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Accident Compensation Cases

B v Accident Compensation Corporation (HC, 07/07/09)

Judgment Text

MALLON J (reserved):
Introduction 
[1]
The appellant is seeking accident compensation cover for mental injury. Cover was declined by ACC, and this decision was upheld by the reviewer and in turn the District Court. The District Court granted leave to the appellant to appeal to the High Court but the notice of appeal was not filed within the required timeframe. Before me is an application to extend the time for filing the appeal. The application is opposed on the basis that there is said to be no power to permit the extension. 
Background 
[2]
In this case the appellant's mental injury for which cover is sought is said to have arisen when she learned that a man, with whom she had a 4-month sexual relationship, had not disclosed to her that he was HIV positive. The man was convicted on a charge of criminal nuisance under s 145 of the Crimes Act 1961. Mental injury caused by certain criminal acts is covered under the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the IPRC Act”) but the offence under s 145 of the Crimes Act is not one of the criminal acts covered. The appellant's claim for cover is on the basis that the man's offending, although charged under s 145, is also a criminal act of a kind that is covered by the IPRC Act, such as sexual violation under s 128 or indecent assault under s 135 of the Crimes Act. 
[3]
A previous High Court decision (M v ACC [2006] 3 NZLR 127Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] ) considering a claim in similar circumstances held that it was not a criminal act of that kind, because those offences required the absence of consent. In that case, as in the present, the sexual intercourse was consensual. The High Court concluded that under New Zealand law, as it presently stood, the non-disclosure by the man that he was HIV positive did not vitiate the woman's consent. The Court considered that any change to the law in this respect was a matter for Parliament. The Court granted leave to appeal its decision to the Court of Appeal but the appeal did not proceed. 
[4]
In the present case, at the District Court hearing counsel for the appellant accepted that the District Court was bound by M v ACC. He indicated an intention to have the issue considered by the Court of Appeal. The IPRC Act permits appeals from the District Court with leave. The District Court, in a decision dated 6 August 2008, declined the claim but in that decision granted the appellant leave to appeal. The Judge described his granting of leave as a “somewhat unusual step”, presumably because in the more usual situation leave is not given unless and until an application for leave is formally made and considered and this will not usually occur until after a decision has been given. 
[5]
The solicitors for the appellant advise that, while it was always intended that an appeal would be made, they initially overlooked doing so. They say that their firm, which deals with accident compensation claims on a daily basis, is well aware of the mandatory timeframes for making an application for leave. However, in this case, with the leave having been granted already, they overlooked the timeframes for filing the appeal and did not file the appeal in the High Court until 14 January 2009. An issue concerning the timeframe for filing the appeal was then identified leading to an application for an extension of time which was filed on 10 March 2009. 
Discussion 
The IPRC Act 
[6]
The starting point for considering whether there is power to extend the time for bringing an appeal is the IPRC Act under which cover for mental injury was claimed. The IPRC Act provides for appeal rights in these terms: 
“162. Appeal to High Court on question of law 
(1)
A party to an appeal who is dissatisfied with the decision of a District Court as being wrong in law may, with the leave of the District Court, appeal to the High Court. 
(2)
The leave of the District Court must be sought within 21 days after the District Court's decision. 
(3)
If the District Court refuses to grant leave, the High Court may grant special leave to appeal. 
(4)
The special leave of the High Court must be sought within 21 days after the District Court refused leave. 
(5)
The High Court Rules and sections 74 to 78 of the District Courts Act 1947, with all necessary modifications, apply to an appeal under this section as if it were an appeal under section 72 of that Act. ”
[7]
It can be seen that the provision provides for an appeal only with leave. Time periods are set for when leave must be sought. The section does not deal with when the appeal must be brought if leave is granted. However it does provide for the High Court Rules to apply “with all necessary modifications” as if the appeal were an appeal under s 72 of the District Court Act 1947. (Section 72 confers a general right of appeal from District Court decisions without leave.) (Sections 94 to 78 of the District Courts Act are not presently relevant.) 
[8]
By r 20.1 of the High Court Rules, Part 20 of the High Court Rules applies to appeals “under any enactment” (which includes the IPRC Act) but “subject to any express provision in the enactment under which the appeal is brought” (here the IPRC Act). There are two rules in Part 20 which the appellant relies on, in the alternative, as permitting this Court to grant an extension of time for the bringing of the appeal. 
