction to grant Rebecca Rosenberg special leave to appeal a decision of the Accident Compensation Corporation (ACC). Rosenberg applied under section 162(3) of the Accident Compensation Act 2001 to seek special leave to appeal the decision of Judge J H Walker, which dismissed her appeal under section 149 of the Act. Rosenberg’s application for special leave was filed in the High Court after the statutory time limit of 21 days from the District Court’s refusal of leave to appeal, as stipulated in section 162(4) of the Act. Rosenberg argued that the Court should overlook the technical error due to various factors, including the mandatory nature of the time limit and her circumstances, but the Court found that the statutory time limit was mandatory and could not be extended. The Court held that it did not have jurisdiction to hear Rosenberg’s application for special leave to appeal due to the out-of-time filing. The Court concluded that Rosenberg’s arguments did not assist her cause and that the statutory time limit could not be waived. Rosenberg’s application was dismissed, and both parties were ordered to bear their own costs in connection with the proceeding in the High Court.

Orders