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, Mr Tuiqereqere advises that ACC does not seek an award at scale rate. Rather, it seeks $2,500 as a contribution towards its legal costs. Mr Tuiqereqere submits this figure constitutes a fair and reasonable contribution having regard to the applicant’s circumstances.

[7]    In response to ACC’s submissions on costs, Mr Smith has written a letter addressed to the Court. This letter does not directly confront the issue of costs. Rather, Mr Smith maintains his substantive claim that the interests of justice require him to have “a fair hearing so the evidence can be correctly determined for fair consideration to make a fair decision”. The gravamen of his letter is that, for reasons largely symmetrical with those advanced at the leave hearing, justice has miscarried and the law has denied him his rights to interest on late compensatory payments. He says ACC has “violated and destroyed” his life and had it followed the correct process in 1991 his quality of life would not have taken “such a big hit”.

Discussion

[8]    In Manukau Golf Club Inc v Shoye Venture Ltd the Supreme Court confirmed the longstanding and “fundamental principle” that in all general courts in New Zealand costs should follow the event.4 There is also a strong implication that a Court is to

4      Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZSC 109, [2013] 1 NZLR 305 at [8].

apply the detailed costs regime provided in the High Court Rules in the absence of some reason to the contrary.5

[9]    Before addressing whether there is good reason to depart from these principles, I address ACC’s calculation of scale costs. Mr Tuiqereqere appears to have calculated the time allocations on the basis of a full appeal, not an application for leave to appeal. An application for leave to appeal is an interlocutory application, as r 20.3(7) of the High Court Rules 2016 makes clear:6

“(7) An application under this rule must be made on notice to every party affected by the proposed appeal and, if made to the court, must be made by interlocutory application.”

[10]   While Mr Smith’s application seeking special leave to appeal was brought under s 162 of the Accident Compensation Act 2001, subsection (5) of that provision states that the High Court Rules 2016 apply with all necessary modifications. The intituling to Mr Smith’s application, prepared by his solicitors, correctly identifies it as an interlocutory one. Moreover, because leave was refused, no appeal proceedings ever came into existence.7 Thus, no costs can be claimed under the heading of “Appeals” in the High Court Rules.

[11]Accordingly, the scale costs are properly calculated as follows:

Item	Description	Daily rate	No. of days	Total
10	Preparation for first case management conference	$2,230	0.4	$892
23	Filing opposition to interlocutory application	$2,230	0.6	$1,338
24	Preparing written submissions	$2,230	1.5	$3,345
57	Appearance at hearing	$2,230	0.5	$1,115
3.0	$6,690

[12]   The scale costs properly claimable are therefore significantly less than those calculated by ACC. They are still, however, considerably larger than what the ACC seeks.

5      Mansfield Drycleaners Ltd v Quinny’s Drycleaning (Dentice Drycleaning Upper Hutt) Ltd (2002) 16 PRNZ 662 (CA) at [27].

6      See also Briones v Wallbank [2017] NZHC 1065 at [10].

7      See for example FB v TW [2015] NZHC 2129 at [12].

[13]   As I expressed in my substantive judgment, I found Mr Smith a sincere and decent man who finds himself in a difficult and challenging position. He has clearly expended considerable time and money in pursuing ACC for monies he considers legitimately owing to him. He is 69 years of age and receives government superannuation payments. It is presumably for these reasons ACC only seeks $2,500 as a contribution towards its legal expenses. I cannot see any cogent reason why ACC should not receive this amount which is only a fraction of the scale costs claimable under the High Court Rules.

Result

[14]ACC is entitled to costs in the sum of $2,500.

Moore J

Solicitors:

Medical Law Limited

Copy to:
The Applicant/Appellant