Howard v Accident Compensation Corporation (ACC) [2023] NZHC 1734 (5 July 2023)

Last Updated: 2 November 2023

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2023-485-000126 [2023] NZHC 1734

UNDER	The Accident Compensation Act 2001 (the Act)
IN THE MATTER OF	An application for special leave to appeal – s 163(3)
BETWEEN	MAREE EILEEN HOWARD Applicant
AND	ACCIDENT COMPENSATION CORPORATION (ACC) Respondent

Hearing:	On the Papers
Appearances:	Applicant self-represented P McBride for Respondent
Judgment:	5 July 2023

JUDGMENT OF CULL J

• [1] Ms Howard, the applicant, seeks leave to appeal the decision of Judge Henare dated 21 February 2023.¹ Judge Henare declined Ms Howard’s application for leave to appeal to the High Court from the decision of Judge Spiller of 18 August 2022, in which Judge Spiller dismissed an appeal against an ACC reviewer’s decision for want of jurisdiction.²

¹ Howard v Accident Compensation Corporation [2023] NZACC 25.

² Howard v Accident Compensation Corporation [2022] NZACC 152.

HOWARD v ACCIDENT COMPENSATION CORPORATION (ACC) [2023] NZHC 1734 [5 July 2023]

• [2] ACC, the respondent, opposes the application for special leave on the grounds that there is no jurisdiction to entertain this application under s 162 of the Accident Compensation Act 2001 (the Act) and there is no basis for a grant of special leave, on any of the issues that Ms Howard advances.

Background

• [3] Ms Howard suffered two ACC-covered spinal injuries, the first in 2006, and the second in 2007. She worked for New Zealand Post at the time, who was an accredited employer and whose work-accident claims were managed by Care Advantage.

• [4] On 27 May 2010, Ms Howard committed to and signed an Individual Rehabilitation Plan (IRP). Care Advantage sought medical advice about vocational rehabilitation for Ms Howard, and referred her to Dr Courtney Kenny, an occupational physician, for an assessment. At the appointment, Ms Howard and her husband questioned Dr Kenny’s suitability to assess her and because of their objections, agreed not to conduct the assessment.

• [5] On 11 November 2010, Care Advantage wrote to Ms Howard recording what occurred. Care Advantage noted that the appointment had been arranged in accordance with s 72 of the Act. Section 72 provides that a claimant who receives any entitlement must, when reasonably required to do so by ACC, undergo assessment by a registered health professional specified by ACC, at ACC’s expense.³

• [6] In its letter, Care Advantage advised that Ms Howard had been provided with information about the consequences of not attending or not completing the assessment on several occasions. Accordingly, Care Advantage made the decision under s 117 to suspend Ms Howard’s ACC entitlements. Section 117 allows ACC to decline to provide any entitlement for as long as the claimant unreasonably refuses or unreasonably fails to: comply with any requirement of the Act;⁴ or agree to, or comply with, an individual rehabilitation plan.⁵

³ Accident Compensation Act 2001, s 72(1)(d).

⁴ Section 117(3)(a).

⁵ Section 117(3)(c).

• [7] Care advantage’s letter set out Ms Howard’s options for internal review through her employer, and her rights for formal review.

• [8] Ms Howard unsuccessfully applied for a review, and then appealed to the District Court. By judgment dated 29 June 2012, Judge Ongley dismissed the appeal on the basis the decision to suspend Ms Howard’s entitlement was correct.⁶ Ms Howard unsuccessfully appealed Judge Ongley’s decision to the High Court, Court of Appeal, and the Supreme Court.⁷

The settlement agreement

• [9] On 30 July 2021, Ms Howard and ACC entered into a settlement agreement whereby ACC made an ex gratia payment of $19,200.00 to Ms Howard (the Settlement Agreement). In cl 9 of the Settlement Agreement, the parties acknowledge that they had the opportunity to seek independent legal advice as to the content and effect of the Settlement Agreement, prior to signing. At cl 1, Ms Howard acknowledged and agreed she had no outstanding entitlement to the date of the Agreement. Under cl 4, Ms Howard agreed that she would not personally or by any agent, representative, or by proxy, initiate or be involved in any further action, claim, application, proceeding or complaint in relation to any entitlements, or any issues in any way related to cover, existing down to the date of settlement. Under cl 6, the ex gratia payment was to be in “full and final settlement” of all claims, issues or complaints having arisen, whether known or not known to the parties, down to the date of settlement.

• [10] ACC made the ex gratia payment to Ms Howard.

Further compensation claims

• [11] Less than a month after ACC’s performance of the Settlement Agreement, Ms Howard asked ACC to consider making a further payment, for the period between 11

⁶ Howard v Accident Compensation Corporation [2012] NZACC 218 at [41].

7. Howard v Accident Compensation Corporation [2013] NZHC 188; [2013] NZHC 1004; [2013] NZCA 617; [2014] NZSC 31.

November 2010 and 9 April 2012. ACC responded to her request on 14 September 2021, noting:

We have mutually agreed on the full and final settlement of all issues Maree has had with ACC. We have been reasonable in paying her full entitlement for the full period of suspension. ACC will therefore not be progressing this and we see matters as fully concluded between Maree and ACC.

