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Accident Compensation Cases

Khan v Accident Compensation Corporation (HC, 14/08/08)

Judgment Text

JUDGMENT OF COOPER J 
Cooper J
[1]
This is an application under s 98 of the Accident Rehabilitation and Compensation Insurance Act 1992 (the “ARCI Act”) for leave to appeal to the Court of Appeal from a judgment that I delivered on 25 February 2008. 
[2]
The application is out of time and the appellant also seeks an enlargement of the time limited for making the substantive application. The time limit is not contained in the ARCI Act itself. Rather, it is the general twenty working days provided for in r 718E of the High Court Rules. In the circumstances, power to enlarge the time is clearly available under r 6. 
[3]
The latter application is essentially advanced on the basis of an error made by the appellant's solicitors. Mr Tuiqereqere has accepted the account given of the mistake that was made and has not opposed the application on the respondent's behalf. In the circumstances it is appropriate that the enlargement of time be granted. That application is granted accordingly. 
[4]
Turning then to the question of whether or not leave should be granted, s 98 of the ARCI Act is silent as to the relevant considerations to be taken into account. However, in Knight v Accident Compensation Corporation (HC CH CIV 2005-485-1582, 6 April 2006) Randerson J held that in the case of an application for leave to appeal under s 163 of the Injury Prevention, Rehabilitation and Compensation Act 2001 (which is the equivalent of s 98 of the ARCI Act) the principles applicable to an application for leave under s 67 of the Judicature Act 1908 should apply. I respectfully agree, and see no reason why the same approach should not be adopted in the case of appeals under s 98 of the ARCI Act. Indeed, both counsel agreed that that was the appropriate approach. 
[5]
That means that in deciding whether or not to grant leave the Court must consider whether the appeal raises some question of law capable of bona fide and serious argument in a case involving some interest, public or private, of sufficient importance to outweigh the cost and delay of a further appeal: Snee v Snee (1993) 3 PRNZ 609 (CA) at pp 612-613; Waller v Hider [1998] 1 NZLR 412 (CA) at p 413. To those well known authorities, the more recent decision of the Court of Appeal in Downer Construction (New Zealand) Ltd v Silverfield Developments Ltd (CA 65/06, 7 February 2007) may be added. In that case the Court emphasised, at [33], that the primary focus should be on whether the question of law is worthy of consideration. 
[6]
In my judgment of 25 February I upheld a decision of Cadenhead DCJ that there was no jurisdiction to grant an application for re-hearing of an appeal under s 91 of the ARCI Act from a decision on a review of a decision of the Corporation under that Act. The appellant had sought leave to appeal from that decision but leave had been refused in the District Court on 20 July 2007. In the meantime, however, the appellant had made the application for re-hearing which Judge Cadenhead dismissed on 5 July 2006. 
[7]
The question that I had to determine concerned the meaning and application of s 91(4) of the ARCI Act, which provides: 
“Subject to this Act and any regulations made under this Act, the appeal shall be dealt with in accordance with the District Court Rules. ”
[8]
Rule 493 of the District Courts Rules empowers that Court to order a re-hearing where in its opinion there has been a miscarriage of justice that justifies that course. There is no provision for a re-hearing of an appeal under the ARCI Act, or in the applicable regulations made under that Act (the Accident Rehabilitation and Compensation Insurance (Appeals) Regulations 1992 (“the ARCI Regulations”). The question was whether s 91(4) of the ARCI Act, by providing that an appeal should be dealt with in accordance with the District Courts Rules, had the consequence that the power under r 493 to order a re-hearing could be applied in relation to the hearing of an appeal by the District Court under the ARCI Act. 
[9]
I held that procedural provisions of the ARCI Regulations were so comprehensive, and the statutory regime provided by the legislation so extensive (providing for an initial decision, a review, and an appeal by way of re-hearing in the District Court, followed by appeals, with leave, to the High Court and Court of Appeal on questions of law) that it was unlikely that the legislature intended that there should be a right to apply for a re-hearing of the appeal in the District Court. There was no express statutory provision to that effect. I observed further that r 493 of the District Courts Rules was plainly the equivalent of r 494 of the High Court Rules. I considered it was clear that the latter could not be used to seek a re-hearing of an appeal and that it was unlikely r 393 of the District Court Rules was intended to be wider in scope. I considered that the wording of the rule suggested that it was limited to hearings of claims commenced by statement of claim. 
[10]
At the substantive hearing, Mr O'Callahan had purported to rely on the decision of the Court of Appeal in R v Smith [2003] 3 NZLR 617 in which the Court of Appeal held that it had inherent power to revisit its decisions in exceptional circumstances, when required by the interests of justice. I considered that the power referred to in that decision was peculiarly related to courts of appeal at the top of the hierarchy of courts or, in circumstances where the final appellate Court can only be approached by leave and leave was unlikely to be given, the power would be available to a Court of Appeal immediately below the highest Court which had effectively made the final decision. It would, of course, be unsatisfactory if that Court's final decision could not be re-opened in the face of evidence suggesting that there had been a material miscarriage of justice. However, that reasoning could not be applied to a District Court hearing an appeal under the Accident Compensation legislation, for a number of reasons. First, it is plainly not a final appellate Court. Second, it is highly unlikely that circumstances giving rise to a miscarriage of justice could not be corrected on appeal to the High Court or, if necessary, by a grant of further leave to appeal to the Court of Appeal. 
