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Accident Compensation Cases

Cullen v Accident Compensation Corporation (HC, 14/08/13)

Judgment Text

JUDGMENT (NO. 2) OF TOOGOOD J [Application for leave to appeal to Court of Appeal] 
Toogood J
[1]
On 1 May 2013,1
| X |Footnote: 1
I issued a judgment holding that the Accident Compensation Corporation (“the Corporation”) was not required to pay interest on the whole amount of retained weekly compensation to which the applicant, Mr Cullen, was entitled notwithstanding any repayment to Work and Income New Zealand (“WINZ”) of income support benefit paid to the applicant. Mr Cullen seeks leave to appeal to the Court of Appeal. The application is opposed. 
[2]
The question of law which I answered in the judgment arose in circumstances where, from October 1988 to 2006, Mr Cullen received income support from WINZ when he had been entitled in fact to continue to receive weekly compensation from the Corporation. Arrears of compensation were calculated to be $198,288.07 but $185,498.63 was repaid to WINZ under the Accident Compensation Act 2001 (“the Act”).2
| X |Footnote: 2
Accident Compensation Act 2001, s 252. 
 
[3]
Mr Cullen claimed interest on the total arrears (from 1992 when the entitlement to interest was created) but the Corporation paid interest calculated only on the balance of $12,789.45 in arrears paid to the applicant, that amount being the difference between the total arrears and the amount repaid to WINZ. 
[4]
In support of Mr Cullen's application for leave to appeal to the Court of Appeal, Mr Schmidt advances an argument which acknowledges, first, that the argument for Mr Cullen was accurately set out in the judgment at paragraphs [20] to [23]. I do not need to repeat it here. It is apparent from Mr Schmidt's submissions in support of the application for leave to appeal that the essential point which the appellant wishes to make to the Court of Appeal is that I was wrong to consider that there was an inter-relationship between ss 114 and 252 of the Act which led to the result that Mr Cullen received interest of only $13,822.55 as against interest of $109,209.57 to which he would have been entitled if his arguments had been accepted. 
[5]
The appellant wishes to argue, as he did in this Court, that s 252 is a stand-alone reimbursement and deeming provision designed to prevent double-dipping and tidy up administrative loose ends, and that it has no application or interaction with the Corporation's obligation to pay interest on late payments under s 114. 
[6]
I acknowledge that the question proposed for the appeal is a genuine question of law and that it is one of some importance not only to Mr Cullen but also to other ACC beneficiaries. Undoubtedly, the application meets those parts of the test for a grant of leave under s 163(1) of the Act.3
| X |Footnote: 3
Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006; Khan v Accident Compensation Corporation HC Auckland, CIV-2007-485-1632, 14 August 2008
 
[7]
I am not persuaded, however, that the proposed appeal has a reasonable prospect of success which would justify consideration by the Court of Appeal. 
[8]
The claim for interest on the full amount which Mr Cullen would have received from the Corporation if he had been paid under the Act was rejected first by Judge Beattie in the District Court,4 then by Judge Joyce QC in declining leave to appeal to this Court,5
| X |Footnote: 5
Cullen v Accident Compensation Corporation [2012] NZACC 306Has Litigation History which is not known to be negative[Blue] 
and again by this Court. Contrary to Mr Schmidt's careful submissions, I do not agree that the judgment of the Court of Appeal in ACC v Miller,6
| X |Footnote: 6
which dealt with the purposes and history of s 114 of the Act, assists the applicant. The dual purpose of that section, to act both as a deterrent from unnecessary delay in the making of payments, and to compensate claimants for the effect of delays, does not answer the point that s 252(6) of the Act deems the payments received by Mr Cullen from WINZ to have been paid in respect of the entitlement to compensation under the Act “for all purposes”
[9]
In my view, this is not a case in which the interests of justice require consideration of the legal issues at a second appellate level, and leave is declined accordingly. 
[10]
Costs on the application are reserved for memoranda. 


Accident Compensation Act 2001, s 252. 
Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April 2006; Khan v Accident Compensation Corporation HC Auckland, CIV-2007-485-1632, 14 August 2008

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