Smith v Accident Compensation Corporation [2016] NZHC 3148 (20 December 2016)

Last Updated: 22 March 2017

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001536 [2016] NZHC 3148

BETWEEN	WARREN SMITH Applicant/Appellant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Hearing:	17 November 2016
Appearances:	Applicant/Appellant in Person Dane Tuiqereqere for the Respondent
Judgment:	20 December 2016

_{JUDGMENT OF MOORE J}

This judgment was delivered by me on 20 December 2016 at 10:00 am pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

_Date:

SMITH v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 3148 [20 December 2016]

Introduction

[1] The applicant, Mr Warren Smith, is a 68-year old Hamilton man who, at the age of 42, injured his foot. At the time, Mr Smith was employed as an engine reconditioner.

[2] The injury never properly resolved. Over the following 12 years Mr Smith was in and out of hospital before his leg was amputated.

[3] Although Mr Smith was successful in securing some earnings-related compensation (“compensation”) from the Accident Compensation Corporation (“ACC”), for reasons set out more fully below, he experienced some difficulty in securing backdated compensation and, more relevantly for the purposes of the present application, backdated interest.

[4] The question of his entitlement to backdated interest was first considered and determined by the District Court on appeal in 2008.

[5] Subsequent to that decision Mr Smith has pressed for ACC to accept his entitlement to backdated interest from an earlier date. Successive refusals by ACC have led to reviews and appeals to the District Court. In those Mr Smith has been unsuccessful because all the decision makers, including the District Court, have decided the question was conclusively determined by the District Court in 2008 and there has not been any basis to revisit the decision.

[6] The District Court most recently considered the same issue in 2015 and determined it was bound by the principle of res judicata. Mr Smith was then unsuccessful in the District Court in his application for leave to appeal that decision to this Court. Mr Smith now seeks special leave on the basis he has fresh evidence indicating that ACC, through the actions of its servants, caused delays in him receiving compensation and thus his entitlement to backdated interest.

Factual and procedural background

[7] The factual and procedural background of this case is lengthy and complex. Mr Smith’s involvement with ACC goes back to early 1990 when he first injured his foot and, as a consequence, obtained compensation. For well over a decade Mr Smith has been involved in extensive disputes with ACC over his entitlement to compensation and backdated interest. He has enjoyed a reasonable measure of success both at review and on appeals to the District Court. Since 2006 he has

appealed to the District Court on at least seven occasions.¹ The last of these was

Mr Smith’s unsuccessful application for leave to appeal to this Court.

[8] It is not necessary for the purposes of this appeal to traverse in fine detail the chronology of events since January 1990. However, some analysis of the facts and procedural background is necessary for the purpose of placing the present application in its proper context.

[9] The catalogue commences when Mr Smith injured his foot and left shin area on 2 January 1990. ACC certified him as unfit to work and he began receiving compensation from the date of his injury. These payments continued for three months until 12 April 1990 when his general practitioner advised ACC that he was fit to return to work.

[10] However, Mr Smith suffered another injury to the same area of his left leg about 18 months later on 4 October 1991. From this point it is evident his leg never properly healed. He suffered from chronic ulcers and vascular complications. On any view this injury was severe and life changing. This is evident not only from the evidence which Mr Smith referred me to, including graphic photographs of the horrific wound, but also from the clear and obvious distress Mr Smith exhibited as he delivered his oral submissions to me in person. I am left in no doubt he is a

_{sincere and decent man who finds himself in a difficult and challenging position.}

¹ Smith v ACC DC Hamilton 146/2006, 30 June 2006 per Cadenhead DCJ; Smith v ACC [2007] NZACC 108 per Beattie DCJ; Smith v ACC [2008] 144 per Cadenhead DCJ; Smith v ACC [2012] NZACC 376 per Beattie DCJ; Smith v ACC [2013] NZACC 378 per Powell DCJ; Smith v ACC [2015] NZACC 158 per Cunningham DCJ; Smith v ACC [2016] NZACC 172 per Sharp DCJ.

[11] In 2001 Mr Smith sought compensation from ACC effective from 24 April

2001. This was declined by ACC on the grounds he was not employed at that time.

[12] On 7 February 2002 Mr Smith made a further application for compensation. His leg had not healed and the decision to perform a below knee amputation was made. Because Mr Smith was in employment he received compensation from that date. Medical certificates were supplied to support Mr Smith’s ongoing entitlement to and payment of compensation.