[11]
The question that the appellant now seeks to pursue on further appeal is: 
“Whether the District Court, acting in its appellant jurisdiction under the Accident Rehabilitation and Compensation Insurance Act 1992, has jurisdiction to grant a re-hearing at the District Court level of an appeal which has already been heard and determined by the District Court. ”
[12]
This is the same issue that was dealt with in my judgment. In support of the application for leave, Mr O'Callahan contended that I had been wrong to conclude that r 493 of the District Courts Rules was confined to actions initiated by statement of claim because the definitions of “plaintiff” and “defendant” contained in r 3 of the District Courts Rules are broad enough to include an appellant and defendant. He contended that I had confined the Court of Appeal's decision in R v Smith to too narrow a compass and I had erred by reading into the ARCI Act the curtailing of an important power that one would ordinarily expect a Court to have, namely a power to re-hear on the type of grounds referred to in r 493 of the District Courts Rules. He contended that the appellant's contentions were capable of bona fide and serious argument. 
[13]
Further, he submitted that the issues were of sufficient private importance for the appellant because at stake was a significant amount of earnings related compensation. He also argued that an issue of sufficient public importance was raised on the appeal; the question of whether a right to a re-hearing could be granted where circumstances justified it would affect other persons, and the point remained a live issue under the Injury Prevention, Rehabilitation and Compensation Act 2001. 
[14]
For the respondent, Mr Tuiqereqere opposed the grant of leave. He argued that the proposed appeal did not raise a question of law capable of bona fide and serious argument, maintaining that the judgment of 25 February 2008 was correct. He also argued that the case did not give rise to a matter of public importance having regard to the comprehensive nature of the procedures contained in the legislation to challenge decisions made by the Corporation without the added step of a power to order a re-hearing of the appeal in the District Court. 
[15]
I do not consider that this is a case where leave should be granted. I am of the view that the issue sought to be pursued further on appeal is not one capable of bona fide and serious argument. Essentially, the appellant would seek to traverse for a second time in the Court of Appeal arguments which were fully canvassed in the hearing in this Court. In my view they lack substance. 
[16]
For reasons that I gave in the judgment, I am of the opinion that there is no basis upon which it could be said that the procedures set out in the ARCI Act (or succeeding Accident Compensation statutes) need to be augmented by provision for a rehearing of a District Court Appeal. It is very difficult to conceive of circumstances giving rise to a miscarriage of justice which could not be inquired into at the various stages of the process already provided in the legislation. It is not without significance that notwithstanding the lengthy period over which these issues have been litigated, Mr O'Callahan was unable, both at the substantive hearing of the appeal in this Court, and at the hearing of the application for leave to appeal to advise the Court, even in general terms, about the miscarriage of justice that the appellant allegedly suffered. He was in a position to advise me that the issue turned on the availability of documents that were not available at the time of the hearing in the District Court because the documents had been used in a criminal proceeding and were in the custody of third parties. However, Mr O'Callahan was not able to articulate what the miscarriage complained of was, or what the documents might have demonstrated. 
[17]
Supposing for a moment that the documents were relevant and would have affected the District Court decision on the appeal, I would have thought that that is the kind of issue that could have been pursued on appeal to the High Court in the context of an allegation that the District Court had failed to consider relevant material. If there was a justifiable reason to which the appellant could point for the material not having been brought to the District Court's attention I think it is most unlikely that the High Court would not allow the evidence to be taken into account for the purposes of an appeal. 
[18]
In my judgment of 25 February 2008, I referred to this Court's power under r 716 to hear further evidence, even in the context of a case stated appeal and I also mentioned the inherent powers of the Court. Another possibility is an application for review under the Judicature Amendment Act 1972. Overall, I remain of the opinion that it is highly unlikely that circumstances giving rise to a miscarriage of justice could not be corrected on appeal to the High Court. 
[19]
That has implications for the question of whether there is both any public or any private interest at stake here justifying a second appeal. I am of the view that the comprehensive provisions in the legislation to challenge the decision initially made by the Corporation by review, general appeal to the District Court and further appeal on a question of law to the High Court (or ultimately the Court of Appeal) would be sufficient to ensure that a miscarriage of justice does not occur. I do not consider that the legislation needs to be supplemented by finding that a right to apply for a review of the District Court's decision has been created by a side wind in the form of s 91(4) of the ARCI Act and its reference to appeals being dealt with in accordance with the District Court Rules. 
[20]
Insofar as this appellant's position is concerned, there is an extant application for special leave to appeal from the decision of Beattie DCJ dated 20 July 2007. It has not been progressed pending resolution of the present appeal. If the appellant wishes to pursue matters further, that should be the vehicle, and the application to this Court for special leave to appeal should be advanced. 
[21]
However, for the reasons I have given, I decline the application for leave to appeal to the Court of Appeal. 

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