Armstrong v Accident Compensation Corporation HC Auckland CIV-2011-485-0860 [2011] NZHC 1065; (2011) 20 PRNZ 834 (5 September 2011)

This judgment was delivered by me on 5 September 2011 at 4 pm, pursuant to r 11.5 of the High Court Rules

ARMSTRONG v ACCIDENT COMPENSATION CORPORATION HC AK CIV-2011-485-0860 5 September

[1] Mr Armstrong has cover under the accident compensation legislation for a back strain suffered on 22 October 2006. He subsequently applied for weekly compensation for loss of earnings for two discrete periods: a 16 day period from

23 October and an unspecified period from 4 December 2006. These applications were declined by the Accident Compensation Corporation (“ACC”).

[2] Mr Armstrong unsuccessfully challenged those decisions through the internal review process. However, on appeal, Judge Beattie in the District Court held on

23 July 2010 that Mr Armstrong was entitled to weekly compensation for the first

16 day period but not the second period of incapacity from 4 December. Judge Beattie found that Mr Armstrong’s back strain was not responsible for that second period of incapacity.

[3] In rejecting the appeal relating to the second period Judge Beattie relied, in particular, on specialist medical evidence provided by a Dr Everts from the Infectious Diseases Department at Auckland Hospital. Dr Everts’ opinion was that Mr Armstrong’s severe back pain and disability from 4 December 2006 onwards was most likely caused by discitis resulting from an infection called Veillonella.

[4] The effect of s 162 of the Accident Compensation Act 2001 (“the Act”) is that any appeal from Judge Beattie’s decision could be brought only with the leave of the District Court or, failing that, with the special leave of this Court. Appeals are only permitted on a question of law.

Judge Barber dismissed that application. Under s 162(4) of the Act Mr Armstrong then had 21 days to apply for special leave.

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[6] Unhappily, however, the advice received by Mr Armstrong from the Tribunals Unit of the Ministry of Justice about the applicable time frames was wrong. The letter he received (dated 5 April 2011) said:[1]

If you do not agree with the decision, you may appeal to a higher court (you can apply directly to the High Court for Special Leave to Appeal). If you wish to appeal you must do so before 21 working days after the date of this decision.

[7] Although cutting it rather fine, Mr Armstrong did file his application for special leave in accordance with the advice he had received, on the 26th working day after 5 April (on 6 May 2011).[2] In terms of the correct s 162(4) time limit, however, he was 12 days out of time.

[8] Mr Armstrong’s failure to comply with the statutory time for filing his application for special leave is the first ground on which the application is opposed by ACC. The Corporation also opposes the application because the matters which Mr Armstrong wishes to raise in the appeal do not constitute questions of law. I will deal with each of the two grounds of opposition in turn.

[9] Mr Tuiqereqere drew my attention to a string of High Court decisions in which it has been held that the Court has no discretion to extend the time limits in s 162, which are strict; for example: Reden-Oldfield v Accident Compensation Corporation,[3] Wyman v Accident Compensation Corporation,[4] and most recently

Shann v Accident Compensation Corporation.[5] Those decisions are, however, not

binding on me and, in fairness to Mr Armstrong and the unfortunate circumstances

[10] In terms of any fresh look at the time limits issue the starting point must, I

think, be the recent decision of the Court of Appeal in Attorney-General v Howard.[6]

In that case (which involved time limits for the filing and service of a notice of appeal under the Human Rights Act 1993 (“HRA”)) Glazebrook J said:

[100] As the time frames for filing and service are set out in the HRA, they are mandatory. They cannot be extended by the courts as there is nothing in the HRA authorising such an extension. ...

[11] Then, in terms of whether a lack of timeliness might be cured by reference to the relevant discretion conferred on this Court by the High Court Rules her Honour said:

[105] ... no extensions of time for appealing are possible under r 704(3), as s 123 limits the time for appealing and there is no provision permitting an extension. ...

[12] In the present case, not only can s 162 not, in my view, be interpreted as permitting an extension of time in terms of (what is now) r 20.4,[7] it is also doubtful whether that rule applies where there is no “right of appeal” but only a right to apply for special leave to appeal.

[13] On its face, then, s 162(4) is mandatory in its terms and cannot be modified by resort to the rules of court. As Mr Tuiqereqere very responsibly pointed out, however, the possibility of waiver may nonetheless exist. That possibility in relation to s 162 was in fact the subject of the decision of the Court of Appeal in Siola’a v

Wellington District Court.[8] In that case it was held that s 3 of the Inferior Courts

Procedure Act 1909 meant that the s 162 time limit for applying to the District Court for leave to appeal could be waived by ACC. In the event of such a waiver being made, and then being accepted by the District Court, that Court would have

[14] Mr Tuiqereqere submitted, however, that s 3 of the Inferior Courts Procedure Act has no part to play in the present application. That is plainly correct. The High Court is not an inferior court. As Glazebrook J said in Howard:

[128] ... the comments in Siola’a on waiver were confined to an examination of s 3 of the Inferior Courts Procedure Act 1909 (which does not apply in this case). Section 3 of that Act is not declaratory of the law generally. It is the principles set out above at [119]-[120] that apply in cases where the Act does not.

