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Accident Compensation Cases

Siola'a v Accident Compensation Corporation (DC, 19/06/07)

Judgment Text

J D Hole Judge
Judge Beattie's decision is dated 27 August 2003. It was sent to the intended appellant the same day. By a notice dated 16 September 2003 the intended appellant applied for leave to appeal the decision. The Accident Compensation Appeals Registry noted that the notice of application for leave to appeal was received by it on 19 September 2003. 
On 17 January 2007 submissions in support of the application for leave to appeal were received by the registry. 
On 23 April 2007 the solicitors acting for the Accident Compensation Corporation wrote to the registrar (with a copy to Mr Beck, counsel for the intended appellant) as follows: 
“We refer to Mr Garland's letter to Legal Services of 16 March 2007 and our subsequent indication to Ms Rintoul that submissions in respect of this matter would be filed on behalf of the Corporation by 27 April 2007. 
The decision in this matter was issued on 27 August 2003. Accordingly, the application for leave to appeal was required to have been filed on or before 17 September 2003. 
Although dated 16 September 2003, and apparently sent to the Tribunals Division under cover of a letter dated 16 September 2003, the notice of application for leave to appeal was not in fact filed with the Registry until 19 September 2003. You have confirmed that the application was not lodged before that date by other means e.g. by way of facsimile. 
In those circumstances, and in reliance on decision such as Thomas (283/05), and Hill (64/06) in the High Court, and more recently the decision of Justice Venning in Zhang (CIV 2005-404-007101, 27 October 2006), the application for leave to appeal was filed out of time and is thus a nullity. We seek your confirmation that the matter will be dealt with on that basis and in the circumstances do not propose to file substantive submissions …  ”
On 24 April 2007 Mr Beck responded: 
“I have received Young Hunter's letter of 23 April 2007 addressed to the Registrar, and am very surprised at the position that has been adopted by ACC. 
As a result of the failure by ACC to comply with the Registrar's direction, the Registrar issued an ultimatum requiring submissions to be filed by 16 April 2007. That was not complied with, although there was apparently a request for a further extension. ACC did not dispute the Registrar's authority to make these directions. If it is now claimed that the application is a nullity, ACC will need to take action to set these directions aside. 
The appellant does not accept that the application was out of time, and notes that the Court has confirmed on 3 separate occasions that the application was lodged on 16 September 2003. As the time period is calculated from the sealing of a formal order, it cannot be said that the time has expired. 
In addition, the conduct of ACC prevents it from raising this point at this stage. It has never been previously suggested that the application was out of time. The appellant accordingly requires the application to be dealt with on its merits. ”
A letter dated 26 April 2007 was then received from the solicitors for the Accident Compensation Corporation. 
“We refer to our letter to you of 23 April, and a letter we have now received from Andrew Beck dated 24 April, in connection with the above matter. 
We do not accept the points made in the second and final paragraphs of Mr Beck's letter, nor that the relevant time period requires, or is calculated from, the sealing of a formal order. 
However, Mr Beck claims that the Court ‘has confirmed on 3 separate occasions that the application was lodged on 16 September 2003’ which is contrary to your advice that the application for leave to appeal was filed with the Registry on 19 September 2003, and not lodged with it by any other means before that date. In those circumstances we do not see how Mr Beck can be right in his claim as to the Court's advice. However, we would be grateful if you would clarify this, as a matter of urgency. 
If upon this clarification Mr Beck remains of the view that — presuming that it is confirmed the appeal was not actually lodged until 19 September 2003 — the application is not a nullity, then in our view that would need to be the subject of further and rather more detailed submissions on the point than correspondence will suffice to provide. ”
These three letters constitute the submissions filed in respect of the question as to whether the time requirements of s 162(2) Injury Prevention, Rehabilitation and Compensation Act 2001 have been adhered to. 
Is the Application for Leave to Appeal a Nullity? 
Section 162(2) Injury Prevention, Rehabilitation and Compensation Act 2001 is mandatory. It states that leave to appeal to the High Court “must be sought under Part 5 of the District Courts Act 1947 and within 21 days after the District Court” decision” 
