Smith v Accident Compensation Corporation
[2024] NZHC 1424
•31 May 2024
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2023-485-779
[2024] NZHC 1424
UNDER the Accident Compensation Act 2001. IN THE MATTER
of an application for special leave to appeal to the High Cort under s162 of the Act.
BETWEEN
WARREN SMITH
Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 20 May 2024 Appearances:
Applicant in Person
L Hawes-Gandar for Respondent
Judgment:
31 May 2024
JUDGMENT OF WILKINSON-SMITH J
This judgment was delivered by me on 31/05/2024 at 3pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors/Counsel:
W Smith
Medico Law Limited
SMITH v ACCIDENT COMPENSATION CORPORATION [2024] NZHC 1424 [31 May 2024]
Introduction
[1] Mr Smith is 75 years old. He has been in litigation with the Accident Compensation Corporation (the Corporation) for decades, as a result of a workplace injury in 1990 which led to the amputation of his left leg in 2002.
[2] Mr Smith applies for special leave to bring an appeal from a decision of Judge PR Spiller dated 26 June 2023,1 and from Judge CJ McGuire dated 8 November 2023.2
[3] The central issue is the jurisdiction of the courts to revisit previous decisions about liability to pay interest on arrears of weekly compensation payments.
[4] On 26 June 2023, Judge Spiller declined an appeal against a decision of a reviewer relating to interest on late payments of weekly compensation for the period 4 October 1991 to December 2004. Judge Spiller found that the reviewer was correct to dismiss the review on the grounds of lack of jurisdiction and that the claim for interest on arrears of weekly compensation had been decided and repeatedly confirmed.3 Judge Spiller stated that issue estoppel applied and prevented re-litigation of the issue.
[5] On 8 November 2023, Judge McGuire declined leave to appeal and found that Mr Smith’s repeated attempts to relitigate the same issue amounted to an abuse of process.4
[6] Mr Smith raises two issues. First, that he has raised new previously unconsidered evidence which he says will make a material difference to the outcome and is an exception to the issue estoppel rule5. Secondly, that the Judges were in error to find a lack of jurisdiction to deal with evidential matters which had not previously been considered.
1 Smith v Accident Compensation Corporation [2023] NZACC 98 [Judge Spiller Decision].
2 Smith v Accident Compensation Corporation [2023] NZACC 181 [Judge McGuire Decision].
3 Judge Spiller Decision, above n 1, at [67].
4 Judge McGuire Decision, above n 2, at [27].
5 Mr Smith referred to both issue estoppel and judicial estoppel but from the context I take his submissions to refer to issue estoppel.
[7] The Corporation opposes Mr Smith’s application for special leave to appeal and says that Mr Smith has not raised any seriously arguable question of law; and the District Court’s conclusion regarding jurisdiction was not only open to it, but the only available outcome.
Background and procedural history
[8] This section, in part, is gratefully adopted from Moore J’s 2016 decision on this matter.6
[9] In January 1990, Mr Smith was working as an engine reconditioner. He suffered a workplace accident which resulted in an injury to his left leg. A claim for weekly compensation was accepted. That weekly compensation ceased on 12 April 1990 although Mr Smith was still incapacitated. He had private insurance which he took advantage of, and he did not believe that he could claim both. In fact, it is now clear that he remained entitled to weekly compensation.7
[10] On 4 October 1991, Mr Smith suffered an aggravation of the 1990 injury. He apparently enquired about weekly compensation but was told he would receive only a nominal amount as he had started a new business.8 At that point the Corporation did not have information to support continued entitlement to weekly compensation since Mr Smith had stopped receiving weekly compensation on 11 April 1990.
[11] Mr Smith continued to receive cover for ongoing medical issues resulting from the injuries, but this was cover for treatment and not weekly compensation.
[12] On 6 November 1999, Mr Smith applied for funding for surgery to his left leg arising from the injury on 4 October 1991. That application was declined by the Corporation and Mr Smith lodged a review. On 4 August 2000, the reviewer quashed the Corporation’s decision declining funding for surgery.
