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Accident Compensation Cases

Khan v Accident Compensation Corporation (DC, 27/02/15)

Judgment Text

JUDGMENT OF JUDGE L G POWELL 
Judge L G Powell
[1]
The applicant, Youmna Khan, has applied to set aside two judgments of Judge Barber being his interim1
| X |Footnote: 1
[2004] NZACC 43 
and final2
| X |Footnote: 2
[2005] NZACC 231 
judgments on an appeal brought by the applicant, for a variety of reasons, including that both judgments are nullities. 
[2]
At the outset it should be noted that the applicant has already made strenuous attempts to challenge both judgments. The interim judgment dated 10 March 2004 found in the applicant's favour, determining that as a result of a deemed decision in her favour she did not have to repay a sum of weekly compensation which she had received without substantive entitlement. Although that judgment was not specifically appealed, the applicant did proceed to challenge aspects of the interim judgment insofar as it related to Judge Barber's treatment of the deemed decision in her applications for special leave to appeal the final judgment to the Court of Appeal in both the High Court3
| X |Footnote: 3
High court Auckland CIV 2007-485-001632 11 March 2009 
and Court of Appeal4
| X |Footnote: 4
[2009] NZCA 260 
. However, with regard to the final judgment of Judge Barber dated 2 August 2005, which determined that the applicant had no substantive entitlement to weekly compensation on the grounds she was not an earner at the time of her injury on 18 June 1993, the judgment was not only appealed, but before the application for leave to appeal was determined, an application for rehearing was also sought. The application for rehearing was dismissed in the both District Court5
| X |Footnote: 5
[2006] NZACC 162 
and High Court6
| X |Footnote: 6
High Court Auckland CIV 2007-485-001632 25 February 2008 per Cooper J 
on the grounds that there is no jurisdiction for a rehearing to be ordered, and special leave to appeal to the Court of Appeal on this issue was also refused by the High Court.7
| X |Footnote: 7
High Court Auckland CIV 2007-485-001632 14 August 2008 per Cooper J 
Leave to appeal the final judgment was likewise refused in the District Court8
| X |Footnote: 8
[2007] NZACC 156 
and High Court9
| X |Footnote: 9
High Court Auckland CIV 2007-485-001632 22 December 2008 per Venning J 
and, as noted already, special leave to appeal to the Court of Appeal was also declined in the High Court10
| X |Footnote: 10
High Court Auckland CIV 2007-485-001632 11 March 2009 per Venning J 
and Court of Appeal.11
| X |Footnote: 11
[2009] NZCA 260 
 
The Application 
[3]
It is against this background that the current application is filed. The applicant has not identified any relevant statutory provision by which I have the jurisdiction to set the interim and final judgments aside as sought, still less any provision in either the Accident Compensation legislation or the District Court Rules. 
[4]
The substantive basis for the application is also somewhat nebulous. Upon analysis it appears that the application is alleging that she was not aware of certain matters relating to the deemed decision for a particular period of time prior to the hearing before Judge Barber, that there were various issues arising with regard to the applicant and her husband being convicted in 1997 for fraudulently using a document to obtain weekly compensation from the Corporation, and that Judge Barber did not have jurisdiction to consider either the 1996 deemed review decision or the applicant's 1993 earner status which formed the central part of his judgments. Finally it is argued by the applicant that both judgments were obtained by fraud, although exactly what that fraud was and who it was committed by is not clear. 
Jurisdictional Issues 
[5]
Having considered the application I agree with the respondent that I have no jurisdiction to simply set aside the judgment. In particular I note that a number of the grounds advanced by the applicant (including allegations that the judgment has been obtained by an unfair or improper procedure, relevant evidence has been discounted since the trial and/or a witness has been guilty of misconduct12
| X |Footnote: 12
Rule 11.24 District Court Rules 2014 
) would normally fall within the ambit of the District Court in its civil jurisdiction being able to order a retrial pursuant to Rule 11.24 of the District Court Rules 2014, but I note that this rule is in fact the equivalent provision to Rule 493 of the District Court Rules 1992 which in the present case Cooper J has already found has no application in the Accident Compensation context. 
[6]
Instead the respondent suggested that the only possible avenue for the applicant was for this Court to consider the application as an application for recall and this approach has not surprisingly been endorsed by the applicant in reply. It has been accepted that this Court has jurisdiction to recall judgments,13
| X |Footnote: 13
See for example Khan v Accident Compensation Corporation [2006] NZACC 162 and Steel v Accident Compensation Corporation [2013] NZACC 145
even in a case like this where the judgment for which recall is sought is not my own judgment, Judge Barber having retired since the issue of the judgments subject to the application.14
| X |Footnote: 14
 
