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 Corporation [2022] NZACC 227.

2      Savage v Accident Compensation Corporation [2023] NZACC 53.

Discussion

[6]    The limited jurisdiction for accident compensation appeals to the High Court is set out in s 162 of the Act. This provides:

162 Appeal to High Court on question of law

(1)A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.

(2)The leave of the District Court must be sought within 21 days after the District Court’s decision.

(3)If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

(4)The special leave of the High Court must be sought within 21 days after the District Court refused leave.

(5)The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.

[7]    In this case it is not disputed that with leave to appeal having been declined by Judge Spiller on 4 April 2023, the last day for filing Mr Savage’s application for special leave to appeal should have been 25 April 2023. As this was ANZAC day and a public holiday however, this meant that the last day for Mr Savage to file his application for special leave was 26 April 2023.3 As Mr Savage explained, following correspondence with the Accident Compensation District Court Registry he initially attempted to file his application in that registry. After being advised that the District Court Registry was incorrect, he encountered a number of difficulties filing in the High Court. As a result, Mr Savage was only able to successfully file his application in the High Court at Auckland on 2 May 2023.

[8]    As Ms Ifwersen has submitted, there is a long and settled line of authority which makes it utterly clear that if an application for special leave is filed late, then regardless of the reason for the late filing and regardless of the length of that delay, the High Court has no jurisdiction to hear the application. Instead, Ms Ifwersen submitted the effect of s 162(4) of the Act is as follows:

3      Legislation Act 2019, s 55.

(a)the provision is mandatory and the High Court has no discretion to extend the time;4

(b)the 21 days are not working days;5

(c)the period for filing the application runs 21 days from the day after the date of the decision in respect of which leave to appeal is being sought;6

(d)the seeking of leave under s 162(4) can only be effected by filing in the High Court in the appropriate form together with payment of the filing fee;7 and

(e)the general power provided by the High Court Rules for extending the period of time to bring an application for leave to appeal do not apply to applications for leave under s 162 of the Act.8

[9]    It is also well established that s 27 of the NZBORA does not change the effect of s 162(4).9

[10]   Unfortunately for Mr Savage, the fact that his application was filed late deprives this Court of any jurisdiction to hear it. As a result, his application must be dismissed for want of jurisdiction.

Decision

[11]The application for special leave to appeal is dismissed.

[12]At the request of the Corporation there is no order as to costs.

Powell J

4      Siola’a v Wellington District Court [2008] NZCA 483, [2009] NZAR 23; Gallagher-Scott v Accident Compensation Corporation [2021] NZHC 1881; Rosenberg v Accident Compensation Corporation [2019] NZHC 1442; Howard v Accident Compensation Corporation [2018] NZHC 3342; M v Accident Compensation Corporation [2018] NZHC 1919; Crockett v Accident Compensation Corporation [2018] NZHC 2432; Jones v Accident Compensation Corporation [2016] NZHC 973; Armstrong v Accident Compensation Corporation (2011) 20 PRNZ 834 (HC); and Saipe v Accident Compensation Corporation HC Auckland CIV-2008-404-1053, 10 April 2008.

5      Saipe v Accident Compensation Corporation, above n 4, at [23].

6 At [15].

7      Jones v Accident Compensation Corporation, above n 4, at [16]; and see also Saipe v Accident Compensation Corporation, above n 4, at [16].

8      Saipe v Accident Compensation Corporation, above n 4, at [25]–[27]; and see also Gallagher- Scott v Accident Compensation Corporation, above n 4, at [22].

9      See for example Siola’a v Wellington District Court, above n 4, at [19]–[20].