[13] In April 2002 Mr Smith applied for backdated compensation from 12 April

1990 to 4 October 1991 being the period from when compensation had first ceased after his injury until the time he suffered his second injury. He was advised by ACC to provide evidence of his continuous incapacity during that period. It was not until

23 December 2004 that a medical certificate was supplied by his general practitioner to support this claim. This entitlement was confirmed by Mr Smith’s successful appeal to the District Court in 2006.²

[14] Following Mr Smith’s successful appeal two voluntary backdated payments of compensation were made to him in 2006 and 2007. These were:

(a) 12 April 1990 to 4 October 1991 (the 2006 arrears payment);³ and

(b) 5 October 1991 to 2002 (the 2007 arrears payment).⁴

[15] Having been successful in obtaining backdated compensation Mr Smith then applied for interest on the two arrears payments. It appears that ACC declined his entitlement in respect of each of the periods. These decisions were upheld on review

_{and Mr Smith appealed by way of separate appeals to the District Court.}

² _{Smith v ACC DC Hamilton 146/2006, 30 June 2006 per Cadenhead DCJ.}

³ _{Payment was made on 7 August 2006.}

⁴ Payment was made on 7 June 2007.

[16] In respect of the 2006 arrears payment the District Court determined⁵ that

ACC had “all information necessary”⁶ when it received the medical certificate on

23 December 2004. Interest was thus payable to Mr Smith commencing one month after that date.

[17] In a subsequent appeal in 2008 the District Court considered Mr Smith’s entitlement to interest on the 2007 arrears payment.⁷ The Court decided that Mr Smith could not sustain a date for the running of interest before the date fixed by the Court in the previous appeal namely 23 December 2004. The Court stated “there is an issue of estoppel in respect of that finding”.

[18] Thus, as at 2008, Mr Smith’s entitlement to interest for the two arrears

payments had been fully argued and determined by the Court to have arisen as at

23 December 2004. As a consequence of the Court’s determination to backdate

interest, Mr Smith was paid $28,923.54.

[19] It is noteworthy and relevant to the present application that despite these determinations, Mr Smith pursued further reviews in relation to his entitlement to interest on the 2006 and 2007 arrears payments. His assertion was that new information had become available as to when ACC had “all information necessary”.

[20] Both these appeals were dismissed by the District Court in 2012 and 2013 respectively. The ground for dismissal was there was a lack of jurisdiction to entertain them through the general operation of the doctrine of res judicata and the

_{specific principle of issue estoppel.}

⁵ _{Smith v ACC [2007] NZACC 108 per Beattie DCJ.}

⁶ The expression “received all information necessary” is drawn from s 114(2) of the Accident Compensation Act 2001 (“the Act”). This provision recognises that ACC should have to pay interest if it is late in paying compensation. However, ACC’s obligation to pay interest does not

arise until the information ACC needs to enable calculation of the payment is received by ACC.

This provision has been the subject of considerable judicial attention, mostly notably that in Accident Compensation Corporation v Kearney [2010] NZCA 325 at [32] and [35]. See too Cullen v Accident Compensation Corporation [2014] NZCA 94 at [9] and [10], Miller v Accident Compensation Corporation [2013] NZCA 141.

⁷ Smith v ACC [2008] NZACC 114 per Cadenhead DCJ delivered 13 May 2008.

[21] In respect of the 2012 appeal, Mr Smith submitted there was new information indicating ACC was aware of his incapacity and the requirement for compensation earlier than 23 December 2004, the date fixed at the previous appeals.

[22] In determining that the principle of issue estoppel operated such as to deprive the Court of jurisdiction, the Court put it this way:⁸

“[11] Having considered all of the evidence contained in the previous decisions of this Court and of the reviewers, I am satisfied there is no basis for any new date from which the respondent was supposedly aware of the appellant’s incapacity for that period from October 1991 to February 2002. The appellant has received interest on the arrears of weekly compensation based on that evidence, and there is simply no basis for that matter to now be reconsidered, as the facts relevant to any issue relating to interest on arrears of weekly compensation have been fully determined.”

[23] Despite these comments, Mr Smith remained undeterred. On what appears to have been essentially the same proposition he appealed again to the District Court in

2013. There a differently constituted Court stated:⁹

“[3] The appellant has been involved in a long struggle with the respondent in relation to an injury suffered in 1990 and a resulting period of incapacity between 1990 and 1991. The substantive compensation issues appear to have been determined in 2006, and since that time the issue has been the date that interest on the arrears payment of compensation should be payable. That issue has also now been the subject of numerous reviews and appeals, with the appellant continuing to push to have interest on the arrears paid from an earlier date. The present appeal arises out of a fresh attempt by the appellant to re-visit the date that interest is payable.

