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Accident Compensation Cases

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

Judgment Text

JUDGMENT OF RONALD YOUNG J 
Ronald Young J
[1]
In 1987 the Accident Compensation Appeal Authority (ACAA) dismissed an appeal by Mr Jones relating to a claim for medical misadventure under the 1982 Accident Compensation Act 2001. 
[2]
In June 2013 Mr Jones lodged an application with the ACAA for leave to appeal out of time to the High Court in respect of the 1987 ACAA's decision. The ACAA declined leave on the basis that there was no question of law revealed in the proposed appeal but only factual disputes. 
[3]
Mr Jones then applied to the High Court for special leave to appeal the ACAA decision to refuse his medical misadventure claim. But first he had to convince this Court to extend time to file the special leave application. It was by then about 26 years out of time. 
[4]
On 24 February 2014 Ellis J heard Mr Jones' application. First, she considered the application to extend time. She applied the principles in McDougall v Accident Compensation Corporation.1
| X |Footnote: 1
McDougall v Accident Compensation Corporation 1983 NZAR 85 (HC)
She concluded; there was no explanation for the delay; there was prejudice to the Corporation in the delay; there was no question of law; there was no matter of public importance. 
[5]
Secondly, she said that she would not in any event have granted special leave essentially for the same reasons she had refused to extend time. 
[6]
Mr Jones has now filed what he calls an application for leave to appeal to the Court of Appeal. He says the application is pursuant to s 112 of the Accident Compensation Act 1982 or s 66 of the Judicature Act 1908. In that application he sets out what he claims was the error in Ellis J's approach. 
[7]
Affectively Mr Jones is applying to this Court for leave to appeal to the Court of Appeal against the decision of the High Court refusing to extend time for the filing of an appeal and refusing special leave to appeal to this Court from the ACAA. 
[8]
Mr Jones' case can be summarised in this way. First, he seeks leave to appeal against the refusal to extend time. He says that is the only decision Ellis J reached. Secondly, he submits that s 66 of the Judicature Act gives this Court the jurisdiction to grant leave to appeal Ellis J's decision refused to extend time. In the alternative Mr Jones submits that s 112 of the 1982 Accident Compensation Act also gives this Court jurisdiction to grant him leave to appeal. Finally, Mr Jones submits that even if what he is appealing from is the refusal to grant special leave to appeal both s 66 and s 112 give jurisdiction to this Court to give special leave. 
[9]
I am satisfied that whatever the jurisdiction to appeal Ellis J's refusal to grant an extension of time Mr Jones will inevitably fail at the leave to apply stage even if time can be extended. There are three reasons. First, Mr Jones' application for leave to apply requires an identified question of law that ought to be considered by the Court of Appeal “by reason of its general or public importance or for any other reason”.2
| X |Footnote: 2
Accident Compensation Act 1982, s 112(3). 
Mr Jones identified six questions of law, as follows: 
(a)
Did the Court correctly apply McDougall v ACC in considering the application for an extension of time for leave to appeal the Appeal Authority decision of Judge Middleton? 
(b)
Was Ellis J mistaken in her conclusion that the absence of any reference to McDougall, or any explanation for the delay in bringing the application, in the decision of Judge Beattie (who refused leave to appeal from the ACAA to the High Court) was evidence that the applicant could not provide any such explanation, and did a miscarriage of justice therefore result? 
(c)
Did Ellis J perpetrate the wrong test for medical misadventure under the 1982 Act and misdirect herself by stating that the necessary component medical misadventure under that Act was negligence? 
(d)
Did Ellis J misdirect herself above in her failure to appreciate that under the ACC Act 1982 it was not necessary for the Accident to be the predominant cause of the adverse effects of any injury for that injury to attract cover? 
(e)
Did Ellis J breach the applicant's right to have the Court observe the principles of natural justice when assessing likely prejudice to the respondent that would be caused by the proposed appeal? 
(f)
Did the weighing of all available evidence in this case which included the manner in which Middleton DCJ (who made the original decision refusing coverage) arrived at this decision and his own weighing of the evidence constitute a misdirection of a magnitude that would in itself raise a question of law? 
[10]
Only questions (a) and (e) might be questions of law. But neither could be of general or public importance. On that basis alone Mr Jones' application for leave could be dismissed. 
[11]
Second, as I have noted, Mr Jones appeal is only against the refusal to grant an extension of time. And so even if Mr Jones were to succeed in the Court of Appeal on the extension of time point, the relief that he would be entitled to was to apply to the High Court for leave to appeal to the High Court. Ellis J, however, has already held that the Court would decline that application. And so any successfully appeal to the Court of Appeal on the extension of time point would be of no value to Mr Jones. 
[12]
Third, Mr Jones cannot challenge the High Court's refusal to grant leave to appeal to the High Court in the High Court. The Court of Appeal has made it clear in McCafferty v Accident Compensation Corporation3
| X |Footnote: 3
McCafferty v Accident Compensation Corporation [2004] NZAR 97 (CA)Has Litigation History which is not known to be negative[Blue] 
and Khan v Accident Compensation Corporation4
| X |Footnote: 4
Khan v Accident Compensation Corporation [2009] NZCA 260, [2009] 19 PRNZ 730Has Litigation History which is not known to be negative[Blue] 
that the High Court has no jurisdiction to consider an application for leave to appeal to the Court of Appeal against a decision of the High Court declining special leave to appeal to the High Court. This Court is bound by those decisions. Mr Jones may, however, be free to apply to the Court of Appeal for special leave. But this Court has no jurisdiction to allow leave in such circumstances. 
[13]
These conclusions are sufficient to dispose of Mr Jones' application. The application is, therefore, refused. 
Application to extend time for application for leave 
[14]
