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Accident Compensation Cases

Siola'a v Wellington District Court (HC, 21/02/08)

Judgment Text

JUDGMENT OF CLIFFORD J 
Clifford J
Introduction 
[1]
This is an application by Mr Siola'a, the plaintiff, for judicial review of a decision made by Judge Hole in the Wellington District Court on 19 June 2007. In that decision, the Judge held that the Court did not have power to grant Mr Siola'a leave to appeal to the High Court against a decision of Judge Beattie, because Mr Siola'a's application for leave had been filed out of time. 
Background 
[2]
On 1 February 2002 the second defendant, ACC, made a decision under the Accident Insurance Act 1998 (“the 1998 ACC Act”) that Mr Siola'a had capacity for work. A review of that decision was unsuccessful, so Mr Siola'a appealed to the District Court. Judge Beattie dismissed that appeal in a decision dated 27 August 2003. 
[3]
Mr Siola'a then applied to the District Court for leave to appeal Judge Beattie's decision to the High Court. Mr Siola'a's application was signed by his lawyer and dated 16 September 2003. That application was — it was accepted by both Mr Siola'a and ACC — received by the District Court on 19 September. The application was then acknowledged by letter to Mr Siola'a's lawyer on 23 September. In that letter, the District Court Deputy Registrar noted that he “looked forward to receiving your submissions within 28 days”
[4]
It was to be some time before Mr Siola'a was in a position to file those submissions. 
[5]
On 14 October 2003, his lawyer wrote to the District Court advising that Mr Siola'a was applying for legal aid and that once legal aid had been granted his lawyer would be in a position to attend to the preparation and filing of submissions. 
[6]
On 9 November 2006, the District Court wrote again to Mr Siola'a's lawyer, it would appear enquiring as to progress with respect to the matter. On 21 November Mr Siola'a's lawyer advised that counsel had been instructed and would provide submissions as soon as practicable. On 11 December, Mr Siola'a's lawyer advised that those submissions would be filed in early January and on 15 February 2007 the District Court wrote to ACC, forwarding a copy of Mr Siola'a's submissions and asking for submissions in reply within 21 days. 
[7]
On 16 March 2007 the District Court, not having received submissions from ACC, sent a further letter advising unless submissions or a suitable response had been received by 16 April, the application would be placed before a Judge for determination as it then stood. 
[8]
On 23 April ACC's lawyers wrote to the District Court, noting that Mr Siola'a's notice of appeal although dated 16 September had not been received by the District Court until 19 September. Section 162 of the Injury Prevention, Rehabilitation and Compensation Act 2001 (“the 2001 ACC Act”), however, required it to be filed within 21 days of the District Court decision, that is by 17 September. The application was therefore out of time. ACC sought confirmation that the matter would be dealt with on that basis and noted that in the circumstances it did not propose to file substantive submissions as regards Mr Siola'a's application. 
[9]
Mr Beck, counsel for Mr Siola'a, wrote to the District Court the next day. He recorded surprise at the approach adopted by ACC, saying that if ACC claimed Mr Siola'a's application was a nullity, ACC would need to take action to set the earlier directions of the Court, as recorded in its letter of 16 April, aside. Mr Beck noted that Mr Siola'a did not accept that his application was out of time, he said the Court had on three separate occasions referred to the application having been lodged on 16 September, and noted that because the time period was calculated from the sealing of a formal order it could not be said that time had expired. In any event, ACC could not now raise this point as it had not previously taken it. 
[10]
ACC wrote again to the District Court on 26 April, and disputed Mr Beck's narrative of events, particularly as to the Court having referred on 3 separate occasions to Mr Siola'a's application having been lodged on 16 September 2003. ACC's lawyers sought confirmation of that factual matter as a matter of urgency. They then recorded that if, upon that clarification, Mr Beck remained of the view that the application was not a nullity then “in our view that would need to be the subject of further and rather more detailed submissions on the point than correspondence will suffice to provide”
[11]
On 28 June, without any formal hearing having been held, and without either of Mr Beck or Young Hunter for ACC having been provided with the opportunity to make formal submissions on the point, Judge Hole ruled that Mr Siola'a's notice of appeal had been filed outside the statutory time limit, and that accordingly the Court had no power to grant leave to appeal. On that basis, Mr Siola'a's application for leave to appeal was declined. 
