Howard v Accident Compensation Corporation [2013] NZCA 617 (10 December 2013)

Last Updated: 24 December 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA306/2013 [2013] NZCA 617
BETWEEN	MAREE HOWARD Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	26 November 2013
Court:	Ellen France, Stevens and Wild JJ
Counsel:	Applicant in person P A McBride for Respondent
Judgment:	10 December 2013 at 3.00 pm

JUDGMENT OF THE COURT

1. The application for special leave to appeal is dismissed for want of jurisdiction.
2. The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] The applicant, Maree Howard, applies for special leave to appeal to this Court following a refusal by the High Court to grant leave to appeal to the Court of Appeal under s 163 of the Accident Compensation Act 2001 (the Act).^[1] The High Court had earlier refused Mrs Howard special leave under s 162 to appeal to that Court from a District Court decision dismissing an appeal from an Accident Compensation Corporation Reviewer.^[2]
[2] Mrs Howard suffered two spinal injuries and was granted cover for both under the Act. She was referred by her case manager to an occupational medicine specialist for assessment. Mrs Howard objected to the suitability of the specialist to conduct the assessment and the specialist decided not to proceed with the assessment. Care Advantage, the organisation managing Mrs Howard’s entitlements as agent of the Corporation, took the view that the objections raised by Mrs Howard amounted to an unreasonable refusal to permit an examination and assessment in accordance with s 117(3) of the Act and that this justified suspension of her entitlements.
[3] This suspension triggered a series of reviews and appeals by Mrs Howard. These involved:

• (a) An application to review the decision to suspend her entitlements under s 134. The Reviewer affirmed the decision.
• (b) An appeal of the Reviewer’s decision to the District Court under s 149. Judge Ongley dismissed the appeal.^[3]
• (c) An application to the District Court under s 162(1) of the Act for leave to appeal to the High Court. Judge Joyce QC declined leave to appeal.^[4]
• (d) An application to the High Court under s 162(3) of the Act for special leave to appeal to the High Court. Joseph Williams J declined special leave to appeal.
• (e) An application to the High Court under s 163(1) for leave to appeal to this Court the dismissal (at (d)) of her application for special leave. Joseph Williams J declined to grant leave. Applying the decision of this Court in Lister v Accident Compensation Corporation,^[5] he held that this Court does not have jurisdiction to hear an appeal against a refusal of the High Court to grant leave to appeal to that Court under s 163.

[4] Mrs Howard now applies to this Court under s 163(2) of the Act for special leave to appeal the decision of the High Court referred to at [3](d). Essentially, this is an application for special leave to appeal to the Court of Appeal against a decision of the High Court rejecting special leave to appeal to the High Court against a decision of the District Court.
[5] The Corporation opposes the grant of special leave.

Leave provisions

[6] The application is made under s 163 of the Act, which provides:

163 Appeal to Court of Appeal on question of law

(1) A party to an appeal before the High Court under section 162 who is dissatisfied with any determination or decision of the Court on the appeal as being wrong in law may, with the leave of the High Court, appeal to the Court of Appeal by way of case stated for the opinion of that court on a question of law only.

(2) If the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(3) An appeal to the Court of Appeal must be dealt with in accordance with the rules of the court.

...

[7] The High Court refused to grant leave to appeal to this Court under s 163(1) applying the decision of this Court in Lister, where this Court stated:^[6]

... we are satisfied that there is no jurisdiction to grant the application for special leave to appeal. Although [the McCafferty]^[7] decision was given in relation to equivalent provisions of the Accident Insurance Act 1998 (s 165 and 166), they are in materially similar terms. The approach in McCafferty has been consistently followed by this Court, confirming that a refusal by the High Court to grant leave to appeal is not a determination or decision of that Court on the appeal for the purposes of s 163. Whether this Court may one day be persuaded to reconsider the principle applied in these cases (as a result, for example, of the decision of the Supreme Court in Siemer v Heron) is not something on which we need to speculate in the context of the present application.

Submissions

[8] Mrs Howard submits that this Court has jurisdiction to grant special leave. She argues that the principle from Lister that this Court cannot hear an appeal against a decision of the High Court refusing leave to appeal to that Court should be revisited in light of the Supreme Court’s decision in Siemer v Heron.^[8] Mrs Howard seeks to characterise her application for special leave in the High Court as an interlocutory decision. She submits that the effect of Siemer is that this Court has jurisdiction to hear her appeal; a finding that there is no jurisdiction to hear her appeal would produce an unfair result and be contrary to the principle of access to justice.
[9] The question that Mrs Howard wants this Court to answer if she is given special leave to appeal is whether the views expressed in the High Court judgment declining special leave to appeal from the District Court were correct. Joseph Williams J addressed the 15 questions of law raised by Mrs Howard. The Judge held that these were all either factual questions, questions of weighting of relevant considerations, or questions of law that would make no difference to the outcome of the appeal.^[9] Mrs Howard does not accept that these questions do not meet the “legal question standard”, and sets out arguments why each of her proposed questions qualifies as a question of law.
[10] In her application for special leave, Mrs Howard identifies four questions that she submits are particularly significant:

• (a) whether, in light of the evidence before him, the Judge correctly interpreted and applied the “when reasonably required” test in s 72 of the Act; and
• (b) whether the Judge correctly interpreted and applied s 117(3). In particular, whether s 117(3) operates to allow all entitlements to be declined; and
• (c) whether the Judge correctly interpreted and applied s 3 (the purpose section) and s 54 (requiring the Corporation to make reasonable conclusions in a timely manner) of the Act; and
• (d) whether she, as an applicant, has been treated fairly.

