Goh v Accident Compensation Corporation [2014] NZHC 533 (21 March 2014)

Last Updated: 29 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000291 [2014] NZHC 533

UNDER	the Injury Prevention Rehabilitation and Compensation Act 2001
IN THE MATTER	of an appeal by way of s 162 of the Act
BETWEEN	IRENE GOH Intended Appellant
AND	ACCIDENT COMPENSATION CORPORATION Intended Respondent

Hearing:	18 March 2014
Appearances:	Intended Appellant in person F Becroft for the Respondent
Judgment:	21 March 2014

_{JUDGMENT OF ELLIS J (APPLICATION FOR SPECIAL LEAVE)}

This judgment was delivered by me on Friday 21 March 2014 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:...............................

Counsel/Solicitors:

F Becroft, Medico Law Limited, Grey Lynn, Auckland.

_{Copy to: Intended Appellant}

GOH v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 533 [21 March 2014]

Introduction

[1] Mrs Goh seeks special leave to appeal from a decision of the District Court dismissing her appeal against a review decision made under the Accident Compensation Act 2001 (the Act).¹ The position of the Accident Compensation Corporation (the Corporation) is that in the particular circumstances of her case, the Court has no jurisdiction to grant such leave.

Background

[2] Mrs Goh has cover for injuries sustained as a result of a motor vehicle accident on 1 August 1997. She was initially receiving weekly compensation under the accident compensation legislation then in force until, on 19 September 1999, the Corporation suspended her entitlements.

[3] In 2002, Mrs Goh sought cover for chronic pain. She was initially declined cover, but lodged an application for review. Because the review was not heard within the statutory time frame, there was a deemed review decision in her favour. Accordingly, from August 2003 she has had cover for chronic pain.

[4] In 2005 the Corporation extended Mrs Goh’s cover, reinstated her entitlements, and paid her backdated weekly compensation. However in calculating the amount payable to her, the Corporation took into account (and subtracted) the amount of WINZ payments she had received during the period in question, pursuant to s 252 of the Act.

[5] Next, Mrs Goh applied for interest on the backdated weekly compensation. That application was initially declined. But between 2005 and 2012 there were significant developments in the case law relating to the interpretation of interest provisions in the Act and, in 2012, Mrs Goh re-submitted her application for interest. After that application was also declined, on 4 July 2012, Mrs Goh applied for a review of that decision.

On 21 November 2012, the Reviewer issued a decision quashing the Corporation’s

decision and holding that Mrs Goh was entitled to interest for the period from 15

March 1998 to 11 September 2005. The Reviewer’s analysis relied on the very

recent Court of Appeal decision, Miller v ACC.²

[6] The Corporation calculated the interest that was payable to Mrs Goh on the basis of the reduced sum she had received in 2005, following the subtraction of the WINZ payments. Mrs Goh objects to this approach.

[7] Mrs Goh then filed an appeal against the review decision, which resulted in Judge Ongley’s decision dated 23 October 2013.³ In that decision, the Judge essentially held that the appeal was misconceived because the review decision had been in Mrs Goh’s favour. His Honour said that if Mrs Goh wished to challenge the interest calculation, then she could and should apply for a review of that decision.

[8] Notably, Mrs Goh confirmed before me that this is precisely what she has done and her appeal in that respect is pending in the District Court.

Application for leave

[9] Mrs Goh nonetheless also seeks to appeal Judge Ongley’s decision. She says that she has done so because there is an issue of principle at stake because by subtracting the WINZ payments the Corporation has acted contrary to the Reviewer’s decision, by which it is bound.

[10] But as Ms Becroft submitted Mrs Goh’s endeavour faces a number of

insurmountable obstacles.

[11] First, Mrs Goh’s ability to appeal is governed by s162 of the Act, which

_provides:

² _{Miller v ACC [2013] NZCA 141.}

³ Above n 1.

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 to 78 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.

[12] Accordingly, in order to appeal Judge Ongley’s decision, she was required first to apply for leave from the District Court, within 21 days of the decision in question. She accepts that she did not do so, because she was not in receipt of the relevant legal advice until after the expiry of that period. She advised that when she sought to file the application for leave with the Registrar of the District Court she was told that she was out of time but that she could apply to this court for special leave, which she has now done.

[13] The difficulty with this is that the Registrar’s advice was wrong. The section makes it clear that special leave may only be sought if a claimant has first sought and been denied leave from the District Court. There is no right of appeal to the High Court in circumstances where the District Court has not first refused leave.

[14] It is also clear that the time limits in s 162 are strict. The Court of Appeal has held in Siola’a v ACC that the Court has no discretion to extend time unless the Corporation waives compliance with the time limit under s 3 of the Inferior Courts Procedure Act 1909.⁴ At [33] the Court said:

We add for completeness that classifying a leave application made outside the time limit as a nullity is not strictly accurate. If, in a case such as the present, ACC is prepared to waive the non-compliance with the time limit and does so, then the District Court would have jurisdiction to consider and decide the application. So, until a Judge decides that the leave application

should be struck out, there is an application before the Court which requires a judicial decision to determine it. In cases where no question of acquiescence or waiver arises, that decision will be obvious. The decision to strike out the leave application could simply state that, in the absence of acquiescence or waiver, the lateness of filing deprives the court of jurisdiction to hear the application.

[15] I agree with Ms Becroft that a decision of the District Court declining leave because an application is out of time, is in fact a decision declining jurisdiction, rather than a decision refusing to grant leave. The requirements under s 162(3) are not, and cannot be satisfied. There is therefore no decision on the part of the District Court refusing leave, and no proper basis to the filing of a special leave application.

[16] In short, therefore, a late leave application (in the absence of waiver) is fatal. This Court also has no jurisdiction to determine an application for special leave.

[17] Even if this were not the case, I record for Mrs Goh’s benefit that I would not have granted special leave. It is illogical to appeal the review decision in which she was successful. Her complaint is not against that decision but the way in which the Corporation has implemented it. As Judge Ongley said, if she wishes now to challenge the Corporation’s decision to take into account the deduction of WINZ payments when calculating the interest that is payable to her, then the appropriate course is to apply for a review of that (new) decision. If that application is unsuccessful she has a further right of appeal at that stage.

[18] As I have said, Mrs Goh has in fact taken those steps. Her contention that the Corporation breached s 147 of the Act when it took into account the deduction of the WINZ payments, can be appropriately advanced in that context.⁵ I therefore reject her submission that fairness and justice cannot be done if special leave is refused (or jurisdiction declined).

[19] In any event, for the reasons I have given I consider that this Court has no jurisdiction to hear Mrs Goh’s application for special leave. It is dismissed accordingly.

[20] Lastly, I note that Ms Becroft advised that this is not the first occasion on which a litigant who is out of time for applying for leave under s 162 has been advised by a District Court Registrar that he or she may still apply for special leave to this court. As I have said, that advice is wrong and should not be given. The Corporation may therefore wish to draw this judgment to the attention of the relevant

_{District Court registries, in order that this practice may cease.}

Rebecca Ellis J