Thomas v Accident Compensation Corporation
[2015] NZHC 3252
•16 December 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2015-404-1721
CIV-2015-404-1720 [2015] NZHC 3252
UNDER the Accident Compensation Act 2001 IN THE MATTER
of an application for special leave to
appeal to the High Court pursuant to s 162 of the Act
BETWEEN
ALAN THOMAS Applicant
AND
ACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 15 December 2015 Appearances:
Applicant in person
D Tuiqereqere for the RespondentJudgment:
16 December 2015
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 16 December 2015 at 3:30 p.m. pursuant to r 11.5 of the High Court Rules 1985.
Registrar/Deputy Registrar
……………………………………
Parties / Solicitors:
Mr A Thomas, Auckland
Mr D Tuiqereqere, Medico Law Ltd, Grey Lynn, Auckland
THOMAS v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 3252 [16 December 2015]
[1] Mr Thomas has applied under s 162 of the Accident Compensation Act 2001 (the Act) for special leave to appeal against a decision of Judge Roderick Joyce QC in the District Court dismissing appeals by Mr Thomas against two review decisions.1
[2] One of the review decisions dismissed a claim by Mr Thomas that he was entitled to be reimbursed $45 for taxi fares in travelling to and from hospital for wrist surgery that occurred in 2012. The other review decision concerned a claim by Mr Thomas that the Corporation should pay for home help said to be required following the surgery.
Section 162 of the Act
[3] Section 162 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.
(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 and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 72 of that Act.
[4] As required by s 162, Mr Thomas first sought leave of the District Court. This was declined.2 Judge G M Harrison provided a concise summary of the background and noted some of the principal reasons for the substantive decision of Judge Joyce on the appeal. He then explained his reasons for dismissing the leave
application as follows:
1 Thomas v Accident Compensation Corporation [2014] NZACC 36. The review decisions were
ACR 41/13 and ACR 42/13, both dated 20 December 2012.
2 Thomas v Accident Compensation Corporation [2015] NZACC 192.
[10] In Northland Cooperative Dairy Co Limited v Rapana [1999] 1
ERNZ 361,363 the Court of Appeal held that care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the
former being proscribed.
[11] The Judge determined that there was no evidence available to the Corporation or to the court to demonstrate that the 2012 surgery was causally related to the covered injury. Furthermore, the Corporation’s prior approval for funding for the surgery was required before it was performed, but the appellant did not seek that approval.
[12] It is quite clear that Mr Thomas’s application for leave does not raise any definable point of law on either appeal on which leave can be granted. His 19 page 85 paragraph application for leave to appeal falls into the category described by the Court of Appeal as dressing up issues of fact as questions of law.
[5] On an application for leave to the High Court there is the same initial requirement for the applicant to identify an error of law from the substantive District Court decision. But, in addition, the application to the High Court is for “special leave”. This draws a distinction between this application and the one dealt with by Judge Harrison. And the High Court retains a discretion – “the High Court may grant special leave to appeal”.
[6] What is entailed in these additional requirements for an application to the High Court was summarised in this Court by Fisher J in Kenyon v Accident Compensation Corporation.3 Approving and adopting submissions for the Corporation in that case, Fisher J outlined the principles as follows:4
(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1
NZLR 708 (CA)
(b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle; Manawatu Co-op Dairy Company Limited v Lawry [1988] DCR 509; Brown v Chowmein Fashions Limited (1993) 7 PRNZ 43
(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O’Loughlin v Healing Industries Limited (1990) PRNZ 464
3 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) (Kenyon).
4 Kenyon, above n 3, at [15].
(d) It is for the Applicant to show that leave is required in the interests of justice: Avery v No. 2 Public Service Appeal Board [1973] 2
NZLR 86 (CA)
(e) As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chowmein Fashions Limited (supra).
Background
[7] Mr Thomas was injured in a sailing accident in 1989. The Corporation accepted a claim under the Act in force at the time. (Nothing turns on the changes to the legislation). In April 1992 the Corporation declined to pay for private wrist surgery that had been outlined in a letter from an orthopaedic surgeon, Mr Martin Rees.
