ACCIDENT COMPENSATION CORPORATION v HAWKE [2013] NZHC 2982

ACCIDENT COMPENSATION CORPORATION v HAWKE [2013] NZHC 2982 [12 November 2013]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2013-485-768[2013] NZHC 2982UNDER the Accident Compensation Act 1982IN THE MATTER of an intended appeal under section 111 ofthe ActBETWEEN ACCIDENT COMPENSATIONCORPORATIONAppellantAND DIANE HAWKERespondentHearing: 25 September 2013 (at Auckland)Counsel: CJ Hlavac for AppellantP Schmidt for RespondentJudgment: 12 November 2013JUDGMENT OF BREWER JThis judgment was delivered by me on 12 November 2013 at 1:00 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors: Young Hunter (Christchurch) for AppellantSchmidt & Peart Law (Auckland) for RespondentIntroduction[1] The respondent asked the appellant to pay her weekly compensation (backdated) for an injury that occurred on 24 February 1978. By letter dated 29 September 2005, the appellant refused to do that for periods prior to 1992.[2] The respondent wants to challenge that refusal. Her immediate difficulty is that the appellant disagrees with her on which judicial body can hear her challenge. The respondent takes the view that jurisdiction in her case is held by the Accident Compensation Appeal Authority ("the Authority"). The appellant, to the contrary,contends that the case is properly within the purview of the District Court.[3] The respondent approached the Authority. In a decision dated 3 August 2012,1 the Authority ruled that it, and not the District Court, has the jurisdiction tohear and determine the respondent's appeal.[4] The appellant did not accept the Authority's decision. It applied to theAuthority for leave to appeal the decision to this Court. In a judgment dated 15 April 2013,2 the Authority refused leave to appeal.[5] The appellant now applies for an order granting special leave to appeal to thisCourt against the Authority's 2012 decision. It is this application which thisjudgment determines.The law on special leave to appeal[6] Appeal rights from a decision of the Authority are conferred by s 111 of the Accident Compensation Act 1982 ("the 1982 Act"). It reads (relevantly):(2) ... the High Court ... may grant leave ... 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.1 Hawke v ACC [2012] NZACA 10.2 Hawke v ACC [2013] NZACA 5.[7] As I will come to, the appellant's case is based on statutory interpretationand, therefore, on a question of law. However, it is not enough for the appellant to identify a question of law which it wishes to argue. The case law is clear that there is a threshold. The question must be capable of bona fide and serious argument and it will normally be necessary to show that there is an issue of principle at stake or that sufficient hinges on the decision that it is in the interests of justice for leave to be granted.3The argument[8] The argument arises because the law giving people rights to be compensated by the appellant for personal injury by accident has been enunciated by Parliament in a number of statutes passed successively since the enactment of the first such statute in 1972.4[9] The current statute is the Accident Compensation Act 2001 ("the 2001 Act").The 2001 Act has transition provisions which preserve rights to compensation arising under its predecessor legislation. The appellant contends that a proper construction of the transition provisions is that the decision not to pay weekly compensation was made under the 2001 Act. Therefore, the District Court must determine therespondent's challenge.5 The respondent's submission is that the transitionprovisions mean that the decision was made under the 1982 Act. Therefore, the Authority is correct in its decision that it has jurisdiction.6[10] On the threshold issue, the appellant submits that this is a question of law which is of general or public importance. Claimants need to know the procedure to follow if they wish to appeal review decisions on claims arising before the 2001 Act came into effect. The respondent submits that the Authority is self-evidently correct3 The effect of the authorities relating to grant of special leave is summarised usefully in Kenyon v Accident Compensation Corporation HC Wellington AP258/00, 19 December 2001, at [15].4 Accident Compensation Act 1972. This was followed by the Accident Compensation Act 1982, the Accident Rehabilitation and Compensation Insurance Act 1992, the Accident Insurance Act 1998 and the Accident Compensation Act 2001.5 Accident Compensation Act 2001, s 149.6 Accident Compensation Act 1982, s 107. The appeal to the