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Accident Compensation Cases

Jones v Accident Compensation Corporation (DC, 21/05/12)

Judgment Text

Roderick Joyce QC Judge
In the circumstances of this case I consider it will suffice to provide a proper judgment on this application for leave to appeal to the High Court on a question of law if I first of all set out — and thus incorporate in this judgment — my minute of 20 April 2012 and, having done that, note the responses to that minute and my consequential determination of the application. 
So first of all the minute: 
On 2 August 2011 Judge Beattie held (on an appeal by Mr Jones from a reviewer's decision) that in a case such as his (where the cessation of weekly compensation had not been unlawful as such) the judgment of the Court of Appeal in ACC v Kearney 2010 [NZCA 327] (where cesser had been unlawful) was distinguishable on that basis. 
Thus he held it to be the case that, in accordance with s 114(1) of the Act, the Corporation was liable to pay interest to Mr Jones only if it had not made payment of his arrears entitlement within one month after it had received the amount to be reimbursed to WINZ. And as it had made payment of arrears within one month of receipt of WINZ' advice there was not interest entitlement. 
Counsel then acting for Mr Jones thereafter made application for leave to appeal to the High Court on a point or points of law, essentially raising the legal point of whether absence of fault as regards cessation of payments disentitled Mr Jones to interest. It has since become the case that Mr Jones is acting for himself and on 29 February 2012 he filed a succinct submission in support of his leave application. 
Prior to that, and on 16 December 2011, the judgment of Simon France J in Miller v ACC CIV 2011-486-1782 High Court Wellington Registry had been delivered. In that case, and with an awareness of other cases including that of Mr Jones himself, Simon France J saw it as plain that the Kearney decision was intended to have wider application than just to cases where the Corporation had been blameworthy. 
Thus he rejected the Corporation's contention that an interest obligation outcome (of the kind Mr Jones had sought) was limited to situations where the Corporation was at fault in relation to the suspension decision. In that respect he said at [38]: 
‘Whilst that is true of the facts in Kearney, I do not see that the Court regarded this as the defining characteristic …  ’”
Amongst the factors seemingly influencing Simon France J was the long recognised general principle, so far as interest is concerned, that such ought to be paid by A in terms of a calculation dating back to the point when the principal sum (as subsequently found) ought to have been paid to B because, in the meantime, A has had the use of B's money. 
I have been informed that the Corporation has sought leave to appeal the judgment of Simon France J and the question then arises whether, in the meantime, Mr Jones' application for leave should be permitted to take the ordinary course, that is be brought on for hearing at the earliest available opportunity. 
Mr Jones seeks that outcome. The Corporation takes a neutral position but suggests that, given that the outcome of Miller in the Court of Appeal will have a bearing on Mr Jones' application, the prudent course is to adjourn that to await the Court of Appeal determination. 
I can understand why Mr Jones is keen to advance his case for, given the judgment of Simon France J, the wind is - as it were - behind him at this point. As to the Corporation, I would have thought that it might sensibly adopt the stance of not opposing Mr Jones' leave application as such. 
Given its concession that, in light of current events, the law is not yet necessarily settled, I would indeed have thought that it would be difficult right now to sustain opposition to Mr Jones' application. 
And, after all, if leave were given without opposition (with a consequent saving of effort and cost) and Miller was eventually reversed, then that would presumably seal the fate of Mr Jones' appeal. And if, on the other hand, Miller were to be upheld, then, based on what I understand of the case, Mr Jones appeal might be resolved by consent. 
I therefore invite a response (to the suggestion of a concession of justification for leave) from the Corporation asking that it, through counsel, at the same time let this Court know where matters then stand as progress with the application for leave to appeal in Miller. ”
On 10 May 2012 the Corporation advised the registry of its consent to Mr Jones' application for leave to appeal to the High Court on a point of law and, in doing so, advised that the High Court had now granted the Corporation leave in Miller v ACC CIV-2011-485-1702 to appeal to the Court of Appeal. For his part Mr Jones had advised that he had no further comment to make. 
As I remarked at para [10] of the minute, it had seemed to me that it would be difficult now for the Corporation to sustain opposition to Mr Jones' application and, of course, it has now consented to that. 
I now grant Mr Jones' application which, given the present uncertainty concerning the true ambit and effect of s 114(1), is in my view an application well justified. 
In the way this matter has developed (and I make no criticism in this respect) neither party has formulated a possible question or questions for the High Court. 
For my part I consider it will suffice at this juncture for the reference to that Court to be in terms of this question: 
“In the present1
| X |Footnote: 1
This is not Mr Jones' only case before the Court. 
case of Mr Jones does s 114 of the Act operate so as to entitle him to receive and thus oblige the Corporation to pay interest on his arrears entitlement and if so from what point in time? ”
Leave to appeal on that question (which of course the High Court may consider requires modification or addition) is granted. Just when, in light of ongoing events, the appeal should be heard will of course be a matter for the High Court. 

This is not Mr Jones' only case before the Court. 

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