6 Smith v Accident Compensation Corporation [2016] NZHC 3148 [Moore J Decision].
7 Smith v ACC DC Hamilton 146/2006, 30 June 2006 per Judge Cadenhead.
8 Smith v Accident Compensation Corporation DC Hamilton 114/2008, 19 February 2008 per Judge Cadenhead [Judge Cadenhead Interest Decision].
[13] In 2001, Mr Smith sought weekly compensation which was declined as he was not employed at the time. In February 2002, a further application was accepted as Mr Smith was in employment. He advised me in oral submission that he went to work for six weeks but issues with his leg made his employment impossible.
[14] In 2002, Mr Smith’s left leg was amputated below the knee because of the ongoing medical issues from the 1990 accident. The Corporation funded the amputation.
[15] In April 2002, following the amputation of his leg, Mr Smith applied for backdated weekly compensation. The Corporation resisted this but eventually in 2006 and 2007 Mr Smith succeeded in his claims, and he received weekly compensation backdated to April 1990. He had in fact never recovered from the January 1990 accident. He should have received weekly compensation from the date of that accident, but he had not claimed it after April 1990.
[16] The entitlement to backdated compensation was supported by a medical certificate dated 23 December 2004 supplied by Mr Smith’s general practitioner Dr Patterson. Dr Patterson confirmed that Mr Smith had been incapacitated since April 1990.
[17] Judge J Cadenhead determined that Mr Smith was entitled to weekly compensation from 12 April 1990 to 4 October 1991
Judge Cadenhead recorded his view that Mr Smith was an honest man whose evidence was compelling. Judge Cadenhead found that:9
… the circumstantial evidence along with the patent honesty of the appellant endorses the fact that for the period alleged the appellant was incapacitated as a result of the covered injury; did not receive any earnings apart from payments made by his private insurer; and for the reasons that he has given was under the belief that he did not have to provide current medical certificates because at that time he laboured under the belief that he could not receive [private insurance payments and weekly compensation].
9 Smith v Accident Compensation Corporation DC Wellington 146/2006, 30 May 2006, at [23].
[18] The Corporation made two voluntary backdated payments of arrears. These were:
(a)12 April 1990 to 4 October 1991 (the 2006 arrears payment); and
(b)5 October 1991 to 2002 (the 2007 arrears payment).
[19] The question of interest on the arrears arose. Mr Smith claimed that he was owed interest for the period that the Corporation had failed to pay weekly compensation to which he was entitled. The Corporation declined to pay interest in respect of both payments and those decisions were upheld on review. Mr Smith appealed both decisions.
[20] The liability to pay interest depended upon the point in time when the Corporation had received “all information necessary to enable the Corporation to calculate and make the payment.”10
In respect of the 2006 arrears payment, Judge Beattie determined that point in time to be December 2004 when the Corporation received the medical certificate from Dr Patterson certifying that Mr Smith had in fact been still incapacitated in April 1990 when his original weekly compensation ceased.11
[21] On 27 April 2007, Mr Farr, an orthopaedic surgeon, prepared a report for the Corporation confirming that Mr Smith was incapacitated for the period from 4 October 1991 — referred to in Mr Smith’s submissions and this judgment as “The Farr Report”.
[22] On 12 June 2007, Judge M Beattie issued a judgment determining that interest was payable from 23 January 2005.12 Judge Beattie stated:
[21] The position in law, I find, is quite clear. If Mr Smith’s eligibility for weekly compensation had been accepted by the respondent back in December 2004, when it received Dr Patterson’s certificate, that would have been the earliest date from which it could be said that the respondent was in possession of all information necessary relating to Mr Smith’s incapacity for the period for which weekly compensation is sought.
10 Accident Compensation Act 2001, s 114(1).
11 Smith v ACC [2007] NZACC 108 [Judge Beattie Decision].
12 Smith v Accident Compensation Corporation [2007] NZACC 8.
[22] As earlier noted, the respondent has in fact paid interest on that accrued weekly compensation from that date down to the date on which it made payment of the backdated weekly compensation, and I find that no further sum of interest is due to Mr Smith in that regard.
[23] On 20 July 2007, the Corporation declined Mr Smith’s application for interest on the 2007 arrears payment on the basis that the payment was made within one month of the Corporation having all information necessary, the last necessary information being the Farr Report. Mr Smith applied for a review but was unsuccessful. He then filed an appeal.
