[1] Mr Siola’a wanted to appeal to the High Court against a decision of the District Court upholding a decision by an ACC reviewer that he was vocationally independent. His application for leave to appeal was filed more than 21 days after the date of the District Court decision. When this was (belatedly) discovered, ACC argued that the application was out of time. The District Court agreed and dismissed the application for leave to appeal on the basis that it had no power to grant leave to appeal where the application seeking leave was filed out of time.
[2] Mr Siola’a sought judicial review of the decision to dismiss his application for leave. The application for judicial review was dismissed by Clifford J: Siola’a v Wellington District Court HC WN CIV 2007-485-1464 21 February 2008. Mr Siola’a now appeals against Clifford J’s decision.

Issues for determination

[3] Two broad issues require determination. The first issue is: was Mr Siola’a’s application for leave to appeal out of time? That issue involves a consideration of the inter-relationship between the specific appeal provision, s 162 of the Injury Prevention, Rehabilitation and Compensation Act 2001 (IPRC Act) and the general provisions relating to appeals in the District Courts Act 1947.
[4] If the answer to the first question is that Mr Siola’a’s application for leave was out of time, the second issue arises. That is: was the failure to apply for leave within time an irregularity which could be waived by ACC and, if so, did ACC waive it? This requires us to consider the scope of s 3 of the Inferior Courts Procedure Act 1909 and what conduct amounts to waiver or acquiescence in terms of that provision.
[5] Before turning to these issues, we set out the factual context.

Factual context

[6] In February 2002 ACC deemed Mr Siola’a to be vocationally independent under the Accident Insurance Act 1998. A review of that decision was unsuccessful. Mr Siola’a then appealed the decision to the District Court. The appeal was dismissed by Judge Beattie in a decision delivered on 27 August 2003.
[7] Mr Siola’a then applied to the District Court for leave to appeal to the High Court. The application was received on 19 September 2003. For reasons we do not need to go into, no submissions were filed in support of the application until January 2007. ACC then failed to file its submissions in response within the designated time period. The Accident Compensation Appeals Registry communicated that a deadline of 16 April 2007 had been set for ACC to file submissions or a suitable response, after which the application would be placed before a Judge for determination. ACC did not respond until 23 April 2007, when it stated for the first time that the application for leave had been filed out of time.
[8] On 19 June 2007, Judge Hole dismissed the application for leave on the basis that it had been filed out of time. Mr Siola’a then sought judicial review of Judge Hole’s decision. The present appeal is against Clifford J’s decision to dismiss that judicial review application.
[9] We now turn to the first issue identified at [3] above.

Was the application for leave to appeal filed in time?

[10] The application for leave to appeal invoked s 162 of the IPRC Act. At that time s 162 provided:

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 under Part 5 of the District Courts Act 1947 and 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 under Part 5 of the District Courts Act 1947 and within 21 days of the District Court's refusing leave.

(5) Sections 72 to 78A of the District Courts Act 1947 apply, with any necessary modifications, to an appeal to the High Court under this section.

[11] Section 162 has now been amended to remove reference to the District Courts Act 1947.
[12] The 21 day period within which the application for leave to appeal against the decision of Judge Beattie of 27 August 2003 had to be made to comply with s 162(2) elapsed on 17 September 2003. Mr Siola’a accepts that the application, although dated and signed on 16 September 2003, was not received by the District Court until 19 September 2003. For this reason, Judge Hole ruled that the application was out of time. He found that he had no power to extend the time for filing.
[13] Counsel for Mr Siola’a, Mr Beck, submitted that, as s 162(2) included reference to leave being “sought under Part 5 of the District Courts Act 1947”, s 71A(4) of the District Courts Act applied to s 162(2) of the IPRC Act. Section 71A appeared in Part 5 of the District Courts Act at the relevant time, but has since been repealed. Section 71A relevantly provided:

71A Right to appeal

(1) Subject to subsection (3) of this section, any party to any proceedings in a District Court may appeal in accordance with the provisions of this Part of this Act to the High Court against the whole or any part of any final order of the District Court—

(a) Without the leave of the District Court where—

(i) The amount of the claim or the value of the property or relief claimed or in issue exceeds $500; or

(ii) The title to any hereditament is in question:

(b) With the leave of the District Court where the amount of the claim or the value of the property or relief claimed or in issue does not exceed $500.