[8] Mr Thomas sought review of the decision. He succeeded in a decision dated
3 July 1992. I will refer to this as “the 1992 review decision”. This decision was in substantial measure the foundation for Mr Thomas’ arguments in the District Court and on this application.
[9] What is important in relation to the 1992 review decision is that it decided only one thing – that the Corporation should pay for the operation by Mr Rees, up to the statutory maximum for payment (subject to any agreement that might be reached and that is not material). The 1992 review decision decided nothing else. This is made quite clear in the statement of the actual decision:
Decision: Accordingly the application for review is successful subject to the regulatory cash limits. It relates only to the letter of 24 April 1992 in respect of Mr Rees’ application.
Mr Rees carried out exploratory surgery in August 1992.
2012 surgery
[10] The taxi fare and home help claims were made in respect of surgery Mr
Thomas said he had to his right wrist on 1 August 2012.
[11] There has been no claim by Mr Thomas for the cost of the surgery. His advice is that it was funded by the public health service. But the claim for the taxi fares, apparently totalling $45, and home help are said to arise from the surgery. Mr Thomas has also asserted, as I have essentially indicated, that the 2012 operation is related in some way to the 1992 review decision. Mr Thomas on this application
advanced contentions in that regard, but did not refer me to any probative evidence. 5
I will come back to this critical point.
[12] There had been no prior consent of the Corporation for the operation that took place on 1 August 2012, although again there were contentions of fact by Mr Thomas to the effect that consent had effectively been given a year or more earlier. The Judge in fact found that there had been no prior notification of the surgery scheduled for 1 August 2012 apart from a decidedly vague communication from Mr Thomas of 25 July 2012.6
[13] Subsequent events, through to the District Court decision on the appeal, are sufficiently summarised by reproducing the Judge’s summary of the two review decisions, as follows:
ACR 41/13
[2] ACR 41/13 concerned a 20 December 2012 review decision where, although the application for review stated that the Corporation had “unreasonably failed to issue a decision in a timely fashion”, the reviewer accurately recognised as the underlying issue that of whether Mr Thomas was entitled to be reimbursed for taxi fares said by him to have been incurred travelling to and/or from hospital for privately funded wrist surgery that he underwent on 1 August 2012.
[3] The reviewer found that Mr Thomas had not obtained the Corporation’s prior approval to use taxi transport and that, given the dearth of information provided by Mr Thomas in respect of the claim, the Corporation had not enough information, anyway, on which to make a decision.7
5 The evidence in this regard was decidedly scanty. On this appeal Mr Thomas produced a very large number of documents, going back to his original claim in 1990. The document produced as exhibit 40, described in the index as “1/8/2012 reconstructive surgery involving artificial wrist” is a single page which is a picture obtained from a website which shows the Scheker distal radio-ulna joint prosthesis. There is no medical report relating to the operation let alone any evidence suggesting a connection between what is shown in this picture and the 1992 review decision.
6 Thomas v Accident Compensation Corporation, above n 1, at footnote 10, which refers back to
[17] which records the content of Mr Thomas’ communication.
7 Which last finding, if right, rendered the delay point redundant.
[4] The reviewer wrote on this account:
I find that Mr Thomas had no obtained prior approval from ACC to use taxi transport. I note Mr Thomas’ submission that he sought such approval in writing. However, I note that the only letter that could be construed as remotely representing a request for ACC funding for transport was that dated 25 July 2012. I consider it is too vague and does not explain that Mr Thomas is about to have surgery, and that he will need transport home as a result. …
[5] Otherwise, the general gist of the review decision was that there was no room for a complaint of delay when the pattern was one of Mr Thomas failing to provide anything like enough information as could have allowed for a proper determination.
ACR 42/13
[6] ACR 42/13 relates to a decision of the same reviewer also dated 20
December 2012; in fact the two applications were heard together.
[7] That review concerned an application by Mr Thomas in which he stated that the Corporation had “refused home help” despite a letter he wrote to it on 7 August 2012 requesting just that.
[8] The Corporation had responded on 10 August 2012 asking that he complete an ACC 167 ‘Authority for Collection and Disclosure of Information Form’ so that it could refer him for an assessment.
