KHAN V ACCIDENT COMPENSATION CORPORATION HC AK CIV-2007-485-001632 [2009] NZHC 303 (11 March 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                     CIV-2007-485-001632



                      BETWEEN                   YOUMNA KHAN
                                                Applicant

      
               AND                       ACCIDENT COMPENSATION
                                                CORPORATION
     
                                          Respondent


Hearing:              10 March 2009

Appearances: Mr Khan for Applicant
 
           G J Satherley on instructions from D K L Tuiqereqere for Respondent

Judgment:             11 March 2009 at 9.30 a.m.


                           JUDGMENT OF VENNING J
                 ON APPLICATION FOR SPECIAL LEAVE TO APPEAL




This judgment
was delivered by me on 11 March 2009 at 9.30 am, pursuant to Rule 11.5 of the High
Court Rules.


Registrar/Deputy Registrar

Date...............




Copy to:              D Tuiqereqere, Auckland
                      G J Satherley, Auckland
                      Y Khan, Auckland




KHAN V ACCIDENT COMPENSATION CORPORATION HC AK CIV-2007-485-001632 11 March 2009

Introduction


[1]    This is an application
for special leave to appeal to the Court of Appeal from
a decision of this Court dated 22 December 2008 dismissing the applicant's
application for special leave to appeal to the High Court.


Preliminary points


[2]    Two preliminary points arise. First, the
applicant Mrs Khan is not able to
present the application herself. I granted leave to her husband Mr Khan to represent
her and present
the application on her behalf.


[3]    Next, in the papers filed with the Court the applicant took objection to me
dealing with
the application. It is apparent she did not accept the earlier decision of
22 December 2008. She suggested that I was biased in some
way. There is no basis
for that allegation. I reject it. There is no reason of which I am aware that would
require me to recuse myself
from dealing with this matter.


[4]    Further, I raised the matter with Mr Khan at the start of the hearing. Mr
Khan said that
he had no difficulty with my hearing the application.


The statutory framework


[5]    The application is made under s 98(1) of
the Accident Rehabilitation and
Compensation Insurance Act 1992 which reads:

       If any party to any proceedings before the High
Court under this Part of this
       Act is dissatisfied with any determination or decision of the Court in the
       proceedings
as being erroneous in point of law, that party may, with the
       leave of that Court, appeal to the Court of Appeal by way of
case stated for
       the opinion of that Court on a question of law only:

       Provided that, 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.

[6]     The principles applicable
to such an application were referred to by
Randerson J in Knight v ACC HC CHCH CIV-2005-485-001582 6 April 2006:

        [18]  
  ... The appeal must raise some question of law or fact capable of
        bona fide and serious argument in a case involving some
interest, public or
        private, of sufficient importance to outweigh the cost and delay of a further
        appeal. That must
be treated with this qualification, however, that s 163 is
        confined to questions of law only and the appeal is to be by way
of case
        stated for the opinion of the Court of Appeal. Other relevant considerations
        include the desirability of
finality of litigation and the overall interests of
        justice.

[7]     As noted, the application is confined to questions
of law under s 98(1).


Procedural background


[8]     This proceeding already has a very lengthy procedural background.


[9] 
   On 18 June 1993 the applicant was injured as a result of a fall. She sought
cover from the respondent in December 1993 on the
basis that she had been
employed by a company Ideal Leather Manufacturing Limited (Ideal Leather) at the
time of the accident. The company was controlled by Mr Khan. Cover
was granted
and compensation paid. Over time however the respondent became suspicious. It
investigated the claim in more detail and
came to the view the applicant had
committed fraud. The applicant and her husband were charged and convicted on
charges of falsely
using documents for pecuniary advantage.


[10]    The respondent resolved to cease compensation on 17 April 1996. On 8 July
1998
it also decided that as she had no entitlement to compensation it raised a debt of
$36,167.35 against her.


[11]    On 6 May 1997
the respondent acted under s 73 of the Act to confirm the
respondent had made a decision to re-cease paying compensation on the basis
the
respondent held information that led it to believe the earnings details provided for
the assessment were incorrect. The respondent's
decisions were upheld by review
officers.

[12]    The applicant appealed to the District Court. Relevantly for present purposes
the applicant took an appeal against the review decision of 6 May 1997 confirming
she had no right to weekly compensation as she
was not an earner at the time of the
injury. Judge Barber dismissed the appeal in a decision issued on 2 August 2005.


[13]    The
applicant then sought leave to appeal to this Court and also made an
application to the District Court for a rehearing of the appeal.


[14]    Judge Beattie declined the application for leave to appeal to this Court in a
decision dated 20 July 2007.


[15]    In
the meantime Judge Cadenhead dismissed the application for a rehearing
in the District Court on 5 July 2006 on the ground there was
no jurisdiction to
entertain the application for rehearing. The applicant appealed to this Court against
the decision of Judge Cadenhead.


