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Accident Compensation Cases

Khan v Accident Compensation Corporation (DC, 30/07/07)

Judgment Text

Judge J D Hole
The first issue to determine is whether the application for leave to appeal to the High Court was lodged in time. 
The second issue only arises if the answer to the first issue is in the affirmative. It is whether, as a matter of law, the Accident Rehabilitation and Compensation Insurance Act 1992 applied in respect of the receipt of WINZ information or if the Injury Prevention, Rehabilitation & Compensation Act 2001 applied. 
Was the application for leave to appeal lodged out of time? 
Judge Beattie's reserved judgment is dated 16 November 2006. It was sent to the intended appellant the same day. The accompanying letter pointed out to the appellant that leave to appeal to the High Court must be sought within 21 days after the District Court's decision. 
By letter dated 15 December 2006 (which was received on 18 December 2006) the intended appellant advised the Registry that she still had time for leave to appeal as she received Judge Beattie's decision on 9 December 2006. By letter dated 18 December 2006 to the intended appellant, the Registrar advised that he had treated the letter dated 15 December 2006 as an application for leave to appeal to the High Court. Strictly speaking, the Registrar was wrong. There is nothing in the letter dated 15 December 2006 which constitutes an application for leave to appeal to the High Court. Nevertheless, given the liberal attitude of the Registrar, I am prepared to treat the letter dated 15 December 2006 as an application for leave to appeal to the High Court. Accordingly, I must now determine if that letter means that leave was sought to appeal to the High Court within 21 days after the District Court's decision. 
Counsel for the intended respondent has submitted that, as the written judgment of the District Court was endorsed as having been given on 16 November 2006, the 21 day period runs from that date. Thomas (283/2005) was cited as authority for this proposition. That decision was cited with approval by me in Siola'a (211/2003). 
Siola'a is currently the subject of an application for review and an application for special leave to appeal to the High Court. Notwithstanding this, however, Thomas and Siola'a must be regarded as authoritative at this stage. 
As counsel for the intended respondent pointed out in his submissions, if the 21 days commenced on 16 November 2006, the period expired on or by 7 December 2006. 
Thomas, Siola'a and, indeed, this decision all rely upon s 162 Injury Prevention, Rehabilitation and Compensation Act 2001 which is mandatory. That section 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”
As was pointed out by Venning J in Zhang v Accident Compensation Corporation and Anor, CIV-2005-404-007101, and by Lang J in Reden-Oldfield v ACC (HC Whangarei, CIV 2005-485-185, 8 December 2005) the failure to file an application for leave to apply to the High Court within the time provided by s 162(2) means that any subsequent application to the District Court for leave to appeal is a nullity. 
As, in this case, the letter dated 15 December 2006 was filed outside the 21 day period, the intended appellant's application constitutes a nullity. Whilst the intended appellant may well consider that, in the circumstances of this case, such a conclusion is harsh, nevertheless this Court is bound by s 162(2) and the authorities to which I have already referred. 
For this reason alone, the application is declined. 
Question of Law 
In view of my conclusion set out in the preceding paragraph, it is not necessary for me to consider whether or not the point raised by the intended appellant constitutes a question of law. However, for completeness, I intend to deal with this issue briefly. 
Over the years, the Courts have given some guidance as to what constitutes a point of law: 
The issue must arise squarely from “the decision” challenged: eg Jackson v ACC unreported, HC Auckland, Priestley J, 14 February 2002, AP 404-96-01; Kenyon v ACC (2002) NZAR 385, 390 Fisher J. Leave cannot for instance properly be granted in respect of obiter comment in a judgment: Albert v ARCIC unreported, France J, HC Wellington, AP 287/01, 15 October 2002; 
The contended point of law must be “capable of bona fide and serious argument” to qualify for the grant of leave: eg Impact Manufacturing unreported, Doogue J, HC Wellington, AP 266/00, 6 July 2001; 
Care must be taken to avoid allowing issues of fact to be dressed up as questions of law; appeals on the former being proscribed: eg Northland Co-operative Dairy Co Ltd v Rapana [1999] 1 ERNZ 361, 363 (CA); and 
Where an appeal is limited to questions of law, a mixed question of law and fact is a matter of law: CIR v Walker [1963] NZLR 339, 354. 
It is well settled that a decision-maker's treatment of facts can amount to an error of law. There will be an error of law where there is no evidence to support the decision, the evidence is inconsistent with, and contradictory of the decision, or the true and only reasonable conclusion on the evidence contradicts the decision: Edwards v Bairstow [1995] 3 All ER 48, 57. 
Whether or not a statutory provision has been properly construed or interpreted and applied to the facts is a question of law: Commissioner of Inland Revenue v Walker [1963] NZLR 339, 353-354 (CA); Edwards & Bairstow [1995] 3 All ER 48, 57
Even if the qualifying criteria are made out, the Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources. Leave is not to be granted as a matter of course. One factor in the grant of leave is the wider importance of any contended point of law: eg Jackson and Kenyon above. 
Recently, the Supreme Court when quashing a decision of the Court of Appeal that it had jurisdiction to entertain a matter as an appeal on law stated in Bryson v Three Foot Six Limited [2005] NZSC 34
… The task which the Lower Court is engaged upon is the application of the law to the facts before it in the individual case. It involves a question of law only when the law requires that a certain answer be given because the facts permit only one answer. Where a decision either way is fairly open, depending on the view taken, it is treated as a decision of fact, able to be impugned only if in the process of determination the decision maker misdirects itself in law …  
An appeal cannot, however, be said to be on a question of law where the fact finding Court has merely applied law which it has correctly understood to the facts of an individual case. It is for the Court to weigh the relevant facts in the light of the applicable law. Provided that the Court has not overlooked any relevant matter or taken account of some matter which is irrelevant to the proper application of the law, the conclusion is a matter for the fact finding Court, unless it is clearly unsupportable. 
… Whether or not Judges in an appellate Court might, if sitting in the Employment Court, have reached a different conclusion, as the majority in the Court of Appeal certainly would have done, it cannot be said that Judge Shaw has made a decision which is inconsistent with the evidence or contradictory of it or one which can properly be described as ‘insupportable’. ”
In this case, the issue raised by the intended appellant as to which Act applies in respect of receipt of the WINZ information has already been determined in the High Court — see Wardle v ACC AP 134/02 (unreported, 18 October 2002, Gendall J, Wellington HC). 
The essence of the intended appellant's submission in this case is that it was not necessary for the ACC to obtain information from WINZ before the intended respondent could calculate and make payment of the arrears of weekly compensation. If ss 72 and 78(3) of the 1992 Act applied, there was a discretion given to the intended respondent as to whether or not the receipt of details from WINZ was necessary. 
This was changed by s 373 of the 1998 Act which has been re-enacted by s 252(4) of the 2001 Act. Now, when calculating the compensation, it is mandatory that the intended respondent make a refund to WINZ where appropriate and, accordingly, the WINZ information is necessary to enable calculation. 
Returning to the issue as to whether or not the intended appellant has raised a question of law, it is plain that para 13.2 applies. As the contended point of law has already been determined in Wardle it no longer remains a point which is “capable of bona fide and serious argument”
Accordingly, the intended appeal does not raise a point of law entitling the intended appellant to bring an appeal before the High Court. 
For this reason, also, the application is declined. 

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