...

[18] I note further that the present issue is almost identical to that considered by his Honour Judge Beattie in his decision of 20 November

2012 ... where he also rejected an almost identical argument that a decision

had been made by the respondent when requested by the appellant to re-open

the issue of the date interest should be paid from.”

[24] Mr Smith then sought leave to appeal this decision to the High Court. In a judgment delivered on 19 March 2013 Judge Joyce QC observed: ¹⁰

“[18] I gather from Mr Smith’s most recent submissions that materials regarded as lost at the time his case was before Judge Cadenhead may in fact have now been found.

[19] That given the binding impact of the earlier determine of Judges Beattie and Cadenhead (which have clearly formed the basis of Judge Beattie’s most recent determination in favour of the Corporation) Mr Smith, it seems to me, is nevertheless confronted with the state of affairs where those determinations remain effective in accordance with the principles derived from a fundamental one – that there must be an end to litigation even if, on occasion, it be later discovered the result is an injustice.”

[25] Despite Judge Joyce’s observations Mr Smith did not give up. It is the events which follow which led to the judgment Mr Smith now seeks special leave to appeal.

[26] In May 2013 the Court of Appeal delivered its judgment in ACC v Miller.¹¹

In that decision the Court considered the phrase “all information necessary” in s 114 of the Act in the context of eligibility for the payment of interest on arrears of compensation.

[27] In January 2014 Mr Smith again challenged ACC’s refusal to pay interest on the 2007 arrears payment. This time he relied on Miller. He submitted Miller was relevant to and applied in his case thus opening up the ability to appeal the reviewer’s decision. The essence of his claim at review was that ACC should have re-considered his entitlement in the light of new information tending to prove continuous incapacity from 1991. The new information related to two particular categories of material in the possession of ACC:

(a) payment of medical services; and

(b) four medical certificates dated 28 February 1990, 29 January 2002,

31 March 2001 and 25 April 2001.

[28] The reviewer concluded the information was not “new”. The evidence of payment for medical treatment had been referred to by the District Court in its 2008 decision¹² and had been explicitly discussed when the Court examined the background facts. The reviewer also determined this information was not new because the evidence revealed it had been sent to Mr Smith’s former lawyer in 2000.

[29] The reviewer also determined that Miller did not apply because Miller had relevance to cases where ACC had suspended compensation. ACC had never suspended Mr Smith’s compensation. His entitlement had been discontinued after his general practitioner had certified he was fit to resume work from 12 April 1990.

[30] Mr Smith then appealed this decision to the District Court. The appeal was heard by Judge Cunningham. Her Honour dismissed it in a decision delivered on

23 June 2015.¹³ It is this decision which is the subject of Mr Smith’s application for

special leave. I shall discuss her Honour’s decision in more detail later. In summary she determined that the “new” information and the matters surrounding it had been extensively litigated and determined in reviews and appeals to the District Court. For the reasons more fully expressed by previous Judges her Honour concluded the issue had been finally determined. She also stated “it was very clear” Miller did not apply for the same reasons as given by the reviewer, namely because there had not been a decision to suspend the payment of compensation.

[31] Not content with her Honour’s decision Mr Smith brought an application for leave to appeal to this Court. This came before Judge Sharp who, on 14 June 2016, dismissed the application on the basis that the docrtine of res judicata was engaged requiring finality to litigation.¹⁴ In rejecting Mr Smith’s claims that ACC had intentionally misled the Court and rejecting Mr Smith’s assertion of judicial bias, his Honour determined that Miller had no relevance to the arguments and the “new” information had been considered in previous decisions of the District Court. The

_{application was dismissed.}

¹² _{Smith v ACC [2008] NZACC 114 per Cadenhead DCJ.}

¹³ Smith v ACC [2015] NZACC 151.

[32] Mr Smith now applies directly to this Court for special leave to appeal on a question of law.

District Court decision

[33] After a comprehensive review of the background and the various decisions of the District Court, Judge Cunningham referred to Miller in the context of a discussion of the phrase “all information necessary”.

[34] More particularly, on the issue of Mr Smith’s claim that two categories of

evidence were “new”, her Honour said:

“The ‘new information’

[49] I am satisfied on the balance of probabilities that the information about payment of medical treatment including payment for district nursing services should have been available to Mr Smith as at the time of the 2007/

2008 District Court cases. This is because of communication from ACC

indicates it was sent to his then lawyer Mr Ormsby prior to the 2000 review.