[9] In dismissing this review application (underlying which was, once again, the surgery already mentioned) the reviewer wrote:
I note the real nub of the issue is not an ACC decision to decline home help to Mr Thomas (there is no such decision). Instead, it is about Mr Thomas’ ongoing refusal to complete an ACC 167 “Authority for Collection and Disclosure of Information Form’. Thus while there may be no decision per se that is capable of review, there is still an issue of relevance that can be addressed in this review decision. …
[10] The reviewer then went on to hold that:
Mr Thomas’ request for home help stems from surgery to his wrist. Information about the surgery and its effect on him is directly relevant to his request for an assessment. … Accordingly I find Mr Thomas’ refusal to complete the required consent form is unreasonable.
So that review application was also dismissed.
The District Court decision
[14] The Judge, following the summary just recorded: noted the main points from
Mr Thomas’ notices of appeal; summarised the essence of Mr Thomas’ contentions;
recorded in reasonable detail, evidence relating to the 1992 review decision, and immediately following; and recorded, also in reasonable detail, evidence of the way in which Mr Thomas communicated with the Corporation in respect of the August
2012 surgery. He then said:
Observation
[29] What is apparent at this point is that:
·There is no sign of the lodging of an ARTP by the 2012 surgeon nor, even, of a less than formal request for approval of the 2012 surgery by that surgeon, or any other medical professional.
·Regardless of the fact that the surgery that the 1992 review decision only required the Corporation to fund that carried out and completed that year by Mr Rees, Mr Thomas has persistently maintained the position that that decision had allowed him to undergo further surgery at will, but at some expense to the Corporation, despite not making any attempt at all to follow the conventional prior approval8 processes; indeed –
·Without at any point providing anything even approaching satisfactory evidence from any recognised medical practitioner that the surgery he had arranged, and which was apparently performed in August 2012, related to his still extant cover; in fact –
·He had deliberately circumscribed the range of information to which the Corporation might have access by setting that in 1992 aspic terms.
[30] I add that:
·Even by the time his appeals came on for hearing he had not provided any such evidence; and that
·There was no documentary evidence of taxi utilisation; and when it came to the surgery –
· The Corporation still had naught be the physiotherapist’s note, one
which obviously left begging the causal nexus question.
[15] The sections of the judgment that followed outline: the statutory provisions relating to entitlements to ancillary services and, in particular, for transport and home help; the submissions made by Mr Thomas and Mr Tuiqereqere for the Corporation; and the main statutory provisions of the Act, including directives as to how the Corporation must proceed if there are specific claims, whether or not earlier claims
may have been accepted, which are provisions that Mr Thomas ignored.
8 And, see later, statutorily imposed.
[16] The Judge then recorded his reasons for his decision as follows:
Discussion
[55] Having just set out various of the statutory provisions it is convenient to touch first, and as necessary, upon those. What, as can be seen, is apparent form this is that:
·Specific entitlements do not automatically flow from the affording of cover, for a claimant seeking such must lodge a claim for it or them
– s 48;
· “Treatment” comes under the heading of “Entitlements” – s 69;
·Any liability on the part of the Corporation to pay or contribute to the cost of treatment (Schedule 1, Clause 1) will (with but few exceptions none of which is relevant here) only arise in the case of prior agreement – Schedule 1, Clause 4;
·Moreover a liability to pay the cost of any treatment will only arise if some quite specific criteria (plainly requiring for their satisfaction the availability of competent medical input) are met – Schedule 1, Clause 2; and in that regard –
·It is also noteworthy that the Corporation may decline to pay the cost of a claimant’s treatment in the absence of information from the claimant about his or her injury and treatment that meets Corporation requests – Schedule 1, Clause 5; and –
·Any liability to pay or contribute to the cost of ancillary services will obviously only arise if, in the first place, the Corporation has approved the treatment.
[56] When those requirements are put alongside the known facts, it is immediately obvious that there is no factual platform from which could spring [sic] a statutory liability on the part of the Corporation to pay any transport costs or home help costs in this case (and no details of the incurring or obtaining of either have in any event been provided).
[57] On those grounds alone, Mr Thomas’ appeal is bound for failure. Thus all that I would want to add is that, with all due respect, Mr Thomas has not helped himself by (a) taking an maintaining the quite illogical stand that he needed to do no more than point to the 1992 review decision to make his case; and (b) on that apparent account repeatedly fending off the Corporation’s plainly legitimate and appropriate information requests.