[12]
It is that decision (“the Leave Decision”) to which this application for judicial review relates. 
[13]
On 22 June, Mr Beck filed a memorandum with the District Court seeking recall of Judge Hole's decision. In that memorandum, Mr Beck raised similar arguments to that which he advanced during this application for review. Mr Beck copied his letter and memorandum to ACC, and on 27 June ACC wrote to the District Court noting that it had not yet received a copy of Judge Hole's decision. It indicated that it would file a memorandum by way of reply within 7 days. 
[14]
It filed such a memorandum on 4 July. By that time, however, and without reference to ACC's memorandum, Judge Hole had determined in a written decision of 28 June 2007 that he would not grant Mr Siola'a's application for review and recall (“the Recall Decision”). 
[15]
Thereafter, these judicial review proceedings were commenced. 
The District Court's Leave Decision 
[16]
In the Leave Decision, the District Court held that: 
a)
Section 162(2) of the 2001 ACC Act is mandatory. It requires leave to appeal to the High Court to be sought within 21 days after the District Court decision. Mr Siola'a was therefore wrong to claim that time for seeking leave to appeal was calculated from the date of the sealing of the decision: Thomas v ACC DC WN 283-2005 27 September 2005; District Court Rules 531, 533. 
b)
If an appeal is out of time, it is a nullity. Jurisdiction cannot be conferred on the Court by consent or estoppel: Zhang v ACC HC AK 27 October 2006 Venning J. 
c)
Because the notice of appeal was filed outside the statutory time limit prescribed by s 162(2), the Court had no power to grant leave to appeal to the High Court. The application for leave to appeal was declined. 
Grounds of review 
[17]
Mr Siola'a based his application for review of the District Court decision on the following three grounds: 
a)
That the Leave Decision had been made in breach of the rules of natural justice. 
b)
That his application for leave to appeal had been filed within time. 
c)
That if his application had been filed out of time, ACC had, by its conduct, waived or acquiesced in that irregularity, in terms of s 3 of the Inferior Courts Procedure Act 1909. 
[18]
For ACC, Mr Hunt submitted that the appropriate order to consider the issues raised by these grounds of review was as follows: 
a)
Had the application for leave to appeal been filed in time? 
b)
If the application for leave to appeal had been filed out of time, had ACC by its conduct waived or acquiesced in any irregularity so as to confer jurisdiction upon the District Court, pursuant to the provisions of the Inferior Courts Procedure Act, to consider the leave application on its merits? 
c)
Was the Leave Decision made in breach of the rules of natural justice? 
d)
If the Leave Decision was made in breach of the rules of natural justice, was that breach such that relief by way of review should be granted and, if so, what relief? 
[19]
I agree with Mr Hunt that that is a useful order in which to consider the issues and I adopt that order in this decision. 
[20]
In discussing each of those issues, I will refer as necessary to the submissions made for Mr Siola'a and for ACC. 
Was Mr Siola'a's application for leave to appeal filed within time? 
[21]
Under s 162 of the 2001 ACC Act, persons dissatisfied with decisions of the District Court, on appeal from decisions of the ACC reviewers, have limited rights of appeal. Appeals are limited to questions of law, and require the leave of the District Court. 
[22]
Section 162(2) provides as follows: 
“The leave of the District Court must be sought under Part 5 of the District Court Acts 1947 and within 21 days after the District Court's decision. ”
[23]
Section 71A of the District Courts Act 1947 (“the Courts Act”) which formed part of part 5, has now been repealed but at the relevant time provided as follows: 
“71A Right to appeal 
(1)
Subject to subsection (3) of this section, any party to any proceedings in a District Court may appeal in accordance with the provisions of this Part of this Act to the High Court against the whole or any part of any final order of the District Court— 
(a)
Without the leave of the District Court where— 
(i)
The amount of the claim or the value of the property or relief claimed or in issue exceeds $500; or 
(ii)
The title to any hereditament is in question: 
(b)
With the leave of the District Court where the amount of the claim or the value of the property or relief claimed or in issue does not exceed $500. 
(2)
Subject to subsection (3) of this section, any party to any proceedings in a District Court may, with the leave of the Court, appeal to the High Court against the whole or any part of any interlocutory order made by the District Court in those proceedings. 
