Sinclair v Accident Compensation Corporation [2015] NZHC 3168 (11 December 2015)

Last Updated: 14 January 2016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2015-412-000059

CIV-2015-412-000102 [2015] NZHC 3168

BETWEEN	HAZEL SINCLAIR Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	17 November 2015
Appearances:	W A Forster for the Applicant I G Hunt for the Respondent
Judgment:	11 December 2015

_{JUDGMENT OF NATION J}

General background

[1] In April 1997, Ms Sinclair, then aged 39 and employed by Dunedin City Council, suffered a fracture injury to her left wrist in the course of her employment at a library. She was granted weekly compensation from Accident Compensation Corporation (ACC).

[2] In March 1999, she was able to return to work part-time. In June 1999, she returned to full weekly compensation payments after submitting a medical certificate which showed her again as fully unfit to work.

[3] In April 2000, Ms Sinclair reported falling from a ladder at home and was granted weekly compensation in relation to that injury.

SINCLAIR v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 3168 [11 December 2015]

[4] Around 2006, ACC began investigating an allegation that Ms Sinclair had accepted full-time employment as an ambulance officer but failed to advise ACC of that development.

[5] Ms Sinclair’s advocate, Mr Forster, made enquiries and complaints in late

2007 and early 2008 relating to the investigation in these matters. Arising out of that correspondence, Ms Sinclair made complaints. These were the subject of an application for review and then ultimately an appeal to the District Court. Judge Barber upheld the decision made by the reviewer in a decision of 15 October 2009.¹

[6] In April 2008, Ms Sinclair was charged with fraud against ACC in failing to disclose that she had accepted full-time employment as an ambulance officer. Around March 2010, Ms Sinclair pleaded guilty to charges relating to the non- disclosure of her full-time employment. ACC did not seek reparation.

[7] In February 2009, Ms Sinclair made an application for review contending that ACC had decided she was not entitled to weekly compensation as a result of the basis on which she was being prosecuted.

[8] In a decision of May 2009, the reviewer decided there had been no decision which was amenable to review.

[9] The reviewer’s decision of May 2009 was upheld on appeal by Judge Barber in the District Court in a decision of 6 December 2011.²

[10] Judge Beattie subsequently declined leave to appeal Judge Barber’s decision

of 6 December 2011.³

[11] Judge Barber’s decision was the subject of an application for special leave to

appeal before the High Court. Fogarty J declined special leave on the grounds that the issues in the case were moot, the investigation having been concluded with a plea

¹ Sinclair v Accident Compensation Corporation DC Dunedin Decision No. 174/2009, 15 October

2009.

of guilty to the charges brought.⁴ Fogarty J also held that the case did not raise issues of general importance that needed to be addressed by the High Court.

[12] Separately, at some point between 2006 and 2008, ACC refused to pay for anti-depressant or anti-psychotic medication for Ms Sinclair. In 2008 she applied for a review of ACC’s handling of that matter. The reviewer found there was no deemed decision in relation to the matter.

[13] Ms Sinclair appealed the reviewer’s decision in relation to this. The appeal

was dealt with in another of Judge Barber’s decisions dated 15 October 2009.⁵

However, in relation to this matter, Judge Beattie granted leave to appeal Judge Barber’s decision to the High Court. The question of law which the High Court had to consider concerned what was required to make a claim under the Act. Dobson J held that Ms Sinclair had not made the claim in the way she was asserting.⁶

[14] That judgment was the subject of an appeal to the Court of Appeal. The Court heard argument on the issue of mootness and related matters. At the conclusion of the oral argument, there was an adjournment. The Court was then informed that all issues between the parties had been resolved. It was agreed the appeal could be dismissed.⁷

[15] On 17 February 2009, ACC issued a decision declining cover for mental injury that Ms Sinclair alleged had arisen from physical injuries for which she had cover as a result of the 1997 and 2000 injuries. That decision declining cover was reviewed by the reviewer, Ms Stringleman, on 16 July 2009. She quashed ACC’s original decision declining cover. The matter was referred back to a psychiatrist for her to consider further medical information as directed by Ms Stringleman. The psychiatrist considered that further information and provided ACC with a further report of 5 November 2009. Based on that report, ACC issued decisions of February and April 2010 declining cover for mental injury. That decision was upheld on

_review.

