Geary v Accident Compensation Corporation [2014] NZHC 96 (5 February 2014)

High Court of New Zealand

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Geary v Accident Compensation Corporation [2014] NZHC 96 (5 February 2014)

Last Updated: 20 February 2014

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CIV-2013-476-000299 [2014] NZHC 96

BETWEEN IAN RUSSELL GEARY Applicant

AND ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing: 5 February 2014

Appearances: A C Beck for Applicant

I G Hunt for Respondent

Judgment: 5 February 2014

_{JUDGMENT OF PANCKHURST J}

Introduction

[1] The present interlocutory application requires the determination of two questions. The proceeding concerns a substantive judgment delivered in the District Court at Timaru on 23 July 2013.

[2] The appellant, Mr Geary, had 20 working days in which to lodge an appeal against that judgment. The issues for determination are:

(a) whether an appeal was brought within time; and

_{(b) if not, whether an extension of time to appeal is appropriate.}

GEARY v ACCIDENT COMPENSATION CORPORATION [2014] NZHC 96 [5 February 2014]

The substantive proceeding

[3] Until 5 December 2002 Mr Geary was registered as an ACC recognised counsellor. He is a psychologist by training and experience. A substantial part of his practice comprised affording treatment to ACC claimants.

[4] On 7 July 2005 he issued the proceeding in the District Court alleging that he had not been paid in relation to 54 treatment claims, nor in relation to 534 travel allowance claims. He sought payment of the sum of $63,173 plus interest and costs. Mr Geary represented himself throughout the long history of the proceeding. Eventually the case was heard in mid-2013 over six hearing days before Judge Maze. She released a written judgment on 23 July 2013. In it she upheld 26 of the treatment claims, either in whole or in part. By contrast, she rejected all of the 534 travel allowance claims.

[5] In essence, the Judge found that there was no proof that services had been provided, that travel expenses were not claimable, or, alternatively, that there was no proof of non-payment of those claims which were not otherwise in dispute.

[6] In the end result, Mr Geary won an award of $8,493 plus interest of $3,416. In percentage terms he recovered about 13 percent of the amount he had originally claimed.

[7] The Accident Compensation Corporation (the Corporation) sought costs. Written submissions were called for and on 10 September, Judge Maze delivered a costs decision. The Corporation succeeded in obtaining increased costs. The sum awarded was $70,000 plus disbursements.

[8] Mr Geary appealed against this decision, but in that instance there is no dispute that he filed and served the notice of appeal within time.

The substantive appeal

[9] On 12 August 2013 Mr Geary filed what was termed an interlocutory application seeking leave to appeal and an “affidavit” in support. In fact, the

affidavit was unsworn, although signed by Mr Geary. It contained a series of factual assertions and then 17 grounds of appeal directed to the substantive judgment.

[10] Despite the deficiencies of these documents, they did at least provide confirmation of Mr Geary’s intention to bring an appeal against the judgment. At the same time on 12 August Mr Geary filed his submissions in relation to the question of costs.

Service of the appeal

[11] As the appellant Mr Geary was of course required to not only file the appeal but also serve it upon the Corporation within the 20 working day time period. Rule 6.1 of the High Court Rules permits service upon a post office box or by e-mail. Mr Geary maintains that he did effect service of his interlocutory application seeking leave and “affidavit” in support on 14 August, that is to say two days after the documents were filed in the District Court. He contends that he posted hard copies of the documents to the post office box of Young Hunter and at the same time sent the documents by e-mail to Mr Hunt’s personal e-mail address at Young Hunter. However, the documents were not received by post, nor by e-mail.

[12] With reference to the assertion that hard copies were sent by post, the only relevant evidence before me is contained in Mr Geary’s further affidavit filed in support of the present application. He simply states that hard copies were posted to the post office box, but there is no further confirmation of this as might be expected in the form of a copy letter which went with the documents, or the like.

[13] Mr Hunt in making submissions pointed out that it was unusual for documents to be served by post, as to the extent there was communication between himself and Mr Geary it was ordinarily by e-mail. Mr Hunt also stressed however, that there had been “habitual” failure on Mr Geary’s part to serve other Court documents throughout the lengthy course of the proceeding.

[14] In relation to service by e-mail the position is different. Mr Geary’s affidavit includes an exhibit being a copy e-mail dated 14 August which records that he had filed documents in the District Court two days earlier and that under cover of the e-

mail four items were attached, being his application for leave, the “affidavit” in support, a letter he had written to the Registrar in Timaru and a copy of his costs submissions. Further, the exhibit recorded that this e-mail, and presumably the attachments, had been sent to Young Hunter at 5.47 pm on 14 August.

[15] The fact is, however, that nothing was received at Young Hunter by Mr Hunt. Moreover, the firm engaged a computer consultant, Mr Nicholas McMillan to establish whether there was any trace of the receipt of an e-mail from Mr Geary on

14 August or the two days thereafter. Nothing could be found.

[16] In an affidavit sworn by Mr McMillan he was adamant that there was no trace of the receipt of an e-mail and that it was a simple matter for the sender of such an e- mail to verify the sending by reliance upon their own computer. Nothing has eventuated to verify that the documents were sent, save for the e-mail exhibited to the affidavit, to which I have referred.

[17] With reference to effective service, r 6.6 provides: ¹

where documents are sent to a post office box they are deemed to be received on the third working day after posting.

And, with reference to service of an e-mail, service occurs when: ²

the electronic communication first enters an information system outside the control of the originator

at which point it is to be “treated as received”.

[18] Mr Beck in the course of argument this morning relied upon these deeming provisions and submitted that I should accept the evidence of Mr Geary that he had posted hard copies and sent an e-mail which was therefore to be treated as received.