(3)
No appeal shall be brought under this section where, before the final order or the interlocutory order was made, the parties to the proceedings agreed in writing in the prescribed manner that the final order or the interlocutory order should be binding on the parties. 
(4)
Every application to a District Court under this section for leave to appeal shall be filed in the prescribed manner within 21 days after the date on which the final order or the interlocutory order is sealed. 
(5)
Where an application to a District Court under this section for leave to appeal is refused, or no such application is made within the period of 21 days prescribed by subsection (4) of this section, the High Court may, on application made to it within one month after the expiry of that period, grant special leave to appeal. 
(6)
On granting leave or special leave under this section, the District Court or the High Court may give such directions as to the time by which any document relating to the appeal is to be filed or served as it thinks fit. ”
[24]
Mr Beck's submission was that the reference in s 162(2) to Part 5 of the Courts Act brought all of the provisions of that Part, including s 71A, into consideration as regards leave applications under s 162(2) of the 2001 ACC Act. Therefore, just as leave applications, where required under s 71A(1)(b) and (2) of the Courts Act (final orders where the amount of the claim, the value of the property in question or the relief sought did not exceed $500, and all interlocutory orders) were required by s 71A(4) to be brought within “21 days after the date on which the final order or interlocutory order is sealed”, that requirement applied to applications for leave under s 162(2) of the 2001 ACC Act as well. 
[25]
The various decisions relied on by ACC in support of its contrary view (Thomas v ACC; Zhang v ACC; and Reden-Oldfield v ACC High Court Whangarei 8 December 2005 Lang J) had either: 
a)
been decided following amendments to the Courts Act which had changed the relevant provisions of Part V, so that the time for appeals and leave applications was no longer calculated by reference to the period within 21 days after the date on which the order was sealed, or 
b)
without reference to that provision. 
They were, therefore, not determinative of the point raised by this application for review. 
[26]
I am not persuaded by that argument 
[27]
The effect of s 71A(4) of the Courts Act, as regards applications for leave to appeal, would appear to have been twofold. First, an application for leave to appeal could not be filed until the relevant order had been sealed. Second, such an application was required to be filed within 21 days after that date of sealing. These requirements are consistent with Rule 533 of the District Court Rules 1992 which, at the relevant time, provided that no step could be taken on a judgment before it had been sealed. Sealing was, therefore, technically required as a prerequisite to appeal (Brown v Afele [2003] 3 NZLR 433) and to filing of an application for leave to appeal. Should an application have been filed prior to sealing of the order, it would have been rendered a nullity (Laird v Smith [1995] NZFLR 464
[28]
As there was no provision requiring sealing by a particular date, the Courts Act provisions were not especially effective, in and of themselves, in requiring appeals to be brought expeditiously. The order might have sat, unsealed, for any length of time. When finally sealed an application for leave to appeal could then have been filed within 21 days, irrespective of the time passed since the decision was made. This would appear to have been one of the reasons for amendment of the Courts Act in 2003. 
[29]
Pursuant to those amendments, appeals from the District Court are governed by Part X of the High Court Rules. Rule 703(1) provides that in any case where an enactment provides that an appeal to the Court against a decision may not be brought without leave, an application for that leave must be made to the decision-maker or the Court within 20 working days after the decision is given. Of particular relevance to the present matter is Rule 705: 
“705
Commencement of periods in rules 703 and 704 
For the purposes of rules 703 and 704, a period begins when the decision to which it relates is given, whether or not— 
(a)
reasons for the decision are then given or are given later; or 
(b)
formal steps, such as entering or sealing the decision, are necessary or are taken after the decision is given. ”
[30]
In that context, the very clear requirement of s 162(2) of the 2001 ACC Act that applications for leave under that section should be filed within 21 days after the District Court's decision can be seen as avoiding the uncertainty created by these (now amended) provisions of the Courts Act. I find the argument that that uncertainty should, by reference to s 71A(4), have remained, to be unattractive. 
[31]
As a matter of statutory interpretation, I consider that the specific, additional, reference to the requirement that leave applications under s 162 of the 2001 ACC Act be made within 21 days after the District Court decision, overrides — to the extent it would otherwise have been relevant — the effect of s 71A(4). In my judgment, s 162(2) would appear to have been intended to avoid the difficulties s 71A(4) allowed. 
