Weal v Accident Compensation Corporation HC Wellington CIV 2010-485-1667
[2011] NZHC 911
•7 July 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2010-485-1667
UNDER THE ACCIDENT COMPENSATION ACT
2001
IN THE MATTER OF AN APPLICATION FOR SPECIAL LEAVE TO APPEAL UNDER SECTION
162(3) OF THE ACT
BETWEEN D J WEAL Applicant
ANDACCIDENT COMPENSATION CORPORATION
Respondent
Hearing: 26 May 2011
Counsel: A C Beck for Applicant
H H Ifwersen for Respondent
Judgment: 7 July 2011
JUDGMENT OF RONALD YOUNG J
Introduction
[1] Mr Weal has been granted compensation cover by a deemed review decision
(pursuant to s 146 of the Accident Compensation Act 2001) (“the Act”). On
19 February 2009 the respondent was given leave by the District Court (the appeal was out of time) to appeal the deemed decision to the District Court. At the same hearing the District Court stayed any of Mr Weal‟s entitlements under the Act until the appeal was heard. This appeal challenges the jurisdiction of the District Court to
stay entitlements in such circumstances.
D J WEAL V ACCIDENT COMPENSATION CORPORATION HC WN CIV 2010-485-1667 7 July 2011
[2] Arising from discussion with counsel at the appeal hearing the question arises to the jurisdiction of this Court to hear such an appeal from what is accepted to be an interlocutory decision of the District Court. This judgment, therefore, considers both the jurisdiction to hear the appeal and whether the District Court had jurisdiction to order such a stay.
Facts
[3] Some factual background is necessary to understand the context of the District Court decision. On 14 January 2004 Mr Weal lodged a claim for cover for an injury he said was dengue fever, contracted in April 2003 in Fiji. On 13
December 2004 the Corporation accepted the claim for cover but later investigated the claim. On 11 October 2006 it revoked its grant of cover. The Corporation said Mr Weal was not entitled to cover because he was not working in Fiji when he contracted dengue fever and he had deliberately misrepresented his circumstances.
[4] Mr Weal sought review. As a result of delays by the Corporation, Mr Weal‟s review was granted, he was deemed to have cover pursuant to s 146 of the Act and his entitlements were reinstated.1 The Corporation appealed the deemed decision2 but this has still to be heard. On 19 February 2009 Judge Beattie made two interlocutory orders – granting the Corporation leave to appeal out of time and a stay
of payment of entitlements (from the deemed decision) to Mr Weal.3
1 On 12 August 2008 the District Court confirmed the deemed decision in Mr Weal‟s favour,
effective from 13 January 2007.
2 A cautionary appeal had been lodged on 25 October 2007 against any deemed decision, in the event it was found to be a deemed decision by the District Court.
3 Accident Compensation Corporation v Weal DC Auckland, Decision No 22/2009,
19 February 2009.
[5] Mr Weal sought leave to appeal Judge Beattie‟s decisions. An application for leave to appeal to the High Court was dismissed in the District Court.4 The Judge considered there was no flaw in Judge Beattie‟s reasoning, and that in any event there was no right to appeal from an interlocutory decision, unless it was determinative.5 The stay ruling was not considered to be a „final determination‟ of the substantive issue. Mr Weal subsequently applied for special leave to the High Court pursuant to s 162(3) of the Act. Leave was granted in relation to the issue of stay without deciding the jurisdictional point.6
[6] Remarkably no judicial authority has considered the evidence, or made a determination as to the substantive issue of whether the appellant is entitled to cover.
Right of Appeal from interlocutory decision
[7] The parties take a different view as to the statutory authority for an interlocutory appeal from the District Court in such cases. The appellant‟s case is that s 72 of the District Courts Act 1947 gives such jurisdiction and that the circumstances of this case come within those that justify an interlocutory appeal.7
The respondent‟s case is twofold. Firstly, they say the question of whether there is
an interlocutory appeal right from the District Court to the High Court is governed by the Accident Compensation Act and that Act allows for no such appeal. Secondly, if the first argument is wrong and s 72 of the District Courts Act does apply then this case is not one of those cases where an interlocutory appeal should be allowed.
[8] I turn, therefore, initially to the question of which statute applies and whether that statute allows an interlocutory appeal. The initial search for appeal rights should
be to the statute which governs this litigation, the Accident Compensation Act 2001.8
4 Weal v Accident Compensation Corporation DC Wellington [2010] NZACC 126.
5 At [25].
6 Weal v Accident Compensation Corporation HC Wellington CIV-2010-485-1667,
4 February 2011.
7 Association of Dispensing Opticians of NZ Inc v Opticians Board [2000] 1 NZLR 158 (CA);
Winstone Pulp International v Attorney-General (1999) 13 PRNZ 593 (CA);
Attorney-General v W (2007) 18 PRNZ 673 (CA); Hagaman v Fairbank (2010) 20 PRNZ 68 (CA).