[58] The fundamental flaws in Mr Thomas’ case on appeal mean not only that he has failed to make any such for either transport or home help entitlements but also (to revert here to the terms of his review applications) that there is no question of any unreasonable failure on the part of the Corporation to deliver any decision in a timely fashion.
[59] That is because, simply and only on account Mr Thomas’ choices, it
has never had (timeously or at all) anything like the information requisite for
the proper discharge of its decision-making responsibilities under the ACC
legislation.
Evaluation
[17] Mr Thomas’ application for special leave was a lengthy document covering a wide range of matters, although it did include formulations of what Mr Thomas put forward as questions of law for the High Court. There was a case management direction that Mr Thomas file and serve a concise statement of the points of law for which special leave was sought. The document filed is not concise, but it will be convenient to discuss the primary issue – were there material issues of law – principally by reference to this document. In doing so I have taken into account the fuller written submissions filed with the points of law and Mr Thomas’ oral submissions. The sub-headings that follow are taken from Mr Thomas’ points of law document.
“Primary issues of law”
[18] It is appropriate to set out in full Mr Thomas’ statement under this heading. It reproduces what was set out as the primary issues of law in the application for special leave. Mr Thomas said:
There are three primary issues of law clarified under separate headings.
· Compliance with a review’s decision to fund reconstructive surgery.9
· As surgery had not occurred transport to and from surgery and subsequent home help remained as legitimate expectation of outstanding entitlements under legislation.
· Whether or not there is any basis in law for the respondent to cancel the claimant’s consent, then claim an obstacle to investigate information that is already on file, without identifying any particular outstanding information being sought.
9 I understand, from Judge Joyce’s decision, that Mr Thomas may use voice recognition technology to produce his written submissions and some errors may creep in because of that. There is no criticism of Mr Thomas in this regard. My understanding of what is meant by this sentence, and the content of the second bullet point, is discussed in the following paragraph. I also note that punctuation has been added to the third bullet point in a way which I believe captures the meaning as expanded on by Mr Thomas in his submissions.
[19] It is apparent that the first bullet point refers to the 1992 review decision. On this appeal Mr Thomas argued, in essence, that the August 2012 surgery was a continuation of what had not been completed, or not done adequately, in the surgery following the 1992 review decision. There is no evidence to support this. The second bullet point flows logically enough from the proposition which underpins the first bullet point, but that does not help Mr Thomas if there is no evidence to support the substance of the first bullet point.
[20] None of this involves a question of law. What those propositions require is concrete evidence identifying what Judge Joyce described as “a causal nexus between [the 2012 surgery] and the injuries for which Mr Thomas has cover from the Corporation”.10 Given Mr Thomas’ contention that the Corporation had wrongfully declined claims by him, it was for Mr Thomas to produce the evidence and not, as he appears to contend, for the Corporation somehow to prove a negative in a vacuum. The Judge found that the causal nexus was not established on the evidence produced to him. What Mr Thomas is seeking to challenge, no matter how it is dressed up, is
findings of fact in the District Court.
[21] What I have said to this point sets out the essence of my conclusions on the remaining matters raised in Mr Thomas’ points of law document, but I will note each of them.
[22] The third bullet point for the primary issues of law does not relate to a reason for the District Court decision. In the two review decisions there were questions as to whether the Corporation was entitled to ask Mr Thomas to sign a standard form containing his consent to enable the Corporation to obtain medical and other information in relation to the claims being advanced, with the primary area of enquiry being into the nature of the August 2012 surgery. However, the District Court decision did not turn on the presence or absence of consent, or on the validity of the Corporation’s request. This was expressly noted by the Judge, immediately
following his summary of the review decisions, when he said:
10 Thomas v Accident Compensation Corporation, above n 1, at [27].
[11] On this appeal, counsel for the Corporation sensibly maintained (as had the reviewer) a focus on substance rather than form and thus did not argue that it possibly faced jurisdictional barriers.