(2) Subject to subsection (3) of this section, any party to any proceedings in a District Court may, with the leave of the Court, appeal to the High Court against the whole or any part of any interlocutory order made by the District Court in those proceedings.

(3) No appeal shall be brought under this section where, before the final order or the interlocutory order was made, the parties to the proceedings agreed in writing in the prescribed manner that the final order or the interlocutory order should be binding on the parties.

(4) Every application to a District Court under this section for leave to appeal shall be filed in the prescribed manner within 21 days after the date on which the final order or the interlocutory order is sealed.

....

(Emphasis added.)

[14] Mr Beck submitted that the effect of s 162(2) referring to Part 5 of the District Court Act was that leave must be sought in accordance with s 71A(4) of the District Courts Act. Consequently, as s 71A(4) said that the 21 day time-period ran from the date of sealing the order, s 162(2) should be interpreted as requiring leave to be sought 21 days from the date the order is sealed. This is in conflict with s 162(2), which says that the time period runs from the day of the decision of the District Court.
[15] Mr Beck justified this departure from the clear wording of s 162 on the basis that s 162 and s 71A had to be interpreted together and that s 162 should not be treated as overriding s 71A in relation to ACC appeals. He derived support for this mode of interpretation from T v Director of Proceedings [2007] NZCA 213 at [9]. Mr Beck also submitted that s 6 of the New Zealand Bill of Rights Act 1990 (NZBORA) required the IPRC Act to be interpreted consistently with s 27(2) of NZBORA, the right to natural justice, and therefore the interpretation that offers the greater right to judicial review should be adopted. He said this occurred if s 162 and s 71A were interpreted as requiring that time ran from the date of sealing.
[16] This argument is identical to that argued before Clifford J: at [24] of HC judgment. He rejected it. His reasons were as follows:

[27] The effect of s 71A(4) of the [District] Courts Act, as regards applications for leave to appeal, would appear to have been twofold. First, an application for leave to appeal could not be filed until the relevant order had been sealed. Second, such an application was required to be filed within 21 days after that date of sealing. These requirements are consistent with Rule 533 of the District Court Rules 1992 which, at the relevant time, provided that no step could be taken on a judgment before it had been sealed. Sealing was, therefore, technically required as a prerequisite to appeal (Brown v Afele [2003] 3 NZLR 433) and to filing of an application for leave to appeal. Should an application have been filed prior to sealing of the order, it would have been rendered a nullity (Laird v Smith [1995] NZFLR 464).

[28] As there was no provision requiring sealing by a particular date, the [District] Courts Act provisions were not especially effective, in and of themselves, in requiring appeals to be brought expeditiously. The order might have sat, unsealed, for any length of time. When finally sealed an application for leave to appeal could then have been filed within 21 days, irrespective of the time passed since the decision was made. This would appear to have been one of the reasons for amendment of the [District] Courts Act in 2003.

[29] Pursuant to those amendments, appeals from the District Court are governed by Part X of the High Court Rules. Rule 703(1) provides that in any case where an enactment provides that an appeal to the Court against a decision may not be brought without leave, an application for that leave must be made to the decision-maker or the Court within 20 working days after the decision is given. Of particular relevance to the present matter is Rule 705:

Commencement of periods in rules 703 and 704

For the purposes of rules 703 and 704, a period begins when the decision to which it relates is given, whether or not—

(a) reasons for the decision are then given or are given later; or
(b) formal steps, such as entering or sealing the decision, are necessary or are taken after the decision is given.