Rule 20.3 of the High Court Rules 
[9]
The first alternative is under r 20.3 which is in these terms: 
“20.3. Application for leave to appeal to court 
(1)
An application for leave to appeal in a case when an enactment provides that an appeal to the court against a decision may not be brought without leave must be made— 
(a)
to the decision-maker or, as the case requires, the court; and 
(b)
within 20 working days after the decision is given. 
(2)
An application for leave to appeal must be made within 20 working days after the refusal of the decision-maker if— 
(a)
an enactment provides that the court may grant leave to appeal to it against a decision after the decision-maker refuses leave; and 
(b)
the decision-maker refuses leave. 
(3)
The appeal must be brought— 
(a)
by the date fixed when the decision-maker or the court grants leave; or 
(b)
within 20 working days after the grant of leave, if the decision-maker or the court does not fix a date. 
(4)
Any date fixed by the decision-maker is to be treated as a determination for the purposes of rule 7.50. 
(5)
The decision-maker or, as the case requires, the court may, on application, extend the period for bringing an application under this rule, if the enactment under which the appeal is sought to be brought— 
(a)
permits the extension; or 
(b)
does not limit the time prescribed for making the application. 
(6)
A party may apply for the extension of a period before or after the period expires. 
(7)
An application under this rule must be made on notice to every party affected by the proposed appeal and, if made to the court, must be made by interlocutory application. 
(8)
In this rule, leave includes special leave. ”
[10]
If this rule applies then the appeal was not brought in time. That is because r 20.3(3) was not complied with. The District Court did not fix a time within which the appeal was to be brought and so the appeal was to be brought within 20 working days after the District Court's decision granting leave. This meant that the appeal needed to be brought by 20 October 2008 (being 20 working days after 22 September 2008), but it was not brought until 14 January 2009. 
[11]
Rule 20.3(5) deals with extensions of time. It permits the decision-maker or the Court on application to “extend the period for bringing an application under this rule”. The appellant submits that the notice of appeal is an “application” in terms of r 20.3(5) and so the Court may extend the time for bringing the appeal pursuant to r 20.3(5). ACC submits that appeals are not brought by application, but rather they are brought by filing a notice of appeal and so r 20.3(5) does not apply. 
[12]
I accept that an appeal might be described as an “application” to the Court. But the question is whether it is an “application under this rule”. The appeal right, which is a right that can only be exercised with leave and only in respect of a question of law, is conferred by s 162 of the IPRC Act. It is an appeal under the IPRC Act not an appeal under r 20.3. The High Court Rules provide the procedures that apply to that appeal right (subject to any express provision in the IPRC Act). I consider it to be a strained interpretation of r 20.3(3) to say that in providing when an appeal is to be brought the appeal becomes “an application under this rule”. Rather I consider the more natural meaning of “an application under this rule” to be an application for leave made to the decision-maker or the Court (under r 20.3(1)) or to an application for leave made to the Court where a decision-maker has refused leave (under r 20.3(2)). 
[13]
ACC submits that there is a limited power to vary the date fixed by the decision-maker for bringing the appeal. This is in r 20.3(4) which applies r 7.50. Rule 7.50 permits a Judge to vary a determination if there has been a change in circumstances affecting a party or their solicitor or counsel. Rule 20.3(4) does not apply here because no date was fixed by the decision-maker. Rather the date was fixed by the operation of r 20.3(3)(b). ACC says that this limited but express power to vary the date for a leave application or for an appeal suggests that in the absence of any other express power, there is no other avenue for variation or extension of time available. 
[14]
Rule 20.3(4) is dealing with the limited situation of varying a date set by a decision-maker. In my view it does not assist with whether an extension might be permitted for the bringing of the appeal when a decision-maker has not fixed the time. I agree with ACC that there is nothing in r 20.3 which permits an extension in the time for bringing an appeal. So is there another rule that permits the extension? 
Rule 20.4 of the High Court Rules 
[15]
The alternative relied on by the appellant, and in its view its better submission, is that the Court has power to extend the time for bringing the appeal under r 20.4. That rule provides: 
“20.4. Time for appeal if there is right of appeal 
(1)
This rule applies if a party has a right of appeal to the court. 
(2)
An appeal must be brought— 
(a)
within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or 
(b)
in every other case, within 20 working days after the decision appealed against is given. 
(3)
By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal— 
(a)
permits the extension; or 
(b)
does not limit the time prescribed for bringing the appeal. 