⁴ _{Sinclair v Accident Compensation Corporation [2013] NZHC 374.}

⁵ Sinclair v Accident Compensation Corporation DC Dunedin Decision No. 175/2009, 15 October

_2009.

⁶ _{Sinclair v Accident Compensation Corporation [2012] NZHC 406.}

⁷ Sinclair v Accident Compensation Corporation [2013] NZCA 558.

[16] Ms Sinclair appealed to the District Court. In a decision of 20 August 2011, Judge Beattie overturned ACC’s decision and found Ms Sinclair’s mental injury condition was the result of personal injuries for which she had cover under the Act.⁸

Judge Beattie’s decision as to the medical certificate

[17] As at March 2009, Ms Sinclair had been receiving weekly compensation to which she had been entitled for some time. She was asked to complete a medical certificate declaring that she had made a full disclosure of her activity restrictions and there was nothing further she needed to tell ACC about her circumstances. Ms Sinclair refused to sign such a certificate in June 2009. ACC advised her in July

2009 that weekly compensation would not be provided until she submitted a valid certificate. That decision was taken to review and ACC’s decision was upheld. That decision was then taken on appeal before Judge Beattie. He upheld the corporation’s decision.⁹ Judge Harrison, in the District Court, declined leave to appeal that decision to the High Court.¹⁰

[18] Ms Sinclair has made application to the High Court for special leave to appeal to the High Court (CIV-2015-412-102). That application for special leave was before me in the High Court at Dunedin on 17 November 2015 but was not reached because of the time taken up with the application for a leave to appeal which is the subject of this judgment. I was advised that in the meantime Ms Sinclair is providing the certificate required of her so that she continues to receive the compensation to which she is entitled.

[19] That general background provides some of the context in which this Court has to consider the current application for special leave.

Substance of the application for special leave relates to

[20] This application relates to the way ACC provided information to the psychiatrist following the directions of the reviewer, Ms Stringleman, in her decision

_{of 16 July 2009.}

⁸ Sinclair v Accident Compensation Corporation [2013] NZACC 263.

[21] It is apparent from previous decisions and submissions that were made available to me that Ms Sinclair had complained ACC had withheld relevant information, in particular pre-2006 information, from Ms Stringleman and this relevant information was not provided to the psychiatrist when she was asked to revisit her report.

[22] Those complaints were made at a time when there was a live issue as to whether Ms Sinclair was entitled to cover for mental illness. There was a continuing contest over this until the issue was resolved with Ms Sinclair’s successful appeal to the District Court and Judge Beattie’s decision of 20 August 2013.¹¹

[23] The complaint made by Mr Forster for Ms Sinclair was lodged as a complaint pursuant to the Code of ACC Claimants’ Rights. This is a code established pursuant to s 44 of the Act.¹² The background to the notice states that it confers rights on claimants and imposes obligations on ACC as to how ACC should deal with claimants. The purpose of the Code is to meet the reasonable expectations of claimants about how ACC should deal with them. It provides a procedure for

making and dealing with complaints about breaches of the Code.

[24] The complaint was considered by a complaints investigator. She responded to Mr Forster in a letter of 31 March 2010. In that letter she said she had considered the complaint under all the Code rights but certain rights in particular. She decided that ACC had complied with the specific directions of Ms Stringleman in providing information to the psychiatrist. She found there were breaches of the Code in certain respects, specifically delay in responding on certain matters.

[25] That response was taken to review by Ms Sinclair. In a decision of 8 October

2010, the reviewer, Mrs Wilson, dismissed Ms Sinclair’s application for review. In her decision, Mrs Wilson refers to the submissions made by Mr Forster. These

_{included the submission:}

¹¹ _{Sinclair v Accident Compensation Corporation [2013] NZACC 263.}

¹² Injury Prevention, Rehabilitation and Compensation (Code of ACC Claimants’ Rights) Notice

2002.