The reference to form was a reference to the presence or absence of consent. On this application Mr Thomas pursued an argument that the Corporation had purported to cancel consent that had already been given by him and that as a matter of law the Corporation had no right or authority to do so. The consent issues are re-herrings.
“Legislated duty to manage the claim”
[23] The substance of Mr Thomas’ contention was that the Corporation has an ongoing responsibility, and one which it is bound actively to pursue, to those whose claims have been accepted. In Mr Thomas’ case this is said to relate to the claim he lodged in 1989, and in respect of which certain types of compensation were provided.
[24] The propositions contained in this, whatever their validity in fact or in law, do not involve questions of law arising from the District Court decision, let alone questions of law determined in that decision.
[25] In addition, there is no contested point of law in respect of the Corporation’s ongoing responsibilities to those whose claims have been accepted. There is no issue about the meaning of provisions in the Act setting out duties of the Corporation. (Mr Thomas referred to 43 different sections, albeit the total in the 1982, 1992 and 2001
Acts.) What Mr Thomas’ argument ignores is the need for him to provide a factual foundation, founded on admissible and then probative evidence, that Mr Thomas’ current claims are covered. Mr Thomas’ submissions in this regard (and under other headings) beg the critical question, and it is a question of fact, not one of law. The flavour of Mr Thomas’ arguments is captured by the following submission, under a heading “Fundamental Administrative Error”, and referring to earlier unsuccessful appeals:
In this case reviewers, [D]istrict Court judges, High Court judges and the Court of Appeal continued to be conflicted and rely on what they were due to be [sic] common sense rather than the rule of law which requires compliance with the ACC legislation criteria which includes the overall spirit of the Act involving the promotion of rehabilitation and compensation.
“Causal nexus between claim and actual treatment”
[26] This does not give rise to a question of law. In large measure, the reasons have already been recorded. Mr Thomas was not arguing that it was a material error of law to seek a nexus between an established claim and subsequent surgery in respect of which some form of ancillary compensation is sought. What he was arguing was that there is a nexus. Again, this comes back to the pivot of Mr Thomas’ application – the 1992 review hearing. And in this regard Mr Thomas simply ignores what the 1992 review decision said and, based on his untenable interpretation of it, asserts that there was a “causal nexus”. This is captured in the following paragraphs from Mr Thomas’ detailed written submissions:
37.As the 1992 review hearing decision is binding upon all parties it also follows that it is binding upon not only the District Court but also the High Court as there has been no appeal.
38.As such it is outside the legal framework for the court to disregard the binding effects of the 1992 review hearing decision when failing to grant leave on the unsupported assertion that there was no causal nexus between the 1992 review hearing decision to provide reconstructive surgery and the surgery that actually took place necessitating the support requested.
[27] Mr Tuiqereqere submitted:
The applicant relies on his own description of the factual matrix for the period from 1992 to support his contention that there is evidence of a causal nexus between his covered 1989 personal injury and the 2012 surgery. The applicant does not, however, identify any medical evidence before the District Court that demonstrates that the surgery was to treat the applicant’s covered personal injury. There was simply no cogent medical information before the District Court in respect [of] the specific nature of the 2012 surgery.
[28] I agree. There is no question of law.
“Consent”
[29] The purported points of law outlined by Mr Thomas under this heading have already been touched on. It concerns the question whether the Corporation was entitled to require Mr Thomas to provide current consent to the Corporation to obtain relevant information by signing the Corporation’s standard form consent document. For reasons already recorded, this is a red-herring. It does not provide a foundation,
legal or factual, for the District Court decision. It would not in any event be a question of law warranting the grant of special leave to appeal.
“Failure to take relevant considerations into account” and “relied on irrelevant
considerations”
[30] I have combined two separate points under this heading. The matters summarised by Mr Thomas under these headings, and expanded on in his submissions, do not give rise to questions of law. The submissions in essence repeat matters dealt with under the preceding points, but here clothed in judicial review terms. The substance comes back to the 1992 decision as being in some way all encompassing for any claim Mr Thomas may make. The matters raised do not involve questions of law, but go to arguments about findings of fact.
