Le Pine v Accident Compensation Corporation [2014] NZHC 538 (21 March 2014)

High Court of New Zealand

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Le Pine v Accident Compensation Corporation [2014] NZHC 538 (21 March 2014)

Last Updated: 7 April 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004614 [2014] NZHC 538

UNDER the Accident Compensation Act 2001

IN THE MATTER of an application for special leave to appeal to the High Court pursuant to s 162(4) of the Act

BETWEEN RICHARD BOYD LE PINE Applicant

AND ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 20 March 2014

Appearances: Applicant in Person

F Becroft for Respondent

Judgment: 21 March 2014

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 21 March 2014 at 4.00 pm, pursuant to Rule 11.5 of the High

_{Court Rules.}

Registrar/Deputy Registrar

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

Solicitors: Medico Law Limited, Auckland

Copy to: Applicant

LE PINE v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 538 [21 March 2014]

Introduction

[1] Richard Le Pine seeks special leave to appeal a decision of Judge Joyce QC in the District Court at Auckland.¹ In his decision Judge Joyce dismissed Mr Le Pine’s appeal from a review decision of the Accident Compensation Corporation made on 14 September 2004.

[2] The review decision upheld the Corporation’s earlier determination of 16

March 2004 that Mr Le Pine had no entitlement to weekly compensation as his then incapacity was not caused by an accident he sustained in January 1998.

Procedural and jurisdictional background

[3] Under s 162 of the Accident Compensation Act 2001 (the Act) Mr Le Pine had the right to appeal Judge Joyce’s decision as being wrong in law provided he obtained leave of the District Court or, if the District Court refused to grant leave, by obtaining special leave from this Court to appeal.

[4] Section 162 provides:

(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.]

[5] Importantly, s 162(2) provides that leave of the District Court must be sought within 21 days after the District Court’s decision. Judge Joyce’s decision was delivered on 13 September 2013. The time for Mr Le Pine to seek leave expired on

_{4 October 2013. Mr Le Pine’s application for leave was only received by the District}

¹ Le Pine v ACC [2013] NZACC 294.

Court on 7 October 2013. The application was rejected by the Registrar by letter of the same date as being out of time.

[6] Mr Le Pine now seeks special leave to appeal to this Court under s 162(3).

[7] Mr Le Pine seeks to raise the following four principal issues on appeal to this

Court:²

(a) discovery/disclosure issues;

(b) qualification of medical evidence; (c) legality of process; and

(d) natural justice issues.

Issues

[8] Mr Le Pine’s application to this Court raises two preliminary issues:

(a) Is there jurisdiction to consider his application for special leave to appeal to this Court?

(b) If there is, are the issues he wishes to raise questions of law?

Is there jurisdiction to consider Mr Le Pine’s application?

[9] In Siola’a v Wellington District Court³ the Court of Appeal considered the application of s 162. In that case, like the present, the application for leave to appeal to the High Court was filed with the District Court out of time.

[10] The District Court dismissed the application as it had no power to grant leave to appeal because the application was filed out of time. Mr Siola’a sought judicial review of that decision. The application for judicial review was dismissed by the

High Court. Mr Siola’a then appealed to the Court of Appeal. In dismissing his appeal the Court discussed the application of s 162 of the Act and also s 3 of the Inferior Courts Procedure Act 1909.

[11] The Court of Appeal held that the clear wording of s 162(2) of the Act requires not only that leave be sought (from the District Court) but that it be done within 21 days of the relevant decision. If leave is sought after that 21 day period has elapsed the inescapable conclusion is that the second requirement of s 162(2) has not been complied with.⁴

[12] The next issue the Court of Appeal identified was whether the respondent had waived or acquiesced in the defect so as to engage s 3 of the Inferior Courts Procedure Act. In the case before it the Court concluded:⁵

...we consider that classifying a leave application made outside the time limit set by s 162(2) of the [Act] 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 arrives, 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.

[13] The Court of Appeal went on to conclude that it was for the applicant, Mr

Siola’a in that case, to establish waiver.⁶

[14] In the present case the application for leave to appeal was lodged with the District Court outside the time limit provided in s 162(2). On the authority of Siola’a, the consequence is that, absent waiver or acquiescence by the Corporation so as to engage s 3 of the Inferior Courts Procedure Act, there was no jurisdiction for the District Court to consider the application, and there can be no jurisdiction for this

_{Court to consider an application for special leave under s 162(3).}

⁴ _{At [17].}

⁵ _{At [33].}

⁶ At [40].

