Smith v Accident Compensation Commission [2014] NZHC 296 (26 February 2014)

Last Updated: 7 March 2014

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2012-412-000703 [2014] NZHC 296

BETWEEN TREVOR JOHN SMITH Appellant

AND ACCIDENT COMPENSATION COMMISSION

Respondent

Hearing: 4 February 2014

Appearances: Appellant Appeared in Person

A J Douglass for Respondent

Judgment: 26 February 2014

_{JUDGMENT OF GENDALL J}

Introduction

[1] The applicant in this proceeding (Mr Smith) has had cover with the Accident Compensation scheme for an injury incurred on 9 April 1981. He alleges that there was a second accident causing injury on 24 November 2004. This has been the subject of a number of earlier judgments some of which I will set out below.

[2] This particular hearing concerned a procedural argument as to whether or not there was a valid application for leave to appeal a decision of Judge P F Barber in the District Court. This District Court decision in turn involved a decision on an appeal against an ACC reviewer’s decision against Mr Smith within the terms of s 162(4)

_{Accident Compensation Act 2001.}

SMITH v ACCIDENT COMPENSATION COMMISSION [2014] NZHC 296 [26 February 2014]

Background

[3] As I understand the position, Mr Smith has brought many cases against ACC, Reviewers and others since his injury in 1981 and the subsequent incident he alleges occurred in November 2004.

[4] It appears that Mr Smith initially received further ACC funding for his 2004

“injury”, but this was later revoked.

[5] The proposed appeal is against the decision of Judge Barber dated 8 February

2012 which concerned the question: was ACC correct on 7 January 2011 to decline Mr Smith’s claim for weekly compensation from 24 November 2004? It appears this was said to relate to an “accident” to Mr Smith on 24 November 2004 when he pulled on a petrol hose. ACC declined compensation because they did not consider the appellant an earner as at 24 November 2004.

[6] And, in the District Court, Judge Barber effectively found again that the appellant was not an earner as at 24 November 2004, he being of the opinion that the appellant had conceded this. Further, this decision it seems was based on ACC's view that the condition Mr Smith had presented with on 24 November 2004 was not the result of any injury for which he had cover, but, rather, as a result of a deterioration of Mr Smith’s symptoms caused by age related degenerative disc disease. Judge Barber therefore dismissed Mr Smith’s appeal.

Is there jurisdiction to hear this appeal?

[7] The key statutory provision here is s 162 Accident Compensation Act 2001 which provides as follows:

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 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 within 21 days after the District Court refused leave.

(5) The High Court Rules and sections 74 to78 of the District Courts Act

1947, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 72 of that Act.

[8] Thus, it is clear that, if a party is dissatisfied with a decision of the District Court on an ACC matter, they may appeal to the High Court, with the leave of the District Court. An appeal to the High Court can only be on a question of law. Mr Smith’s application for leave to appeal to the High Court was refused by the District Court in a reasoned decision of Judge Joyce QC dated 16 August 2012. Mr Smith would have had to seek such leave within 21 days of the District Court decision, and it appears he did this.

[9] If the District Court refuses to grant leave (as occurred here), the High Court may grant special leave to appeal. Such special leave must be sought within 21 days after the District Court has refused leave, that is in this case by 6 September 2012.

[10] Here, Mr Smith wrote a brief letter to the Court dated 3 September 2012 (which was received by the registry staff of this Court on 6 September 2012) purporting to be an application for special leave. Mr Smith did not tender the correct filing fee nor was the application made in correct form, and therefore registry staff treated the appeal as not being lodged in time, although that letter had been received within the 21 day period after the District Court’s refusal of leave.

[11] Mr Smith was then advised by letter dated 17 September 2012 that he had not paid the relevant fee or applied for a fee waiver. He was asked to pay the fee immediately.

[12] On 24 September 2012, registry referred to the letter again and noted also that in any event no fee or fee waiver was included. Staff acknowledged that to reject it would have meant that Mr Smith was outside the requirements of s 162 (4) Accident Compensation Act 2001. Mr Smith was sent a further letter in an endeavour to assist him.

[13] Mr Smith was then given many opportunities to correctly file the present application. On 4 October 2012, he was phoned by registry staff of this Court and was emailed and sent blank copies of the correct application form and the fee waiver form to fill in.

[14] On 14 January 2013, registry staff again emailed Mr Smith asking him to complete an application for special leave and requesting that he pay the relevant fee or apply for a fee waiver application. He was also asked whether he was continuing with the proceeding.

[15] On 7 May 2013, Mr Smith was contacted by phone again. He was asked once more by registry staff to complete the relevant forms.

[16] On 16 May 2013, Mr Smith was phoned again. He stated that he had transferred money to the Court and that his application should arrive in the next few days.