[32]
In addition, and as submitted by Mr Hunt for ACC, an application under s 162 of the 2001 ACC Act is not an application under s 71A of the Courts Act at all. Nor is a decision of the District Court on appeal from a reviewer's decision a final order to which s 71A(1)(b), or an interlocutory order to which s 71A(2), of that Act apply, so as to bring s 71A(4) into play. 
[33]
I accept Mr Beck's submissions, recorded at [25], as to the context of each of the decisions in Thomas, Zhang, and Reden-Oldfield. I nevertheless consider that those decisions support the conclusion I have reached. The general proposition those cases stand for is that, put simply, s 162(2) means what it says. 
Did ACC waive any irregularity relating to the filing of the notice of application for leave to appeal? 
[34]
For Mr Siola'a, Mr Beck relied on s 3 of the Inferior Courts Procedure Act 1909. That section provides as follows: 
“3 Waiver of errors in civil proceedings before an inferior Court 
(1)
In any civil proceedings before an inferior Court any error, irregularity, omission, or defect, whether it relates to the jurisdiction of the Court, or to the procedure therein, or to any other matter, and whether it appears on the face of the record or of the proceedings or not, and whether it is within the knowledge of the Court or not, may be waived or acquiesced in by any party to the proceedings. 
(2)
When any such waiver or acquiescence by any party has taken place, the proceedings shall be as valid in all respects as against that party as if no such error, irregularity, omission, or defect had existed. 
(3)
Nothing in this section shall apply so as to make valid any judgment or order which on the face thereof is of such a nature that the Court giving or making the same could not under any circumstances have jurisdiction to give or make it. 
(4)
No such waiver or acquiescence by a party shall so operate as to preclude the Court in which the proceedings are taking place from refusing, in the exercise of its discretion, to give or make any judgment or order, or to do any other act, which, in the absence of such waiver or acquiescence, would be invalid for want of jurisdiction or for any other reason. ”
[35]
It was Mr Beck's argument that, if Mr Siola'a's leave application had been filed out of time, ACC had waived or acquiesced in that irregularity, which related to jurisdiction. Therefore, in terms of subsection (2) Mr Siola'a's leave application was as valid as if that defect had not existed. ACC did not comply with the Court's directions as to the filing of submissions and at no time, until its letter of 23 April 2007, did it raise any objection to jurisdiction. ACC is a Crown entity and as such should “observe scrupulous standards in the conduct of litigation”. Had it proposed to take this jurisdictional point, it was incumbent on it to do so at the earliest opportunity. 
[36]
I consider first whether waiver or acquiescence under s 3 can cure a failure to comply with a mandatory time limit, such as that found in s 162(2). I conclude that it cannot. I go on, however, to consider — if I were wrong on that point — whether waiver or acquiescence arises here on the facts. I conclude that it does not, and further that subs (4) of s 3 applies. 
[37]
In considering the possible application of s 3, the following finding of Venning J in Zhang is of importance (at [8]): 
“ … if there is no jurisdiction for the appeal then of course jurisdiction can not be conferred by consent or by the respondent not taking the point. ”
[38]
The same, in my view applies here. The application is a nullity, and jurisdiction cannot therefore have been conferred on the District Court by waiver. 
[39]
The plaintiff acknowledges the decision in Zhang, but submits that it is distinguishable because the Court in that case was not referred to the Inferior Courts Procedure Act 1909. Section 3 of that Act (above) preserves the validity of an order made in the District Court where any “error, irregularity, omission or defect” in procedure or jurisdiction has been waived by a party to the proceedings. 
[40]
I acknowledge that, on the face of the Zhang decision, the Court was not requested to consider s 3. In my judgment, however, a consideration of s 3 does not require a different outcome. The fundamental point made by Venning J remains. Further — on its own terms, s 3 only applies where there are civil proceedings before an inferior Court. Where an application for leave to appeal is filed out of time, so that in terms of Zhang it is a nullity, then there are no validly constituted proceedings before the Court to which s 3 can then apply. 
[41]
Even if s 3 was of potential application, ACC argued that the facts did not support a finding that it had waived, or acquiesced in, the irregularity constituted by the late filing of Mr Siola'a's leave application. 
