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Accident Compensation Cases

Howard v Accident Compensation Corporation (DC, 10/10/12)

Judgment Text

Judge D A Ongley
The appellant has applied for recall of my judgment of 29 June 2012. She has also filed an application for leave to appeal, which will be considered by another judge. This decision relates only to the recall application. 
The point raised in the application for recall concerned s 117 of the Accident Compensation Act 2001 and the power of the Corporation, or in this case Care Advantage (authorised to act in the place of the Corporation), to “suspend or cancel an entitlement”. The power was used to suspend all entitlements, without specifying a particular entitlement. 
Mr Howard now argues on behalf of the appellant that a suspension of all entitlements was ultra vires. I did not find any cogent submission of that kind in the written submissions before the Court in the appeal. There was no serious oral argument on the point that I can recall. None is mentioned in my own notes. It may have been a subject of comment in the course of the appeal hearing, but the appellant did not develop it in argument. 
In Horowhenua County v Nash (No 2) [1968] NZLR 632Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , Wild CJ identified three categories of cases in which a recall of judgment may occur: 
Where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and higher authority; 
Where counsel have failed to direct the court's attention to a legislative provision or authoritative decision of plain relevance; and 
Where for some other very special reason justice requires that the judgment be recalled. 
None of those circumstances apply in the present case. In Unison Networks Ltd v Commerce Commission [2007] NZCA 49Has Litigation History which is not known to be negative[Blue]  in which the Court of Appeal affirmed the ground for recall in Horowhenua County v Nash, the Court said: 
We conclude by observing that the Court's reasons and the issues it chooses to address are within the discretion of the Court. It will often be unnecessary to deal with all of the submissions presented because of the way in which a case is finally resolved. The Court plainly is able to address submissions in the manner it chooses. While a decision may be recalled where a material issue properly put before the Court is not addressed, excluding a slip or minor error, the cases in which justice will require a recall on this basis are likely to be rare. ”
I do not accept that a material issue put before the Court was not addressed in this case. The application for recall is refused. 

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