[19] I am undecided as to proof that hard copies were posted, or that an e-mail was sent. As to the latter, the evidence of Mr McMillan is highly persuasive, if not

_{compelling. It seems to me that had an e-mail been sent on 14 August at 5.47 pm}

¹ _{Rule 6.6(1)(a)(i)}

² Rule 6.6(2)(a)

there would indeed be evidence of it in the information system used by

Young Hunter. The evidence is to the contrary.

[20] With reference to the posting of hard copies, there is no more than a bare assertion in Mr Geary’s affidavit. Put another way there is nothing supportive of his statement. To the contrary, the indications are that it was not his normal practice to post hard copies, and there is nothing, for example a supporting document such as a covering letter, to support his assertion.

[21] I do not propose, however, to make firm findings in relation to this aspect. Instead I propose to move to the second question, whether an extension of time should be granted, given the much clearer view I have formed in relation to this aspect.

Is an extension of time appropriate?

[22] Rule 20.4 confers on unfettered discretion on the Court to extend time. Although the rule itself is silent as to the test to be applied the approach to granting extensions of time is well settled. Mr Beck referred to My Noodle Limited v Queenstown Lakes District Council³ in which the Court said this at [19].

A number of factors are relevant to a decision as to whether time to appeal should be extended, including the reason for the delay, the length of the delay, the conduct of the parties and the extent of any prejudice caused by the delay. The overall test, however, is whether granting an extension would “meet the overall interests of justice”: Havanaco Ltd v Stewart (2005)

[2005] NZCA 158; 17 PRNZ 622(CA), at para 5.

I therefore turn to examine the circumstances of this case with regard to these considerations or criteria.

[23] The length of the delay here is acknowledged to be short. The Corporation was made aware of the appeal documents within a week or two of their being filed in the District Court on 12 August.

[24] With reference to the conduct of the parties and the reason for the delay in effecting service upon the Corporation, matters are a little obscure. I have chosen not to make final findings in relation to the factual aspects previously discussed. At worst, Mr Geary simply ignored his obligation to effect service upon the Corporation at Mr Hunt’s office as he had apparently done on a number of other occasions. At best, Mr Geary may have been the victim of a computer glitch, as Mr Beck put it, although I remain sceptical as to that for reasons to which I have already averted.

[25] It is the case that no significant prejudice resulted from the failure to effect service within time. Mr Hunt realistically accepted as much. Instead he focused his argument in opposition upon the merits of the substantive appeal. He said, in effect, the appeal is hopeless and no point was to be served by granting the indulgence of an extension of time.

[26] As to this aspect, the relevance of the merits, a point of difference emerged between counsel. Mr Beck submitted that where a general right of appeal exists in favour of an intending appellant, the delay is insignificant and prejudice is not an issue, then the merits are not influential. Indeed, he cited an authority in support of that contention being another Court of Appeal case, Whaanga v Smith:⁴

Beyond the comments that follow, we prefer to say nothing about the prospective merits of the appeal, or whether it raises an issue of public importance. Ms Whaanga could have appealed to this Court as of right, but for her short, entirely explicable, delay. It is on that basis that we grant leave.

Mr Beck contended that this clearly conveys that where the delay is short, and explained, the merits are unlikely to be very material.

[27] Mr Hunt, however, doubted this. He referred me to a number of High Court cases where the merits had been persuasive, or even determinative, of the outcome of similar applications. Particularly where a case was shown to be hopeless there are examples of an extension of time being refused.

[28] Despite the contentions of counsel I do not consider there is any tension as between the authorities to which I have been referred. The fact is that a broad unfettered discretion is conferred under the rule. Cases in which an extension of time of appeal is sought are intensely fact specific and their outcomes, in my view, depend upon their particular circumstances.

[29] Ultimately the decision-maker must stand back and assess where the interests of justice lie in the particular case. Here, I suspect there is considerable weight in Mr Hunt’s submissions directed to the absence of merit in relation to the appeal against the substantive decision of Judge Maze. But I am not presently well placed to assess that contention. On the other hand, this is an instance where there was an appeal as of right available to Mr Geary. He is now represented by senior counsel, Mr Beck, whereas in the District Court he appeared for himself. He has been granted legal aid in relation to both the costs and the substantive appeals. Amended, and intelligible, grounds of appeal have been provided by way of the filing of an amended notice of appeal since the matter has been within Mr Beck’s control.

[30] I am also influenced by the circumstance that there is already to be an appeal hearing in relation to the costs judgment. This, I think, will necessitate an examination of the substantive judgment, although no doubt that examination will be much more limited than will be the case if an extension of time is granted.

[31] Nonetheless, when I stand back, I am clearly of the view that the interests of justice favour an extension of time in the particular circumstances of this case.

Result

[32] Mr Beck sought in addition to the extension, a direction that the amended notice of appeal be received. I make such a direction and also an order extending time to 15 October 2013 when the amended notice was filed and served by counsel.

[33] With reference to costs I did not call for submissions from counsel at the conclusion of the oral hearing. However, I am of the clear view that costs are inappropriate. On the one hand, Mr Geary has been successful in obtaining an

extension of time, but that has to be seen as an indulgence which counts against any award of costs in his favour.

Futher directions:

[34] A timetable is required in relation to the appeal hearing. I make these directions:

(a) the appeal will be heard at 10.00 am on 29 April 2014, (b) the time estimate is one day,

(c) the appeal is a category 2 proceeding,

(d) security is waived as the appellant is on legal aid,

(e) a common bundle shall be filed and served within 25 working days,

(f) submissions in support of the appeals are to be filed/served by the appellant 10 working days prior to the hearing and by the Corporation five working days prior to the hearing.

Solicitors:

A C Beck, Barrister, Wellington

Young Hunter, Christchurch