Gallagher-Scott v Accident Compensation Corporation [2016] NZHC 1887 (16 August 2016)

High Court of New Zealand

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Gallagher-Scott v Accident Compensation Corporation [2016] NZHC 1887 (16 August 2016)

Last Updated: 5 September 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2016-485-75 [2016] NZHC 1887

IN THE MATTER	of a s 43(6) District Courts Act 1947: Application for transfer to the High Court
BETWEEN	REBECCA GALLAGHER-SCOTT Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

CIV-2016-485-110

IN THE MATTER of a proposed originating application on notice under r 19.5 of the High Court Rules for proceedings under the Defamation Act 1992

BETWEEN REBECCA GALLAGHER-SCOTT Applicant

AND ACCIDENT COMPENSATION CORPORATION

_Respondent

Hearing:	On the papers
Counsel:	Applicant in person S M Kinsler and S K Shaw for Respondent
Judgment:	16 August 2016

_{JUDGMENT OF ELLIS J}

_{I direct that the delivery time of this judgment is}

_{2.15pm on the 16}^th _{day of August 2016}

SCOTT v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 1887 [16 August 2016]

[1] This judgment relates to Ms Gallagher-Scott’s:

(a) application to transfer her appeal against a review decision under the Accident Compensation Act 2001 (the Act) from the District Court to this Court; and

(b) application to commence defamation proceedings by way of originating application.

[2] It is agreed that these applications could be determined on the papers.

The application for transfer

[3] Ms Gallagher-Scott’s application to transfer her District Court appeal against a review decision to the High Court is made under s 43(6) of the District Courts Act

1947 (the DCA).

[4] The appeal is against a decision of a reviewer upholding the Accident Compensation Corporation’s (the Corporation) decision to decline cover for what is known as a work-related gradual process injury. The central question for the reviewer was whether Ms Gallagher-Scott was entitled to cover for fibromyalgia as a personal injury arising out of her employment.

[5] The reviewer found that Ms Gallagher-Scott suffered from a primary pain disorder that fell outside the scope of cover under the Act. The reviewer followed the District Court’s decision in Teen v Accident Compensation Corporation.¹

Ms Gallagher-Scott seeks in her appeal to challenge the correctness of that authority.

[6] Section 43(6) of the DCA provides:

(6) Notwithstanding the foregoing provisions of this section, the High Court or a Judge thereof on the application of any party to the proceeding may order the removal into the High Court, by order for certiorari or otherwise, of any proceeding commenced in a District Court, if the High Court or Judge thereof thinks it desirable that the proceeding should be heard and determined in the High Court. Any such removal shall be on such terms as to payment of costs, giving

¹ Teen v Accident Compensation Corporation DC Wellington 244/2002 3 September 2002.

security, or otherwise as the High Court or a Judge thereof thinks fit to impose.

[7] It is for an applicant to establish the desirability of the transfer.

[8] As I have noted previously in these proceedings, the density and overwhelming detail of the material filed by Ms Gallagher-Scott makes the Court’s “on the papers” task difficult. However it seems that the principal grounds advanced by Ms Gallagher-Scott in support of transfer are her desire to challenge the authority of Teen and the possibility of consolidating the appeal with her application for judicial review and defamation proceedings (in respect of which leave to commence is sought).

Discussion

[9] I deal first with the authority of Teen.

[10] Strictly speaking, a District Court is not bound by a decision of another District Court, although I accept that principles of comity apply. More importantly, however, it seems to me that Teen did not establish any relevant legal principle that is binding on the Corporation or the Court. That was made clear in the subsequent decision on the application for leave to appeal, where, in declining the application, Judge Cadenhead said:²

This was a case that was determined on its own particular facts, and the Judge assessed those facts against the medical evidence. I accept that there are differing medical opinions concerning the issues confronting His Honour. His Honour was called upon to decide, after considering the factual background, which medical opinion he preferred against the onus of proof. I cannot identify any relevant issue of law arising in this case: I can identify, however, differing medical opinions. I do not see that a question of law is involved, and I decline to grant leave to appeal.

[11] Ms Gallagher-Scott is therefore quite able to seek to distinguish Teen on the facts of her case in the District Court.

[12] Ms Gallagher-Scott’s desire to consolidate the appeal with her other

_{proceedings also does not assist her. Although the existence of related proceedings}

² Teen v Accident Compensation Corporation DC Wellington 139/2003, 27 June 2003 at [10].

in the High Court can be a factor that is relevant to transfer, her defamation proceedings have not yet been properly brought (as to which see below) and, by their nature, raise issues very different from those on appeal. And her application for judicial review is the subject of a strike-out application, which has yet to be heard. The prospect of consolidation is therefore highly contingent; to permit such a contingency to drive the decision on transfer would, very much, be putting the cart before the horse.

[13] There is a further matter counting strongly against transfer here. The Act contains a specific regime for accident compensation appeals. It contains orthodox provisions concerning the appellate powers of the District Court.³ More significantly, however, that Court is also given a broad evidentiary power on appeal. Section 156 of the Act provides:

(1) The court may hear any evidence that it thinks fit, whether or not the evidence would be otherwise admissible in a court of law.