[50] Moreover all this information is, is payment of medical services. That of itself is not evidence of incapacity and would not necessarily put the Corporation on inquiry that there was an entitlement to earnings related compensation.

[51] The four medical certificates contained in that bundle that Mr Heperi¹⁵ presented are more valid. I am not aware when these surfaced and it may be that they may not have been supplied to Mr Smith until last year. On the face of it they were a reasonably strong indication of incapacity post the 2002 below knee amputation.”

[35] However, her Honour determined that these matters had all been considered in various reviews and appeals to the District Court and because of that “issue estoppel and an urgent need for litigation to be brought to an end” meant the District Court had no jurisdiction to re-consider the issues.

[36] Furthermore, her Honour said that in terms of Miller:

“... it is very clear [that case] does not apply in Mr Smith’s case. That is because there has not been a decision to suspend weekly compensation.”

¹⁵ Mr Heperi was Mr Smith’s advocate.

Application for special leave

[37] Mr Smith applies for special leave under s 162(3) of the Act to appeal Judge Cunningham’s decision. It would appear this application was filed by Mr Smith’s new solicitors although Mr Smith represented himself at the hearing before me.

[38] In his application Mr Smith expressly accepts he is required to demonstrate:

(a) an issue of principle is at stake and there is a reasonable prospect of success; and

(b) leave is required in the interests of justice.

[39] The application for special leave filed by Mr Smith’s solicitors records as

follows:

“6. After leave was declined, the appellant took advice from present counsel. We agreed to lodge an application seeking special leave to appeal, while we investigate the points raised by the appellant. In essence, he asserts that he requested weekly compensation from ACC in or around October 1992 and that this claim was declined without a written decision being issued. He claims ACC erroneously advised him that he could not get weekly compensation because the subsequent infection was a fresh injury and, as he was not working at that time, he could not receive weekly compensation.

7. If the appellant can prove that occurred, he has a reasonable prospect of success because ACC would be responsible for the delay in the claim being investigated. The question of law would be:

‘In terms of ACC v Miller [2013] NZCA 141, does the provision of erroneous advice leading to delay establish a right to interest?’”

[40] The reference to “erroneous advice leading to delay” relates to what appears

to be a completely new assertion by Mr Smith. It is contained in a document dated

29 July 2016 attached to the papers filed by Mr Smith’s solicitors described as an “Application to File a Brief of Evidence”. The attachment is entitled “Brief of Evidence of Warren Smith”. It runs to five pages and contains 15 paragraphs. It is neither signed nor sworn.

[41] In this document Mr Smith says that after he aggravated his pre-existing leg injury on 4 October 1991 he visited his general practitioner who issued a medical certificate which Mr Smith took to ACC’s office in Hamilton in October 1991. There he spoke to a Mr Kenneth Healey. The essence of Mr Smith’s account is that Mr Healey advised him that because the injury of 4 October 1991 had occurred when he was not working ACC could not pay weekly compensation. Mr Smith says that although frustrating, the advice made sense to him at the time and he believed it was the end of the matter. However, some 10 years later, when ACC reviewed Mr Smith’s claim, he was advised Mr Healey’s advice may not have been correct. Mr Smith says that he recently contacted Mr Healey and asked him if he remembered his case and the advice he had given. Mr Healey apparently told Mr Smith that although he remembered meeting him he could not recall the details of his case.

[42] Mr Smith says he relied on Mr Healey’s advice. This, he submits, explains

the delay in raising or relying on this evidence because he:

“... did not understand that testimonial evidence could be important when it came to interest – I thought the Courts were only interested in documents.”

[43] He also says that he did not appreciate the importance of this evidence in the context of Miller. In the circumstances he did not supply a medical certificate to ACC because of Mr Healey’s advice.

[44] In opposition, Mr Tuiqereqere, for ACC, submits:

(a) there are no special reasons for producing the proposed new evidence at this stage of the proceedings;

(b) the proposed new evidence could have been produced by the applicant in the District Court (or earlier);

(c) the proposed new evidence pertains to a new factual issue which is the subject of the application for special leave but which ought to have been advanced in the District Court (or earlier); and

(d) the proposed new evidence is unreliable.