[11] Mr McBride for the Corporation submits that there is no jurisdiction for this Court to grant special leave because the decision of the High Court not to grant leave was not a determination “on the appeal” in terms of s 163(1) of the Act. It is well established, applying McCafferty v Accident Compensation Corporation^[10] and Lister,^[11] that this Court does not have jurisdiction to hear appeals under s 163 of the Act against decisions of the High Court declining leave to appeal to that Court under s 162 of the Act. In addition, this is not an appropriate case to consider the effect of Siemer v Heron on that line of authority. In any event the principles arising from Siemer were in an entirely different context from the present proceeding.
[12] As to the merits, Mr McBride submits Mrs Howard has not identified any question of law. The contended grounds of appeal are really just factual matters dressed up as legal questions.
[13] Finally, as to the overall discretion, leave ought to be refused in any event because there are no broader issues of law or principle at stake. Mrs Howard has fully exercised her appeal rights under the Act. She is really seeking a third tier merits review: something that is not permitted under the Act.

Discussion

[14] This Court has said on a number of occasions^[12] that there is no jurisdiction to hear the proposed appeal. A refusal by the High Court to grant special leave to appeal to that Court under s 162 of the Act is not a “determination or decision of the Court on appeal” for the purposes of s 163 of the Act.
[15] Various factors support this approach. First, s 163 of the Act confers jurisdiction in relation to questions of law relating to a determination or decision “of the Court on the appeal”. This wording does not catch a refusal to grant special leave to appeal. A decision refusing to grant special leave is not an appeal; it is a different genus of determination or proceeding. Thus it cannot give rise to a determination or decision “on the appeal”.^[13]
[16] Second, this interpretation of the words “on the appeal” is supported by the decision of the Supreme Court in Simpson v Kawerau District Council.^[14] There the Supreme Court considered whether to grant leave to appeal against a decision of the Court of Appeal refusing leave to appeal to the Court of Appeal under the Dog Control Act 1996. The application to the Supreme Court was made under s 144A(1)(c) of the Summary Proceedings Act 1957, which provided that a party could appeal “a decision of the Court of Appeal on an appeal under s 144(1)”. The Supreme Court held that it did not have jurisdiction to hear the proposed appeal as a decision of the Court of Appeal refusing special leave to appeal was not “a decision on an appeal”; it was “simply a decision that no appeal shall be permitted”.^[15]
[17] Third, the words “on the appeal” appear to have been deliberately used by Parliament in s 163 of the Act. In the Accident Rehabilitation and Compensation Insurance Act 1992, the equivalent provision referred only to a “party to any proceedings before the High Court” appealing on a question of law “any determination or decision of the Court in the proceedings”.^[16] However, by the time of the Accident Insurance Act 1998 the “on the appeal” language had replaced the reference to “in the proceedings”.^[17]
[18] We do not consider this is an appropriate case to decide whether Siemer v Heron affects this conclusion. That is because, regardless of the jurisdiction issue, it is plain that the proposed appeal does not raise any question of law of the requisite importance.^[18]
[19] As Joseph Williams J noted,^[19] Judge Ongley in the District Court accepted that Mrs Howard’s preferred approach (obtain an orthopaedic surgeon’s view before the occupational needs assessment) was reasonable. However, Judge Ongley said it was also reasonable to proceed straight to the occupational needs assessment leaving the question of the need for an orthopaedic surgeon’s examination until later in the rehabilitative process. Judge Ongley also found that the specialist appointed by the Corporation was in fact well qualified to undertake the assessment. Against this background, Joseph Williams J’s conclusion the proposed appeal raised no legal question of the requisite standard was inevitable.

Result

[20] The application for special leave to appeal is dismissed for want of jurisdiction.
[21] The applicant must pay the respondent costs for a standard application on a band A basis and usual disbursements.

Solicitors:
McBride Davenport James, Wellington for Respondent

---

^[1] Howard v Accident Compensation Corporation [2013] NZHC 1004. In this Court Mrs Howard was assisted by Mr Howard as a McKenzie friend.

^[2] Howard v Accident Compensation Corporation [2013] NZHC 188.

^[3] Howard v Accident Compensation Corporation [2012] NZACC 218.

^[4] Howard v Accident Compensation Corporation [2012] NZACC 388.

^[5] Lister v Accident Compensation Corporation [2011] NZCA 625.

^[6] At [10], footnotes omitted.

^[7] McCafferty v Accident Compensation Corporation (2003) 16 PRNZ 843 (CA).

^[8] Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.

^[9] Howard, above n 2, at [18]–[38].

^[10] McCafferty, above n 7.

^[11] Lister, above n 5.

^[12] Lister, above n 5; McCafferty, above n 7; Khan v Accident Compensation Corporation [2009] NZCA 260, (2009) 19 PRNZ 730; Elliston v Accident Compensation Corporation [2010] NZAR 320 (CA).

^[13] McCafferty at [7]; Elliston at [4].

^[14] Simpson v Kawerau District Council (2004) 17 PRNZ 358 (SC).

^[15] At [5].

^[16] Section 98.

^[17] Section 166. In Khan v Accident Compensation Corporation, this Court, applying the 1992 Act, recognised the difference in language but nevertheless held that there was no jurisdiction under the 1992 Act for this Court to hear an appeal against a refusal to grant leave.

^[18] Waller v Hider [1998] 1 NZLR 412 (CA) requires that the appeal raises a question of law or fact capable of bona fide and serious argument in a case involving some public or private interest of sufficient importance to outweigh the cost and delay of a further appeal.

^[19] Howard v Accident Compensation Corporation, above n 2, at [8]–[9].