8 See Attorney-General v Howard [2011] 1 NZLR 58 (CA).
[9] Section 162 of the Accident Compensation Act is the relevant appeal provision which provides as follows:
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.
[10] As can be seen, therefore, s 162 is silent on interlocutory appeals. There is no other provision in the Act which specifically deals with appeals from interlocutory decisions. This is a change from the 1992 legislation. A combination of s 97 of the
1992 Act and the previous relevant provision in the District Courts Act (s 71A) meant that rights of appeal from interlocutory decisions were expressly excluded from appeals to the High Court.
[11] Since the 1992 Act both the District Courts Act and the Accident Compensation statutory provisions have changed. As can be seen s 162 of the Act allows an appeal from anyone who is dissatisfied “with the decision of a District Court”. And subsection (5) incorporates the High Court Rules and s 74 to 78 of the District Courts Act as if it were an appeal under s 72 of that Act.
[12] As I understand the appellant‟s point it is that by incorporating s 72 of the District Courts Act (through s 162(5)) appeals from the District Court to the High Court on a question of law are to be dealt with as if they were s 72 appeals. I do not, however, read s 162(5) as saying that the jurisdictional authority to appeal is contained in s 72 in accident compensation matters. Section 162 is the jurisdictional authority for appeals. Subsection (1) provides authority to appeal in the circumstances described in this section.
[13] The words in s 162(5) indicate that the procedure in the High Court Rules and in s 74 to 78 of the District Courts Act apply to appeals under s 162 as if it was a s 72 appeal. Accordingly, it is s 162(1) which will or will not authorise an interlocutory appeal from a decision of the District Court.
[14] The respondent submits the phrase “the decision of a District Court” in subsection (1) is intended to refer to the decision the District Court makes as a result of the review of the decision of the Corporation on substantive questions of cover and entitlements. The “decision of a District Court” is not, the respondent says, any interlocutory decision of the District Court.
[15] The Corporation‟s submissions are based on the proposition that if the “chain of jurisdiction is followed through” from a decision of the Corporation to the District Court, it is clear that “the decision” in s 162 can only refer to the decision of the Corporation affecting an individual‟s claim or entitlement under the Act. And in turn “the decision” refers to the District Court‟s review of that decision.
[16] Accordingly, an appeal from a decision of the Corporation affecting a person‟s claim or entitlement is to the District Court. And “the appeal” from the District Court is an appeal from its decision on the person‟s claim or entitlement.
[17] I agree there are difficulties with s 162(1) in relation to the current facts. Section 162(1) anticipates that the appeal to the High Court will be a second level appeal, that is, a decision will have been made by the Corporation, an appeal to the District Court and then a second appeal with leave from the District Court to the High Court. This is clear by the wording of s 162(1). It covers second tier appeals, where leave to appeal is required.
[18] In this case there was no interlocutory decision of the Corporation appealed to the District Court. The original decision staying entitlements was by the District Court. Therefore any appeal would be a first level appeal to the High Court. Ordinarily such an appeal would be as of right rather than with leave.
[19] In summary, therefore, s 162(1) is concerned with appeals from decisions of the District Court at a second tier. That is, where there is an existing decision of the Corporation, appealed (as of right as a first tier appeal) to the District Court and then a second tier appeal (where leave is sought) to the High Court. This case is not such an appeal. This suggests s 162 does not apply to such appeals.
[20] There are no other appeal provisions in the Accident Compensation Act which could cover such appeals. The question, therefore, arises whether by failing to deal at all with such potential appeal rights Parliament intended that there be no right of appeal or whether the appropriate course is to look to the general appeal provisions from the District Court in s 72.
[21] I am satisfied that the proper course is to consider whether the District Courts Act provides any such appeal right. Before it could be answered Parliament intended there be no appeal rights, all possible statutory authority should be considered. The general appeal provisions of the District Courts Act are only ousted if as s 72(1)(a) and (b) provides there is an expressly conferred appeal right in a specific statute or the relevant statute (here, Accident Compensation Act) “expressly” (provides) that there is no right of appeal. Here, I have concluded there is no express appeal right from the interlocutory order in the District Court nor is there any express prohibition against an appeal.
[22] I am satisfied, therefore, that s 72 does provide jurisdiction to appeal a first instance interlocutory order from the District Court in this case. Whether in fact this interlocutory decision can be appealed is to be decided on the appropriate principles (See [7] and cases referred to).