[24] Judge Cadenhead allowed the appeal in 2008 but said that the previous decision of Judge Beattie had fixed the date from which interest applied and there was “an issue of estoppel in respect of that finding”.13 Judge Cadenhead determined that interest was payable on the 2007 arrears payment from December 2004.
[25] Mr Smith did not appeal Judge Beattie’s decision about the interest. He does not agree that it is correct, and he has been relitigating or attempting to relitigate it ever since. In 2012, Mr Smith brought a further appeal on the issue of payment of interest on the arrears. On 20 November 2012, Judge Beattie delivered a judgment on appeal and stated:14
[11] Having considered all the evidence contained in the previous decisions of this Court and of Reviewers, I am satisfied that there is no basis for any new date from which the respondent was supposedly aware of [Mr Smith’s] incapacity for that period from October 1991 to February 2002. [Mr Smith] has received interest on the arrears of weekly compensation based on that evidence, and there is simply no basis for that matter to now be reconsidered, as the fact relevant to any issue relating to interest on arrears of weekly compensation had been fully determined.
[26] On 19 March 2013, Judge R Joyce declined Mr Smith’s application for leave to appeal Judge Beattie’s judgment to the High Court, and stated:15
[19] But given the binding impact of the earlier determinations of Judges Beattie and Cadenhead (which has clearly formed the basis of Judge Beattie’s most recent determination in favour of the Corporation) Mr Smith, it seems to me, is nevertheless confronted with a state of affairs where those determinations remain effective in accordance with the principles derived
13 Judge Cadenhead Interest Decision, above n 8.
14 Smith v Accident Compensation Corporation [2012] NZACC 376.
15 Smith v Accident Compensation Corporation [2013] NZACC 69.
from the fundamental one — that there must be an end to litigation even if, on occasion, it be later discovered the result is an injustice.
[20] In that state of affairs it seems to me that the Corporation is undoubtedly right in law when it effectively submits that Judge Beattie was bound to reach the conclusions that he did in terms of the issues that were before him.
[27] On 7 November 2023, Judge LG Powell dismissed a further appeal by Mr Smith and noted:16
[3] The appellant has been involved in a long struggle with [the Corporation] in relation to an injury suffered in 1990 and a resulting period of incapacity between 1990 and 1991. The substantive compensation issues appear to have been determined in 2006, and since that time the issue has been the date that interest on the arrears payment of compensation should be payable. That issue has also now been the subject of numerous reviews and appeals, with the appellant continuing to push to have interest on the arrears paid from an earlier date. The present appeal arises out of a fresh attempt by the appellant to revisit the date that interest is payable.
…
[18] I note that the present issue is almost identical to that considered by His Honour Judge Beattie in his decision of 20 November 2012 … where he also rejected an almost identical argument that a decision had been made by [the Corporation] when requested by [Mr Smith] to reopen the issue of the date interest should be paid from.
[28] In January 2014, Mr Smith again challenged the Corporation’s refusal to pay interest on the 2007 arrears payment. The essence of his claim at review was that the Corporation should have re-considered his entitlement in the light of new information (payment of medical services and four medical certificates) tending to prove continuous incapacity from 1991. Two separate review and appeal proceedings were subsequently brought by Mr Smith, in respect to his entitlement to interest. On 23 June 2015, Judge PA Cunningham dismissed the two appeals and stated:17
[49] I am satisfied on the balance of probabilities that the information about payment of medical treatment including payment for the district nursing services should have been available to Mr Smith as at the time of the 2007/2008 District Court cases. This is because a communication from [the Corporation] indicates it was sent to his then lawyer Mr Ormsby prior to the 2000 review.
16 Smith v Accident Compensation Corporation [2013] NZACC 378.
17 Smith v Accident Compensation Corporation [2015] NZACC 158.
[50] Moreover all this information is, payment of medical services. That of itself is not evidence of incapacity and would not necessarily put the Corporation on enquiry that there was an entitlement to earnings related compensation.
[51] The four medical certificates contained in the bundle that Mr Heperi present are more valid. I am not aware when these surfaced and it may be that they may not have been supplied to Mr Smith until last year. On the face of it they were a reasonably strong indication of incapacity post the 2002 below knee amputation.