(4)
An application for an extension— 
(a)
must be made by an interlocutory application on notice to every other party affected by the appeal; and 
(b)
may be made before or after the expiry of the time for appealing. ”
[16]
The appellant's submission is that when leave is granted there is then “a right of appeal” so that, by r 20.4(1), r 20.4 applies. If r 20.4 applies, then pursuant to r 20.4(3), the Court may by special leave extend the time prescribed for appealing. It may do so if the enactment that confers the right of appeal “permits the extension” (r 20.4(3)(a)) or “does not limit the time prescribed for bringing the appeal” (r 20.4(3)(b)). The appellant submits that the IPRC Act does not prescribe any timeframes within which to bring an appeal (it only specifies the time within which an application for leave must be made) and so the IPRC Act does not limit the time prescribed for bringing an appeal. The appellant submits that the Court is therefore able to extend the time for bringing the appeal. 
[17]
The issue here is whether the appellant is correct that r 20.4 applies at all. That depends on whether a party that is granted leave to appeal “has a right of appeal” or whether r 20.4 applies only where an enactment confers an appeal as of right (that is, without a requirement to obtain leave). ACC submits that the latter is the correct position. 
[18]
Both parties agree that each rule should not be read in isolation. ACC submits that when the two rules are read alongside each other the position is that r 20.3 applies to appeals where leave is required and r 20.4 applies to appeals when leave is not required. ACC refers to the different wording in the two provisions which provide the power to extend. Specifically in r 20.3(5) the Court can extend the period for bringing an application for leave “if the enactment under which the appeal is sought to be brought” permits the extension or does not limit the time for the application. In contrast under r 20.4(3) the Court can extend the time for appealing “if the enactment that confers the right of appeal” permits the extension or does not limit the time for the appeal. ACC submits that the IPRC Act is an “enactment under which an appeal is sought to be brought” rather than an “enactment that confers the right of appeal”
[19]
ACC submits that the legislative intent of the two rules is to provide for only “one bite at the cherry”. That is, where an appeal requires leave, a party can seek an extension for an application for leave but they cannot also seek an extension for bringing an appeal. And, where an appeal is as of right, they can seek an extension in the time for bringing the appeal. In either case an extension is only available if the enactment permits it or does not limit the time for that step. 
[20]
I consider the IPRC Act is the enactment under which the appellant seeks to bring its appeal. However, once leave is granted, it is also the enactment under which the right to appeal is conferred. I do not consider the difference in wording relied on by ACC to be material. Rule 20.3(4) refers to an appeal sought to be brought because, until leave has been granted (which it will not have been if an application is being made under r 20.3(1)), the appeal is sought to be brought. If leave is granted then it can be brought, and the issue becomes when the appeal right conferred by the enactment must be brought. 
[21]
I consider that reading r 20.3 and 20.4 together, r 20.3 deals with applications for leave to appeal (subject to any express provision in the enactment) and r 20.4 deals with bringing an appeal (again subject to any express provision in the enactment). The rules permit extensions for applications for leave and for appeals providing the enactment permits these extensions or does not limit the time for making the application for leave or bringing the appeal. 
[22]
In the present case the enactment deals with the requirement to obtain leave, from which Court that leave can be sought and the time period for doing so. There does not appear to be any need to rely on r 20.3 at all because the leave application is made under the IPRC Act (see Siola'a v Wellington District Court [2008] NZAR 158Has Litigation History which is not known to be negative[Blue] , at para 33 which was part of passages from the High Court judgment that were cited and adopted by the Court of Appeal on the appeal in [2009] NZAR 23, at para 17). If leave is granted under the IPRC Act then there is a right of appeal and r 20.4 applies. The appeal must be brought within 20 working days after the decision is appealed against (r 20.4(2)(b)) and an extension of this time can be granted because the IPRC Act does not limit the time for bringing an appeal. It is silent on this and leaves it to the High Court Rules. 
[23]
On this approach an appellant will not get “two bites at the cherry” which ACC submits is what the provisions are intended to prevent. No application for an extension of the time for leave to appeal could be made under r 20.3(5) for bringing the application for leave. That is because the application for leave is not made under r 20.3. Alternatively, even if it is an application under r 20.3(1) (but subject to the time period in s 162 of the IPRC Act rather than the 20.3(1) time limits), the IPRC Act does not permit an extension and does limit the time for bringing the application. But, providing leave is sought and obtained within time, an extension in the time for bringing an appeal is possible. That will be its “one bite at the cherry” so to speak. 