If I am wrong in my conclusion above then I consider the jurisdiction to seek leave to appeal the refusal to grant the extension of time. Section 111 and 112 of the 1982 Accident Compensation Act provide as follows: 
“111
Appeal to High Court 
(1)
Where any party is dissatisfied with any order or decision of the Accident Compensation Appeal Authority, that party may, with the leave of the Authority, appeal to the High Court against that order or decision: 
‘Provided that, if the Appeal Authority refuses to grant leave to appeal, the High Court may grant special leave to appeal. ’”
(2)
The Appeal Authority or the High Court, as the case may be, may grant leave accordingly on a question of law or if in its opinion the question 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 High Court for decision. 
(3)
Repealed. 
(4)
Every such appeal shall be made by giving notice of appeal within 28 days after the date on which the appellant was notified of the order or decision appealed against or within such further time as the Appeal Authority or the Court may allow on application made either before or after the expiration of those 28 days. 
(5)
In its determination of any appeal, the Court may confirm, modify, or reverse the order or decision appealed against, and, subject to section 112 of this Act, the decision of the Court shall be final and conclusive. 
(6)
Subject to the provisions of this section, the procedure in respect of any such appeal shall be in accordance with the rules of the Court. 
112
Appeal against decision of [High Court] on question of law 
(1)
If any party to any proceedings before … the High Court under this Part of this Act is dissatisfied with any determination or decision of the Court in the proceedings as being erroneous in point of law, he may, with the leave of that [Court], appeal to the Court of Appeal by way of case stated for the opinion of that Court on a question of law only: 
‘Provided that, if the [High Court] refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal. ’”
(2)
Within 28 days after the date of the determination or decision of the [High Court], a party desiring to appeal to the Court of Appeal under this section shall file a notice of his application for leave to appeal with the Registrar of the High Court at Wellington, and shall forthwith deliver or post a copy of the notice to every other party to the proceedings. 
(3)
The [High Court] may grant leave accordingly if in its 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. 
(4)
Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after that refusal, or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in its 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. ”
[15]
I am satisfied that there is no right of appeal from a decision under s 111(4) refusing further time by the High Court for an application for leave to appeal to the High Court. 
[16]
Section 112 provides jurisdiction for appeals from High Court decisions to the Court of Appeal. Section 112 gives a right to “any party to any proceedings before … the High Court … (who) is dissatisfied” to apply for leave to appeal. I am satisfied that “proceedings” in s 112 refers to a substantive matter before the High Court. It would not include an application for leave to extend time. At that stage there are no “proceedings” before the High Court. There is only an application to extend time to bring a leave application. Thus, there will be no “proceedings” before the High Court unless and until leave to extend time is given and special leave is granted. Section 112, therefore, provides no appeal rights in these circumstances. Here, in particular, Mr Jones is not a party to any proceedings in the High Court and so s 112 does not provide in any appeal rights to him. 
[17]
Mr Jones also raised s 66 of the Judicature Act 1908. He referred to the Supreme Court decision in Siemer v Heron.5
| X |Footnote: 5
Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
He said that s 66 and Siemer made it clear that there was an appeal as of right from an interlocutory decision of the High Court. And the refusal to give him leave to extend time was such a decision. 
[18]
I am satisfied that neither s 66 of the Judicature Act 1908 nor Siemer v Heron apply to this case. I am satisfied that Mr Jones' appeal rights are governed by the Accident Compensation Act 1982 and in particular ss 111 and 112. 
[19]
In this context I distinguish Simes v Tennant.6
| X |Footnote: 6
Simes v Tennant CA257/04, 28 April 2005
That case was concerned with a general power to extend time in the High Court Rules. This can be contrasted with the specific appeal provisions in the Accident Compensation Act. 
[20]
Secondly, I do not consider the reasoning in Simes v Tennant which focussed on the words “judgment, decree or order”7
| X |Footnote: 7
Judicature Act 1908, s 66. 
can be transplanted to s 112 which is concerned with “determinations or decisions … in the proceedings”
[21]
Further, s 66 is concerned with a general power of appeal. Section 112 is concerned with a narrow context where restricted appeal rights apply in a very specific context relating only to Accident Compensation appeals. 
[22]
I am satisfied, therefore, that Parliament intended when enacting s 112 to provide for specific appeal rules relating to Accident Compensation litigation. There was a comprehensive appeal process. Decisions made by the Corporation are reviewed by the Accident Compensation Appeal Authority, sometimes then followed by the District Court and then the High Court. 
[23]
I am satisfied, therefore, the Supreme Court decision in Siemer v Heron is not relevant to this case. Nor is s 66 of the Judicature Act. I am satisfied that s 112 provides a code of appeal rights and that there is no general right of appeal from Ellis J's judgment under s 66 or s 112. 
[24]
For the reasons given, therefore, I refuse to give leave for Mr Jones to appeal against Ellis J's refusal to give leave to extend time to file an appeal from the Accident Compensation Appeal Authority to this Court. 
[25]
In the circumstances the Corporation may consider this is a case where no costs would be sought against the applicant. If, however, counsel do seek costs then a memorandum should be filed within 14 days and a response memorandum by Mr Jones, a further 14 days. 


McDougall v Accident Compensation Corporation 1983 NZAR 85 (HC)
Accident Compensation Act 1982, s 112(3). 
Khan v Accident Compensation Corporation [2009] NZCA 260, [2009] 19 PRNZ 730Has Litigation History which is not known to be negative[Blue] 
Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
Simes v Tennant CA257/04, 28 April 2005
Judicature Act 1908, s 66. 

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