“Failed to draw proper inferences”
[31] The heading in itself is somewhat indicative of the factual rather than legal nature of the propositions. They are also propositions which are untenable. It is argued, for example, that the Corporation should have inferred that, because the public health system incurred $40,000 to meet the cost of the August 2012 surgery (allegedly) it was obvious that the 2012 surgery related to the claim that was accepted in 1989 and which, on the 1992 review, required the Corporation to fund surgery.
[32] There is no point of law arising from the submissions by Mr Thomas under this heading.
Discretion
[33] My conclusions to this point are sufficient to dismiss the application. It is nevertheless appropriate to consider whether the discretion would be exercised in Mr Thomas’ favour if there had been a material error of law by the Judge on the appeal. The principles summarised by Fisher J in Kenyon v Accident Compensation Corporation, as earlier recorded, are applicable.
[34] Mr Thomas is seeking to bring what amounts to a third appeal, the first being to the review officer in respect of the claims for the taxi fares and home help. Fisher J said there will normally have to be some “extraordinary” factor to justify the Court’s exercising its discretion even if there has been an error of law. I am cautious about use of the adjective “extraordinary”, but certainly a good deal more is required than what needs to be established on an application for leave to appeal that is not described as “special”. There is no factor which takes this matter out of the ordinary.
[35] Fisher J referred to the need normally to show that there is an issue of principle at stake or a considerable amount hinges on the decision. An issue of principle, for the purposes of this application, involves a substantial question of law and one which is reasonably arguable. Even if there are some legal issues in the matters I have referred to, and to that extent an error in my conclusions, none of these would involve significant issues of law.
[36] There is also very little at stake. The taxi fares, apparently totalling $45, are so trifling that this by itself would justify dismissing the application arising from the review decision on that claim. There is also no figure for the home help, and I did not understand Mr Thomas to argue that the financial benefit he seeks is of particular consequence. His argument was that it is important to pursue this as a matter of public interest, and in particular for the benefit of all claimants. That is not at all persuasive in the present case.
[37] Further, and importantly, there would be no practical utility in pursuing the arguments Mr Thomas is seeking to pursue. His claims for reimbursement for taxi fares and compensation for home help (with no evidence that any home help was in fact provided) have not been determined. The Corporation has not dismissed claims properly put before it. It simply has not proceeded to determine the claims. Subject only to statutory time limits, Mr Thomas can still pursue his claims if he provides the necessary evidence, as Mr Tuiqereqere confirmed.
[38] In exercise of the discretion I am satisfied that, if there were material questions of law, the discretion should be exercised against granting the application. There is no private interest of Mr Thomas of any consequence that could justify
engaging this Court as well as the Corporation in these arguments. There is no justification to exercise the discretion because it would be required in the interests of justice. And there is no public interest of any moment.
Result
[39] The application under CIV-2014-404-1721 is dismissed.
Costs
[40] If the Corporation seeks costs it is entitled to costs on a 2B basis together with reasonable disbursements. Any issue as to the precise quantum on a 2B basis, or as to the reasonableness of disbursements, is to be referred to the Registrar in the first instance.
CIV-2014-404-1720
[41] The hearing today was set down also to determine a separate application for special leave by Mr Thomas under CIV-2014-404-1720. This was directed to a claim by Mr Thomas for an independence allowance. In the District Court Judge Joyce dismissed an appeal against another review decision on this claim (ACR
40/13) with his decision delivered on the same date as the decision I have just dealt with.11
[42] Mr Thomas said that he had not realised that that application was also to be dealt with at the hearing. The file indicates that relevant minutes and notice of the fixture for both applications were sent to Mr Thomas.
[43] Mr Thomas’ failure to proceed with this further application has in fact resulted in a waste of this Court’s resources because a new hearing may be required. But it is not appropriate in all the circumstances to dismiss that application on the basis that there was a failure to proceed with it. And Mr Tuiqereqere responsibly
advised that he could not point to any prejudice to the Corporation.
11 Thomas v Accident Compensation Corporation [2014] NZACC [35/36]. An application to the District Court for leave to appeal to the High Court on a point of law was dismissed: [2015] NZACC 2010.
[44] Appropriate directions will be recorded in a separate minute. Mr Thomas may nevertheless wish to reflect on the matters contained in this judgment in
deciding whether he does wish to proceed with this outstanding application.
Woodhouse J
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