[15] As this statement makes clear, however, the fact that this Court is a superior court is not necessarily the end of the matter. The possibility of waiver still requires consideration. In that respect Glazebrook J had earlier said:

[119] The primary rule is that a provision may not be waived if it operates as a condition precedent to, or a key part of the court’s jurisdiction. Apart from that, a person may waive a statutory provision which is inserted for that person’s sole benefit. As stated in Maxwell on Interpretation of Statutes:

Everyone has a right to waive and to agree to waive the advantage of a law made solely for the benefit and protection of the individual in his (or her) private capacity, which may be dispensed with without infringing any public right or public policy.

[120] As Professor Burrows notes, however, this test is easy to state but very difficult to apply. Professor Burrows suggests that public policy alone is not necessarily an entirely satisfactory explanation. The answer may also lie in the interpretation of the statute. Waiver or contracting out may be prohibited expressly or impliedly by the statute. ...

[121] There is a line of (mostly old) authority which holds that in civil matters timeframes for the filing of notices of appeal, the provision of security and service are procedural requirements, which are intended for the benefit of the respondent and which are not matters of concern to the public: Park Gate Iron Co v Coates. ... Subsequent cases have distinguished cases of ordinary civil litigation from litigation between the Crown and another party which involves a public element. These cases have been in the context of revenue statutes and have held that the statutory time frames for lodging appeals or filing cases stated are not susceptible to waiver: ...

[122] To the extent that these decisions rested on the special character of the Commissioner of Inland Revenue, ... they may have been superseded by the care and management provisions of the Tax Administration Act 1994: see Auckland Gas Co v Commissioner of Inland Revenue, which relates to the Commissioner’s ability to make sensible litigation decisions. However, to the extent the cases rest on the public character of the litigation and statutory interpretation, they accord with the principles set out above. As Professor Burrows notes, in Hawkes Bay Hide Processors weight was placed on the fact that the legislation expressly conferred a discretion to extend time in other provisions.

[123] Moreover, the modern view is that the public does have an interest in finality of court proceedings. Even with the current civil fee structure, the public purse sustains litigation to a large degree. That finality is a public good was explained in Smith: ... If the Park Gate/Gaynor line of authority is correct, this would mean that courts could be forced to accept appeals filed way beyond the statutory time frames if both parties agree. This would be despite the legislature having clearly set mandatory time frames without giving the courts any power to extend these time frames. I do not consider that this is the law.

[124] Applying the principles set out at [119]-[120] to this case, even leaving aside the question of the public interest in the finality of litigation, it is significant that, given the power to seek a declaration, the Tribunal’s decision relates to more than a private dispute between the parties. The time limits on appealing cannot thus be seen as inserted purely for the private benefit of the parties. It thus comes within the public policy exception to waiver.

[16] It is with some regret (arising from the particular circumstances of Mr Armstrong’s case) that I have come to the same conclusion in relation to s 162(4). I consider that compliance with the time limit contained in that provision cannot be waived for the reasons that follow.

[17] First, it seems to me that the generally applicable policy considerations relating to the importance of finality in litigation are particularly acute in the context of a statutory provision which provides that an appeal may only be brought with special leave. In that respect I note that this Court has accepted that:[9]

(a) the purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;

(b) it will normally be necessary to show that there is an issue of principal at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success;

(c) the fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course;

(d) it is for the applicant to show that leave is required in the interests of justice; and

(e) because leave has already been refused by the District Court, an applicant will normally also need to show some extraordinary factor which can be shown not to have been properly taken into account.

[18] In particular it seems to me that the absence of any right to appeal, the fact that the applicant will already have been afforded one appeal and the relatively high threshold for obtaining special leave all point in favour of a provision such as s 162(4) being interpreted in a way that does not permit waiver of the time limit.

[19] Secondly, it is significant that the Act in which s 162 appears contains other provisions which expressly contemplate or permit the waiving of specified time limits. By way of example only, I note that although s 53(1) of the Act provides that “A person must lodge a claim with the Corporation within the time limit specified in this section”, subsection (2) provides that:

The Corporation must not decline a claim lodged after the time limit specified in this section on the ground that the claim was lodged late, unless the claim’s lateness prejudices the Corporation in its ability to make decisions.

[20] Similarly, s 64 provides that when ACC gives notice of its decision on a claim to a claimant it must inform the claimant of his or her rights to apply for review, “including details of the time available to do so and an explanation of when applications can be made outside that time”.

[21] Conversely (but equally significantly) the Act on other occasions imposes stringent consequences on ACC itself where there has been non-compliance with time limits. For example, s 58 provides that where ACC fails to comply with a time limit under ss 56 or 57 of the Act:

.... the claimant is to be regarded as having a decision by the Corporation that he or she has cover for the personal injury in respect of which the claim was made.