The fact ACC did not supply all relevant information to [the psychiatrist] falls under the Code and is a breach because ACC did not treat Ms Sinclair fairly and consider her views.

[26] There is no dispute that the complaint was always a Code complaint.

[27] Mrs Wilson referred to Mr Forster saying that Ms Sinclair accepted that ACC

may have acted in good faith but still considered the outcome to have been unfair.

[28] Mrs Wilson referred to a submission from the investigator that there had been a thorough investigation as to the relevant parts of the Code and the investigator’s decision that the reports as directed by Ms Stringleman had been supplied to the psychiatrist. The investigator also submitted that the claimed non-disclosure of information to the psychiatrist was a non-Code matter because it related to information provided to a reviewer.

[29] Mrs Wilson accepted the investigator’s argument. She considered that the information to be provided to the psychiatrist had been determined by a review decision and that review decision could only be challenged on appeal. She considered it was not appropriate for the decision to be revisited as either a complaint under the Code or another review.

Section 149 and its effect

[30] Section 149 of the Accident Compensation Act 2001 states:

149 Who may appeal against review decision

(1) A claimant may appeal to a District Court against—

(a) a review decision; or

(b) a decision as to an award of costs and expenses under section 148.

(2) The Corporation may appeal to a District Court against—

(a) a review decision; or

(b) a decision as to an award of costs and expenses under section 148.

(3) However, neither a claimant nor the Corporation may appeal to the District Court against a review decision on a decision by the Corporation under the Code on a complaint by the claimant.

[31] Despite s 149(3), Ms Sinclair nevertheless lodged an appeal to the District

Court from that review decision of 8 October 2010.

[32] In a decision of 23 August 2013, Judge Beattie stated:¹³

[4] This is clearly a case where the appellant made a complaint under the Code, and even though it was determined, firstly by OCI [Office of the Complaints Investigator] and then the Reviewer, that the substantive matter in question was not a matter which could be brought by way of complaint under the Code as it particularly required the matter in question to be attended to pursuant to a review hearing decision, nevertheless the fact that such an appeal cannot be had still applies, and therefore I rule that there is no jurisdiction to hear this appeal, and this appeal is therefore dismissed.

[5] Having made this decision it is probably relevant to note that the substantive issue which was the basis for the appellant, through her Advocate, bringing the matter to the Code on a complaint has now, in effect, been determined by this Court in the substantive issue pertaining to the appellant’s claim for cover for a mental injury, and where the decision of this Court in relation to that claim has been made in the appellant’s favour, and cover for a mental injury has been granted. Thus it is the case that the Court’s decision in this appeal has in fact not affected the appellant detrimentally.

[33] Ms Sinclair then made an application for leave to appeal Judge Beattie’s

decision. Judge Powell dismissed that application in a decision of 29 May 2015.¹⁴

[34] After noting that ACC appeared to have acted in accordance with the direction of Ms Stringleman, Judge Powell said that Ms Sinclair had:¹⁵

... made a complaint under the Code which was dismissed on 31 March

2010 on the grounds that there was no breach of the Code, and in particular

“Right 5 – you have the right to effective communication” on the grounds

that in effect, the respondent was not required to forward any more information than that directed by the reviewer, and the respondent had therefore complied with the reviewer’s direction.

[35] Judge Powell said Ms Sinclair accepted that the effect of s 149(3) of the Act was to prevent the District Court hearing an appeal about whether the Code had been

¹³ _{Sinclair v Accident Compensation Corporation [2013] NZACC 262.}

¹⁴ _{Sinclair v Accident Compensation Corporation [2015] NZACC 122.}

¹⁵ At [4].

breached but had submitted this did not prevent the Court from having jurisdiction to

“determine whether or not ACC should investigate a complaint”.