…
[52] These matters have been traversed and traversed in reviews and appeals to the District Court. For reasons expressed by Judge Beattie and Judge Joyce in 2012, I find that there is an issue estoppel and an urgent need for litigation over this matter to be brought to an end. The issue of the date from which interest is to run was decided by Judge Beattie in 2007.
[53] Having said this it is a matter for the Corporation whether or not they wish to review matters in light of the medical certificates referred to above.
[54] As to the review before Mrs Maher, I agree that there was nothing to review.
[55] In terms of the decision in Miller, it is very clear that is does not apply in Mr Smith’s case. That is because these has not been a decision to suspend weekly compensation.
[29] After the 2015 decision by Judge Cunningham, Mr Smith lodged several new review applications and sought leave to appeal Judge Cunningham’s judgment to the High Court. On 18 February 2016, the reviewer issued a decision declining jurisdiction. Mr Smith filed an appeal from this review decision.
[30]On 28 March 2017, Judge D Henare dismissed the appeal and stated:18
[26] Mr Smith’s entitlement to interest has been considered by the District Court, by reviews and appeals both to the District Court and the High Court in no less than 7 separate proceedings. Judge Cunningham has reviewed all the evidence and concluded issue estoppel operated. Further, Judge Cunningham pointed out, there is a need for an end to litigation regarding the claim for entitlement to interest.
[27] Finally, it is a basic principle that a judge does not revisit questions decided by another judge, unless there is an appeal. Mr Smith did appeal Judge Cunningham’s decision with the special leave application declined by the High Court.
18 Smith v Accident Compensation Corporation [2017] NZACC 28.
[28] I conclude the substantive issue has already been determined and there is no jurisdiction in this appeal to determine the matter again.
(footnote omitted)
[31] On 16 June 2016, Mr Smith’s application for leave to appeal to the High Court from the decision by Judge Cunningham was declined by Judge DJ Sharp, who noted:19
[30] No evidence for the assertion that [the Corporation] intentionally misled either a review officer or the Court on appeal has been produced and no evidence of intentionally withholding evidence from the proceedings has been provided.
[31] The same or substantially the same material called upon in support of the application has also been produced at successive hearings.
…
[34] On numerous occasions efforts to establish the required basis for interest have been made. On each occasion the application has involved a reconsideration of the initial decision of Judge Beattie. The successive applications have been without material change in the evidence provided.
[35] Attempts to characterise the position of the Accident Compensation Corporation as being deliberately misleading or to suggest the judicial considerations are the result of bias cannot alter the fundamental position that once decided factual considerations will not be revisited in the absence of evidence to displace the ruling which has been made.
…
[32] Mr Smith then filed an application for special leave to appeal to the High Court. On 17 June 2016, the second review filed by Mr Smith was dismissed by the reviewer, on the basis of lack of jurisdiction.
[33] On 20 December 2016, Moore J dismissed Mr Smith’s application for special leave to appeal to the High Court.20 Mr Smith’s argument was that, at all material times, the Corporation had all information necessary to make the backdated compensation payments. Moore J said, “I am left in no doubt [Mr Smith] is a sincere and decent man who finds himself in a difficult and challenging position” but was far
19 Smith v Accident Compensation Corporation [2016] NZACC 172.
20 Smith v Accident Compensation Corporation [2016] NZHC 3148.
from satisfied that the proposed new evidence from Mr Smith met the test for admissibility of fresh evidence.21
[34] Further appeals concerning the issue of interest were filed with the District Court in 2016 and 2017. Judge AP Christiansen dismissed the appeals on 8 August 2018 noting:22
[88] This is the eighth occasion on which Mr Smith’s entitlement to interest on the same arrears payments has been considered by the Court. The Court accepts all issues regarding Mr Smith’s entitlement have been fully and finally determined.
[35] In September 2019, a reviewer dismissed a further review filed by Mr Smith, on the basis that there was no decision capable of review and that issue estoppel operated. That review went on appeal. Mr Smith’s key argument in that appeal was that a handwritten medical certificate dated 10 November 2004 confirmed his incapacity from March 1990 to October 1991, and that there was an earlier medical certificate dated 29 March 1990 confirming his incapacity. Various other medical certificates were also raised.