[15] The onus is on the applicant to establish that the respondent has so acquiesced or otherwise waived its right to rely on the time limit. There is no evidence the respondent has acquiesced or waived that right. Indeed its position is clearly that it has not.

[16] An application for special leave can only be made to this Court if the District Court has refused leave. A decision declining jurisdiction (on the basis it is out of time) is not a decision refusing leave which engages s 162(3).

[17] Mr Le Pine’s application was not refused in the District Court, rather, there

was no jurisdiction for that Court to consider it.

[18] There is an issue whether the District Court Registrar had jurisdiction to refuse to accept the application. Mr Le Pine did not directly address submissions on that point. Ms Becroft addressed the issue. She noted the difference between the provisions of the District Courts Act 1947 and the District Court Rules on the one hand, and the Judicature Act 1908 and High Court Rules on the other in relation to the authority of Registrars.⁷ She concluded that it is not clear the District Court Registrar had the power to refuse to accept the application.

[19] However the position remains that there is no decision of the District Court refusing to grant leave.

[20] In summary, there is no jurisdiction for leave to be granted to Mr Le Pine by this Court as special leave of this Court must be sought within 21 days after the District Court has refused leave.⁸ The District Court has not refused to grant leave. If the Registrar had jurisdiction he has declined to accept the application on the basis it was out of time. If the Registrar did not have jurisdiction then, in the absence of waiver or acquiescence the application before the District Court is simply in abeyance awaiting formal confirmation by a District Court Judge that the Court has no jurisdiction. In either event s 162(3) is not engaged.

[21] Mr Le Pine referred to the decision of MacPherson v ACC.⁹ He noted that Courtney J had accepted the High Court did have jurisdiction to entertain an application out of time. He invited this Court to follow that decision rather than Siola’a. There are two difficulties with that proposition. The first is that this Court is bound by the Court of Appeal decision in Siola’a. The second is that, as Ms Becroft submitted, the short answer in any event is that the MacPherson case was decided under the provisions of the Accident Rehabilitation and Compensation Insurance Act 1992. Rule 703 of the High Court Rules applied to the appeal. That is not the position under the Act. Section 162 is now the relevant provision.

[22] It follows I conclude that there is no jurisdiction for this application.

Does the proposed appeal raise questions of law?

[23] Although it is strictly unnecessary to do so, as Mr Le Pine is unrepresented I

refer briefly to the matters he raised in support of his application for special leave.

[24] A Court will only grant special leave to appeal on a question of law where a seriously arguable question of law is identified. It would normally also be necessary to show that an issue of principle was at stake or that a considerable amount hinged on the decision and that there were a reasonable prospect of success: Kenyon v ACC.¹⁰

[25] Mr Le Pine’s case on this issue falls at the first hurdle. He is not able to identify a seriously arguable question of law. The matters that he complains of, such as failure by the Corporation to comply with its discovery obligations, the Judge’s control of the proceedings by limiting the amount of time he had to address the Court and the alleged failure by the Corporation to comply with the general statements of principle in the Act and the Injury Prevention Rehabilitation and Compensation Code of Rights do not raise issues of law. It is for a Judge to control the proceedings before him. Even if the issues of discovery had not been resolved to Mr Le Pine’s satisfaction it is understandable the Judge would consider it desirable to conclude the

_{proceedings which related to review decisions from 2004. Next, in relation to the}

⁹ MacPherson v ACC HC Auckland CIV-2005-419-1347, 20 December 2006.

Code, while it provides for complaints to be made and for internal reviews, there is no right of appeal to the District Court from a decision on the complaint.

[26] Nor do the issues Mr Le Pine referred to raise any matters of important principle. The principles underlying his submissions are well established. As always, it is a matter of application to the facts.

[27] Mr Le Pine’s complaint regarding the Judge’s treatment of the medical evidence is no more than an attempt to revisit evidentiary issues which have been decided against him, both by the Corporation and the Judge. It does not raise a question of law. The decision of the District Court Judge was a very thorough and detailed decision in which the Judge reviewed the relevant evidence.

[28] The inevitable conclusion is that, even if there was jurisdiction to entertain the application for leave, the application for leave would be dismissed as not disclosing a question of law for consideration by this Court.

Result

[29] The application for leave is dismissed.

_{[30] As the respondent does not seek costs there will be no order for costs.}

Venning J