[45] Additionally, Mr Tuiqereqere has filed an affidavit from Mr Healey dated

25 August 2016.

[46] Mr Healey deposes that he remembered Mr Smith attending ACC’s offices in Hamilton. He knew Mr Smith because they worked for the same company many years before Mr Healey commenced employment with ACC. Mr Healey says he worked for ACC at Hamilton from about 1986 to 1996.

[47] He says that while he cannot recall whether he had a conversation with Mr Healey in 1991 as claimed, it is possible he did. However, he says he is “99% sure” he would not have given advice to Mr Smith regarding his entitlement to weekly compensation because in October 1991 he was working as a rehabilitation officer and had no involvement with or knowledge of compensation entitlements. In conclusion he deposes as follows:

“As such, while I cannot say whether I spoke with Mr Smith in October

1991, I can confidently say that I would not have provided advice to him regarding his entitlement to weekly compensation.”

Special leave principles

[48] Section 162(3) of the Act empowers the High Court to grant special leave to appeal a decision of the District Court as being wrong in law, where the District Court has declined leave to appeal.

[49] Section 162 provides as follows:

“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.

...

(3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal.

...

(5) The High Court Rules 2016 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.”

[50] In Bayley v Accident Compensation Corporation¹⁶ Palmer J recently summarised the applicable principles by reference to his own decision in Jones v Accident Compensation Corporation¹⁷ and other case law.¹⁸ I agree with his Honour’s analysis and adopt those principles for the purposes of the present discussion. These are:

(a) the appeal can only be made on a question of law and it is for the appellant to show that leave is required in the interest of justice;

(b) the purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly;

(c) special leave is a matter for the discretion of the Court and ought not be granted as a matter of course;

(d) it will normally be necessary to show that there is an issue of principle, or a considerable amount, at stake and that there is a reasonable prospect of success.

Appellant’s submissions

[51] As I understood Mr Smith, he submits he should be given special leave in

order to argue that Mr Healey’s advice in October 1991 was the cause of and explains his delay in seeking weekly compensation.

¹⁶ _{Bayley v Accident Compensation Corporation [2016] NZHC 1277.}

¹⁷ _{Jones v Accident Compensation Corporation [2016] NZHC 707 at [6].}

¹⁸ Cullen v Accident Compensation Corporation [2013] NZHC 941; Kenyon v Accident

Compensation Corporation [2001] NZHC 1301, [2002] NZAR 385.

[52] In his written submissions he appears to go further and now submits the following:

(a) ACC failed to investigate his application for weekly compensation in

1991 and failed to make a decision;

(b) ACC failed to properly consider earlier evidence of incapacity in the form of district nurse notes, medical certificates and other (unspecified) correspondence; and

(c) officers of ACC have lied in previous proceedings.

[53] I turn now to consider the question of law as posed in Mr Smith’s application

against the principles governing applications for special leave as listed above.

Analysis

Is this a question of law?

[54] Before me, the thrust of Mr Smith’s submissions is that at all material times ACC had “all information necessary” to make the backdated compensation payments.

[55] This issue was first determined in the District Court in 2006. It was decided

ACC had “all information necessary” when it received the medical certificate on

23 December 2004. In order for Mr Smith to establish an entitlement prior to that period he must show that ACC received or had in its possession medical evidence of his continuous incapacity to work prior to that date.

[56] For the reasons already traversed, Judge Cunningham determined this fact had been fully canvassed and determined in previous decisions of the District Court.

[57] As the Court of Appeal observed in Miller whether, at the time cover is declined, ACC has “all necessary information is a question of fact to be determined by reference to all of the relevant circumstances”.¹⁹

[58] There is no question of principle or law engaged in the present circumstances and for that reason alone the application must be dismissed. However, if I am wrong, there are other issues which, in the present case, also lead me to conclude this application should be dismissed.

Does the question arise from the decision being appeal?

[59] The question posed in Mr Smith’s application introduces an entirely new contention: that ACC, through Mr Healey, provided erroneous advice which led Mr Smith to delay making his claim he had a right to backdated interest.

[60] This issue was not before Judge Cunningham. In fact it seems, although it is not entirely clear from the unsigned brief of evidence, that Mr Smith first raised this issue with his most recent legal advisors when he was exploring the question of whether to appeal Judge Cunningham’s decision.

[61] The proposed new evidence does not go to a question which her Honour determined and for this reason I am also of the view that leave should not be granted.

Is this “new” or “fresh” evidence?