[36]On 19 March 2020, Judge McGuire dismissed the appeal and noted:23
[88] … While Mr Smith’s sincerity is not doubted, the time is long overdue for his sequence of appeals to end. Should he attempt again to relitigate this issue he opens himself to a risk of a cost award against him.
[37] On 27 September 2022, Mr Smith filed a review application claiming interest on backdated payments of weekly compensation for the period from 4 October 1991 to December 2004. Mr Smith alleged the Corporation had deliberately destroyed his claim files and deliberately withheld evidence from the Court in previous proceedings; and he contended that there was “new” evidence to consider.
[38] On 24 February 2023, the reviewer dismissed the review on the grounds of lack of jurisdiction. The reviewer noted that there was no new decision by
21 At [10].
22 Smith v Accident Compensation Corporation [2018] NZACC 128.
23 Smith v Accident Compensation Corporation [2020] NZACC 34.
the Corporation on Mr Smith’s entitlement to interest, and so his application for a review was invalid in terms of s 134 of the Accident Compensation Act 2001 (the Act).
[39] The reviewer also noted that the decision on Mr Smith’s entitlement to interest was made many years before and his applications for review of this decision had been determined at review and upheld on appeal, and therefore issue estoppel applied. The reviewer further found that there was no evidence that the Corporation had breached the requirements of s 154 of the Act in relation to the provision of evidence by the Corporation.
[40] On 26 June 2023, Judge Spiller dismissed the appeal against the reviewer’s decision finding:24
[67] This Court finds that the Reviewer’s decision of 24 February 2023, dismissing the review on the grounds of lack of jurisdiction, is correct. The central issue raised in the present appeal, in relation to Mr Smith’s claim for interest on arrears of weekly payment, has previously been decided and repeatedly reaffirmed by the District Court, and so issue estoppel applies, preventing Mr Smith from relitigating the issue.
[41] Mr Smith then sought leave to appeal to this Court. Judge McGuire declined the leave application noting:25
(a)The number of times that Mr Smith has challenged the Corporation’s decision relating to the interest payable on his backdated weekly compensation.
(b)That the issue of new evidence and the correct date for interest to commence on the backdated weekly compensation had been before the Courts on numerous occasions.
(c)At least eight judgments had already considered and ruled on the issue of the interest payable.
24 Judge Spiller Decision, above n 1.
25 Judge McGuire Decision, above n 2.
(d)Judge Spiller reached his conclusions after demonstrably careful and painstaking analysis.
(e)That issue estoppel clearly arises.
[42] Judge McGuire was unable to identify any question of law capable of bona fide or serious argument. His Honour ordered costs of $500 against Mr Smith, concluding that “these seemingly endless attempts by [Mr Smith] to relitigate this issue amount to an abuse of the processes of the Court”.26
[43] On 15 February 2024, Cull J issued a minute setting out timetabling directions for the hearing of this matter. Mr Smith was directed that he needed to make an application to adduce fresh evidence on appeal and serve the relevant documents on the Court and the Corporation by 4 March 2024.
[44] The directions were amended by Muir J on 20 March 2024 who noted that Mr Smith had, in relation to the requirement to provide fresh evidence, filed on 5 March 2024 an interlocutory application and affidavit seeking that additional evidence, the Farr Report, be admitted. Muir J noted that the Corporation advised that the report is already before the Court having been a matter considered for which leave to appeal is sought.
[45] Mr Smith does not therefore require leave to raise matters relating to the Farr Report. He is entitled to make what argument he wishes to about the relevance of that report.
Legal principles
[46]Section 162 of the Act provides:
162 Appeal to High Court on question of law
(1)A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.
26 At [27].
(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 Courts 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.
[47] The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly.27 It will usually be necessary to show that there is an issue of principle at stake as well as a reasonable prospect of success.28 Special leave is a matter for the discretion of the Court and will not be granted as a matter of course.29 Such an appeal could only be made on a question of law and it is for the appellant to show that leave is required in the interests of justice.
[48] The relevant provision regarding jurisdiction is s 134(1) of the Act, which provides:
(1)A claimant may apply to the Corporation for a review of—
(a)any of its decisions on the claim:
(b)any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay:
(c)any of its decisions under the Code on a complaint by the claimant.