[36] Judge Powell said that, having considered Ms Sinclair’s submissions, he did not consider that a question of law had been raised which was “capable of bona fide and serious argument”.¹⁶ He referred to the judgment of the Court of Appeal in Accident Compensation Corporation v O’Neill.¹⁷ He said, whether the review decision appealed from in the present case was a substantive dismissal of the

complaint or a decision declining jurisdiction with regard to the complaint, it is still considered “a review decision on a decision by the corporation under the Code on a complaint by the claimant”.¹⁸ On that basis, pursuant to s 149(3), there was no right of appeal to the District Court. The Judge considered the legislative regime in this regard was so clear that he was not satisfied that there was any question of law raised on which to found an appeal. The application for leave to appeal was dismissed.

The application for special leave

[37] In the application for special leave, Mr Forster framed the proposed questions of law for which leave to appeal was sought as follows:

i) Is a decision of ACC not to investigate a complaint a procedural decision, which carries its own right of review and appeal or is it a substantive decision caught by the privative provision at s 149(3)? and/or

ii) Is there a general right to appeal to the District Court against a decision of the reviewer to decline jurisdiction to hear a review application?

[38] Mr Forster submitted that the criteria of granting special leave were set out by the High Court in Murray v Accident Compensation Corporation and are longstanding and settled:¹⁹

_{(a) the question posed is one of law;}

¹⁶ _{At [7].}

¹⁷ _{Accident Compensation Corporation v O’Neill [2012] NZCA 219, [2012] NZAR 729.}

¹⁸ _{At [9].}

¹⁹ Murray v Accident Compensation Corporation [2013] NZHC 2967 at [6].

(b) it is a question actually arising in the proceeding (as opposed to being hypothetical or abstract);

(c) it is capable of bona fide and serious argument; and

(d) it involves some interest, public or private, of sufficient importance to outweigh the delay and cost of a further appeal.

[39] For ACC, Mr Hunt submitted that the threshold for obtaining leave is formidable. He referred to the statements of Fisher J in Kenyon v Accident Compensation Corporation:²⁰

(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly.

(b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principle at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success.

(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course.

(d) It is for the applicant to show that leave is required in the interests of justice.

(e) [If] leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account.

Does the intended appeal raise any issue of sufficient private importance to Ms

Sinclair?

[40] I do not consider the proposed questions of law raise any issues of sufficient private importance to Ms Sinclair so as to outweigh the delay and cost of a further appeal. The original complaint was made by Mr Forster in the context of seeking to obtain from ACC a decision to provide cover for Ms Sinclair in respect of mental

_{illness. The original complaint, and any further investigation of it, no longer has any}

20. Kenyon v Accident Compensation Corporation [2001] NZHC 1301; [2002] NZAR 385 (HC) at [15] (citations omitted).

utility in that regard. Ms Sinclair is receiving the cover she was seeking as a result of the decision of Judge Beattie of 20 August 2013.²¹

Is there a question of law capable of bona fide and serious argument?

[41] The actual issue in this case, which Mr Forster wishes to address through an appeal, is whether there can be an appeal to the District Court from a reviewer’s decision as to whether a complaint is a Code complaint. I do not consider there is a divergence of opinion amongst the District Court judges as to whether a decision that a complaint is not a Code complaint is a decision as to jurisdiction which is amenable to appeal.

[42] Certainly, Judge Beattie has, both in this case and in Duurloo v Accident Compensation Corporation, found that there is no right of appeal to a District Court Judge with regard to such a decision.²² He has said:²³

Whether it be as a matter of substance or procedure, I find that the provisions of s 149(3) of the Act, preclude this Court from giving any consideration to a review decision which purports to be consideration of a Code complaint.

[43] Mr Forster submitted that Judge Barber had adopted a different approach in another decision involving Ms Sinclair.²⁴ That decision arose out of the way an ACC complaints investigator had responded to queries and then complaints under the Code relating to ACC’s fraud investigation concerning Ms Sinclair. Ms Sinclair was not satisfied with the investigator’s response and applied for a review of the response received. The reviewer dismissed the application on the basis that the response was

not a “decision” in terms of s 6 of the Act but merely a letter confirming certain matters of which Ms Sinclair’s advocate had been advised. The reviewer determined there was no jurisdiction to review the complaint in the way Ms Sinclair wanted.