[62] Putting to one side the wholly unsatisfactory form in which the proposed new evidence is presented to this Court, the circumstances in which new or fresh

_{evidence may be admitted on appeal, are limited.}

¹⁹ Miller v Accident Compensation Corporation above n 6 at [53].

[63] As the Court of Appeal observed in Cromwell Corporation Limited v Sofrana

Immobiliser (NZ) Limited:²⁰

“... it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial, that if given it would probably have an important influence on the result, although it need not be decisive, and the evidence must be credible.”

[64] I am far from satisfied that the proposed evidence meets any of these requirements.

[65] First, it is plain this evidence could easily have been obtained and used in Mr Smith’s case. It was evidence which was in his knowledge. According to Mr Smith, Mr Healey’s advice was given in October 1991. As the chronology set out earlier in this judgment reveals the question of Mr Smith’s entitlement to compensation has been a live issue actively litigated by Mr Smith for at least 10 years. It is inconceivable, in my view, that a conversation of this significance would have been overlooked or considered irrelevant for more than a decade. Neither does Mr Smith’s explanation that he did not understand that “testimonial evidence could be important when it came to interest” make sense given the prolonged history of litigation and his knowledge of and intimate familiarity with the relevant issues and the detail and processes involved in challenging decisions of ACC.

[66] I did not receive full argument on whether, if this evidence was admitted, it would have a material effect on Mr Smith’s prospects of success. Having regard to the decision in Miller, I am inclined to the view it does not. But that is not the end of the inquiry. I must also be satisfied the evidence is both credible and reliable. Having regard to Mr Healey’s affidavit I am not satisfied the evidence sought to be adduced is reliable. It relates to a conversation Mr Smith says occurred in October

1991, more than 25 years ago. It does not appear that Mr Smith took any notes or other contemporaneous record of what was said. Furthermore, Mr Healey says that although he knew Mr Smith and recalled him coming into ACC’s Hamilton office he is confident that he would not have provided the advice as claimed because

_{Mr Healey was working in a different department and was not involved with}

²⁰ Cromwell Corporation Limited v Sofrana Immobiliser (NZ) Limited (1990) 5 PRNZ 180 (CA) at

182 and 183.

compensation issues. As he deposed, had a claimant made such an inquiry he would have referred that person to a client officer or senior client officer who managed issues involving compensation entitlements.

[67] In making these observations it is important to emphasise I am not making a credibility finding against Mr Smith. Instead, I am applying the well settled principles engaged in the consideration of applications of this sort. This evidence does not meet the requirements for the admission of fresh evidence on appeals involving questions of law and for that reason I am also of the view special leave should not be granted.

Are there very special reasons?

[68] That very special reasons are required before evidence may be admitted on appeals on a question of law has been emphasised in decisions of this Court.²¹

[69] In Shier v Removal Review Authority²² the Court of Appeal considered the High Court’s power to admit new evidence in an appeal on a question of law observing:

“... r 718 regulates the hearing of the appeal and contains rules about the bringing of evidence before the Court. Some subclauses of the rule apply to

‘every appeal’ while others relate to ‘every general appeal’. ‘General appeal’ is defined in r 702 as excluding an appeal on a question of law only. Only are r 718(3) and (4) the express power of the Court to re-hear the original

evidence is restricted to general appeals. That power does not extend to

present case being an appeal on a point of law. ... In an appeal on a point of

law the alleged error must be found in the reasoning of the Authority based on the evidence before it. .... As well it would be inconsistent with the Rules and the limited character of appeals confined to errors of law to apply the inherent jurisdiction to consider the admission of new evidence, in the absence at least of very special circumstances.”

[70] I am not satisfied there are very special reasons engaged in this case which would justify the admission of this evidence, nor did Mr Smith point to any

_{particular or special reasons which would justify such a course.}

²¹ Terrace Tower (NZ) Pty v Queenstown Lakes District Council (2000) 15 PRNZ 441 (HC); CH

_{and DL Properties v Christchurch District Licensing Agency [2010] NZHC 824; (2010) 20 PRNZ 680 (HC).}

²² Shier v Removal Review Authority (1998) 12 PRNZ 477 (CA).

Is there a reasonable prospect of success?

[71] For the reasons already canvassed I am satisfied there is no reasonable prospect of success in the event special leave to appeal was granted.

Result

[72] The application for special leave is dismissed.

[73] If the parties are unable to resolve the question of costs, memoranda are to be filed no later than 25 working days after the date of this judgment.

Moore J

Solicitors:

Medical Law Limited

Copy to:

The Appellant