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Accident Compensation Cases

Accident Compensation Corporation v Algie (HC, 04/07/14)

Judgment Text

ORAL JUDGMENT OF MACKENZIE J 
MacKenzie J
[1]
This is an application for leave to appeal to the Court of Appeal against my judgment delivered on 7 March 2014. Section 112 of the Accident Compensation Act 1982 provides that if a party to proceedings before the High Court is dissatisfied with the determination of the Court as being erroneous in point of law that party may, with the leave of the Court, appeal to the Court of Appeal by way of case stated for the opinion of the Court on a question of law only. 
[2]
The High Court may grant leave if it is of the opinion the question of law involved in the appeal is one which by reason of its general or public importance or for any other reason ought to be submitted to the Court of Appeal for decision. 
[3]
As to the test to be applied in relation to the grant of leave, Mr Butler refers to the decision of this Court in Sinclair v Accident Compensation Corporation, which noted that the applicant must identify an issue of law that is capable of bona fide and serious argument which assumes sufficient importance to justify a further appeal, and the point must be of sufficient general or public importance, or there must be some other reason why it should be submitted to the Court of Appeal for decision.1
| X |Footnote: 1
 
[4]
I say at the outset that I have reached the view that leave should be granted. I say that now because it is relevant to the extent of reasons that I should give for reaching that view. It is generally appropriate when a Court grants leave to appeal to say less rather than more, since the judgment must stand for itself and it is not appropriate to make any further comment on the judgment itself. Giving brief reasons, I consider that the question raised is capable of bona fide and serious argument. Both counsel have addressed quite extensive submissions directed to the merits of the question. I do not address those submissions because it would not be appropriate to do so on this application for leave. Suffice it to say that it cannot be said that the answer to the question is so clear that it cannot be capable of bona fide and serious argument. 
[5]
As to whether it is a question of general or public importance, it is relevant that this case was in the nature of a test case, in that it did not deal with the circumstances of any individual claimant but addresses a point which is common to the claims of a number of claimants. The case itself involved 20 claimants with cover under the Accident Compensation Act 1972 and the Accident Compensation Act 1982 respectively, and the indications are that there may be other claimants than those who would be affected. That is a factor which makes it of some general and public importance. 
[6]
Another significant factor is that this proceeding was concerned with the application of a provision which is substantially the same in each of the two Acts: s 121(1) of the 1972 Act and s 80(1) of the 1982. A claim for, as I prefer the term, unpaid attendant care was earlier made in two cases which were considered by the Court of Appeal together in 2007, reported as Simpson v Accident Compensation Corporation.2
| X |Footnote: 2
Simpson v Accident Compensation Corporation [2007] NZCA 247, [2007] NZAR 497Has Litigation History which is not known to be negative[Blue] 
That case was concerned with a claim as to whether the attendant care could be compensated for under s 121(2) and s 80(2) respectively. That question was seen as of sufficient general or public importance to justify the granting of leave to appeal to the Court of Appeal in that case. It is difficult to see that there could be a principled distinction as to why essentially the same question under subs (1) would not also be of sufficient importance. 
[7]
So, as I have indicated, I consider leave ought to be granted. 
[8]
The appeal will be by way of case stated for the opinion of the Court of Appeal on a question of law only. The extent to which the Court of Appeal will need to traverse the matter, or any other matters that might arise, will be a matter for that Court. I consider that it is appropriate to frame the question of law in a way which would not be restrictive in the Court of Appeal in respect of the arguments which the parties may wish to advance in that Court. Mr Butler suggests that the question that I should ask should be in the form that he has helpfully formulated. 
[9]
The outcome is that leave to appeal is granted, and in granting leave I state for the opinion of the Court of Appeal the following question of law: 
(a)
Was the High Court erroneous in law when it determined that a claim for payment for unpaid attendant care is permitted under s 121(1) of the Accident Compensation Act 1972 and s 80(1) of the Accident Compensation Act 1982? 
[10]
I direct that counsel for the intended appellant will have, in terms of s 112(5) of the Act, 28 days within which to prepare the case. 


Simpson v Accident Compensation Corporation [2007] NZCA 247, [2007] NZAR 497Has Litigation History which is not known to be negative[Blue] 

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