[17] On 3 July 2013, Fogarty J made a direction that if the application and fee were not filed by the end of July 2013, the file would be put away on the basis that Mr Smith had abandoned his “application” received on 6 September 2012.

[18] By letter to the Court dated 15 July 2013, which was received on 17 July

2013, Mr Smith provided a cheque for $483.40.

[19] On 17 July 2013, registry staff responded. The cheque was sent back to Mr Smith as the filing fee had increased in May 2013. An email was also sent to Mr Smith. It was noted that the fee must be paid and the proper application itself for special leave filed. The relevant forms were attached to the email sent to Mr Smith. Registry staff note that they had also tried contacting Mr Smith several times since

3 July 2013, but had been unable to get through.

[20] On 23 July 2013, there was a further letter from Mr Smith including the correct filing fee. He also detailed his injuries. (The cheque however was returned on 18 December 2013).

[21] On 26 July 2013, Mr Smith was again advised by email of the direction made in this Court by W Gendall J that the proper application for special leave to appeal was to be filed and served by 31 July 2013 failing which the appeal would be treated as abandoned. The correct form was again attached to the email and the letter and form were also posted to Mr Smith. The email stated that the cheque would be held in the meantime, but that if no application was received by 31 July 2013, the cheque would be returned.

[22] On 26 August 2013, no further documents had been received from Mr Smith. Fogarty J directed that Mr Smith be phoned and asked why he did not comply with the direction of W Gendall J.

[23] On 30 August 2013, Mr Smith advised this Court he was going for a medical assessment and that the matter might be resolved.

[24] On 17 September 2013, a long email was received from Mr Smith, recording the results of his attendance with a clinician. Fogarty J inferred from this that Mr Smith wished to continue with his appeal. Fogarty J directed that the file be held in the meantime.

[25] On 18 December 2013, Fogarty J released a minute indicating that in early

2014 the present procedural argument should be heard as to whether there was any valid appeal here within s 162(4) of the Accident Compensation Act 2001. This was because there was doubt as to whether this Court still had jurisdiction to hear the appeal. The hearing of this took place before me in the Dunedin High Court on

4 February 2014.

[26] Venning J’s comments in Zhang v ACC are of assistance here.¹ He was dealing with an application under a previous similar provision – s 165(4) Accident Insurance Act 1998. He noted there that the statutory provision is in mandatory terms and cannot be overridden. The application for leave must be brought within

_{21 days after the decision of the District Court and that is an express provision. He}

¹ Zhang v Accident Compensation Corporation HC Auckland CIV-2005-404-007101, 27 October

2006.

said that Parliament intended such applications to be made within a specific timeframe to achieve the objectives of certainty and finality in litigation.²

[27] There can be little question that in the present case, Mr Smith has been given numerous opportunities to file a correct application and to pay the correct filing fee. This has occurred over a lengthy period of time and throughout, Mr Smith has failed to comply with a number of directions of High Court Judges including effective default orders that unless proper compliance occurred, his application for leave to appeal was to be treated as abandoned. Mr Smith has had from 6 September 2012 until the present time (now over 17 months) to file a proper application and pay the right filing fee. He has not done so. I consider that he has been given every opportunity and an extremely generous amount of time to comply, given the statutory time limit of 21 days to seek leave, but he has chosen not to comply. As noted above, he has been warned on occasions that his “application” for leave would be deemed to be abandoned but he has simply ignored this. I therefore consider that Mr Smith has clearly failed to comply with s 162(4) Accident Compensation Act

2001 and there is now no jurisdiction to hear this leave application. That is enough to dispose of the present application which must be dismissed.

The merits of the application

[28] In the event, however, that I am wrong on the jurisdiction point, I propose to express my views briefly on the merits of the application for special leave to appeal on the basis that jurisdiction may have existed. Any application for special leave must be brought on a question of law. It is not an opportunity for an applicant to revisit findings of fact.

[29] In Ellwood v Accident Compensation Corporation³ Dobson J noted that a person applying for special leave was required to establish that there was a question of law capable of bona fide and serious argument and that it arises where some public or private interest is involved of sufficient importance to outweigh the cost

_{and delay of a further appeal.}⁴

² _{At [10].}

³ _{Ellwood v Accident Compensation Corporation [2012] NZHC 2887.}

⁴ At [10].

[30] Mr Smith has been receiving compensation for his injury incurred in 1981. At the time of the alleged incident in 2004, he was not considered to be an earner. That finding has been upheld by ACC, reviewers and the District Court Judge. I also agree that on all the material before the Court, Mr Smith was not an earner at the time of the alleged injury in 2004.

[31] I find that even if I had jurisdiction to hear the application for leave to appeal, the substance of the appeal has no merit.

Conclusion

[32] The present application for leave is dismissed. [33] Costs are reserved.

...................................................

Gendall J

Solicitors:

Young Hunter Lawyers, Christchurch

Copy to applicant