[44] Ms Sinclair filed an appeal to the District Court in respect of that review. Judge Barber dismissed the appeal, in part because it was filed out of time without

²¹ _{Sinclair v Accident Compensation Corporation [2013] NZACC 263.}

²² Duurloo v Accident Compensation Corporation DC Christchurch Decision No. 335/2004, 21

_{October 2004.}

²³ _{At [12].}

²⁴ Sinclair v Accident Compensation Corporation DC Dunedin Decision No. 174/2009, 15 October

2009.

any explanation for the delay and also because he agreed that the response which was complained of was not a decision carrying any review rights. Judge Barber’s decision records that:²⁵

ACC accepts that this Court has power to consider an appeal as to whether the letter was a decision and, therefore, as to whether the Reviewer had jurisdiction to consider the application for review.

[45] Judge Barber said:

[16] Should I find that this Court has jurisdiction to deal with the letter of

30 January 2008 as if it was a decision in respect of a claim under the Code, there is no power for this Court to determine any substantive issue there might be in relation to such a complaint. Consequently the most the appellant could achieve by this appeal would be a finding that the matter ought to be referred back to review for rehearing. This Court can also address the question whether the appellant should have received an award of costs i.e. the Reviewer’s decision to decline to award costs is a matter which can properly be raised before this Court.

...

[21] Accordingly, the letter of 30 January 2008 cannot be regarded as a decision or a decision carrying any review rights. The Reviewer was correct to so conclude, and to determine that she had no jurisdiction to deal with the application for review. Even had she determined otherwise, that would not give rise to a right of appeal to this Court (other than the right to challenge the jurisdictional decision itself).

[46] In his decision, Judge Barber also dealt with an appeal challenging a separate review decision that ACC’s complaint investigator had, in a particular letter, breached the Code of Claimants’ Rights with regard to Ms Sinclair.

[47] Judge Barber noted however that, with regard to the issue on the appeal, ACC’s position was that “regardless of the outcome of the Code of Claimants’ Rights complaint, there was no right of appeal ... due to s 149(3) of the Act”.²⁶

[48] In relation to the second complaint, Judge Barber held that there was no jurisdiction to entertain the appeal.

²⁵ At [14].

[49] ACC may have made the apparent concession referred to in para [14] of Judge Barber’s decision because, in its O’Neill judgment, the Court of Appeal had found there could be an appeal from a decision over jurisdiction on the particular issue which it was dealing with. I do not read ACC’s concession as relating to any decision that might affect jurisdiction. The concession was made in relation to the issue of whether or not, in the particular case, a decision had been made. It was not conceded there would a right of appeal in respect of a reviewer’s decision that a complaint was not a Code matter.

[50] Mr Forster suggested that there was support for the view he wishes to argue for on an appeal to the High Court in the judgments of the Court of Appeal in O’Neill and Dean v Chief Executive of the Accident Compensation Corporation.²⁷

[51] O’Neill was not about Code complaints or s 149(3). It concerned the application of s 146(1). ACC argued that in law there was no deemed decision in favour of the claimant on the basis that, on an application for review, no decision had been made and no hearing had been fixed within three months. ACC argued that a hearing had been fixed within three months because a hearing had been fixed to determine whether or not the reviewer had jurisdiction to deal with the application. Because of the provisions of the Act, the issue was whether or not there could be a deemed decision where a hearing had been arranged within the required period to

deal with the issue of jurisdiction.²⁸

[52] The Court of Appeal considered that the effect of the statutory screen was that a hearing in s 146(1) includes a hearing on whether the reviewer has jurisdiction. The Court of Appeal noted that the effect of s 145(3) was that where a reviewer decided there was no jurisdiction to deal with an application for review, the necessary effect of that decision was to dismiss the application. They also noted that

_{there was a right of appeal to the District Court from that decision.}²⁹

²⁷ Accident Compensation Corporation v O’Neill, above n 17; Dean v Chief Executive of the

_{Accident Compensation Corporation [2007] NZCA 462, [2008] NZAR 318.}

²⁸ Having regard to the provisions of ss 146 and 147.