(2) If a question of fact is involved in an appeal, the evidence taken before or received by the reviewer about the question may be brought before the court under any of subsections (3) to (5), subject to any order of the court.

(3) Evidence given orally about a question of fact may be brought before the court by the production of a copy of—

(a) the notes of the reviewer; or

(b) the reviewer's record of hearing; or

(c) a written statement read by a witness; or

(d) any other material that the court thinks expedient.

(4) Evidence taken by affidavit about a question of fact may be brought before the court by the production of any of the affidavits that have been forwarded to the Registrar.

(5) Exhibits relating to a question of fact may be brought before the court by—

³ Section 161 provides that the District Court can dismiss an appeal, modify the review decision or quash the review decision. If the Court quashes the decision, it must indicate the effect which may include endorsing the Corporation's decision, requiring the Corporation to take specified action, or requiring another review to be conducted in accordance with whatever directions the Court gives.

(a) the production of any of the exhibits that have been forwarded to the Registrar; or

(b) the production by the parties to the appeal of any exhibits in their custody.

[14] By contrast, a further appeal to this Court may only be brought on a question of law, where the District Court grants leave or this Court grants special leave to appeal.⁴ Further evidence on appeal is permitted only in rare cases.⁵ A further appeal on a question of law to the Court of Appeal may be brought if leave is granted. The decision of the Court of Appeal is final.⁶

[15] Mr Kinsler advised that he had not been able to locate any examples where an ACC appeal has been transferred directly to the High Court. I have not been able to find any either. Indeed, it is difficult to identify any examples where appeals of any kind have been transferred.⁷

[16] Accordingly I accept Mr Kinsler’s submission that Parliament has enacted a specific, tailored, statutory regime to deal with appeals in the accident compensation context. To permit an appeal from a review decision straight to this Court would subvert that scheme. Moreover, permitting a transfer would deprive the appellant of a further right of appeal and might (depending on whether the Act or the Rules prevail) severely limit the ambit of the proposed appeal. Although I appreciate that Ms Gallagher-Scott may not see it that way, I consider that ordering a transfer would, overall, operate to her detriment.

Result

[17] In my view there is nothing about the present appeal that could justify the transfer sought. The application to transfer is declined accordingly.

⁴ _{Section 162.}

⁵ It is far from clear to me whether the High Court Rules would govern the appeal in the usual way (based on authorities such as Sharp v Mortensen [1918] NZGazLawRp 192; [1918] NZLR 937 and Dalgety & Co v Knight [1928] NZLR 200) or whether the specific appeal provisions in the Act would prevail.

⁶ _{Section 163.}

⁷ An appeal does, however, appear to fall within the definition of “proceeding” in s 2 of the DCA.

Leave to commence defamation proceedings by originating application

[18] Leave to commence the defamation claim by way of originating application is sought under HCR 19.5 which provides:

19.5 Court may permit proceeding to be commenced by originating application

(1) The court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application.

(2) The court's permission may be sought without notice.

(3) The proposed originating application must be filed with an application for permission under this rule.

[19] In relation to contested proceedings not listed in r 19.2, leave to commence by way of originating application under r 19.5 is an “exceptional procedure”. The procedure is limited to cases where it is not necessary in the interests of justice for there to be the usual particularised pleadings or the ordinary interlocutory steps for the proper determination of the issues.

[20] I have no doubt that it is not in the interests of justice to grant leave here. This proceeding will certainly be contested. I am unable to see any reason that warrants departure from the usual procedure for bringing a civil claim.

[21] I record that there was some suggestion by Ms Gallagher-Scott that her statement of claim dated 12 February 2016 already complies with the requirement to bring the claim in the usual way. That statement of claim appears to relate to all three of Ms Gallagher-Scott’s proceedings – the appeal, the application for judicial review and the proposed defamation proceeding.

[22] But even were such a merged pleading permissible, my decision in relation to the transfer of the appeal (and the potential strike-out of the review proceedings) means that substantial repleading would be needed. The pleading of the defamation needs to be confined to matters relevant to that claim and it needs adequately to particularise the relief sought. I also agree with Mr Kinsler that the amount of damages sought on the defamation claim (which are not clear from the merged

pleading) will be relevant to whether the defamation proceeding should be commenced in the District Court or in this Court.

[23] Accordingly, if Ms Gallagher-Scott wishes to pursue the defamation matter (and I strongly suggest that she obtain advice from a litigation lawyer if she does) she will need to file a rule-compliant statement of claim in the ordinary way.

Result

[24] The application for leave to commence the defamation proceedings by way of originating application is declined.

Costs

[25] ACC is necessarily entitled to costs in relation to the two applications. Although Mr Kinsler sought an award on a 2B basis, I do not think that is appropriate in the circumstances. Ms Gallagher-Scott is, instead, to pay 1B costs on

_both.

Solicitors: Meredith Connell, Wellington, for Respondent

Copy to: Ms Gallagher-Scott

“Rebecca Ellis J”