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High Court of New Zealand Decisions |
Last Updated: 22 August 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV 2014-485-5215 [2014] NZHC 1914
BETWEEN
|
MICHAEL JOHN JONES
Applicant
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AND
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ACCIDENT COMPENSATION CORPORATION
Respondent
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Hearing:
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7 August 2014
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Counsel:
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Applicant in Person
C J Hlavac for Respondent
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Judgment:
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14 August 2014
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JUDGMENT OF RONALD YOUNG J
[1] In 1987 the Accident Compensation Appeal Authority (ACAA) dismissed an appeal by Mr Jones relating to a claim for medical misadventure under the 1982
Accident Compensation Act 2001.
[2] In June 2013 Mr Jones lodged an application with the ACAA for leave
to appeal out of time to the High Court in respect of
the 1987 ACAA’s
decision. The ACAA declined leave on the basis that there was no question of
law revealed in the proposed
appeal but only factual disputes.
[3] Mr Jones then applied to the High Court for special leave to appeal the ACAA decision to refuse his medical misadventure claim. But first he had to convince this Court to extend time to file the special leave application. It was by
then about 26 years out of
time.
JONES v ACC [2014] NZHC 1914 [14 August 2014]
[4] On 24 February 2014 Ellis J heard Mr Jones’
application. First, she considered the application to
extend time. She
applied the principles in McDougall v Accident Compensation
Corporation.1 She concluded; there was no explanation for the
delay; there was prejudice to the Corporation in the delay; there was no
question
of law; there was no matter of public importance.
[5] Secondly, she said that she would not in any event have granted
special leave essentially for the same reasons she had refused
to extend
time.
[6] Mr Jones has now filed what he calls an application for leave to
appeal to the Court of Appeal. He says the application
is pursuant to s 112 of
the Accident Compensation Act 1982 or s 66 of the Judicature Act 1908. In that
application he sets out what
he claims was the error in Ellis J’s
approach.
[7] Affectively Mr Jones is applying to this Court for leave to appeal
to the Court of Appeal against the decision of the High
Court refusing to extend
time for the filing of an appeal and refusing special leave to appeal to this
Court from the ACAA.
[8] Mr Jones’ case can be summarised in this way. First, he seeks leave to appeal against the refusal to extend time. He says that is the only decision Ellis J reached. Secondly, he submits that s 66 of the Judicature Act gives this Court the jurisdiction to grant leave to appeal Ellis J’s decision refused to extend time. In the alternative Mr Jones submits that s 112 of the 1982 Accident Compensation Act also gives this Court jurisdiction to grant him leave to appeal. Finally, Mr Jones submits that even if what he is appealing from is the refusal to grant special leave to appeal both s 66 and s 112 give jurisdiction to this Court to give special leave.
[9] I am satisfied that whatever the jurisdiction to appeal Ellis J’s refusal to grant an extension of time Mr Jones will inevitably fail at the leave to apply stage even if time can be extended. There are three reasons. First, Mr Jones’ application for leave to apply requires an identified question of law that ought to be considered by the Court of Appeal “by reason of its general or public importance or for any other
reason”.2 Mr Jones identified six questions of law, as
follows:
(a) Did the Court correctly apply McDougall v ACC in
considering the application for an extension of time for leave to appeal the
Appeal Authority decision of Judge Middleton?
(b) Was Ellis J mistaken in her conclusion that the absence
of any reference to McDougall, or any explanation for the delay in
bringing the application, in the decision of Judge Beattie (who refused leave to
appeal from
the ACAA to the High Court) was evidence that the applicant could
not provide any such explanation, and did a miscarriage of justice
therefore
result?
(c) Did Ellis J perpetrate the wrong test for medical misadventure
under the 1982 Act and misdirect herself by stating that
the necessary component
medical misadventure under that Act was negligence?
(d) Did Ellis J misdirect herself above in her failure to appreciate
that under the ACC Act 1982 it was not necessary for the
Accident to be the
predominant cause of the adverse effects of any injury for that injury to
attract cover?
(e) Did Ellis J breach the applicant’s right to have the Court observe the principles of natural justice when assessing likely prejudice to the respondent that would be caused by the proposed appeal?
(f) Did the weighing of all available evidence in this case which
included the manner in which Middleton DCJ (who made the original
decision
refusing coverage) arrived at this decision and his own weighing of the evidence
constitute a misdirection of a magnitude
that would in itself raise a question
of law?
[10] Only questions (a) and (e) might be questions of law. But neither
could be of general or public importance. On that basis
alone Mr Jones’
application for leave could be dismissed.
[11] Second, as I have noted, Mr Jones appeal is only against the refusal
to grant an extension of time. And so even if Mr Jones
were to succeed in the
Court of Appeal on the extension of time point, the relief that he would be
entitled to was to apply to the
High Court for leave to appeal to the High
Court. Ellis J, however, has already held that the Court would decline that
application.
And so any successfully appeal to the Court of Appeal on the
extension of time point would be of no value to Mr Jones.
[12] Third, Mr Jones cannot challenge the High Court’s refusal to grant leave to appeal to the High Court in the High Court. The Court of Appeal has made it clear in McCafferty v Accident Compensation Corporation3 and Khan v Accident
Compensation Corporation4 that the High Court has no
jurisdiction to consider an
application for leave to appeal to the Court of Appeal against a decision of
the High Court declining special leave to appeal to the
High Court. This Court
is bound by those decisions. Mr Jones may, however, be free to apply to the
Court of Appeal for special
leave. But this Court has no jurisdiction
to allow leave in such circumstances.
[13] These conclusions are sufficient to dispose of Mr Jones’
application. The
application is, therefore,
refused.