[53] The Court referred to its judgment in Dean v Chief Executive of the Accident Compensation Corporation as confirming that there was a right of appeal in respect of a reviewer’s decision about jurisdiction. They noted that, in Dean, the Court of Appeal had “made the point that “conventionally” a judicial body which decides it has no jurisdiction to deal with the case before it, dismisses the case”.³⁰

[54] On that reasoning, the Court of Appeal held that, where a hearing had been arranged to determine issues of jurisdiction within the required timeframe, the provisions for a deemed decision on a review in favour of the applicant (where a date of hearing had not been set within three months after the review application was received by ACC), did not apply.

[55] These Court of Appeal judgments of O’Neill and Dean are not authority for the proposition that a reviewer’s decision over whether or not a complaint is against a Code or any decision about jurisdiction is amenable to appeal. In both cases, the claimant was seeking a review in respect of a decision which affected entitlements or cover under the Act. In O’Neill, the Court held that the effect of the decision over jurisdiction was to dismiss the application. The Court noted that was a decision in

respect of which there was a right of appeal to the District Court.³¹

[56] The situation in O’Neill contrasts with the situation where there is a Code complaint and s 149(3) expressly proscribes any right of appeal or where the complaint is about a matter in respect of which there is neither a right to apply for review nor a right of appeal.

[57] Consistent with the Court of Appeal analysis in O’Neill and Dean, a decision by a reviewer that she has no jurisdiction to rule on a complaint against the Code because it is not a complaint against the Code, is effectively a decision dismissing it as a complaint against the Code. That is the way Judge Powell analysed the

_{judgment of the Court of Appeal in O’Neill.}³² _{It was on that basis that he held:}³³

³⁰ _{At [34], citing Dean v Chief Executive of the Accident Compensation Corporation, above n 27.}

³¹ _{At [33].}

³² Sinclair v Accident Compensation Corporation [2015] NZACC 122.

It follows that whether the review decision appealed from in the present case was the substantive dismissal of the complaint or a decision declining jurisdiction with regard to the complaint, it is still considered “a review decision on a decision by the corporation under the Code on a complaint by the claimant”.

[58] He was thus clear that it was a decision in respect of which there was no right of appeal to the District Court.

[59] Given the judgment of the Court of Appeal and the provisions of s 149(3), I agree with Judge Powell that there is no question of law on which to found an appeal in the present case in the sense that there is not a question of law of bona fide and serious argument in this regard.

Is there a question actually arising in the proceeding?

[60] Independently and alternatively, I do not consider that it is a question which actually arises in this proceeding. It is accepted that the complaint originally made on behalf of Ms Sinclair was a complaint that there had been a breach of the Code. It was thus a complaint in respect of which an application for review could be made but where there was no right of appeal to the District Court in respect of the reviewer’s decision. The complaint was investigated by the OCI and the reviewer Mrs Wilson. Both decided that the complaint was not about conduct covered by the Code but about the review decision made by Ms Stringleman. On that basis, the reviewer dismissed the complaint. That was a substantive decision about the complaint, just as in O’Neill the Court of Appeal considered the particular decision about jurisdiction in that case could be a substantive decision on the application before it.

[61] The complaint was thus investigated as a complaint against the code. There is no argument that, pursuant to s 149(3), the reviewer’s decision on the complaint could not be appealed to the District Court. Accordingly, the issue which Ms Sinclair wishes to put before the High Court through obtaining leave to appeal is not one that arises out of what happened in this particular case.

Does the intended appeal raise any issue of sufficient public importance and interest?

[62] Even if I am wrong on the particular points already mentioned, I do not consider this is a situation where special leave should be granted. I do not consider the issue which Mr Forster wishes to put before the High Court is of sufficient importance or public interest to outweigh the delay and cost of a further appeal.

[63] Mr Forster is seeking, through an appeal to the High Court, to obtain a judgment that a decision of the reviewing officer not to investigate the complaint as a complaint against the Code was a decision as to jurisdiction which could be appealed to the District Court. He submitted there is public interest in determining whether such a decision is applicable. He submitted there is public interest in ensuring that ACC and reviewers will properly investigate complaints so as to ensure ACC and its staff learn from any mistakes they might have made.

