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Accident Compensation Cases

Marsh v Accident Compensation Corporation (DC, 16/12/16)

Judgment Text

JUDGMENT OF JUDGE L G POWELL 
Judge L G Powell
[1]
This is an application for leave to appeal against my judgment delivered on 10 July 2015, dismissing the appeal of the applicant, John Marsh.1
| X |Footnote: 1
 
Judgment Appealed Against 
[2]
Appeal AI 26/05 required determining whether a letter from the Corporation to the appellant, John Marsh, dated 15 June 2004 constituted a fresh decision which gave rise to review rights, and thereby allowed Mr Marsh to challenge an earlier decision of the Corporation requiring him to repay $621.10, being an overpayment of weekly compensation. 
[3]
For reasons set out in the judgment I concluded that the Corporation's letter of 15 June 2004 was not a new decision,2
| X |Footnote: 2
At [15]-[16] 
and that in any event Mr Marsh's liability to repay the $621.10 had been conclusively determined in an earlier judgment of Judge Beattie in 2005.3
| X |Footnote: 3
At [18] - see Marsh v Accident Compensation Corporation [2005] NZACC 168 
As a result I concluded Mr Marsh remained liable to pay the Corporation the sum of $621.10 and the appeal was dismissed. 
Procedural History 
[4]
The judgment in appeal AI 26/05 was one of 10 judgments delivered in respect of 12 appeals brought by Mr Marsh, which were heard by me in two tranches of six appeals in May 2015 and September 2015 respectively. Mr Marsh has filed applications for leave to appeal all 10 judgments. 
[5]
To a greater or lesser degree all 10 judgments involved consideration of a jurisdictional question, namely whether the Accident Insurance Act 1998 or Accident Compensation Act 2001 applied to Mr Marsh's injury and his ongoing eligibility for entitlements from the Corporation (“the jurisdictional issue”). The jurisdictional issue had previously been the subject of a judgment of Judge Barber,4 upon which I had declined leave to appeal at the same time as issuing judgments in relation to the first tranche of Mr Marsh's appeals.5
| X |Footnote: 5
All 10 applications for leave to appeal were accordingly adjourned to enable Mr Marsh to seek special leave to appeal Judge Barber's judgment to the High Court. Special leave to appeal Judge Barber's judgment was however declined by Mander J,6
| X |Footnote: 6
and since then it has been confirmed that Mr Marsh has exhausted all avenues of appeal on the jurisdictional issue.7
| X |Footnote: 7
Minute of Nation J dated 11 July 2016 (High Court, Christchurch, CIV-2015-409-000485), and Marsh v Accident Compensation Corporation [2016] NZCA 409Has Litigation History which is not known to be negative[Blue]  per French J 
 
[6]
Upon confirmation of the position with regard to the jurisdictional issue I convened a teleconference on 2 September 2016. At that teleconference it was agreed that Mr Marsh would have the opportunity to consider whether or not he still wished to proceed with all or any of the applications for leave to appeal and a timetable for the filing of submissions was agreed. 
[7]
In particular, in order to assist Mr Marsh with the delineation of the issues required the Corporation to file submissions first, followed by Mr Marsh's submissions in support of his applications, with the Corporation then given the final right of reply. In the minute issued recording the matters agreed at the teleconference, and in a number of subsequent minutes it was made quite clear to Mr Marsh that as a result of the High Court and Court of Appeal decisions: 
“ … from the point of view of the District Court the jurisdictional issue, and indeed any other matters pertaining to Mander's J judgment, is now closed. Accordingly, while Mr Marsh is entitled to seek leave to appeal, leave will not be able to be given on the jurisdictional issue and whether leave will be able to be given on any other issue will depend on whether a question or questions of law are identified in respect of any particular judgment which are ‘capable of bona fide and serious argument’. ”
[Footnote omitted] 
[8]
Mr Marsh subsequently confirmed that he wished to proceed with all 10 applications for leave to appeal8
| X |Footnote: 8
Minute of 21 September 2016 
and the parties have filed submissions as directed. As Mr Marsh has pointed out the Corporation filed its submissions two days late and I directed that these be accepted with an additional two days added to Mr Marsh's filing date. In the event however Mr Marsh's filing date was further extended to 28 November 2016. Following a brief final reply filed by the Corporation on 29 November 2016 all 10 applications for leave to appeal were then ready for determination. 
[9]
Although the practice is long established in this jurisdiction that applications for leave to appeal are determined by a different District Court Judge to the one who has heard the appeal, for the reasons I set out in Vehicle Testing New Zealand v Accident Compensation Corporation9
| X |Footnote: 9
[2015] NZACC 154 
there is nothing in law to prevent a Judge who has heard the appeal from determining the application for leave to appeal where it is appropriate to do so, and in particular to avoid unnecessary delay. 
[10]
In this case I consider it is appropriate for me to determine the present application and the other applications for leave to appeal brought by Mr Marsh. Not only would referring the applications to another judge lead to an inevitable delay in dealing with the applications, but as it is apparent that the primary ground for which leave is sought in respect of all the applications for leave to appeal remains the jurisdictional issue (and that has been finally determined), then in the particular circumstances pertaining to these applications there is in fact no utility in involving any other judge to consider the applications for leave to appeal. 
[11]
For the same reason I decline to accede to Mr Marsh's request for a “live” hearing of the applications for leave to appeal. It is not only the standard practice for the District Court to determine applications for leave to appeal on the papers, but in this case I have already heard extensively from Mr Marsh on all aspects of the present application, including the jurisdictional issue which has been conclusively determined, and I therefore conclude that not only is there is nothing to be gained by a further hearing but it can only result in further delay and expense for the parties. 
Issues Raised by Applicant 
[12]
Although consistently advising the Court of ill health Mr Marsh ultimately filed extensive submissions in support of this and the other nine applications for leave to appeal by the filing deadline, totalling some 132 pages. Since then, as well as providing an array of additional email submissions, Mr Marsh has filed an augmented submission in respect of all ten applications for leave to appeal which now totals 167 pages. 
[13]
The primary argument made by Mr Marsh in support of all of the applications for leave to appeal, including appeal AI 26/05, relates to the jurisdictional issue referred to above. In particular Mr Marsh submitted the 1998 Act should apply to Mr Marsh's injury rather than the 2001 Act, and the 2003 decision of Reviewer Walker should therefore have been upheld. Specifically Mr Marsh argues: 
[a]
Reviewer Walker's decision was definitive, was binding on subsequent decision makers (whether other reviewers or the judiciary), and because the Corporation did not appeal it cannot now challenge it; and 
[b]
Judge Powell should have discounted the Beattie and Barber decisions as not binding or persuasive precedents and in particular: 
“The legislation and accident insurance contract is sacred, and cannot be changed by a judge in an appeal hearing. ”
[14]
In addition Mr Marsh asserts more generally: 
[a]
Breach of privacy/release of information issues were overlooked (specifically in relation to whether all relevant evidence was considered by Judge Barber); and that 
[b]
Fraud and misconduct has occurred on the part of the Corporation, Dispute Resolution Services (in relation to the reviews), counsel for the Corporation (with regard to what has been presented at hearings), and the judiciary in their respective decisions in both the District and High Courts. 
[15]
As a result, and given in Mr Marsh's submission application of the 2001 Act to his claim resulted in a range of unfair outcomes, in relation to appeal AI 26/05 Mr Marsh argues that rather than being liable to pay the Corporation $621.10, the Corporation owes him $130,000. 
Discussion 
[16]
Pursuant to s 162 of the Accident Compensation Act 2001 the District Court has jurisdiction to grant leave to appeal on a question of law, with leave granted if the issue of law identified is “capable of bona fide and serious argument”.10
| X |Footnote: 10
Impact Manufacturing Ltd v ARCIC High Court, Wellington, AP266/00, 6 July 2001 per Doogue J 
 