[23] I turn now, therefore, to consider whether or not this is one of those cases where an appeal from an interlocutory order should be permitted. The principles which can be extracted from the authorities can be summarised in this way. Interlocutory rulings in the course of a proceeding which are part of a case management process would not ordinarily be appealable. Rulings which do have some substantive affect on rights, liabilities and issues are generally appealable. The Courts have said that the boundary lines will not be cut and dry. There will be cases
which are exceptional that ordinarily would not be appealable but on the facts an appeal should be permitted.
[24] I am satisfied in this case there are reasons why leave should be granted. Firstly, there is some affect on the appellant‟s substantive rights although not a permanent effect. The effect of the order of the District Court is to stop what is currently a statutory entitlement. This puts the interlocutory order in a “higher” category than a procedural order. This is especially so given what is stayed may be entitlements to weekly compensation payable where a claimant is unable to work. It could be said that this is one of those exceptional cases that even if the orders did not have a substantive permanent affect on the matters in issue in the appeal (given the temporary nature of the order) it does have a substantial affect on a recipient‟s compensation entitlement.
[25] Secondly, for reasons given subsequent in this Judgment, I am satisfied that the order made staying the entitlement was made without jurisdiction. This Court would ordinarily not allow an order of an inferior Court made without jurisdiction to stand.
[26] Finally, as I understood it, the Judge‟s decision to stay in this case was primarily based on his assessment of the likelihood of success in the appeal. In that sense it was a partial assessment of the merits of the appeal and therefore could be said to have had a substantive affect on the rights of appellant.
[27] In summary on this aspect of the case I am satisfied:
(a) there is jurisdiction to appeal to the High Court from an interlocutory decision of the District Court acting under the Accident Compensation Act;
(b)the facts of this case are such that this Court should consider the merits of the proposed appeal from the interlocutory order.
Is there jurisdiction of the District Court to grant a stay of entitlements?
[28] The Accident Compensation Act contains detailed appeal provisions dealing with appeals to and from the District Court. It makes no specific reference to any power to stay an entitlement to compensation under the Act pending appeal. Neither counsel could find any previous decisions where the District Court has granted a stay of entitlements.
[29] The Judge did not expressly identify the jurisdictional basis for his order. He said the application for a stay was made pursuant to s 150 of the Act and s 84 of the District Courts Act 1947. He granted the stay on the basis no irreparable harm would be caused to the appellant (as interest could be paid if it was later found Mr Weal had entitlements), nor were the merits of the matter (being his entitlement
to cover) such that the appellant could claim he was being unjustly treated.9
[30] Counsel for the Corporation identify two possible sources of jurisdiction for the power to stay an entitlement:
(a) section 84 of the District Courts Act 1947; and
(b)the District Court‟s inherent power to regulate its own processes to ensure fairness in investigative and trial processes.
Section 84 of the District Courts Act 1947
[31] This argument involves two sub-issues:
(a) does the District Courts Act 1947 apply to Accident Corporation appeals, or is it excluded by the Accident Compensation Act?
(b)if the District Courts Act 1947 applies, does section 84 give the power to stay?
9 At [32]-[33].
[32] As to the second issue. Section 84 of the Act gives the District Court a discretionary power to grant a stay where there is an appeal against a decision. The section provides:
Notice of appeal shall not operate as a stay of proceedings under the decision appealed from unless the [Court] or a [Judge] so orders or the amount of the judgment or order appealed against and its cost is deposited with the Registrar to abide the event of the appeal, or security is given to the satisfaction of the Registrar for that amount.
[33] The appellant submits even if the District Courts Act applies to such appeals s 84 has no application. Section 84 is found in Part 6 of the District Courts Act. This part relates to enforcement of orders made in the District Court. Consequently, the appellant says s 84 only applies to appeals to the High Court, not appeals to the District Court.
[34] The respondent invited me to take a broad interpretation of the statutory words „under the decision appealed from‟ so that s 84 applied to any decision subject to appeal that is in the District Court‟s jurisdiction. Reference was made to the heading the section is found under in Part 6, being „Enforcements Generally‟ to support this submission.
[35] In my view, the surrounding sections of the Act dispose of the respondent‟s
argument. Although section 84 is under the heading „Enforcements Generally‟, Part
6 of the Act clearly expresses that it is governing the „Enforcement of Judgments‟.
The preceding sections make reference to „judgments and orders of the Court‟.
„Court‟ is defined in the interpretation section as a Court constituted under the Act, i.e. a District Court. It is, therefore, clear from the surrounding sections that Part 6 of the Act deals with the enforcement of judgments from the District Court, and that an appeal is, therefore, from a District Court decision, to the High Court. Further, Part 5 governs appeals to the High Court. Although in isolation the word „decision‟ in s 84 could broadly be interpreted to be a decision appealed to the District Court, the heading „Enforcement of Judgments‟, and the surrounding provisions make it clear that s 84 is concerned with appeals from the District Court.