[30] In that context, the very clear requirement of s 162(2) of the [... IPRC] Act that applications for leave under that section should be filed within 21 days after the District Court’s decision can be seen as avoiding the uncertainty created by these (now amended) provisions of the [District] Courts Act. I find the argument that that uncertainty should, by reference to s 71A(4), have remained, to be unattractive.

[31]As a matter of statutory interpretation, I consider that the specific, additional, reference to the requirement that leave applications under s 162 of the [... IPRC] Act be made within 21 days after the District Court decision, overrides – to the extent it would otherwise have been relevant – the effect of s 71A(4). In my judgment, s 162(2) would appear to have been intended to avoid the difficulties s 71A(4) allowed.

[32] In addition, and as submitted by Mr Hunt for ACC, an application under s 162 of the [... IPRC] Act is not an application under s 71A of the [District] Courts Act at all. Nor is a decision of the District Court on appeal from a reviewer’s decision a final order to which s 71A(1)(b), or an interlocutory order to which s 71A(2), of that Act apply, so as to bring s 71A(4) into play.

[33] I accept Mr Beck’s submissions ... as to the context of each of the decisions in Thomas, Zhang, and Reden-Oldfield. I nevertheless consider that those decisions support the conclusion I have reached. The general proposition those cases stand for is that, put simply, s 162(2) means what it says.

[17] We agree with Clifford J’s analysis and are content to adopt it. The clear wording of s 162 does not leave room for any other result. Section 162(2) requires not only that leave be sought under Part 5 of the District Courts Act but also that this be done within 21 days of the relevant decision. If leave is sought after that 21 day period has elapsed, the inescapable conclusion is that the second requirement of s 162(2) has not been complied with. Nothing said by this Court in T v Director of Proceedings affects that: indeed, if anything it supports our conclusion.
[18] There are other reasons why s 71A(4) could not have been intended to govern situations like that which arose in this case. Under s 71A(1)(a), there was a right of appeal to the High Court without leave where over $500 was at stake. Yet it is clear that leave was required for ACC appeals, regardless of the amount in issue. And s 71A(5) allowed for special leave to be granted by the High Court if the application for leave to the District Court was not filed in time. Again, no such power applied to ACC appeals under s 162 of the IPRC Act.
[19] Nor do we consider that NZBORA is engaged in this case. We reject the notion that s 27(2) of NZBORA mandates a second appeal (or at least an opportunity to seek leave for one) notwithstanding non-compliance with the time limit for seeking leave, given that the original (ACC) decision has already been subject to a full merits appeal to the District Court. Equally, we do not accept that the requirement to file applications for leave within 21 days of the decision of the District Court is more “punitive” than the regime under s 71A(4) for other District Court appeals as Mr Beck described it. There is nothing onerous in a 21 day time limit: indeed it is a reasonably standard requirement.
[20] This analysis is consistent with numerous High Court decisions on the amended s 162 and a similar appeal provision, s 165 of the Accident Insurance Act 1998, including Saipe v ACC HC AK CIV 2008-404-001053 28 March 2008, Wyman v ACC HC WN CIV 2007-485-451 23 May 2007, Zhang v ACC HC AK CIV 2005-404-7101 27 October 2006, Reden-Oldfield v ACC HC WHA CIV 2005-485-185 8 December 2005 and Thomas v ACC DC WN 283/2005 27 September 2005. Mr Beck attempted to distinguish Wyman and Saipe on the basis that the provision in issue in those cases, the amended s 162, did not specifically refer to leave being sought “under Part 5 of the District Courts Act 1947” as the unamended s 162(2) did. We accept that difference in wording makes those cases even clearer than the present case. But the provision in issue in Zhang, Roden-Oldfield and Thomas was materially the same as that in issue in this case, so those cases are on all fours with the present case.

Was there waiver or acquiescence?

