McKenzie v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2012] NZACC 210 AI 347/08 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL UNDER SECTION 162 OF THE ACT BETWEEN CHRISTINA MCKENZIE Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Judgment: 29 June 2012 JUDGMENT OF JUDGE RODERICK JOYCE QC ON THE PAPERS] [1] I begin with a rehearsal of the terms of my 15 May 2012 minute in this case for a recital of that, followed by an account of subsequent events and the decision they drive, will suffice properly to deal with this application for leave to appeal to the High Court on a point or points of law. [2] The minute was as follows: Brief background [1] Back on 7 June 2007 Ms Mckenzie was unsuccessful upon an application for review of the decision of the Corporation dated 15 September 2006 declining her cover for a treatment injury claim. [2] The review application was unsuccessful because the reviewer found, in light of the medical evidence, that there was no causal relationship between her condition/symptoms and a laser treatment she received in 1991 or a diathermy procedure in 1997. CHRISTINA MCKENZIE V ACCIDENT COMPENSATION CORPORATION DC AK [2012] NZACC AT 347/08 [29 June 2012] [3] I note here that under the heading of "Background" the reviewer had begun by mentioning that Ms Mckenzie had had a number of gynaecological symptoms dating back at that point into the 1980's. [4] At the core of the reviewer's decision was the finding that there was no evidence that Ms Mckenzie had sustained a physical injury from either the 1991 or the 1997 treatment so that there was no basis for finding that there had been a personal injury of any kind. [5] Ms Mckenzie gave notice of an appeal to this Court against the dismissal of her review application. But then, on 25 May 2009, she advised the registry in these terms: I am unable to secure funding for a further medical report, which I believe is crucial to my appeal, and so, regretfully, due to this very unfortunate situation, I am respectfully asking that my application for an appeal be withdrawn as I do not wish to waste the Court's time any further, and apologise sincerely for any inconvenience caused. [6] In light of that advice her appeal was formally recognised as withdrawn. [7] That appears to have been the end of the matter until 3 November 2011 when Ms Mckenzie was back in touch with the registry to advise that she now wished to appeal the reviewer's decision. [8] She said that she recognised that her request was out of time but asked that she be given leave to do so on account being too traumatised and in bad health to apply within the appropriate timeframe. Of course that was not what she said when, on 25 May 2009, she requested leave to withdraw her original appeal. [9] The 3 November 2011 intimation was followed by the lodgement on 10 November 2011 of what purported to be a notice of appeal against the review decision. [10] It appears that when that document was initially received the pertinent features of the prior history were not appreciated by the registry - in particular, the fact of the earlier withdrawal of the original appeal, [1]] When the withdrawal did come to attention, a registry staff member spoke to Ms Mckenzie suggesting to her that perhaps what she now actually sought was to have her original appeal reinstated. In any event, the case was subsequently treated as one now involving such an application and, on that account, it came before Judge Beattie. [12] His Honour's consideration of the application was in the context of the Corporation resisting reinstatement and providing reasoned argument for that resistance. [13] Its argument included a more complete chronology than I have so far recorded so, as a useful point of reference, I set that out just below: DATE EVENT 1991 & The appellant receives cervical treatment on 11 October 1991 and 1997 10 February 1997 20/05/2006 The appellant lodges a claim for cover with ACC for a treatment injury in relation to the treatment. ACC investigates the claim obtaining previous medical records for the appellant as well as independent specialist m Dr Donoghue, Obstetrician and Gynaecologist, who opined, inter alia, in respect to the appellant's claim; "Considering the unverified assertion of an accidental laser burn during the cervical operation on 1I October 1991, and the lack of any noted complication by Dr Hare in several letters and the report of the procedure, it seems unlikely that complication of the operation did occur; Considering the lack of discernible and attributable tissue abnormalities of the cervix and the vagina during the years since 1991, despite multiple careful clinical assessments by different doctors, if seems unlikely that such injuries would exist and not be detected by such exhaustive procedures as those that have been conducted. It must be concluded that therefore there is no evidence to suggest that any treatment injury was sustained being the laser ablation operation," 15/09/2006 ACC issues a primary decision declining cover for a treatment injury 07/11/2006 The appellant applies for a review. 16/04/2007 A review hearing is conducted. The Reviewer issues a review decision dismissing the review. The Reviewer determines, inter alia; "Dr Donoghue had access to the medical reports on Mis Mckenzie's file and has provided a comprehensive analysis to support his opinion. 07/06/2007 The medical evidence is that many of the symptoms reported by Mis Mckenzie were pre-existing to the treatment and there is no evidence that she has sustained a physical injury from treatment either in 1991 or 1997 I therefore find that there was no personal injury caused by treatment. Therefore, I need not to consider the rest of the criteria for a personal injury by treatment." 