• [12] Ms Howard responded by clarifying that her claim for a further weekly compensation entitlement was for the period between 26 November 2010 and 9 April 2012 and asked ACC to “issue an ACC written decision.” On 21 September 2021, ACC wrote back saying:

ACC’s position is that the weekly compensation you have requested as already been the subject of previous review and court decisions. This weekly compensation is also subject to the full and final settlement agreement which you signed 30 July 2021.

Therefore, ACC will not be issuing any further decision, or engaging in any further correspondence in regard to this matter. ACC has worked in good faith with you through the settlement process and is of the view that the matter is closed off by that process.

• [13] Ms Howard applied for a review of the 2010 IRP in October 2021. She advanced that her rehabilitation needs under the IRP had not been implemented. Ms Howard also applied for a review of ACC’s response to her request for further compensation, dated 14 September 2021, set out above at [11]. She contended that ACC’s response, and its ex gratia payment was amenable to review, and sought payment for the full period of suspension. A statutory reviewer commenced review proceedings on 25 February 2022, and on 21 March 2022 the reviewer dismissed the review because there was no reviewable decision, and the surrounding circumstances were fatal to Ms Howard’s claims.

Judge Spiller’s decision

• [14] Ms Howard appealed the reviewer’s decision to the District Court under s 149 of the Act. On 18 August 2022, Judge Spiller dismissed the appeal for lack of jurisdiction.⁸

⁸ Howard v Accident Compensation Corporation, above n 2.

• [15] In discussing the effect of the settlement agreement of 30 July 2021, the Judge noted s 299 of the Act which provides that the Act has effect despite any provision to the contrary in any contract or agreement. The Judge put the agreement to one side for the purpose of determining the appeal.⁹

• [16] The Judge found that Ms Howard’s claim that the IRP had not been implemented was moot because of ACC’s decision to suspend her entitlements in 2010. Rehabilitation is one of the entitlements provided by the Act.¹⁰ Upon suspending Ms Howard’s entitlements, ACC was not required to implement her IRP. The suspension was correct, and thus there was no jurisdiction for the Judge to consider Ms Howard’s claim for review of the IRP.

• [17] The Judge found that ACC’s correspondence of 14 September 2021 did not constitute a reviewable decision. In particular, Ms Howard’s own response to ACC’s email of 14 September 2021, included a request for ACC to issue a written decision. ACC’s follow up email on 21 September 2021 confirmed that it would not be issuing any further decision. The Judge held that Ms Howards further request for compensation was an attempt to relitigate the claim which she unsuccessfully pursued against the 2010 decision which the courts confirmed was correct.¹¹

Leave to appeal to High Court

• [18] Ms Howard then applied for leave to appeal against the District Court decision under s 162(1) and (2) of the Act. Judge Henare declined leave on the basis that the reasons of Judge Spiller “far surpass any inadequacy that might comprise error of law”.¹²

• [19] The Judge went through each of Ms Howard’s grounds, and carefully considered Judge Spiller’s findings. The Judge concluded that there was no real live or undecided issue, and Ms Howard cannot continue to present her views despite issue

⁹ At [29].

¹⁰ Section 69(1).

¹¹ The District Court decision confirming that the suspension decision was correct, was upheld by the High Court, Court of Appeal, and Supreme Court on appeal; Howard v Accident Compensation Corporation, above n 7.

¹² Howard v Accident Compensation Corporation, above n 1, at [56].

estoppel or res judicata. The Judge referred to Justice Courtney’s decision, in which she declined leave to appeal and said:¹³

No matter how Mr Howard frames his arguments, the underlying complaint in this case and in all of the other proceedings involving Mrs Howard's claim is that the ACC should not have suspended her entitlements. ... that issue has now been determined. Mr Howard does not seem to grasp that finality in litigation relates to the substantive complaint. Once a substantive issue has been raised and determined in litigation between the parties it cannot be raised again. Advancing it in the guise of some other form of proceeding or framed as another kind of complaint cannot disguise its true nature.

It is of serious concern that precious court resources continue to be taken up in advancing essentially the same argument in different forms. This litigation may justify an application under s 166 of the Senior Courts Act 2016, which is intended to restrain the unwarranted and vexatious use of the court process for cases that have no merit.

• [20] The Judge similarly found that the application for leave to appeal Judge Spiller’s decision, was premised on relitigating the same underlying complaint, and was effectively an abuse of process.¹⁴

The Appeal

• [21] Ms Howard advances this appeal on the following grounds:

(a) Whether or not statutory provisions, namely cl 8(3), cl 9(1) of sch 1, ss 63, 64, 117(b) and 6(e) of the Act, and the Legislation Act 2019 have been properly construed, interpreted or applied to the facts?

(b) Did the Judge properly take into account and apply the facts and law in finding that the question of the implementation of Mr Howard’s agreed IRP is “moot”?

(c) Did the Judge fail to take account of relevant material?

(d) Did the Judge make an error of law by failing to give adequate reasons for his conclusion and decision?