[24]
This interpretation may render redundant r 20.3(3). That is, once leave is granted there does not seem to be any need for r 20.3(3) because the appellant would have a right of appeal and so r 20.4(2) would apply. This would be more problematic if the two provisions were in conflict, but they are not. They provide identical time limits for when an appeal is to be brought. ACC acknowledges that its interpretation is a narrower or specific one and that in a broad sense an enactment that confers a right of appeal subject to leave confers a right of appeal. I consider the broader interpretation to be appropriate when the IPRC Act limits only the time for seeking leave and not the time for bringing an appeal. 
[25]
I acknowledge ACC's point that the case law is littered with examples of appeal rights being unable to be pursued because time limits have not been complied with. But I consider that the IPRC Act does not require that in the circumstances of this case. 
[26]
It becomes unnecessary to consider further alternatives that were raised in discussion at the hearing and in respect of which I granted each party leave to file further submissions. For completeness, however, I turn to those further alternatives. 
Rule 1.19 of the High Court Rules 
[27]
Rule 1.19 of the High Court Rules provides: 
“1.19. Extending and shortening time 
(1)
The court may, in its discretion, extend or shorten the time appointed by these rules, or fixed by any order, for doing any act or taking any proceeding or any step in a proceeding, on such terms (if any) as the court thinks just. 
(2)
The court may order an extension of time although the application for the extension is not made until after the expiration of the time appointed or fixed. ”
[28]
Rule 1.19 is concerned with periods of time appointed by the High Court Rules. Those periods of time must be “for doing any act or taking any proceedings or any step in a proceeding”. If the rule applies then the Court has a discretion to extend the time. 
[29]
It has been held that the rule does not apply where an applicant is seeking to enlarge a statutory time limit: Russell v A-G [1995] 1 NZLR 749Has Litigation History which is not known to be negative[Blue] ; and Hodge v Residual Health Management Unit (2001) 15 PRNZ 85. (The same view is taken in respect of r 1.5 and its predecessor: A-G v Howard (2009) 19 PRNZ 324Has Litigation History which is not known to be negative[Blue] , at para 41; Johnson v Allen (1999) 12 PRNZ 615Has Cases Citing which are not known to be negative[Green] , at p 622; Cullen v Police (1999) 14 PRNZ 315; (2000) 5 HRNZ 577Has Cases Citing which are not known to be negative[Green] , at para 26 and Director-General of Social Welfare v K (1998) 12 PRNZ 462Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , at pp 469-470). So here r 1.19 could not be relied upon to extend the time for bringing an application for leave to appeal. But the extension is sought in respect of the time for bringing the appeal which time is set by the rules (either r 20.3 or r 20.4 depending on whether my view set out above is correct) and not by the statute. 
[30]
The question then becomes whether r 1.19 applies at all in light of the specific provisions in r 20.3 and r 20.4. ACC refers to Sharma v Askelund (2004) 17 PRNZ 853Has Litigation History which is not known to be negative[Blue] . That case concerned an appeal against a District Court decision brought out of time. The High Court Judge considered that r 5 (now r 1.5) was not available to extend the time because appeals were dealt with in (what was then) Part 10 of the Rules (which is now Part 20). The Judge considered that the appellant needed to make an application under r 704(4) (now r 20.4(4)) for special leave to extend the time for appealing rather than resort to r 5 (now r 1.5). The Judge directed the appellant to make an application under that rule. 
[31]
I do not read Sharma as holding that the only rules that can apply to appeals are those rules in what is now Part 20. Part 20 contains specific rules in relation to appeals but the other rules apply to the extent they are relevant and not inconsistent with the specific rules: see the commentary in McGechan on Procedure, Wellington, Brookers, 1991-, at HR20.1.03 (which I agree with). Sharma can be seen as an example of the Judge considering that a specific rule relating to appeals should override the general rules. 
[32]
Here s 162(5) of the IPRC Act provides that the High Court Rules apply. It does not limit this to Part 20. Providing r 1.19 is not inconsistent with r 20.3 or 20.4 it is potentially applicable. In my view it is not inconsistent. Rule 20.3 permits an application for extension in the time for leave to appeal providing the enactment permits the extension or does not limit the time prescribed for bringing an appeal. It is silent on extensions in the time for bringing an appeal. Rule 20.4 permits an extension in the time for bringing an appeal providing the enactment permits the extension or does not limit the time for bringing the appeal. Together they permit extensions in relation to appeals providing such extensions are not inconsistent with the enactment. 
