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Accident Compensation Cases

Goh v Accident Compensation Corporation (DC, 10/04/14)

Judgment Text

Judge Roderick Joyce QC
On 21 March 2014 Ms Goh lodged with the Registry notice that she was: 
“Applying for leave out of time to appeal to the High Court against a judgment [2013] NZACC 341, 23 October 2013, Judge B A Ongley, District Court, Wellington. I am seeking to appeal against the decision dismissing the appeal. ”
As grounds for the application she set out some assertions concerning the effect of the 2001 Act before saying that: 
“The question of law for the High Court to determine is: 
Whether the District Court was correct in law by dismissing the appeal in respect to a reviewer's decision which was entirely in the appellant's favour, when ACC has not yet actioned that reviewer's decision and ACC is bound by that reviewer's decision in terms of s 147 of the Injury Prevention, Rehabilitation and Compensation Act 20011
| X |Footnote: 1
Now of course known as the Accident Compensation Act 2001 
. ”
Then in terms of relief she said that she sought: 
“An enforcement order against ACC to comply with the reviewer's decision to make a payment of $29,214.53 on the late payment of weekly compensation $95,891.90 (an amount based on Mr Murphy's calculation in his affidavit sworn at Auckland dated 15 May 2013). ”
Response of Corporation 
The Corporation filed a memorandum dated 1 April 2014 which said: 
The applicant … filed a late application for leave to appeal against the decision on Goh v ACC 341/13, issued on 23 October 2013. 
At some point after the 21 day time period to file a leave application (set out at section 162 of the Accident Compensation Act 2001) expired, the applicant contacted the Registry by telephone and discussed the prospect of filing a late application. 
The applicant was advised that her application would be out of time, and that she should make a special leave application to the High Court. 
Subsequently the applicant filed a special leave application in the High Court (Goh v ACC CIV: 2014-404-000291). 
The High Court considered the special leave application, and issued judgment on 21 March 20142
| X |Footnote: 2
The same day as the current application was filed. 
determining that it had no jurisdiction to hear the application for special leave … (and) … at paragraph [14] of the judgment Ellis J set out: 
‘It is also clear that the time limits in section 162 are strict. The Court of Appeal has held in Siola'a v ACC that the Court has no discretion to extend time unless the Corporation waives compliance with the time limit under section 3 of the Inferior Court's Procedure Act 1909. At [33] the Court said: 
“We add for completeness that classifying a leave application made outside the time limit as a nullity is not strictly accurate. If, in a case such as the present case, ACC is prepared to waive the non-compliance with the time limit and does so, then the District Court would have jurisdiction to consider and decide the application. So, until a Judge decides that the leave application should be struck out, there is an application before the Court which requires a judicial decision to determine it. In cases where no question of acquiescence or waiver arises, that decision will be obvious. The decision to strike out the leave application could simply state that, in the absence of acquiescence or waiver, the lateness of filing deprives the Court of jurisdiction to hear the application. ””’
The High Court determined that in circumstances where a leave application is late, and in the absence of a waiver, neither the District Court nor the High Court has jurisdiction to consider the leave application. 
For clarity in this case, the Corporation does not agree to waive the time limits pursuant to section 3 of the Inferior Court's Procedure Act 1909. 
Accordingly it is submitted that the circumstances simply are that the leave application is out of time, and that the District Court does not have jurisdiction to entertain it. 
The Corporation seeks a decision from the Court declining jurisdiction. ”
The judgment of Ellis J 
In outlining the background to this case Ellis J noted that Ms Goh's concern related to interest on backdated weekly compensation. On 21 November 2012 it had been held at review that she was entitled to interest for the period from 15 March 1998 to 11 September 2005. 
The Corporation had apparently calculated the interest that was payable to her on the basis of the reduced sum she had received in 2005, following the subtraction of WINZ payments, but Ms Goh had objected to this approach. 
Ms Goh had filed an appeal against that review decision and this had led to the judgment of Judge Ongley of 23 October 2013 wherein the Judge essentially held the appeal to be misconceived because the review decision had been in Ms Goh's favour, the Judge saying that if she wished to challenge the interest calculation then she could and should apply for a review of that decision. 
On this account Ellis J went on to say that: 
Notably, Mrs Goh confirmed before me that this is precisely what she has done and her appeal in that respect is pending in the District Court. ”
Recent Court of Appeal decision 
What I take to be the very issue troubling Ms Goh is now the subject of the 26 March 2014 judgment of the Court of Appeal in Cullen3
| X |Footnote: 3
Cullen v ACC [2014] NZCA 94Has Litigation History which is not known to be negative[Blue]  
where Mr Cullen had sought special leave to apply to the Court of Appeal on the question: 
“Is the [Accident Compensation] Corporation required to pay interest on the whole amount of retained weekly compensation [to which the applicant was entitled] notwithstanding any repayment to WINZ of income support benefit paid to the [applicant]? ”
In refusing leave the Court of Appeal said that: 
… Mr Cullen was entitled under section 114 of the Act to the interest he received on the late payment of arrears of compensation of $12,789.45 which he in fact received, but he was not entitled to interest on the refund of $185,498.63 paid by the Corporation to WINZ under section 252 of the Act. Mr Cullen was out of pocket in respect of the late payment he received. He was not out of pocket in respect of the refund to WINZ. 
We do not accept Mr Schmidt's submission that this conclusion is inconsistent with Mr Cullen's ‘entitlement’ to the ‘greater’ amount of compensation calculated under the relevant statutory formula and recognised by sections 114 and 252. The short answer is that, apart from the sum of $12,789.45, Mr Cullen had already received from WINZ the full amount to which he was entitled. In terms of section 114 the Corporation was not liable to pay him interest on the amount he in fact received from WINZ. No late payment was involved in respect of that amount. 
Nor do we accept Mr Schmidt's submission that this outcome results in a ‘windfall’ for the Corporation. The Corporation has met its statutory obligation to refund WINZ the $185,498.63. The fact that in these circumstances it is not liable to pay interest to Mr Cullen on that sum is not a ‘windfall’. ”
So if that is the issue still sought somehow to be pressed by Ms Goh, then there, in the Court of Appeal's judgment, would appear to reside the answer. 
Status of current application 
Leaving aside the point that, if this Court's understanding of the true remedy sought by Ms Goh is correct, then Cullen appears to have put paid to what I discern to be her case, her 21 March 2014 application must in any event be identified as misconceived. 
I say that because: 
Judge Ongley's judgment was delivered last October and the current application was lodged on 21 March 2014; which means that - 
The application is well and truly outside the ambit of s 162 of the Act, subsection (2) of which requires that leave to appeal to the High Court on a question of law must be sought within 21 days after the District Court's decision; and - 
There being no sign at all that the Corporation has acquiesced in this application, to the contrary it has through its counsel made plain that there is no waiver; it follows that - 
This Court has no option but to decline jurisdiction altogether because the time requirements of s 162(2) have not been met. 
On account the absence of any jurisdiction to do otherwise, this Court must decline to entertain the 25 March 2014 application. It is accordingly struck out. 

Now of course known as the Accident Compensation Act 2001 
The same day as the current application was filed. 
Cullen v ACC [2014] NZCA 94Has Litigation History which is not known to be negative[Blue]  

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