[16]    Cooper J upheld the decision of Judge Cadenhead and dismissed the appeal
in a judgment delivered 25 February 2008. The
applicant then sought leave to
appeal that decision. Leave was declined in a further decision Cooper J delivered on
14 August 2008.


[17]    The applicant then sought to pursue the application for special leave to appeal
to this Court from the substantive decision
of Judge Barber delivered on 2 August
2005.


[18]    That application was heard by this Court on 19 December 2008 and
dismissed
in a judgment delivered on 22 December 2008.             The applicant was
represented at that hearing by counsel Mr Clews and Ms
Buckley.


[19]    Against that rather convoluted procedural background this application for
special leave falls to be determined.


Jurisdiction

[20]   In opposing the application for special leave Mr Satherley first took the point
that there is no jurisdiction
to grant leave, relying on the decisions of McCafferty v
Accident Compensation Corporation  (2003) 16 PRNZ 843 and Ramsay v Accident
Compensation Corporation  [2007] NZCA 367. In those decisions the Court of
Appeal held that where leave and special leave are refused by the District Court and
High Court respectively
there is no jurisdiction for the Court of Appeal to entertain
an appeal from a decision of the High Court refusing special leave.


[21]   Those decisions bind this Court. The only point of possible difference is that
the decisions were under s 166(1) of the
Accident Insurance Act 1998 rather than s
98(1) of the Accident Rehabilitation and Compensation Insurance Act 1992. There
is a slight
difference in wording between the two sections. Section 166(1) of the
1998 Act reads:

       A party to an appeal before the High
Court under section 165 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.

[22]   The issue is whether the reference to "in the proceedings" under the 1992
legislation
is materially different to "on the appeal" under the 1998 Act.                An
argument could be mounted that "on the appeal" is
restricted to a substantive
decision on the appeal and thus supportive of the decision of the Court of Appeal in
McCafferty and Ramsay
whereas "in the proceedings" might, when read with "any
determination or decision" be broad enough to apply to the decision to decline
special leave to appeal.


[23]   In McCafferty itself the Court's reasoning in para [7] suggests some
significance was placed on
the wording:

       [7]     ... This wording is not apt to catch a refusal to grant special leave to
       appeal. To put it another
way, the decision of Randerson J to refuse leave to
       appeal was not a "determination or decision of [the High Court] on the
       appeal".

[24]   However the result of accepting there was jurisdiction is that the Court of
Appeal would be faced with hearing
an appeal from a decision of the High Court on

the application for special leave to appeal as opposed to the substantive merits
of the
appeal itself. That does not seem consistent with the intent of the legislature which
provides several gateways to the appeal
process and requires leave or special leave.
Further in the McCafferty decision itself the Court of Appeal went on at para [8] to
observe:

       ... It is, ... well established that general rights of appeal to this Court do not
       confer jurisdiction to
appeal against refusals of leave to appeal, see for
       instance Seamar Holdings Ltd v Kupe Group Ltd  [1995] 2 NZLR 274 and, in
       a context extremely similar to the present, Lane v Esdaile  [1891] AC 210.
       Against that background, there is simply no scope for reading s 166(1) as
       conferring a right of appeal against a decision
of the High Court refusing
       special leave to appeal from the District Court.

[25]   Although I have not had the benefit of
reasoned argument on this point by Mr
Khan, I am inclined to the view that the difference in the wording is not material and
there
is no jurisdiction to grant special leave to appeal. The reasoning of the House
of Lords in Lane v Esdaile is compelling.


The merits
of the application


[26]   In the event I am wrong and because Mrs Khan is now a litigant in person I
propose to deal with the merits
of the proposed application in any event.


[27]   In the papers filed in support of the application the proposed grounds to
support
the application are:

       Point of law

       1.      The appellant had Mixed earning under section 42 of the ACC 1992
     
         Act working as self employed being part time and full time
               employee of Ideal leather Manufacturer Ltd at
the time of her injury
               therefore 52 exhibits were produced but those exhibits were not
               before Judge
Venning J to examine the evidence to determine
               whether Judge Barber did apply the following legislations whether

              the intended applicant was engaged in, or carrying out, work and
               was doing so for the purpose of pecuniary
gain or profit

               (a) The ACC 1992 Act
               (b) The Employment contact (sic) Act 1991.
               (c)
Income tax Act 1994. Section OB1.

       2.      The key record a wages book of Ideal Leather manufacturer Ltd
               singed
(sic) by appellant and other company workers including
               appellant income tax return produced as exhibit

       3.
     The company provided earning certificate to the appellant to claim
               loss of income showing her status as sale
person rate of
               remuneration and weekly hours produced as exhibit

       4.      Appellant produced bank statement
letter of confirmation from the
               bank as self employed person.

       5.      The appellant produced lease agreement
singed (sic) with Victoria
               Park Market being self employed person.

       6.      Judge Barber found deemed decision
in 2004, in appellant favour
               therefore appellant was found as earner.

               (d) There was serious error
of fact

               (e) Miss courage (sic) of justice which seriously prejudice the
                   applicant.