¹³ Howard v Accident Compensation Corporation [2018] NZHC 3342 at [23] and [25].

¹⁴ At [57].

• [22] Mr McBride for ACC submits that there is no jurisdiction to grant leave to appeal against the decision of Judge Henare. Even if the matter were considered on any discernible merits, notwithstanding the absence of application to appeal against the decision of Judge Spiller, there is no tenable issue of law under the Act not previously answered in substance by the Courts. Equally, there is no valid basis for the exercise of any discretion in Ms Howard’s favour, and rather strong reasons for the refusal of leave, namely finality, abuse of process, and proper use of judicial resource.

Approach to appeal

• [23] Ms Howard brings this appeal under s 162(3) of the Act, which provides:

Appeal to High Court on question of law

(a) A party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court.

(b) The leave of the District Court must be sought within 21 days after the District Court’s decision.

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

(d) The special leave of the High Court must be sought within 21 days after the District Court refused leave.

(e) The High Court Rules 2016 and sections 126 to 130 of the District Court Act 2016, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 124 of that Act.

• [24] The High Court may grant special leave on a point of law that is capable of bona fide and serious argument under s 162(3) of the Act.¹⁵ Whether to grant special leave is a discretionary decision – the High Court may grant special leave to appeal.¹⁶

• [25] The conventional principles applying to special leave are set out by Fisher J in

Kenyon v Accident Compensation Corporation, and are as follows:¹⁷

¹⁵ Millin v Accident Compensation Corporation [2016] NZHC 1287 at [8].

¹⁶ Thomas v Accident Compensation Corporation [2015] NZHC 3252 at [5].

¹⁷ Kenyon v Accident Compensation Corporation [2001] NZHC 1301; [2002] NZAR 385 (HC) at [15].

(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly.¹⁸

(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.¹⁹

(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course.²⁰

(d) It is for the Applicant to show that leave is required in the interests of justice.²¹

(e) As 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.²²

Discussion

• [26] Ms Howard’s grounds of appeal to this Court are identical to the grounds advanced in her application before Judge Henare for leave to appeal to this Court. As noted, that application was unsuccessful.²³

• [27] While Ms Howard has attempted to frame this application as an appeal of Judge Henare’s refusal to grant leave to appeal to this Court, it is clear that the appeal really relates to Judge Spiller’s substantive findings.²⁴ This is apparent from Ms Howard’s submissions which repeatedly return to her claims that the IRP she agreed to on 27 May 2010, has never been implemented as the legislation requires, and that

¹⁸ Sandle v Stewart [1982] 1 NZLR 708 (CA).

19. Manawatu Co-op Dairy Company Limited v Lawry [1988] DCR 509; Brown v Chow Mein Fashions Limited (1993) 7 PRNZ 43 (HC).

²⁰ O'Loughlin v Healing Industries Limited (1990) PRNZ 464.

²¹ Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).

²² Brown v Chow Mein Fashions Limited, above n 19.

²³ Howard v Accident Compensation Corporation, above n 1.

²⁴ Howard v Accident Compensation Corporation, above n 2.

ACC’s correspondence of 14 September 2021 constitutes a reviewable decision. These were the claims substantively considered by Judge Spiller.

• [28] In respect of the particular grounds of appeal advanced by Ms Howard in this Court, each point was carefully considered Judge Henare, who determined that Judge Spiller’s reasoning, the application of the law, and relevant considerations survived scrutiny. I must consider this appeal, as lodged by Ms Howard, as an appeal of Judge Henare’s decision not to grant leave to appeal to this Court. Ms Howard has provided no fresh evidence or any other new information to show that there is an issue of principle at stake, which has a reasonable prospect of success. There is no extraordinary factor, as is required by the authorities, for this Court to grant special leave to appeal.

• [29] There is accordingly no basis to grant special leave to appeal from Judge Henare’s decision. Although this is not specifically advanced by Ms Howard, there is also no basis for an application for special leave to appeal against the decision of Judge Spiller.

• [30] I am in agreement with the conclusions of Judge Henare, and the earlier substantive findings of Judge Spiller, that the fundamental premise of Ms Howard’s challenge is that ACC ought to make further payments to her, or provide her with further entitlements under the IRP, notwithstanding the various decisions which have found ACC’s suspension of her entitlements to be correct at law.²⁵ Ms Howard has utilised extensive judicial resource to repeatedly revisit the issue of suspension and its effect on her.

• [31] Even if Ms Howard had advanced matters not previously answered in substance by the Courts, there are strong public policy reasons why I would refuse to exercise my discretion to grant special leave. Ms Howard has engaged in what can only be seen as an abuse of process to advance yet another appeal.

²⁵ Howard v Accident Compensation Corporation, above n 7.

Result

• [32] For these reasons, the application for special leave to appeal is declined.

Costs

• [33] The respondent seeks 2B costs. Ms Howard has not submitted on the matter of costs. I grant leave to the parties to file memoranda on costs. The memoranda should be no longer than 10 pages plus a schedule and should be filed within 10 days of the release of this judgment, to be responded to within five working days thereafter.

Cull J

Solicitors:

McBride Davenport James, Wellington, for Respondent