Authority is preserved by the subsequent Acts.in its decision that it has jurisdiction. There is no serious argument to be had and so special leave to appeal should be denied.The transitional provisions of the 2001 Act[11] The relevant transitional provisions are contained in Part 11 (ss 350-401) of the 2001 Act. Section 391 provides:391 Review and appeal proceedings for decisions under former Acts(1) Part 9 of the Accident Compensation Act 1982 continues in force in order to apply to any decision made by the Corporation—(a) under the Accident Compensation Act 1972 or the Accident Compensation Act 1982; or(b) under either of those Acts, as applied by section 453 of the Accident Insurance Act 1998 or as applied by this Act....(4) Part 5 applies to any decision made by the Corporation under this Part, except a decision referred to in subsection (1), subsection (2), or subsection (3).[12] Part 5 of the 2001 Act sets out the procedure for dispute resolution under the 2001 Act. Appeals from review decisions are to the District Court. If a decision is made to which s 391(1) applies then, under the 1982 Act, appeals from review decisions are to the Authority.[13] Section 355 of the 2001 Act provides:355 Claims for cover accepted under former acts(1) A person who has had a claim for cover accepted before 1 April 2002 for personal injury covered by the former Acts continues to have cover, and this Part applies accordingly....[14] Section 363 of the 2001 Act provides, relevantly:363 Application of sections 364 to 387(1) Sections 364 to 380 provide for entitlements for a person who, having suffered personal injury before 1 April 2002, has cover accepted under any of sections 355 to 360....(3) The provision of entitlements arising from cover accepted under any of sections 355 to 360 is subject to Part 4 and Schedule 1, unless the effect of any of sections 364 to 391 is to the contrary.[15] It is common ground that the respondent is a person who had cover accepted prior to 1 April 2002. In the appellant's submission, she is eligible for theentitlements set out in ss 364 to 380 of the 2001 Act, which include weekly compensation.[16] There is a procedure for making claims:354 Processing of claimsPart 3 applies to all claims received on or after 1 April 2002 for cover and entitlements in respect of personal injury suffered before that date.[17] Part 3 contains ss 48 and 53:48 Person to lodge claim for cover and entitlementA person who wishes to claim under this Act must lodge a claim with the Corporation for—(a) cover for his or her personal injury; or(b) cover, and a specified entitlement, for his or her personal injury; or(c) a specified entitlement for his or her personal injury, once the Corporation has accepted the person has cover for the personal injury....53 Time for making claim(1) A person must lodge a claim with the Corporation within the time limit specified in this section.(2) The Corporation must not decline a claim lodged after the time limit specified in this section on the ground that the claim was lodged late, unless the claim's lateness prejudices the Corporation in its ability to make decisions.(3) A person must lodge a claim under section 48,—(a) in the case of a claim for cover, within 12 months after the date on which he or she suffers the personal injury; or(b) in the case of a claim for an entitlement, within 12 months after the date on which the need for the entitlement arose....The Authority's decisions[18] The Authority, in its jurisdiction decision, considered the legislation – but also a Practice Note by which it became somewhat distracted. However, its essential reasoning is encapsulated as follows:7By virtue of s 363(3) of the 2001 Act, an application for earnings related compensation must be assessed under the 1972 or 1982 Acts as applicable, and as such, inevitably, the decision is made under either of those Acts, as applied by the 2001 Act.[19] The Authority, in refusing leave to appeal, again considered the substantive arguments of the parties.8 Counsel for the appellant took the opportunity to expandthe range of arguments in support of the appellant's position and the Authorityconsidered them also. The Authority concluded that there was no merit in the proposed appeal. Further, it was of the view that it is not in the public interest to grant leave to appeal on a protest of jurisdiction as an interlocutory measure.9The appellant's submissions[20] The decision to refuse the respondent weekly compensation (as advised in the letter dated 29 September 2005) was made because, in terms of s 53(2), the claim was lodged late and the lateness prejudices the appellant in its ability to decide her claim.