3 McCafferty v Accident Compensation Corporation [2004] NZAR 97 (CA).
4 Khan v Accident Compensation Corporation [2009] NZCA 260, [2009] 19 PRNZ 730.
Application to extend time for application for leave
[14] If I am wrong in my conclusion above then I consider the jurisdiction to seek leave to appeal the refusal to grant the extension of time. Section 111 and 112 of the
1982 Accident Compensation Act provide as follows:
111 Appeal to High Court
(1) Where any party is dissatisfied with any order or decision of the
Accident Compensation Appeal Authority, that party may,
with the leave of the
Authority, appeal to the High Court against that order or decision:
Provided that, if the Appeal Authority refuses to grant leave to
appeal, the High Court may grant special leave to appeal.
(2) The Appeal Authority or the High Court, as the case may be, may
grant leave accordingly on a question of law or if in its
opinion the question
involved in the appeal is one which by reason of its general or public
importance or for any other reason ought
to be submitted to the High Court for
decision.
(3) Repealed.
(4) Every such appeal shall be made by giving notice of appeal within
28 days after the date on which the appellant was notified of the order or decision appealed against or within such further time as the
Appeal Authority or the Court may allow on application made either
before or after the expiration of those 28 days.
(5) In its determination of any appeal, the Court may confirm, modify, or reverse the order or decision appealed against, and, subject to section 112 of this Act, the decision of the Court shall be final and conclusive.
(6) Subject to the provisions of this section, the procedure in
respect of any such appeal shall be in accordance with the
rules of the
Court.
112 Appeal against decision of [High Court] on question of law
(1) 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, he 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.
(2) Within 28 days after the date of the determination or decision of the
[High Court], a party desiring to appeal to the Court of Appeal under
this section shall file a notice of his application for leave to appeal with
the Registrar of the High Court at Wellington,
and shall forthwith
deliver or post a copy of the notice to every other party to the
proceedings.
(3) The [High Court] may grant leave accordingly if in its opinion the
question of law involved in the appeal is one which,
by reason of its general or
public importance or for any other reason, ought to be submitted to the Court of
Appeal for decision.
(4) Where the [High Court] refuses leave to any party to appeal to the
Court of Appeal under this section, that party may,
within 21 days after that
refusal, or within such further time as the Court of Appeal may allow, apply to
the Court of Appeal, in
such manner as may be directed by the rules of that
Court, for special leave to appeal to that Court, and the Court of Appeal may
grant leave accordingly if in its opinion the question of law involved in the
appeal is one which, by reason of its general or public
importance or for any
other reason, ought to be submitted to the Court of Appeal for
decision.
[15] I am satisfied that there is no right of appeal from a decision
under s 111(4) refusing further time by the High Court for
an application for
leave to appeal to the High Court.
[16] Section 112 provides jurisdiction for appeals from High Court
decisions to the Court of Appeal. Section 112 gives a right
to “any
party to any proceedings before ... the High Court ... (who) is
dissatisfied” to apply for leave to appeal.
I am satisfied that
“proceedings” in s 112 refers to a substantive matter before the
High Court. It would not include
an application for leave to extend time. At
that stage there are no “proceedings” before the High Court. There
is only
an application to extend time to bring a leave application. Thus, there
will be no “proceedings” before the High Court
unless and until
leave to extend time is given and special leave is granted. Section 112,
therefore, provides no appeal rights
in these circumstances. Here, in
particular, Mr Jones is not a party to any proceedings in the High Court and so
s 112 does not provide
in any appeal rights to him.
[17] Mr Jones also raised s 66 of the Judicature Act 1908. He referred to the Supreme Court decision in Siemer v Heron.5 He said that s 66 and Siemer made it clear that there was an appeal as of right from an interlocutory decision of the High
Court. And the refusal to give him leave to extend time was such a
decision.
5 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.
[18] I am satisfied that neither s 66 of the Judicature Act 1908 nor
Siemer v Heron apply to this case. I am satisfied that Mr Jones’
appeal rights are governed by the Accident Compensation Act 1982 and in
particular
ss 111 and 112.
[19] In this context I distinguish Simes v Tennant.6
That case was concerned with a general power to extend time in the High
Court Rules. This can be contrasted with the specific appeal
provisions in the
Accident Compensation Act.
[20] Secondly, I do not consider the reasoning in Simes v Tennant
which focussed on the words “judgment, decree or order”7
can be transplanted to s 112 which is concerned with “determinations
or decisions ... in the proceedings”.
[21] Further, s 66 is concerned with a general power of appeal. Section
112 is concerned with a narrow context where restricted
appeal rights apply in a
very specific context relating only to Accident Compensation
appeals.
[22] I am satisfied, therefore, that Parliament intended when enacting s
112 to provide for specific appeal rules relating to
Accident Compensation
litigation. There was a comprehensive appeal process. Decisions made by the
Corporation are reviewed by
the Accident Compensation Appeal Authority,
sometimes then followed by the District Court and then the High
Court.
[23] I am satisfied, therefore, the Supreme Court decision in Siemer v
Heron is not relevant to this case. Nor is s 66 of the Judicature Act. I
am satisfied that s 112 provides a code of appeal rights and
that there is no
general right of appeal from Ellis J’s judgment under s 66 or s
112.
[24] For the reasons given, therefore, I refuse to give leave for Mr Jones to appeal against Ellis J’s refusal to give leave to extend time to file an appeal from the
Accident Compensation Appeal Authority to this
Court.
6 Simes v Tennant CA257/04, 28 April 2005.
7 Judicature Act 1908, s 66.
[25] In the circumstances the Corporation may consider this is a case where no costs would be sought against the applicant. If, however, counsel do seek costs then a memorandum should be filed within 14 days and a response memorandum by
Mr Jones, a further 14
days.
Ronald Young J
Solicitors:
Young Hunter, Auckland
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