[17]
Having looked carefully at Mr Marsh's submissions, including those filed after the filing deadline, it is clear that nothing raised by Mr Marsh amounts to an issue of law “capable of bona fide and serious argument” in respect of appeal AI 26/05. 
[18]
First, while the jurisdiction issue, however it is framed and whether the focus is on Reviewer Walker's 2003 decision, Judge Beattie's 2005 judgments, Judge Ongley's 2014 judgment or indeed any of my own judgments on this issue, is clearly a legal issue, it is not one upon which this Court can grant leave to appeal. 
[19]
As noted above, in 2015 I declined leave to appeal Judge Barber's decision on this issue because it was not capable of bona fide and serious argument,11
| X |Footnote: 11
When special leave to appeal Judge Barber's 2012 judgment was subsequently refused by Mander J in the High Court,12
| X |Footnote: 12
and the High Court and Court of Appeal confirmed that no further application for leave to appeal could be entertained13
| X |Footnote: 13
Minute of Nation J dated 11 July 2016 (High Court, Christchurch, CIV-2015-409-000485), and Marsh v Accident Compensation Corporation [2016] NZCA 409Has Litigation History which is not known to be negative[Blue]  per French J 
this meant the jurisdictional issue was conclusively determined as far as the District Court is concerned, as Mr Marsh was indeed advised prior to filing his submissions (see [7] above). 
[20]
The other matters raised are clearly matters of fact which give rise to no legal issues upon which leave to appeal can be granted. They are also generic issues with no obvious connection to the particular matters at issue considered in AI 26/05. On the contrary no issue has actually been taken with the analysis provided in judgment AI 26/05, that the Corporation's letter of 15 October 2004 was not a new decision or that Mr Marsh's liability for $621.10 had been already been conclusively determined by Judge Beattie.14
| X |Footnote: 14
At [18] - see Marsh v Accident Compensation Corporation [2005] NZACC 168 
 
[21]
Given this position there is therefore no basis whatsoever for granting leave to appeal and the application in respect of AI 26/05 must be dismissed. 
Result 
[22]
The application is dismissed. As Mr Marsh has chosen to continue to assert the jurisdictional issue, notwithstanding he was advised it had been finally determined and could not form the basis of an application for leave to appeal, the Corporation is entitled to costs on this application. Should the Corporation choose to have costs determined, a memorandum in support of the application is to be filed by the Corporation no later than 15 February 2017. Mr Marsh will then have until 1 March 2017 to respond, following which I will determine the application. 


At [15]-[16] 
At [18] - see Marsh v Accident Compensation Corporation [2005] NZACC 168 
Minute of Nation J dated 11 July 2016 (High Court, Christchurch, CIV-2015-409-000485), and Marsh v Accident Compensation Corporation [2016] NZCA 409Has Litigation History which is not known to be negative[Blue]  per French J 
Minute of 21 September 2016 
[2015] NZACC 154 
Impact Manufacturing Ltd v ARCIC High Court, Wellington, AP266/00, 6 July 2001 per Doogue J 
Minute of Nation J dated 11 July 2016 (High Court, Christchurch, CIV-2015-409-000485), and Marsh v Accident Compensation Corporation [2016] NZCA 409Has Litigation History which is not known to be negative[Blue]  per French J 
At [18] - see Marsh v Accident Compensation Corporation [2005] NZACC 168 

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