[22] And lastly, the public interest considerations discussed by Glazebrook J in [122] and [123] of Howard are, I think, amplified in the context of ACC litigation. Not only is there the cost to the public of litigation generally that was noted by her Honour but a specific additional public cost where a Crown entity such ACC is a litigant. As in the Howard case itself, the time limits cannot therefore be said merely to exist for private benefit.

[23] My conclusion as to my absence of jurisdiction is of course sufficient to dispose of Mr Armstrong’s application for special leave. For completeness, however, I also briefly address below the issue of whether special leave would, if the application had been filed in time, have been granted.

[24] Mr Tu	Mr iqereq (a)	Armstrong’s proposed grounds of appeal were summarised by ere as follows: That the Court erred in finding that ACC had granted cover to
		Mr Armstrong for a lumbar strain on 22 October 2006;
	(b)	The Court erred (somewhat) in finding that Mr Armstrong returned to work at the expiry of the initial 16 day period of incapacity;
	(c)	The Court erred when it noted that ACC’s primary decision was issued following receipt of reports from the Infectious Diseases
		Department at Auckland Hospital;
	(d)	The Court erred when suggesting that Mr Armstrong had sought cover
		for a treatment injury. Mr Armstrong submits that the treatment injury claim was lodged at the request of ACC;
	(e)	The Court erred in suggesting that the specialist medical evidence did not support Mr Armstrong’s case in relation to the second period of

incapacity. More particularly, Mr Armstrong contends that the first report from Dr Everts supports his position; and

(f) the weight of the available medical evidence supports his entitlement to weekly compensation from 4 December 2006.

[25] I did not understand Mr Armstrong to contend that this summary was inaccurate.

[27] The first four grounds relate solely to what Mr Armstrong says is the District Court’s misdescription of the background facts. While I accept and appreciate that Mr Armstrong finds such misdescriptions (if such they be) irritating and disappointing, they are irrelevant to the question of his entitlement to weekly compensation from 4 December 2006.

[28] The fifth and sixth grounds summarised above relate to the District Court’s analysis of the medical evidence. That evidence was fully considered by Judge Beattie and is discussed by him between [5] and [10] of his judgment.

[29] To the extent Dr Everts’ initial report dated 28 October 2007 supports Mr Armstrong’s position (it specifically considered the question of whether Veillonella was caused by earlier dental treatment), it was overtaken by Dr Everts’ later report dated 30 April 2009, which was prepared after more information had been provided. In this report Dr Everts said:

I think that the most likely scenario here is that Peter had an exacerbation of his low-back degenerative pain in late October, possibly related to heavy lifting and bending at work. The veillonella discitis/osteomyelitis developed in late November and was unrelated to the earlier episode of back pain, the abscess behind his knee and the recent dental work. Less likely, the veillonella infection had been slowly developing over the preceding 6 weeks and caused both episodes of back pain. Even less likely (but not impossible) is that veillonella sp. seeded an area of tissue damaged acutely in late October. On the balance of evidence, therefore, I don’t think the infection was caused by any trauma or work-related injury.

[30] Judge Beattie noted that there was no dispute that the condition causing Mr Armstrong’s incapacity from 4 December 2006 was an infectious microrganism called Veillonella. He accepted Dr Everts’ conclusion that it was not caused by Mr Armstrong’s work injury. Even accepting Mr Armstrong’s submission that there was other earlier evidence to the contrary (a submission for which I struggled to find support in the medical reports themselves) Judge Beattie was entitled to prefer the view of Dr Everts, who was the infectious disease expert. No question of law is raised by Mr Armstrong’s proposed grounds of appeal.

[31] In conclusion, then, I have formed the view that this Court has no jurisdiction to entertain Mr Armstrong’s application for special leave because the application was filed outside the time limit specified by s 162(4). There is in my view no power to waive that time limit. But even if I am wrong in that, special leave would not be granted because Mr Armstrong’s proposed grounds of appeal do not raise an identifiable question of law.

[33] In light of the matters referred to in [6] above, a copy of this judgment is to be provided by Mr Tuiqereqere to the Tribunals Unit of the Ministry of Justice.

[1] The letter was also arguably misleading about the limited basis upon which an appeal may be brought under the Act because it said “When you appeal a decision you are asking a higher court to look into the facts of the case, and the legal reasoning as to why a decision was made.”
[2] The intervening period included the Easter holidays which are excluded from the definition of _{“working
day”.}
[3] _{Reden-Oldfield v Accident Compensation Corporation [2010] NZACC
Wellington 90 at [13].}

[4] Wyman v Accident Compensation Corporation HC Wellington CIV-2007-485-415, 23 May 2007.

[5] Shann v Accident Compensation Corporation HC Wellington CIV-2011-405-1414, 27 July 2011.
[6] _{Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR
58.}
[7] Rule 20.4(3) provides that:

(3) By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal —

High Court of New Zealand Decisions

Armstrong v Accident Compensation Corporation HC Auckland CIV-2011-485-0860 [2011] NZHC 1065; (2011) 20 PRNZ 834 (5 September 2011)