[21] The factual basis for Mr Siola’a’s claim that ACC waived the late filing of his application for leave to appeal is as follows. On 23 September 2003, ACC was notified by the District Court that a notice of appeal had been filed by Mr Siola’a. Mr Siola’a did not file submissions until January 2007, over three years after the notice of appeal was filed. On 15 February 2007 the District Court wrote to ACC, forwarding a copy of Mr Siola’a’s submissions and requesting submissions in reply within 21 days. The Court sent another letter to ACC on 16 March 2007, advising that unless submissions or a response was received by 16 April 2007, the application would be placed before a Judge for determination.
[22] On 23 April, ACC wrote to the District Court stating that the appeal was out of time and sought confirmation that it would be dealt with on that basis and noting that it did not propose to file substantive submissions.
[23] Mr Beck submitted that these actions, and in particular the failure to file submissions in time, amounted to ACC waiving or acquiescing any irregularity relating to the late filing. He relied on s 3 of the Inferior Courts Procedure Act, which provides:

3 Waiver of errors in civil proceedings before an inferior Court

(1) In any civil proceedings before an inferior Court any error, irregularity, omission, or defect, whether it relates to the jurisdiction of the Court, or to the procedure therein, or to any other matter, and whether it appears on the face of the record or of the proceedings or not, and whether it is within the knowledge of the Court or not, may be waived or acquiesced in by any party to the proceedings.

(2) When any such waiver or acquiescence by any party has taken place, the proceedings shall be as valid in all respects as against that party as if no such error, irregularity, omission, or defect had existed.

(3) Nothing in this section shall apply so as to make valid any judgment or order which on the face thereof is of such a nature that the Court giving or making the same could not under any circumstances have jurisdiction to give or make it.

(4) No such waiver or acquiescence by a party shall so operate as to preclude the Court in which the proceedings are taking place from refusing, in the exercise of its discretion, to give or make any judgment or order, or to do any other act, which, in the absence of such waiver or acquiescence, would be invalid for want of jurisdiction or for any other reason.

[24] Mr Beck submitted that, where there was waiver of the late filing of an application for leave under s 162(2), s 3(2) had the effect of deeming the leave application to be valid as if the defect of late filing did not exist. Two issues arise from this submission: first, whether s 3(2) can cure a failure to comply with the time limit in s 162(2) and second, whether the conduct of ACC amounted to waiver or acquiescence.

Does s 3 cure the defect of late filing?

[25] In the High Court Clifford J held that s 3 did not cure the defect of late filing. He relied on Reden-Oldfield, in which Lang J found that an application for leave that was filed out of time under s 165(2) of the Accident Insurance Act 1998 (now repealed, but which had identical wording to s 162(4) of the IPRC Act) was a nullity. Consequently, Clifford J considered that, as the application in the present case was a nullity, jurisdiction could never have been validly conferred on the District Court – irrespective of whether there had been waiver or acquiescence. Although he did not explicitly say so, the effect of Clifford J’s analysis is that ACC cannot waive a failure to comply with the time limit set out in s 162 of the IPCR Act.
[26] In coming to this view, Clifford J referred to Zhang. Zhang did not consider s 3 of the Inferior Courts Procedure Act, but Venning J made the following observation of principle (at [8]):

... if there is no jurisdiction for the appeal then of course jurisdiction can not be conferred by consent or by the respondent not taking the point.

