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 special leave application was filed out of time. He also referred to a Court of Appeal judgment, Siola'a v Wellington District Court,3 which indicated that the time for filing set out in s 162(4) of the ACA is mandatory and cannot be extended by the Court.

[8]                   In a minute dated 13 February 2019, I noted that the effect of some observations  in  the  Siola’a  might  give  this  Court  no  option  but  to  dismiss   Ms Rosenberg’s special leave application for want of jurisdiction. Being reluctant to do so on the basis of a technical error of a kind that courts are usually empowered to overlook, I invited further submissions from the parties on the preliminary jurisdictional issue.

[9]                   Ms Rosenberg went to great lengths to address the merits of her intended appeal and to raise points more directly relevant to the preliminary question. I mean no disrespect to her industry and scholarship by summarising only briefly the relevant propositions she advances:

(a)The Court is obliged under the United Nations Convention on the Rights of Persons with Disabilities to support her in the exercise of her legal capacity.

(b)An internationally reliable courier had told her that her application would be filed in time.

(c)The respondent did not file a notice of opposition to her application for special leave in time, notwithstanding that the application itself was filed out of time.

3      Siola'a v Wellington District Court [2008] NZCA 483, [2009] NZAR 23.

(d)The Accident Compensation Corporation, as the custodian of a unique, societal scheme, is under a statutory duty to act reasonably towards claimants.

(e)Through a combination of provisions in the Senior Courts Act 2016 and the District Court Act 2016, the District Court’s ability to waive civil irregularities under s 3 of the Inferior Courts Procedure Act 1909 may be exercised by the High Court.

[10]               I have concluded that these arguments do not assist Ms Rosenberg. I am satisfied, for the reasons that follow, that this Court has no jurisdiction to consider, let alone grant, Ms Rosenberg’s application for special leave.

Discussion

[11]               In Armstrong v Accident Compensation Corporation,4 Ellis J noted that, on its face, s 162(4) is mandatory and cannot be modified by resort to the rules of the Court.5 The Judge then considered two potential avenues in which the requirement in s 162(4) to file an application for special leave within 21 days could be waived.

[12]The first is by virtue of s 3 of the Inferior Courts Procedure Act 1909:

3        Waiver of errors in civil proceedings before an inferior Court

(1) In any civil proceedings before an inferior  Court  any  error,  irregularity, omission, or defect, whether it relates to the jurisdiction of the Court, or to the procedure therein, or to any other matter, and whether it appears on the face of the record or of the proceedings or not, and whether it is within the knowledge of the Court or not, may be waived or acquiesced in by any party to the proceedings.

….

[13]                   That provision was accepted by the Court of Appeal in Siola’a as being available where there has been a failure to comply with the requirement in s 162(2) to

4      Armstrong v Accident Compensation Corporation (2011) 20 PRNZ 834 (HC).

5      At [12]-[13]; see also Reden-Oldfield v Accident Compensation Corporation [2010] NZACC 90 at [13]; Wyman v Accident Compensation Corporation HC Wellington CIV-2007-485-451, 23 May 2007; Shann v Accident Compensation Corporation HC Wellington CIV-2011-485-1414, 27 July 2011.

apply to the District Court for leave to appeal to the High Court.6 But, as Ellis J held, that provision cannot avail someone attempting to bypass s 162(4), which applies to applications to the High Court for special leave to appeal because the High Court is not an inferior Court.7 Section 3 is not declaratory of the law generally.

[14]               The second potential avenue is the more general ability of a party to waive a legal provision that is solely to their benefit. That discretion was described by the Court of Appeal in Attorney-General v Howard:8

[119] The primary rule is that a provision may not be waived if it operates  as a condition precedent to, or a key part of the court’s jurisdiction. Apart from that... everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his (or her) private capacity, which may be dispensed with without infringing any public right or public policy.

[15]               Ellis J determined that no such right of waiver existed in relation to s 162(4).9 First, the Judge held that generally applicable policy considerations relating to the importance of finality in litigation are particularly acute in the context of a statutory provision which provides that an appeal may only be brought with special leave. In particular:

(a)the purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;

(b)it will normally be necessary to show that there is an issue of principle at stake, or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success;

(c)the fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course;

6 At [36].

7      Armstrong at [14]; see also Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58 at [128].

8      Cited by Ellis J in Armstrong at [15].

9 See [17]-[22].

(d)it is for the applicant to show that leave is required in the interests of justice; and

(e)because leave has already been refused by the District Court, an applicant will normally also need to show some extraordinary factor which can be shown not to have been properly taken into account.

[16]               Second, the ACA contains several other provisions which expressly contemplate or permit the waiving of specified time limits; s 162(4) is not one.

[17]               And third, there is an amplified public interest in finality of litigation in the context of ACC litigation, given the position of a Crown entity as one of the litigants. The additional public costs in such cases means that the time limits cannot be said merely to exist for private benefit.

[18]               Ellis J’s analysis appears to me to be right10 and I propose to follow it. I find that this Court does not have jurisdiction to extend the time limit in s 162(4) to enable the Court to hear Ms Rosenberg’s appeal. Moreover, the ACC does not have the power to waive adherence to the statutory time limit.

Result

[19]I dismiss the application accordingly.

Costs

[20]               The rules about payment of costs by one party to another are contained in Part 14 of the High Court Rules 2016.11 The general rule is that the party that succeeds in a proceeding before the Court is entitled to costs.12 But, as r 14.1(1) makes explicit, all matters relating to costs “are at the discretion of the court”. I acknowledge that the discretion is not unfettered and that the exercise of the Court’s costs discretion must

10     See also M v Accident Compensation Corporation [2018] NZHC 1919 at [65]-[69] and Crockett v Accident Compensation Corporation [2018] NZHC 2432 at [16]-[17].

11     A copy of the Rules is available free online at

Court Rules 2016, r 14.2(1)(a).

be a principled one. Nevertheless, I cannot ignore that Ms Rosenberg has been deprived of the ability to exercise her statutory right to apply to this Court for special leave to appeal by what appears to be the failure of an intermediary – a courier company – to meet its obligations to make timely delivery of her notice of appeal to the Court’s registry office. She had provided notice of her application to the Corporation before the expiry of the filing period, so no possible prejudice could have been caused to the Corporation by the default in filing. Moreover, the subject-matter of the intended appeal – Ms Rosenberg’s ill-health – is plainly one of utmost importance to her. Ms Rosenberg has done nothing inappropriate or irresponsible in opposing the dismissal of her application on a technical ground. It is also significant, looking at the matter in the round, that the respondent is a publicly-funded statutory body having comparatively abundant resources to engage in litigation.

[21]               I am inclined, in the particular circumstances of this case, to hold that the parties shall bear their own costs in connection with the proceeding in this Court. Taking that view implies no criticism of the Corporation for bringing the jurisdictional issue to the attention of the Court. It is the law that has proved fatal to Ms Rosenberg’s cause, not the whim of the Corporation. The Corporation may apply for costs if it wishes to do so.

[22]               Any claim for costs shall be way of memorandum filed and served not later than Monday, 2 July 2019. If Ms Rosenberg wishes to oppose the application for costs, she shall file a memorandum setting out the grounds and serve it on the solicitors for the Corporation not later than Monday, 23 July 2019. Costs memoranda shall not exceed five pages in length. Unless the Court otherwise directs, costs shall then be determined on the papers.

…………………………………

Toogood J