Tonga v Accident Compensation Corporation

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-656

[2022] NZHC 934

IN THE MATTER

of an appeal under s 162 of the Accident Compensation Act 2001

BETWEEN

SOSIA TONGA

Appellant

AND

ACCIDENT COMPENSATION CORPORATION

First Respondent

ALLIANCE GROUP LIMITED

Second Respondent

Hearing:

2 May 2022

Counsel:

A C Beck for Appellant

No appearance for First Respondent H A Evans for Second Respondent

Judgment:

5 May 2022

JUDGMENT OF SIMON FRANCE J

Introduction

[1]    The context of this appeal is the review process under the Accident Compensation Act 2001 (the Act) and in particular the costs regime that applies to it. Section 148(2)(b) of that Act provides:

(2)       Whether or not there is a hearing, the reviewer—

…

(b)may award the applicant costs and expenses, if the reviewer  does not make a review decision in favour of the applicant but considers that the applicant acted reasonably in applying for the review:

TONGA v ACCIDENT COMPENSATION CORPORATION [2022] NZHC 934 [5 May 2022]

[2]    Mr Tonga was an unsuccessful review applicant.1 He was legally represented. It is common ground an award of costs would normally be made under subs (2)(b). However, his legal representation was provided and paid for by his union. This meant that no award of costs was made on the basis that Mr Tonga personally had no responsibility to pay his counsel. The District Court upheld the decision not to make a costs award but granted leave to appeal on the following question:2

Whether a claimant on review, who has no liability to pay his or her own costs because they are met by a third party, is entitled to costs under s 148 of the Act and the 2002 regulations.

[3]    There are two respondents. The second respondent has the carriage of appeal. It is Mr Tonga’s employer and is an accredited employer under Pt 6 of the Act. It accordingly stands in the shoes of the Corporation for Mr Tonga’s claim. The Corporation abides the decision and does not wish to be heard. Its memorandum to that effect seeks to make clear the second respondent is not acting on the Corporation’s behalf in terms of the arguments being advanced.

Facts

[4]    The facts of Mr Tonga’s injury claim are not relevant to the appeal. Mr Tonga’s claim was declined, as was his review of that decision. The reviewer declined to make an award of costs. The reviewer had earlier clarified with Mr Tonga’s counsel that Mr Tonga had not been invoiced, the union (which was meeting the costs of legal representation) had not charged Mr Tonga  anything, and the only direct costs to    Mr Tonga were his union membership fees. The reviewer concluded Mr Tonga had no costs liability and so there could not be an award of representation costs.

[5]    Mr Tonga appealed to the District Court which overturned the reviewer as regards the cause of Mr Tonga’s condition, with the consequence he was entitled…