[27] Additionally Clifford J believed that the discretion in s 3(4) of the Inferior Courts Procedure Act was invoked: at [36]. Section 3(4) permits the Court to refuse to do any act or give any judgment or order, where that act would have be invalid for want of jurisdiction in the absence of waiver or acquiescence. Clifford J did not say why s 3(4) was invoked. It seems likely he was foreshadowing that, if it had been necessary to do so he would have found that in the circumstances of this case (in particular the lengthy delay by Mr Siola’a in pursuing the application) Judge Hole would have been justified in refusing leave even if there had been a waiver by ACC.
[28] Clifford J also agreed with ACC’s submission (made again in the present appeal) that the application for leave to appeal, being a nullity, was not a “civil proceeding before an inferior court”, as required by s 3(1), and therefore s 3 did not apply: at [40].
[29] Mr Beck submitted that the approach taken to s 3 by Clifford was incorrect. He said that the purpose of s 3 is to provide that certain irregularities will not render proceedings a nullity. If one considers that because of an irregularity, something is a nullity and therefore s 3 does not apply, then s 3 is stripped of its force. The whole purpose of s 3 is to allow a waiver to overcome an irregularity that, without s 3, would have resulted in the Court lacking jurisdiction. Indeed, this was precisely the type of situation that s 3 was designed to address.
[30] Mr Beck relied on the decision of this Court in New Zealand Sheep-Farmers’ Agency Ltd v Mosley [1932] NZLR 949 (CA) for that proposition. We agree with him that that case supports his submission. It also accords with common sense: s 3(1) says that waiver can cure any jurisdictional irregularity, unless s 3(3) applies i.e. unless the court could not possibly have had jurisdiction in the matter. In the present case s 3(3) would not have been engaged if the District Court had granted leave to appeal to Mr Siola’a: the grant of such leave was clearly within its powers, but for the jurisdictional problem caused by the application being out of time. See also Morris v Templeton [2000] NZCA 163; (2000) 14 PRNZ 389 (CA) and Kilkelly v Nicoloff [1969] NZLR 842 (SC). We reject the submission by ACC to the contrary. Our views on this aspect of the case are to similar effect to those of Wild J in Nash v Nelson District Court [2000] 3 NZLR 702 at [45] (HC).
[31] Counsel for ACC, Mr Hunt, argued that s 3(1) did not apply to the present case for two reasons. The first reason was that the late filing of the application for leave resulted in there being no civil proceeding before the Court. Secondly, Mr Hunt submitted that the time limit in s 162(4) was a mandatory statutory requirement and that a failure to comply with a mandatory statutory requirement could not be considered an “error, irregularity, omission or defect” under s 3(1).
[32] We agree with Mr Beck’s interpretation of s 3. The approach taken by Clifford J and endorsed by ACC would undermine the purpose of s 3 and could be justified only on the basis that ACC cannot waive the time limit requirement set out in s 162 of the ACC Act.
[33] We add for completeness that we consider that classifying a leave application made outside the time limit set by s 162(2) of the IPRC Act as a “nullity” is not strictly accurate. If, in a case such as the present, ACC is prepared to waive the non-compliance with the time limit and does so, then the District Court would have jurisdiction to consider and decide the application. So, until a Judge decides that the leave application should be struck out, there is an application before the Court which requires a judicial decision to determine it. In cases where no question of acquiescence or waiver arrives, that decision will be obvious. The decision to strike out the leave application could simply state that, in the absence of acquiescence or waiver, the lateness of filing deprives the Court of jurisdiction to hear the application.
[34] However, where there is acquiescence or waiver, and no adverse ruling under s 3(4), the effect is to confer jurisdiction on the District Court which it otherwise would not have had. The statement to the contrary in Zhang at [38] is, with respect, incorrect.
[35] This analysis is consistent with the analysis (in a different context) in Crown Health Financing Agency v P and B and Ors [2008] NZCA 362 at [72] per Glazebrook J and [253] per Hammond J.
[36] We conclude that the filing of the application for leave (albeit out of time) and its acceptance by the District Court meant there was a civil proceeding before the Court for the purposes of s 3(1). It remained before the Court until Judge Hole dismissed it for want of jurisdiction. The failure to file the application in time was an error or omission relating to the District Court jurisdiction which could be waived or acquiesced in by ACC under s 3(1). If ACC had waived it and the District Court had granted leave, the grant of leave would not have been invalid in terms of s 3(3). However, the District Court could have refused leave notwithstanding ACC’s waiver under s 3(4) if it had considered it appropriate to do so.