[64] Mr Forster acknowledged that, if a District Court decided that on an application for review there had been an error as to whether a complaint should be investigated as a complaint against the Code, the ultimate outcome would be that the complaint would be remitted back to the reviewer for investigation. There would be no right of appeal in relation to the ultimate decision. The District Court will not be able to review the substantive merits of any reviewer’s decision on a Code complaint.

[65] Mr Forster also submitted that there were conflicting decisions from the District Court as to whether a decision from a reviewer was a decision amenable to appeal. He submitted there was a public interest in resolving that suggested divergence of authority.

[66] Mr Forster submitted that the public interest in having these issues considered by the High Court was demonstrated by a recent report of the Auditor-General.³⁴

³⁴ Office of the Auditor-General, Accident Compensation Corporation: How It Deals With

Complaints (August 2014).

[67] I have read the Auditor-General’s 2014 report into how the ACC deals with complaints of August 2014. I do not consider there is anything in that report which suggests there is a significant public interest in having the proposed questions of law considered by the High Court. The report refers to a range of actual and perceived shortcomings in the complaint process. It makes various recommendations for improvement. There is no criticism of the way complaints against the Code are being dealt with on review. It is not suggested that reviewers’ interpretations of the legislation or the Code is causing problems. It is not suggested there is a need for judicial oversight of the complaint process to a greater extent than is already allowed for in the Act.

[68] Ms Sinclair, through this application for leave to appeal, is seeking the opportunity to obtain a judgment from the High Court that would enable claimants to appeal to the District Court over the way a reviewer has dealt with complaints against the Code or other matters, in respect of which the legislation does not provide a right of appeal.

[69] The scheme and policy of the Act is to limit the extent to which the Courts might be involved over ACC issues.

[70] Section 134 permits a claimant to apply to the Corporation for a review of: (a) any of its decisions on the claim;

(b) any delay in processing the claim for entitlement that the claimant believes is an unreasonable delay; or

(c) any of its decisions under the Code on a complaint by the claimant.

[71] Section 149 permits appeals to the District Court only in respect of a review decision as to the matters in (a) and (b) or a decision as to an award of costs and expenses on review. Section 149(3) says there is no right of appeal in respect of (c).

[72] I do not see a divergence of approach by District Court Judges in the way they have applied ss 134 and 149.³⁵

[73] Through this application for leave, Ms Sinclair is seeking to obtain a judgment that would require District Court judges to hear appeals against review decisions on complaints where, if the complaint is a Code complaint, the legislation says there will be no right of appeal and where, if it is not a Code complaint, the legislation does not provide for a right of appeal. Any decision the High Court might make on the issues which Ms Sinclair wishes to put before it by way of an appeal will make no difference to the fact that the District Court will have no jurisdiction to deal with the merits of such a complaint. That being the case, I do not consider the issues Ms Sinclair wishes to pursue through an appeal are of sufficient importance or public interest to warrant an appeal to the High Court.

Conclusion

[74] Ultimately, the granting of special leave to bring the proposed appeal is a matter for my discretion. I have regard to the extent to which Ms Sinclair has already been able to use the resources of the Courts, the way in which issues on an appeal would not make any difference to her entitlements or cover and the limited public importance of the issues which she wishes to pursue.

[75] The application for leave to appeal in these proceedings is dismissed.

[76] I anticipate that costs would follow the event. If there is no agreement on this, leave is reserved to the respondent to file a memorandum by 18 December

2015. The applicant must file a memorandum in response by 29 January 2016. The memoranda are to be no longer than three pages.

Solicitors:

Warren Forster, Barrister, Dunedin

Young Hunter, Christchurch.

³⁵ Chalecki v Accident Compensation Corporation DC Christchurch Decision No. 336/2004, 21

October 2004; Smith v Accident Compensation Corporation DC Dunedin Decision No.

334/2005, 16 August 2005.