[7]
The jurisdiction to recall has however always been predicated on it having to be exercised before the judgement is perfected15
| X |Footnote: 15
See Horowhenua County v Nash [1968] NZLR 632Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  and 633 
, a point picked up by Rule 11.9 of the District Court Rules 2014 which provides: 
“A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up or sealed. ”
[8]
As Cooper J confirmed in his consideration of this Court's jurisdiction to order a rehearing when in exercising its Accident Corporation jurisdiction, the relevant District Court Rules are subject to the dispute resolution framework contained in the relevant Accident Corporation legislation, which in this case is the Accident Insurance Act 1998. Pursuant to sections 164 and 165 of that Act, under which both the interim and final judgments were issued, there are in fact no further administrative steps that are required to be taken in order to perfect decisions. Decisions under s 164 are therefore final when issued, subject only to the outcome of an application for leave to appeal if it is filed within 21 days of the decision being made. 
[9]
Thus, if no application for leave to appeal is made or an application for leave to appeal/appeal has been formally disposed of, the decision is final for all purposes. As a result I conclude no application for recall can be made after that point. To hold otherwise would be to leave decisions of this Court subject to applications to recall in perpetuity, long after records have been destroyed and/or the judge hearing the original appeal has retired, which cannot have been the intention of the legislature. 
[10]
As a result, I conclude that not only is there no jurisdiction to set aside the present judgment, but given that the time limit for filing an application for leave to appeal on the interim judgment expired in 2004 and the final application for special leave to appeal the final judgment was dismissed in 2009, there is therefore also no jurisdiction for this Court to entertain a recall application. 
Substantive Issues 
[11]
Even if I am wrong in declining jurisdiction to entertain the present application I am in any event satisfied that there are no grounds found that would justify either setting aside or recalling either the interim or final judgment. 
[12]
Starting with recall, the principles are well established, having been set out by Wild CJ in Horowhenua County v Nash (No 2)16
| X |Footnote: 16
[1968] NZLR 632 
, who identified three categories of cases where a judgment not perfected can be recalled, being: 
“1.
Where, since the judgment, there has been an amendment to a relevant statute, Regulation, or new judicial decision of higher authority; 
2.
Where counsel have neglected to direct the Court's attention to a statute, Regulation, or judicial decision of plain relevance; 
3.
Where for some other very special reason justice requires that the judgment be recalled. ”
[13]
With regard to the issues raised by the applicant, it is clear that none of those matters fall within either of the first two categories in Horowhenua County, and so only the third category is relevant. 
[14]
With regard to the third category, the Court of Appeal in Unison Networks Limited v Commerce Commission17
| X |Footnote: 17
[2007] NZCA 49 
noted the cases in which justice will require a recall on the basis of the third ground in Horowhenua County are likely to be rare. I also observe that in this jurisdiction use of the recall procedure must be used sparingly as it should not be seen as giving a right of general appeal on factual matters and/or a general ability to obtain a rehearing when those are otherwise specifically constrained. 
[15]
When the matters advanced in support of the application are considered against the third ground in Horowhenua County, I am entirely satisfied the applicant has come nowhere near reaching the threshold for recall. 
[16]
In particular delay in rehearing the present application, particularly if it is to be treated as a recall is in itself a substantive ground to decline a recall. This is particularly so given that in his 2006 judgment declining jurisdiction to grant a rehearing, Judge Cadenhead advised the applicant: 
“If the [applicant] has any complaint with the decision of Judge Barber on the facts then [she] should apply to the Judge to recall his decision, bearing in mind the narrow grounds that a recall is granted. ”
[17]
The fact that the applicant has waited 9 years since being advised of the process for recall by which time Judge Barber had by then returned, is therefore a significant factor in declining the application. 
[18]
In addition I cannot see how the matters raised by the appellant with regard to knowledge of the deemed decision or whether the applicant was wrongly convicted, even if correct, have any relevance to whether the judgment of Judge Barber should be recalled or set aside, as it is clear that Judge Barber's judgments did not turn on those matters. 
[19]
Likewise there is no basis for suggesting that Judge Barber's judgments are in any way a nullity. It is quite clear that the issues addressed by His Honour in the course of both judgments were appropriate, and that the judgments turned on the evidence before him from which conclusions were drawn by Judge Barber which were open to His Honour in the circumstances. Finally the legal issues before Judge Barber in both the interim and final judgments, including allegations of a conspiracy have been scrutinised by the District Court, High Court and Court of Appeal, and leave to appeal was declined in each case because no question of law was raised which was capable of bona fide and serious argument. 
[20]
For completeness, I note that as Judge Barber noted in SH v Accident Compensation Corporation18
| X |Footnote: 18
[2006] NZACC 288 at [23] 
the types of matters relevant to the exercise of a recall under the third ground in Harowhenua County are similar in substance to those that would justify a rehearing or retrial (or in this case a “setting aside”). I therefore note that I conclude for the reasons set out above that the matters raised in support of the application to set aside give rise to no circumstances where such a course would be appropriate or justified. 
Decision 
[21]
Taking these matters together I confirm: 
“[a]
The Court has no jurisdiction to set aside the judgments as sought nor to recall the judgments at this point; and 
[b]
There is in any event no basis for either setting aside or recalling the judgments. ”
Result 
[22]
The application is dismissed. In dismissing the present application I note that the applicant was told by Justice Venning in the High Court in 2009 that the judgments of Judge Barber were final. As a result I consider that the present application to revisit the judgments after such a prolonged period is simply an abuse of process. 
[23]
The respondent is entitled to costs on this application which I fix in the sum of $750.00 


[2004] NZACC 43 
[2005] NZACC 231 
High court Auckland CIV 2007-485-001632 11 March 2009 
[2009] NZCA 260 
[2006] NZACC 162 
High Court Auckland CIV 2007-485-001632 25 February 2008 per Cooper J 
High Court Auckland CIV 2007-485-001632 14 August 2008 per Cooper J 
[2007] NZACC 156 
High Court Auckland CIV 2007-485-001632 22 December 2008 per Venning J 
High Court Auckland CIV 2007-485-001632 11 March 2009 per Venning J 
[2009] NZCA 260 
Rule 11.24 District Court Rules 2014 
See for example Khan v Accident Compensation Corporation [2006] NZACC 162 and Steel v Accident Compensation Corporation [2013] NZACC 145
See Horowhenua County v Nash [1968] NZLR 632Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  and 633 
[1968] NZLR 632 
[2007] NZCA 49 
[2006] NZACC 288 at [23] 

From Accident Compensation Cases

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