[36] The section does not confer a broad power to the District Court to grant a stay in any proceedings within their jurisdiction. Rather the section provides that a notice of appeal will not operate as an automatic stay of enforcement proceedings. A party who has obtained judgment in a District Court is therefore entitled to enforce that judgment regardless of an appeal, unless the Court exercises a discretion to grant a stay. A general stay provision is found not in the District Courts Act, but in the
District Court Rules.10
[37] On the second issue, I therefore conclude that section 84 does not confer on the District Court jurisdiction to grant a stay of payment of any entitlements pending the hearing of an appeal to the District Court under the Accident Compensation legislation. Therefore, s 84 did not give the Judge in the District Court authority to stay a deemed decision in the appellant‟s favour.
[38] As to the first issue, is the District Courts Act as it relates to Accident Compensation appeals excluded by the Act. Given my view of s 84 there seems little point in discussing this question in detail. I record, however, that the appropriate approach is firstly to look to authority for the stay order in the Accident Compensation legislation.11 It is common ground that this legislation provides no express power to stay. Next, unless specifically excluded by the compensation legislation, Courts should consider the provisions of the District Courts Act.
[39] I consider there is nothing in the Accident Compensation legislation which prohibits consideration of s 84 of the District Courts Act. For reasons given, however, this section does not provide authority to stay.
Inherent power of the District Court
[40] Unlike the High Court, the District Court as a statutory court of limited jurisdiction does not have an inherent jurisdiction to make any order necessary to
enable it to act effectively. However, the Court does have ancillary powers
10 See r 553 of the District Court Rules 1992 which is applicable in this case. I note the relevant
District Court Rules applicable today are the 2009 version.
11 Attorney-General v Howard [2011] NZLR 58 (CA).
necessary to enable it to act effectively within its particular jurisdiction. This includes an inherent power, subject to the rules of the Court and statute, to regulate its own procedure, to ensure fairness in investigative and trial procedures, and to prevent an abuse of its process.12
[41] Counsel for the Corporation submitted this inherent power to control its own processes empowered the District Court to grant a stay of payment of entitlements. It was argued the power to grant a stay was necessary to allow the District Court to give effect to the scheme and intention of the accident compensation legislation, which is based on the premise that decisions about cover are to be made before decisions of entitlements are made by the Corporation.
[42] It was further submitted this inherent power was confirmed by regulation 10 of the Injury, Prevention, Rehabilitation and Compensation (Review Costs and Appeals) regulations which provides:
(1) At a directions hearing, a Judge may make any directions that appear best adapted to secure the just, expeditious, and economical disposal of the appeal proceedings.
Counsel submitted „directions hearing‟ was entitled to a broad interpretation which included interlocutory matters. Consequently, the Judge can make „any directions‟ to secure the „just, expeditious and economical disposal of the appeal proceedings‟. By ordering a stay, it was argued the Court could ensure its trial procedures were fairly undertaken in a manner consistent with the scheme and operation of the Act.
[43] The appellant submits that the District Court judge did not purport to rely on an inherent power and that rather this is an ex post facto justification. It is argued that where a rule empowering a stay has been expressly excluded, then that power cannot be implied as a matter of necessity.
[44] An inherent power cannot contradict the applicable legislative provisions.13
Further, implied powers are confined to those necessary to enable the Court to act effectively within its particular jurisdiction. The appeal powers in relation to the accident compensation scheme can function adequately without the need for this additional power. Had it been intended that the Court be able to make a decision of this significance, it could be expected that the power be conferred expressly with appropriate protections.
[45] In my view, the jurisdiction to grant a stay of entitlements cannot be sourced in the limited inherent jurisdiction of the Court.
[46] I am, therefore, satisfied that there is no jurisdiction to grant a stay of entitlements in the District Court. In those circumstances the proper course is to quash the order in the District Court.
[47] Two further points. If there had been jurisdiction to grant a stay I would have given leave to appeal the stay and I would have allowed the appeal against the stay. I do not consider grounds had been made out for such an order which would likely be rarely ordered given the importance of weekly compensation entitlements.
[48] Secondly, the merits of the appeal (acknowledging and expressing no view on the appellant‟s challenge to the proposition that there is an appeal from a deemed decision) must now be urgently heard.
Costs
[49] Should the appellant seek costs he should file a memorandum within 14 days and the respondent in reply, a further 14 days.
Ronald Young J
Solicitors:
A C Beck, Barrister, PO Box 5601, Wellington, email: [email protected]
H H Ifwersen, Meredith Connell, PO Box 2213, Auckland, email:
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