[33]
Rule 1.19 permits extensions for taking any proceeding. (Proceeding is defined as any application to the Court for the exercise of the civil jurisdiction of the Court other than an interlocutory application (r 1.3) — and so covers an appeal). Had I found that r 20.4 did not apply (because it dealt with appeals that did not require leave) then I consider r 1.19 could be relied on to grant an extension in the time for bringing the appeal set by r 20.3(3) providing I was satisfied that it was an appropriate exercise of my discretion to extend the time in this case. 
[34]
ACC submits that it would not be an appropriate exercise of my discretion. It says that if the District Court had not granted leave and had left the appellant to make an application for leave, then by the time the appellant filed its appeal it would have been outside the time period for making an application for special leave and there would have been no power to extend the time. It says that it would be anomalous if the appellant can obtain an extension for filing the appeal that is outside the timeframe it would have had to comply with for an application for leave to appeal. 
[35]
I disagree. The IPRC Act limits the time for making applications for leave. It is silent on the time for bringing an appeal if leave is granted, leaving that to be determined by the High Court Rules. For whatever reason, Parliament has determined that applications for leave are subject to strict time limits but appeals are not necessarily subject to the same requirements. The appellant has complied with the time limit for seeking leave. It seeks an extension only in respect of the time for bringing the appeal. 
Rule 1.5 of the High Court Rules 
[36]
Rule 1.5 was raised at the hearing but the appellant did not seek to rely on it. That rule is in these terms: 
“1.5. Non-compliance with rules 
(1)
A failure to comply with the requirements of these rules— 
(a)
must be treated as an irregularity; and 
(b)
does not nullify— 
(i)
the proceeding; or 
(ii)
any step taken in the proceeding; or 
(iii)
any document, judgment, or order in the proceeding. 
(2)
Subject to subclauses (3) and (4), the court may, on the ground that there has been a failure to which subclause (1) applies, and on any terms as to costs or otherwise that it thinks just,— 
(a)
set aside, either wholly or in part,— 
(i)
the proceeding in which the failure occurred; or 
(ii)
any step taken in the proceeding in which the failure occurred; or 
(iii)
any document, judgment, or order in the proceeding in which he failure occurred; or 
(b)
exercise its powers under these rules to allow any amendments to be made and to make any order dealing with the proceeding generally as it thinks just. 
(3)
The court must not wholly set aside any proceeding or the originating process by which the proceeding was begun on the ground that the proceeding was required by the rules to be begun by an originating process other than the one employed. 
(4)
The court must not set aside any proceeding or any step taken in a proceeding or any document, judgment, or order in any proceeding on the ground of a failure to which subclause (1) applies on the application of a party unless the application is made within a reasonable time and before the party applying has taken any fresh step after becoming aware of the irregularity. ”
[37]
The failure to bring an appeal in the time specified by r 20.3 or 20.4 would be an irregularity (as per r 1.5(1)(a)) in respect of which the Court could exercise its powers under the High Court Rules to make any order dealing with the proceeding generally as it thinks fit (r 1.5(2)(b)). The order required here would be an order extending the time for bringing the appeal. The power to make that order must be found elsewhere and here it is in my view found in r 1.19 or 20.4(3). Therefore r 1.5 does not provide an additional power to extend time. Nevertheless it might be seen as illustrative of a general approach under the rules that failure to comply with the requirements of the rules can be regularised by the Court where it is just to do so. It reinforces my view that an extension in the time for bringing an appeal should be granted if the enactment conferring the appeal right permits this or does not prohibit it and it is otherwise just to grant the extension. 
Discretion 
[38]
I consider that an extension of time in bringing the appeal should be granted, either under r 20.4(3)(b) or r 1.19. I am told that the appellant always intended to bring an appeal and the failure to file the appeal in time was the fault of the appellant's solicitors and not that of the appellant. The issue that is the subject of the intended appeal raises an important issue. That was implicitly recognised when the District Court Judge granted leave to appeal without any formal application before him. The delay in filing the appeal is not substantial. ACC agrees it cannot point to any prejudice in the late filing of the appeal. 
Result 
[39]
The application for an extension in time to bring the appeal is granted. 

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