Smith v Accident Compensation Corporation - [2017] NZHC 3239

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-001536

[2017] NZHC 3239

BETWEEN
WARREN SMITH

Applicant/Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: (On the papers)

Counsel:

Applicant/Appellant in Person

Dane Tuiqereqere for the Respondent

Judgment:

20 December 2017

[COSTS] JUDGMENT OF MOORE J

This judgment was delivered by me on 20 December 2017 at 10:30 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

SMITH v ACCIDENT COMPENSATION CORPORATION [2017] NZHC 3239 [20 December 2017]

Introduction

[1] On 19 December 2016 I declined1 Mr Smith’s application for special leave to appeal against a decision of the District Court2 under s 162 of the Accident Compensation Act 2001. This judgment deals with the costs of Mr Smith’s unsuccessful application.

Background

[2] Mr Smith, now 69 years of age, injured his foot at the age of 42 while employed as an engine reconditioner.3 He was successful in securing from the Accident Compensation Corporation (ACC) some earnings-related compensation but experienced some difficulty in securing backdated compensation and backdated interest.

[3] The question of his entitlement to backdated interest was first considered and determined by the District Court on appeal in 2008. Subsequent to that decision, Mr Smith pressed for the ACC to accept his entitlement to backdated interest from an earlier date. The District Court most recently considered the issue in 2015 and determined it was bound by the principle of res judicata. Mr Smith applied for leave to appeal that decision. His application was refused. He then sought special leave in this Court on the basis he had fresh evidence indicating that ACC, through the actions of its servants, caused delays in him receiving compensation and thus his entitlement to backdated interest.

[4] Before me, the thrust of Mr Smith’s submissions was that at all material times ACC had “all information necessary” to make the backdated compensation payments. I held this did not amount to a question of principle or law and dismissed the application for special leave. I further held that Mr Smith was seeking to rely on evidence which could have been adduced at first instance and which was inherently unreliable. I also held there were not the requisite “very special circumstances” and Mr Smith’s prospects of success were low.

1      Smith v ACC [2016] NZHC 3148.
2      Smith v ACC [2015] NZACC 158.
3      The factual and procedural background is set out more fully in my substantive judgment, above n 1.

Present application for costs

[5] Mr Tuiqereqere submits ACC, as the successful party, could claim scale costs on 2B basis, calculated as follows:

Item Description Daily rate No. of days Total

53 Commencement of response to appeal $2,230 0.5 $1,115

10 Preparation for first case management conference $2,230 0.4 $892

23 Filing opposition to interlocutory application $2,230 0.6 $1,338

56 Preparing written submissions for appeal $2,230 3.0 $6,690

57 Appearance at hearing at appeal $2,230 0.5 $1,115

5.0 $11,150

[6] However,…

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: [2017] NZHC 3239
Decision Date: 20 December 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Mr. Warren Smith sought special leave to appeal against a District Court decision, which had found he was not entitled to backdated interest on his accident compensation. The Accident Compensation Corporation (ACC) opposed the application and subsequently applied for costs. The central issue was whether ACC was entitled to costs under the High Court Rules and, if so, in what amount. The court found that ACC was entitled to costs as the successful party, but not at the full scale rate. Instead, it was appropriate to award ACC a contribution of $2,500 towards its legal costs. This amount was deemed fair and reasonable, considering Mr. Smith's circumstances and the nature of the application as an interlocutory one.

The court reasoned that the general principle in New Zealand is that costs follow the event, and the detailed costs regime in the High Court Rules should apply unless there is a good reason to depart from it. The court noted that ACC's initial calculation of scale costs was based on a full appeal rather than an application for leave to appeal, which is an interlocutory application. The court corrected the calculation to reflect the appropriate time allocations for an interlocutory application. Despite the corrected scale costs being significantly lower than initially claimed, they were still substantially higher than the $2,500 sought by ACC. Given Mr. Smith's age, his receipt of government superannuation payments, and the fact that he had expended considerable resources in pursuing his claim, the court found it reasonable for ACC to receive a contribution of $2,500 towards its legal costs.

In conclusion, the court granted ACC costs in the amount of $2,500. This decision balanced the principle that costs should follow the event with the need to consider the applicant's circumstances and the nature of the proceedings.

Orders