[42]
ACC argued that waiver or acquiescence requires the party said to have waived or acquiesced in some error, irregularity, omission or defect to have had full knowledge of the relevant facts. It was not until April 2007 that ACC became aware that the application for leave to appeal had been filed on 19 September 2003. It questioned how, when the District Court itself did not identify the lateness of the filing of the application, and ACC only became aware of the date of filing by enquiring of the Court in April 2007, it could be said to have been incumbent on ACC to take the point at an earlier stage. Having been made aware of the fact regarding the date of filing, ACC immediately identified its position. Thus it is said that there was no waiver or acquiescence in fact. 
[43]
Mr Beck argued that there was no evidence to substantiate ACC's assertion that it only became aware of the lateness of the filing of the leave application in April 2007. In this regard, it was accepted that this matter was not covered by the affidavit of Ms Smith, of Young Hunter, ACC's solicitors in Christchurch. Mr Hunt, for ACC, acknowledged that fact, and commented to the Court that that may have arisen as an omission on his part. He was the person who had only become aware in April 2007 of the date upon which the leave application was filed. Notwithstanding that comment, Mr Beck — as he was entitled to — confirmed his submission that there was no proper evidence before the Court to that effect. Whilst that submission is technically correct, at the same time there is no evidence before the Court that establishes that ACC was, in fact, aware of the lateness of the filing of Mr Siola'a's leave application prior to that time. On the evidence available to me, no-one had adverted to that state of affairs. 
[44]
I accept ACC's submission that for a person to waive, or acquiesce in, an irregularity that person needs to be aware of that irregularity. That is very obviously the case with the concept of waiver. Equally, I think it applies to the concept of acquiescence. 
[45]
To acquiesce is to agree, especially tacitly, to something, or to raise no objection to it (see, for example, The Shorter Oxford English Dictionary, 5th edition, 2002). Therefore, to acquiesce in some state of affairs requires that the state of affairs being acquiesced in is within the actual knowledge of the person alleged to be acquiescing. 
[46]
In the absence of evidence that ACC did actually know of the lateness of the filing of Mr Siola'a's leave application, and that with that knowledge actually or constructively waived that irregularity, or acquiesced in it, I do not think Mr Siola'a has established any relevant error of law, or other basis for review, of the Leave Decision. 
Was the 19 June decision made in breach of the rules of natural justice? 
[47]
Mr Siola'a contends that the rules of natural justice have been breached in this situation because the District Court decision on the Leave Application was given before he had an opportunity to be heard. 
[48]
ACC submits that Mr Siola'a did in fact have an opportunity to be heard, with reference to Mr Beck's letter of 24 April 2007. The essential issues had therefore already been clearly signalled by the time Judge Hole considered the matter. More significantly, the plaintiff provided detailed submissions to the Court for the purpose of the Recall Decision. 
[49]
One of the key principles of natural justice is that the parties be given adequate notice and opportunity to be heard. It is clear, in my judgment, that Mr Siola'a was not given an opportunity to be heard on whether his application for leave to appeal had been filed out of time before the Recall decision was made. 
[50]
The question, in this instance, becomes one of relief. These proceedings have involved a consideration of the substantive question of whether, questions of natural justice aside, the conclusion reached by Judge Hole as to the status of Mr Siola'a's leave application was correct in law. I have concluded that Judge Hole was correct to reach the conclusion that he did. 
[51]
It would therefore, in my judgment, be futile to grant Mr Siola'a the obvious relief of requiring the District Court to rehear argument on whether his leave application was, or was not, filed out of time. 
[52]
Accordingly, this application for judicial review is declined. 
[53]
In doing so I am not unmindful of Mr Beck's submission to me, with reference to the various authorities, that in most cases the judges of this Court have not been unsympathetic to the position of ACC claimants who find themselves, for reasons outside their control, adversely affected by time limit provisions. 
[54]
I consider, however, that the provisions of 162(2) are clear, both as to the intent of the legislation and as to their substantive effect. Moreover, and as I have recorded, I do not consider that Mr Siola'a can rely on s 3 of the Inferior Courts Procedure Act to establish any relevant error of law as regards Judge Hole's Leave Decision. Whilst not unsympathetic to his position, I do not find myself in a position in which I can grant his application to review the Leave Decision. 
[55]
I note that no question of costs arise, Mr Siola'a being on legal aid. 

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