[49]Decision is defined in s 6 of the Act as follows:
decision or Corporation’s decision includes all or any of the following decision by the Corporation:
(a)a decision whether or not a claimant has cover:
27 Kenyon v ACC [2001] NZHC 1301, [2002] NZAR 385 at [15] citing Sandle v Stewart [1982] 1 NZLR 708 (CA).
28 Manawatu Co-Operative Dairy Co Ltd v Lawry [1988] DCR 509 at 511; and Bailey v Accident Compensation Corporation [2016] NZHC 1277 at [16].
29 Kenyon v ACC, above at 27, at [15].
(b)a decision about the classification of the personal injury a claimant has suffered (for example, a work-related personal injury or a motor vehicle injury):
(c)a decision whether or not the Corporation will provide any entitlements to a claimant:
(d)a decision about which entitlements the Corporation will provide to a claimant:
(e)a decision relating to the level of any entitlements to be provided:
(f)a decision relating to the levy payable by a particular levy payer:
(g)a decision made under the Code about a claimant’s complaint.
[50] Section 27 of the New Zealand Bill of Rights Act 1990 (NZBORA), protects natural justice principles and provides:
27 Right to justice
(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person’s rights, obligations, or interests protected or recognised by law.
(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
(3)Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.
[51] Section 27, however, does not enable litigants to bring or pursue any claim, no matter how lacking in utility or merit.30 The content of the right to natural justice is contextual and the question is what form of procedure is necessary to achieve justice without frustrating the purpose of the legislation.31
30 Simpson v Whakatane District Court (No 2) [2006] NZAR 247 at [63]. This matter relates to a claim for judicial review.
31 Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
Mr Smith’s submission
[52] Mr Smith contends that the decisions of Judges Spiller and McGuire are erroneous in law because they do not have proper regard to an exception to the rule of “judicial estoppel”. What Mr Smith is in fact arguing about is issue estoppel and I have approached the argument on that basis. Mr Smith says that the Court was wrong to conclude that estoppel applied in circumstances where there was evidence that would manifestly have changed the result.
[53] Mr Smith relies on the Farr Report which references medical information that was available to the Corporation in the early 1990s.
[54] That medical information is no longer available Mr Smith says because the Corporation unlawfully destroyed files.
The Corporation’s submissions
[55] The Corporation submits that the District Court was correct to determine that it had no jurisdiction to entertain Mr Smith’s seventh attempt to have a reviewer/the District Court revisit the issue of interest because:
(a)Mr Smith’s review application was invalid. It was not lodged against any decision of the Corporation. The decision which Mr Smith takes issue with was made and challenged long ago. Further, there has been no delay in processing entitlements.
(b)Mr Smith’s claim of “new” evidence which would have materially altered the District Court’s decision was the Farr Report which has already been considered by the District Court on numerous occasions. In any event, the Farr Report dates from 2007 and could not support a backdated interest payment prior to that date.
(c)Issue estoppel applies and prevents Mr Smith from relitigating these issues.
Discussion
[56] It would be easy, given the procedural history of this matter, to see Mr Smith as akin to a vexatious litigant who is unreasonably refusing to accept repeated rulings of various courts. Indeed, the most recent decisions while sympathetic to Mr Smith are beginning to express frustration.
[57] In my view, this does Mr Smith a disservice. Like Judge Cadenhead and Moore J I formed the view that Mr Smith is a patently honest and decent man who has a genuine grievance and whose experience of dealing with the Corporation has been anything but positive. Mr Smith’s experience has been a series of denials of liability by the Corporation which have eventually been overturned by courts resulting in backdated weekly compensation being paid. Further, the Corporation resisted paying any interest on the backdated payments until ordered to do so.
[58] Mr Smith does not trust the Corporation to act in his best interests and he feels betrayed and let down by the events of the past thirty plus years.
[59] But even setting aside the jurisdictional issues, which I cannot do, Mr Smith’s view of his interest entitlement is not correct.
[60] Mr Smith believes that the liability to pay interest arises because he was incapacitated and was not paid weekly compensation at a time when he was eligible to receive such compensation.