Was there waiver or acquiescence of the requirements under s 162(2)?

[37] ACC’s version of events, recorded in the High Court judgment, is that it did not become aware until sometime in April 2007, after it made enquiries at the District Court, that the application for leave to appeal had not been filed 16 September 2003 but on 19 September 2003. This was also the first time the District Court became aware of the late filing. There was, however, no evidence on this point in the High Court.
[38] Clifford J, having held that to waive or acquiesce in a matter requires one to first have knowledge of that matter, found that as there was no evidence to show that ACC knew of the lateness and therefore could neither have acquiesced nor waived the late filing irregularity.
[39] Mr Beck submitted that this approach amounted to an incorrect shifting of the evidentiary burden: given that it was ACC that alleged it had no knowledge prior to April 2007, ACC should substantiate that allegation. He relied on Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32 (HL) where, at [13], Lord Bingham of Cornhill said:

I think it is salutary to bear in mind Lord Mansfield’s aphorism in Blatch v Archer [1774] EngR 2; (1774) 1 Cowp 63 at 95 ...: “It is certainly a maxim that all evidence be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.”

[40] We do not accept that there was a shifting of the evidentiary burden. It was for Mr Siola’a to establish waiver. If notice had been given to ACC or its lawyers of the actual date of filing of the application for leave, evidence to that effect should have been adduced by Mr Siola’a. There was considerable evidence about the correspondence between the parties and the District Court about the application for leave. Copies of the correspondence were produced. There was no indication in that material to indicate that ACC was told the date on which the appeal was filed.
[41] The application was not served on ACC when it was filed. The registry of the Court sent a letter to Mr Siola’a’s then lawyer acknowledging receipt of the application a few days after it was filed and sent a copy of the letter to ACC. In it, the date of the application (16 September) was referred to, but not the date of filing (19 September). If anything, this would have led ACC to assume the application had been filed in time. Mr Beck asserted in his submissions that “all the relevant facts were available to [ACC] in September 2003” but the evidence before the High Court provided no basis for that assertion. If Mr Siola’a had evidence that ACC had been informed of the date on which the application was filed, to support a submission that ACC knowingly waived or acquiesced in the late filing, he needed to adduce evidence to that effect.
[42] Acquiescence arises where there is contemporaneous and informed standing by without objection by a person: see Bell v Alfred Franks & Bartlett Co Ltd [1980] 1 All ER 356 at 360 (CA) and New Zealand Fisheries Ltd v Napier City Council (1990) 1 NZ ConvC 190,342 (CA). As soon as ACC became aware of the late filing, it immediately protested. However even if it did know of the late filing before April 2007, there is no rational basis for arguing that ACC’s failure to file its submissions in time amounted to its acquiescing or waiving Mr Siola’a’s late filing of the application. ACC was under no obligation to file submissions until February 2007. Late filing of submissions, although poor practice, could hardly be said to be acquiescence when the response was an explicit objection to the late application. This is consistent with Goddard v DFC New Zealand Ltd [1991] 3 NZLR 580 at 592 (HC) where a short delay in objecting to an action was not sufficient to establish acquiescence.
[43] Mr Beck argued that it was improper of ACC to take the jurisdictional point when it did. He said it was contrary to the requirement that the Crown should be an exemplar of high standards in litigation. We disagree. It had no obligation to waive the late filing. This argument may have had greater weight if ACC had been told at the outset of the late filing. But, as noted earlier, there was no evidence that it had been.

Result

[44] We dismiss the appeal.

Costs

[45] We understand Mr Siola’a is legally aided and, in these circumstances, the normal outcome would be for no award of costs to be made. However, Mr Hunt asked us to formally reserve costs and we do so. If ACC wishes to pursue an award of costs, it must do so within 20 working days of the date of this judgment.

Solicitors:
Peter Sara, Dunedin for Appellant
Young Hunter, Christchurch for Second Respondent

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