[21] The appellant submits:1039. A decision by ACC under Section 53 declining a claim because it was lodged late can only be a decision made under the 2001 Act. It cannot be a decision under any of the previous Acts, because s 53 was not a provision under any of those previous Acts. However by virtue of s 354, s 53 must be complied with in respect of any claim for entitlements under any of those previous Acts.7 Hawke v ACC, above n 1, at [46].8 Hawke v ACC, above n 2.9 Ibid, at [67].10 Submissions for appellant in support of application for special leave to appeal, dated 5 September 2013.40. For this reason it is submitted that none of the provisions of s 391(1), (2) or (3) apply. Pursuant to Section 391(4), Part 5 of the 2001 Actapplies to ACC's decision. Part 5 of the 2001 Act deals with thereview and appeal process and provides that any appeal from a review decision must be made to the District Court.[22] On the issue of whether an appeal on this issue would be in the public interest or of general importance, the appellant makes the points:(a) It is of obvious significance that the correct legislation is applied to ACC claims; and(b) Whether appeal rights attach to an interlocutory decision by the Authority concerning jurisdiction is also of public and general importance.The respondent's submissions[23] The respondent supports the Authority's reasoning. In the respondent'ssubmission, it is self-evident that decisions about compensation in cases like therespondent's must be determined under the previous legislation:1133. The purpose of section 391 is to clarify that decisions about mattersunder the Accident Compensation Act 1972 ("the 1972 Act") or the1982 Act, whether made under previous legislation or made under the 2001 Act, have an (sic) review and appeal process as set out in Part 9 of the 1982 Act. Decisions other than those about cover or entitlements are governed by the current review and appeal process under Part 5 of the 2001 Act.Discussion[24] I have to bear in mind that I am not deciding the issues upon which the appellant wishes to appeal – notwithstanding that they have largely been argued before me. My task is to determine whether there is an issue of law which crosses the threshold of arguability to which I earlier referred, and which has appropriate significance.11 Submissions of counsel for the respondent opposing the application for special leave to appeal, dated 17 September 2013.[25] There is certainly an issue of law. At the risk of over-simplification, it is whether a decision made under s 53 of the 2001 Act based on a determination of prejudice is a substantive decision, in which case appellate jurisdiction vests in the Authority, or a procedural decision in which case appellate jurisdiction vests in the District Court.[26] In my view, the resolution of this issue is not self-evident. The interpretation argued for by the respondent is clearly correct if a merits-based decision has been made. The respondent's argument that s 391(4) specifically excludes Part 5 from applying if the decision made is one made under the previous legislation must be correct. But that does not resolve the substantive decision versus procedural decision argument. The appellant has a legitimate argument that s 53 is part of a procedure, and gives a power to refuse compensation under the 2001 Act not on the merits but because of prejudice.[27] I find that resolution of this issue is of public or general importance. People need to know which judicial body has appellate jurisdiction in cases such as this.[28] I think also that it would be desirable to have an authoritative decision on whether an appeal on an interlocutory protest to jurisdiction is available.[29] I am conscious of the respondent's position. She has had her application forfurther compensation refused. She has a right of appeal. Her pathway to that appeal should be determined as expeditiously as possible. If I deny the appellant leave to appeal and the Authority then makes a substantive decision, the unresolved issue ofjurisdiction is liable to raise its head again. It could render the Authority's decisionnugatory and the parties would have to begin again. That is in no-one's interest.Decision[30] Special leave to appeal is granted.[31] I direct the registry to list the appeal in the appeals callover list on 26 November 2013 at 9:00 am.[32] If costs are at issue, I will receive memoranda by 6 December 2013.________________________________Brewer J