[28]   In
his oral submission Mr Khan submitted Judge Barber had failed to
consider documentary exhibits and made it clear that in the applicant's
opinion the
convictions for fraud were incorrectly entered and were wrongly taken into account
by the Judge. He also submitted that
the District Court Judge failed to apply the
proper tests in relation to the Employment Contracts Act, the respondent's own
legislation
and relevant tax legislation.


[29]   Finally Mr Khan submitted that the Corporation was bound by an earlier
deemed decision.


[30]   The grounds filed in support of the application for leave to appeal and the
substance of Mr Khan's submissions in support
suffer from the common failing that
they are essentially a challenge to the factual determination of the Judge in the
District Court.
Such an intensely factual argument cannot support an application for
special leave to appeal on a point of law.


[31]   The best
case that could be advanced for special leave on points of law was
advanced by Mr Clews before this Court. Mr Clews identified a
number of grounds
which he forcefully argued were properly points of law, including the issue of the
deemed decision referred to
by Mr Khan.

[32]   But as this Court observed in the decision of 22 December 2008:

       [26]     Mr Clews was constrained to
accept in his written submissions that
       on its face the applicant's argument as to earner status may seem to be an
       argument as to fact but suggested it was advanced on the
basis that the Judge
       was clearly wrong in his conclusion so that it was a deficiency on the law. I
       am simply unable
to accept that submission. ... the evidence before the
       Judge was noted by him in his lengthy recitation of the evidence. The
       suggestion that the Judge's findings were against the preponderance of
       evidence before him simply cannot stand in light
of the Judge's record of
       that evidence and his subsequent analysis of it.

[33]   Mr Clews referred to certain documents to
support his argument.                      In
submission before me Mr Khan referred to the same documents and also a further
document.
But again, as noted in the decision declining leave at [29] this Court said:

       [29]     The short answer to the submission
based on those documents is that
       the documents were before the Judge, [counsel having confirmed that there
       were voluminous
bundles of documents before the District Court and
       available to the Judge during his consideration of the decision] who clearly
       turned his attention to them in his judgment but in the context of all the
       evidence, including the evidence of the
applicant and her supporting witness,
       the Judge concluded that she was not a convincing witness. He did not
       accept
her evidence. The Judge took the view she was tailoring her evidence
       to suit the circumstances of the case as she understood
them. The Judge
       referred at para [74] to having studied the agreed bundles of documents and
       concluded from that that
there was no convincing contemporaneous or
       objective evidence that the applicant received earnings for the periods in
   
   question and later that in his view one could not draw any sound, compelling
       or convincing inference from the records available.
           They seemed
       ambiguous. Significantly the Judge concluded on this point:

            [76]        ... it should
be clear that the evidence for the [applicant]
            contains many inconsistencies. Many exhibits seemed to me to be
     
      fabricated and self-serving and not to relate to times material to the issues
            before me.


[34]   The applicant
clearly does not accept the judgment and does not consider the
District Court Judge has properly looked at all relevant documents.
But the Judge
has made factual findings that were available to him on the evidence he heard. The
documents were also before him.


[35]   Mr Khan is under a misapprehension when he places reliance on what he
referred to as the Corporation's own legislation.
He referred to cls 5, 6, 7, 8, 16, 20
of the First Schedule to the Accident Insurance Act 1998 in particular, to support a
submission
that the Corporation was obliged to take into account income tax returns

of earnings when making a decision on the applicant's
entitlement. Two points can
be made. The first is that the relevant Act is the 1992 Act not the 1998 Act. The
second more fundamental
point however is that the clauses are directed at the
quantification of appropriate earnings but they do not address or assist on
the issue
of whether or not the applicant was properly a self-employed person or shareholder
employee.


[36]   With respect to Mr
Khan's submissions he has failed to raise anything that
was not before the Court and advanced in a more persuasive way by Mr Clews.
As
this Court concluded in dismissing the application for special leave:

       [39]    Mr Clews has advanced everything that could
responsibly be
       advanced on behalf of the applicant to seek to persuade the Court that special
       leave should be granted
to appeal. However, despite Mr Clews' endeavours,
       the applicant is not able to identify a seriously arguable question of law
that
       has any prospect of success let alone any reasonable prospect of success.
       The application for special leave is dismissed.

[37]   The position remains the same.


Summary/result


[38]   In the case of Ramsay v ACC the Court of Appeal observed that:

       [20]      ... Under the accident
compensation legislation, a decision by the
       High Court to refuse special leave is final. There comes a point in all
     
 litigation where the principle of finality triumphs over the right of an
       unsuccessful litigant to challenge the decision.
Mr Ramsay has reached that
       point. ...

[39]   The applicant Mrs Khan has reached that same point in this litigation. The
application
for special leave to appeal to the Court of Appeal is dismissed. The
applicant is to pay costs to the respondent on a 2B basis.




                                                __________________________
                                                Venning
J