Mr Beck claimed in his 24 April 2007 letter that time ran from the date of sealing of the decision. This is not correct. In Thomas (283/05) the District Court considered the equivalent provision under the Accident Insurance Act 1988. The wording of s 165(2) of the 1988 Act is identical to the wording of s 162(2) of the 2001 Act. The Court determined that the 21 days ran from the date that the decision was issued. The Court stated: 
“ … that lateness [of the application for leave] is fatal and I do not have any discretion to enlarge the time. The 21 days prescribed under s 165(2) runs from the date of the District Court's decision and not from the date the appellant received a copy of the decision. ”
If further support for what was stated in Thomas is necessary, see rr 531 and 533 District Courts Rules 1992. 
The expression in s 162(2)“must be sought within 21 days” is unusual. Rule 547 District Courts Rules, for example, requires any notice of appeal to the District Court to be “filed and served”. However, I doubt that the expression used in s 162(2) can mean that, because the notice of application for leave to appeal was dated 16 September 2003, leave was sought on that date. Leave cannot have been sought until the application was received by the registry. 
In his letter of 24 April 2007 counsel for the appellant seems to suggest (a) that the Court and (b) the Accident Compensation Corporation are prevented from suggesting that the appeal might be out of time by reason of their subsequent conduct. If the appeal is out of time, it is a nullity. Jurisdiction cannot be conferred on the Court by consent or by the effect of some sort of estoppel. The comments of Venning J at paras 7 and 8 of Zhang v Accident Compensation Corporation & Anor CIV 2005-404-007101 are pertinent: 
Although the application for special leave was filed in this Court within 21 days of the District Court decision refusing leave (on 15 May 2006), as the application for leave to appeal was not filed with the District Court within time as required by s 165(2), there may be no jurisdiction to hear the appeal. In Reden-Oldfield v ACC (HC Whangarei, CIV 2005-485-185, 8 December 2005) Lang J held that the failure to file the application for leave with the District Court within the time provided by s 165(2) meant the application to the District Court for leave to appeal was a nullity. As a result there was no power to file an application for special leave because the District Court was not refusing dismissing the application as it had no jurisdiction to accept and hear an application brought out of time. Lang J found there was no power to file an application for special leave so that the application was a nullity and the Court had no jurisdiction to grant special leave. 
Counsel for the respondent did not wish to take the jurisdiction point but, as counsel accepted, if there is no jurisdiction for the appeal then of course jurisdiction cannot be conferred by consent or by the respondent not taking the point. ”
See also para 10 of the same judgment, reading: 
I am not, however, able to accept that submission. Section 165 is in mandatory terms. It provides that ‘leave must be sought … within 21 days after the District Court's decision’. To suggest that time limit could be extended by application of r 703(6) would be to give r 703 primacy over the intent of Parliament as expressed in s 165 which is, that the application for leave must be brought within the 21 days period. The intent of the legislature is clear from s 165. If there is to be a further appeal to this Court from a decision of the District Court (from a decision of the Review Committee), then it will only be by leave (or special leave). The application for leave must be brought within 21 days after the decision of the District Court. That is an express provision in the applicable legislation as contemplated by r 701(3). The remaining provisions of Part 10 of the Rules including r 703(6) must be read subject to that. If Mr Gray's submission was correct then an applicant would not be required to make the application for leave to the District Court within 21 days but, provided they made a later application, (out of time), to the District Court which was dismissed on the grounds it was out of time, but then applied within 21 days of that dismissal for special leave, this Court would be obliged to deal with the leave application — even if it were made a number of years after the decision. That cannot be the position that Parliament intended. It would also be contrary to the objectives of certainty and finality in litigation. I consider, with respect, the decision of Lang J in Reden-Oldfield v Accident Compensation Corporation (supra) is correct. Unfortunately for the application there is no jursidiction for this application for special leave. ”
Because the notice of appeal was filed outside the statutory time limit prescribed by s 162(2) of the 2001 Act, this Court has no power to grant leave to appeal to the High Court. 
The application for leave to appeal to the High Court is declined. 

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