[61] Mr Smith cannot understand why, given that he was incapacitated and given that the Corporation has paid backdated compensation, he is not entitled to interest on the backdated compensation for the entire period. Mr Smith says that the Corporation had plenty of evidence about the medical treatment he was receiving, and it should have been obvious that he remained incapacitated.
[62] There is no dispute that Mr Smith was incapacitated and eligible for weekly compensation from January 1990. His weekly compensation should not have stopped in April 1990 because he remained incapacitated. That is why he has been paid backdated weekly compensation.
[63] But the liability to pay interest does not arise by virtue of incapacity coupled with only the fact that Mr Smith did not receive weekly compensation at the time he was entitled to it. As set out in s 114 of the Act, the liability to pay interest arises one month after the Corporation has all of the information necessary to calculate and make the payment. That includes information to support eligibility to weekly compensation.
[64] Because Mr Smith ceased claiming weekly compensation in April 1990, the Corporation did not have information that Mr Smith was incapacitated for work after April 1990 — until December 2004 when Dr Patterson’s medical certificate confirmed Mr Smith’s incapacity.
[65] The Corporation certainly knew that Mr Smith had significant medical issues because the Corporation was involved in funding treatment, but there was no information concerning continuous incapacity for work going back to the 1990 workplace accident.
[66] It is true that the Corporation had medical information relating to Mr Smith and that the Corporation funded his treatment but the Corporation funds medical treatment that arises from an accidental injury. Weekly compensation is only available to a person who is working at the time the incapacity for work arises.
[67] Because Mr Smith ceased claiming weekly compensation in April 1990 and ceased working the Corporation did not have information of continued eligibility for weekly compensation. As far as the Corporation was concerned, he had ceased requiring weekly compensation for the January 1990 accident in April 1990. He was presumed capable of returning to work. He remained eligible for funding of medical treatment for accidental injury. At the time of the later accident in 1991, the Corporation erroneously thought Mr Smith was not eligible for weekly compensation because he was not working.
[68] Mr Smith takes the view that the Corporation should have pieced together the situation and realised that he was eligible for weekly compensation because the Corporation had information about his medical situation. That misses the point.
The Corporation was funding ongoing medical treatment, but eligibility for weekly compensation depended on the Corporation having confirmation of continuous incapacity from January 1990. There was a gap in the Corporation’s knowledge because Mr Smith exited the weekly compensation scheme in April 1990.
[69] That is not Mr Smith’s fault, and it was to his detriment, but it was not the Corporation’s fault either. Mr Smith continued to claim and provide claim forms for medical treatment, but no claim was made for backdated weekly compensation until 2001, and no basis for backdated weekly compensation was provided until Dr Patterson’s medical report in 2004.
[70] The issue is not when the Corporation knew Mr Smith was incapacitated or what they knew about his ongoing medical issues. The issue is when the Corporation had sufficient information that Mr Smith remained incapacitated in April 1990 and remained eligible for weekly compensation. The Corporation did not exit Mr Smith. He ceased providing medical certificates and claiming weekly compensation. He did that for an honourable reason — namely that he had private insurance and he thought he had to choose which insurance to claim. It is not fair that he suffered a detriment as a result, but it is also not fair to lay the blame all upon the Corporation.
[71] In Jones v Accident Compensation Corporation, the Court said that “interest was payable where the Corporation has received ‘all information necessary’ and not when the Corporation could have received ‘all information necessary’.”32 Issues of fairness simply do not affect whether the interest provision has been satisfied.33
[72] In Lawrence v Accident Compensation Corporation, the Court considered what information is required to satisfy the requirement in s 114 of the Act for the Corporation to have received “all information necessary to enable the Corporation to
32 Jones v Accident Compensation Corporation DC Auckland 196/2008, 14 May 2008, at [43] (emphasis in original). See also Lake v Accident Compensation Corporation [2019] NZACC 151; and Cree v Accident Compensation Corporation [2023] NZACC 195.
33 At [43] citing Accident Compensation Corporation v Knight HC Christchurch CIV-2005-485- 1582, 9 November 2005 at [26]–[29]; and Prince v Accident Compensation Corporation DC Wellington 114/2007, 18 June 2007.
calculate and make the payment”.34 The Court considered the following information was required by the Corporation:35
(b)confirmation that the appellant continued to be incapacitated for the period subsequent to the date of cancellation.
