Savage v Accident Compensation Corporation - [2023] NZHC 2441

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-996

[2023] NZHC 2441

UNDER The Accident Compensation Act 2001

IN THE MATTER

Of an application for special leave to appeal under s 162(3) of the Act

BETWEEN

GRAHAME SAVAGE

Applicant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 20 June 2023

Appearances:

Further submissions completed:

Appellant in Person

H Ifwersen for the Respondent

30 June 2023

Judgment:

5 September 2023

JUDGMENT OF POWELL J

[Jurisdiction for Special Leave to Appeal]

This judgment was delivered by me on 5 September 2023 at 4.00 pm pursuant to
R 11.5 of the High Court Rules

…………………..
Registrar/Deputy Registrar

Solicitors:
Meredith Connell, Auckland

SAVAGE v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2441 [5 September 2023]

[1] Grahame Savage has cover under the Accident Compensation Scheme for a number of injuries. He seeks an additional lump sum payment from the Accident Compensation Corporation (“the Corporation”) as a result of those injuries. In the course of a long and protracted battle with the Corporation, Mr Savage seeks special leave to appeal a reserved judgment of Judge C J McGuire dated 30 November 2022,1 leave to appeal having been declined by Judge P R Spiller on 4 April 2023.2

[2] As a preliminary issue, Ms Ifwersen on behalf of the Corporation has submitted Mr Savage’s application for special leave has been filed outside the time prescribed in s 162(4) of the Accident Compensation Act 2001 (“the Act”). As a result, she submits that this Court has no jurisdiction to entertain the application.

[3] At Mr Savage’s request we had a brief oral hearing following the first call of his application on 20 June 2023. At the conclusion of that hearing, Mr Savage requested more time to consider the issue. I therefore set a timetable for further submissions and confirmed I would then determine the issue on the papers.

[4] Further submissions were filed as directed. Mr Savage accepted that his application for special leave to appeal had been filed late but submitted this was, at least in part, due to the advice he had received from the Accident Compensation District Court Registry which led to him initially attempting to file his application in the District Court Registry in Wellington rather than in the Auckland High Court. In any event, Mr Savage submitted that the delay in filing the appeal was not substantial and sought leave to extend time for bringing the application, submitting also that his right to bring the application was protected by s 27 of the New Zealand Bill of Rights Act 1990 (NZBORA).

[5] In response, Ms Ifwersen reiterated her submission on behalf of the Corporation that s 162(4) of the Act does not allow the Court to extend the time for an application for special leave that has not been filed within the 21 day period specified, and accordingly, this Court has no jurisdiction to determine Mr Savage’s application for special leave.

1 Savage v Accident Compensation…

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: [2023] NZHC 2441
Decision Date: 5 September 2023

CaseChat Overview and Summary

In Savage v Accident Compensation Corporation, Grahame Savage sought special leave to appeal a judgment of the Accident Compensation Court. Savage, who is covered under the Accident Compensation Scheme, was dissatisfied with a reserved judgment dated 30 November 2022 and sought special leave to appeal. Leave to appeal had been declined by a judge of the Accident Compensation Court on 4 April 2023. Savage’s application for special leave to appeal was filed on 2 May 2023, outside the 21-day period specified in section 162(4) of the Accident Compensation Act 2001. The Accident Compensation Corporation argued that the High Court had no jurisdiction to hear the application for special leave because it was filed late. The central legal issue was whether the High Court had jurisdiction to hear Savage’s application for special leave despite it being filed late.

The Court considered the strict time limits for filing an application for special leave under section 162(4) of the Act, which provide that such an application must be filed within 21 days of the District Court’s refusal to grant leave to appeal. The Court noted that there is a long and settled line of authority that the High Court has no discretion to extend the time for filing an application for special leave. The Court emphasised that section 162(4) is mandatory, and the period for filing the application runs from the day after the date of the decision in respect of which leave to appeal is being sought. The Court also confirmed that section 27 of the New Zealand Bill of Rights Act 1990 does not alter the mandatory nature of the time limit in section 162(4). The Court held that the fact that Savage’s application was filed late deprived it of jurisdiction to hear the application. As a result, the application for special leave to appeal was dismissed.

Orders