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Accident Compensation Cases

Denzel v Accident Compensation Corporation (HC, 11/12/02)

Judgment Text

MASTER GENDALL (reserved):
This is an application by the appellant Maria Denzel for an order dispensing with payment of security for costs on her appeal to the Court of Appeal. 
She makes the application in reliance on r 11 of the Court of Appeal (Civil) Rules 1997. 
The criteria with respect to dispensation from security on appeals to the Court of Appeal are conveniently summarised in McGechan on Procedure CA11.12 at para 2(c) in the following way: 
“(c) Dispensation from security should not be directed except in ‘exceptional circumstances’, a category which has been kept undefined: Re Donner [1958] NZLR 141, 143. The statement by the then Chief Justice of principles applicable in Re Donner was adopted in Bertelsen (above) and Innes v Mars 8/2/83, Chilwell J, HC Auckland A132/82. The onus is on the applicant for dispensation. See Russell v Stainton & Co [1922] GLR 422, 423, where the phrase ‘very exceptional circumstances’ was used. The authorities to 1931 are reviewed conveniently in Hellyar v Morrison [1932] NZLR 321, 325-327. Novelty and importance of a point of law can amount to exceptional circumstances: Bertelsen (above); Hamilton v BNZ (1903) 7 GLR 276. Impecuniosity is not in itself a sufficient ground for dispensation from security, although it may perhaps afford grounds for reduction in amount: Bertelsen (above) (impecuniosity not regarded as an ‘exceptional circumstance’); Russell v Stainton (above, at p 423). As to reduction, note Robertson v Howden (1891) 10 NZLR 471 and Taitumu Marangataua v Patena Kerehi (above). The representative capacity of the appellant, and the possibility that the Court of Appeal would not order costs against the appellant, were not regarded as exceptional circumstances in Re Donner [1958] NZLR 141. ”
Counsel for the respondent, Accident Compensation Corporation (“ACC”) acknowledged that at the heart of this case is the interpretation of s 73 of the Accident Insurance Act 1998, and the question as to whether the Accident Compensation Corporation has the power to revoke a deemed decision. 
Mr Barnett for ACC contended that the normal review and appeal rights noted for in the accident compensation legislation provided the proper venues for the appellant to exhaust her rights. He maintained that the present case was not one where the appellant was denied any remedies, and that therefore her appeal lacked merit. 
In support of her application, Mr McGurk, counsel for the appellant, contended that the issue before the Court was an important one, and went to issues concerning the integrity and administration of the accident compensation appeal process. He maintained that this alone provided “exceptional circumstances” for this application to succeed. 
In addition, however, Mr McGurk asserted that the appellant's impecuniosity had been caused by the respondent and its decision on her accident compensation claims. 
As McGechan notes (see para 3 above), novelty and importance of a point of law can amount to exceptional circumstances. Here I am satisfied that the issues concerning interpretation of s 73 and s 134(4) Accident Insurance Act 1998 are sufficiently important to the public to constitute “exceptional circumstances” in terms of the test. 
Further, although impecuniosity is not of itself regarded as an “exceptional circumstance”, in my view there is some merit in the appellant's argument that the respondent's decisions here have contributed to an appreciable extent to the appellant's impecuniosity. The appellant has applied for legal aid for this appeal. Although it has not been granted at this point, counsel for the applicant indicated to me that there is some confidence that it will be successful. 
In conclusion therefore, I am satisfied that the interests of justice here and the wider public interest require these issues concerning application of the Accident Insurance Act 1998 to be considered further. 
Accordingly this application succeeds, and an order is made dispensing with payment of security for costs on the appeal. 
Costs on this application are reserved. 

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