(c)details of any income received from employment since the date of cancellation so that abatement provisions could be brought into play; and
(d)whether during any periods of unemployment the appellant was in receipt of any form of WINZ benefit.
[73] The Court said that the operative part of the statutory provision requires the Corporation to be in possession of “all information necessary” and that situation and point in time may be quite different from the date from which the eligibility for the commencement of payment arises.36
[74] Mr Smith needs to accept that the trigger for the liability to pay interest was when the medical certificate was provided by Dr Patterson in 2004. That was Judge Beattie’s finding.37 The time to challenge that finding is long gone but even if it could be challenged it is patently correct.
[75] The Act could have provided that interest is to be paid on any delayed payment of weekly compensation — but the Act does not provide that. Mr Smith could advocate for a law change regarding liability to pay interest on backdated compensation. Absent such a law change he is bound by the provisions of the Act as was Judge Beattie and every judge who has decided this issue since.
[76] The new evidence which Mr Smith sought to rely on is not new. It is a medical report that has been available and considered since 2007. It does not establish that
34 Lawrence v Accident Compensation Corporation DC Wellington 316/2004, 7 October 2004.
35 At [12].
36 At [15].
37 Judge Beattie Decision, above n 11.
the Corporation had information that Mr Smith remained eligible for weekly compensation in April 1990 when he ceased claiming it.
[77] Had the Corporation taken a much more proactive approach in April 1990 and been protective of Mr Smith’s interests the Corporation might have discovered the ongoing eligibility. But the scheme of the Act did not compel the Corporation to do that — although the Injury Prevention, Rehabilitation, and Compensation (Code of ACC Claimants’ Rights) Notice 2002, effective from 2003, might support a much more proactive approach now. The scheme required Mr Smith to make a claim for weekly compensation and provide medical certificates to support his incapacity for work. He didn’t do that until December 2004, when the medical certificate from Dr Patterson was provided.
[78]Mr Smith raises consideration of s 27 of NZBORA .
[79] In McMillan v Accident Compensation Corporation, the appellant brought proceedings in the District Court to challenge a reviewer’s finding that an application to review the Corporation’s denial of statutory cover was non-justiciable as the review concerned issues that had already been litigated and decided.38 The appellant contended that the reviewer’s decision infringed on her right to a review under s 134 of the Act and her right to natural justice under s 27 of NZBORA. Judge Cadenhead, citing the principles of issue estoppel, dismissed the appeal and noted that the appellant was estopped from bringing her present claim.39
[80] As with McMillan, Mr Smith’s primary issue, the liability to pay interest on arrears of weekly compensation payments, has been litigated and decided. The matter was determined by Judge Beattie in 2007 some 17 years ago; and as identified in this proceeding and previous proceedings — Mr Smith is estopped from bringing his claim. Mr Smith’s right under s 27 of NZBORA does not extend to re-litigating issues long since resolved. Such a position is misaligned with the principles of issue estoppel.
38 McMillan v Accident Compensation Corporation DC Wellington 352/2005, 12 October 2005.
39 At [53]–[55].
[81] The Corporation argues that the review application was invalid because it was not lodged against any decision of the Corporation. Rather it is yet another attempt to challenge a decision decided many years ago. That argument is correct, and this decision could have been much shorter but I have engaged with the substantive issues in order to assess and set out whether there is any important principle of law to be considered and if so what prospect of success exists for Mr Smith who is self- represented.
[82] As will be apparent, I find that there is no issue of law or principle that has any prospect of success. Mr Smith is labouring under a mistaken view of the law relating to the payment of interest.
Result
[83] Mr Smith’s application for review was invalid in terms of s 134 of the Act. There was no new decision to be reviewed.
[84] Judge Spiller was correct to find that issue estoppel applied and that there was no new evidence. Judge McGuire was correct to decline leave to appeal.
[85] Special leave to bring an appeal from the decisions of Judge Spiller and Judge McGuire is declined.
[86] If the parties are unable to resolve the question of costs, memoranda are to be filed no later than 25 working days after the date of this judgment.
Wilkinson-Smith J
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