16/09/2008 The appellant files a late appeal (Al 347/08), approximately 14 months out of time. The appellant sends an email to the Registry withdrawing her appeal, The appellant's email reads "I am unable to secure funding for a further medical report, which I believe is crucial to my appeal, and so, regretfully, due to this very unfortunate situation, I am respectfully asking that my application for an appeal be withdrawn as I do not wish to waste the Court's time any further; and apologise sincerely for any inconvenience caused." It appears that the appellant lodges an application for reinstatement of her appeal at or about this time. The appellant has since produced a number of documents in respect 03/11/2011 to her appeal, being submissions and medical documents. The latter are, largely, primary medical records and do not consist of any specialist medical comment pertaining to the substantive issue of cover for treatment injury. [15] The Corporation's argument included that, generally speaking, once an appeal was withdrawn that was the end of it. Although there was an acknowledgement that, where an appellant was able to demonstrate that the withdrawal was not the result of a deliberate and informed decision, then the Court might treat it (the withdrawal) as a "nullity". And authority was cited to that effect', [16] Counsel also mentioned decisions in this Court to like effect - decisions such as included the observation by a judge that he was not "aware of any authority permitting reconsideration of an appeal voluntarily abandoned". [17] Also, and so far as delay was concerned, counsel for the Corporation pointed to the absence of evidence supporting the most recent explanation offered by Ms Mckenzie on that account. [18] Counsel lastly referred to the fact that at the time of review in 2007 the specialist medical evidence had not supported Ms Mckenzie's case, nor had she now produced any new such evidence to support it. [19] In the meantime Ms Mckenzie had been dispatching this and that form of documentation to the registry without pausing to put together any kind of structured argument - and that pattern has been maintained right up to the present. [20] The registry has been the recipient of a plethora of material which, however, has not been in a shape or form ~ or with content - helpful as regards the issues in this case. [21] On 22 February 2012, Judge Beattie delivered a decision declining reinstatement. In that decision he concluded that there was no proper basis for reinstatement of the appeal which, in any event, he saw as having little prospect of success even if the circumstances could have allowed an extension of time, an outcome he also considered unlikely, Before formally recording his ruling that there was no basis for reinstatement, he also noted that there was "simply no medical evidence to support the applicant's claim". [22] After that decision had been communicated to Ms Mckenzie she emailed the registry on 1 March 2012 saying that she would like to appeal the decision to the High Court. The registry accepted that communication as an application for leave in that behalf [23] At this point (1 March 2012) the registry also advised Ms Mckenzie that she should file written submissions in support of her application within 28 days after which the Corporation would be asked to file theirs. She was told that she would then get a right of reply, after which the application would go before another judge, [24] The registry's advice sought to convey to Ms Mckenzie that at this point the issue was whether it could be said that Judge Beattie's R v Mackay [1980] 2 NZLR 490 N Franklin v ACC (1024/03) decision was wrong in law and that was a way of saying, perfectly accurately, that that is the only form of appeal available from a judgment of this Court in this jurisdiction. [25] Issues of fact alone by way of appeal cannot be rehearsed. There must be a point of law to be argued: one such as might persuade the High Court that this Court had fallen into legal error the correction of which could alter the end result of the case. [26] As is obvious from the file, there have since been a number of further email communications between the registry and Ms Mckenzie demonstrative of its efforts to obtain from her, in support of her application for leave to appeal to the High Court, some form of submission that could be of utility, [27] At one, more recent, point Ms Mckenzie had indicated to the registry that she was consulting a solicitor, whom indeed she identified, but when the registry spoke to that solicitor her advice had been that she was "not engaged by her - not acting" but would talk to her within the ensuing three weeks - and that was on 28 March. [28] No submission being to hand by 8 May (nothing but further medical materials) the registry had advised Ms Mckenzie that if no progress was made by 22 May then her application would be referred to the Court for directions. [29] It was no doubt because she had then responded "Please tell the Court that I am currently extremely ill" that the registry actually chose immediately to refer the file to the Court, and (as is obvious) it has come to me. [30] I now come to the point. There is nothing before the Court from Ms Mckenzie at this juncture capable of founding an argument that Judge Beattie fell into legal error in the decision he made, [31] Nor is there any sign that Ms Mckenzie is likely, within a reasonable or any timeframe, to come forward with any possibly sustainable contentions of a focused kind. However, she will be offered one further chance. Directions [32] All matters considered, I make these directions: (a) Ms Mckenzie will have until 17 June 2012 to lodge with the registry legal submissions in support of her application for leave to appeal on a question of law - submissions which must identify the legal point sought to be taken and the justification for its pursuit. (b ) If she complies with that requirement then, within 14 days of compliance, the Corporation is to file its submissions in response; to which (c) within the seven days following Ms Mckenzie may respond. (d) If Ms Mckenzie does not meet the requirement in (a) above - and the proffering of further medical material will not contribute at all to meeting that requirement - then the application is to be brought back to me for determination on the papers as matters then stand. (e) If she does comply - in which case the Corporation will undoubtedly respond and she will have the opportunity of a rejoinder - her application is to be referred to me for consideration in light of the totality of the materials thus available. Subsequent events [3] It is apparent from the court file that this minute was copied to Ms Mckenzie on 15 May 2012 as well as, of course, to the Corporation's counsel. In sending the minute to Ms Mckenzie the registry requested her to "act as directed" and she responded the next day saying: I will act on what the Judge has said and try and get things sorted by seeking legal advice before or by the time specified. [4] Thereafter, on 21 May 2012, the Court had cause to issue a further minute in these terms: In my minute of 15 May, and in giving the directions found in it, I sought to make clear that Ms Mckenzie could not assist her application for leave to appeal to the High Court on points of law by proffering further medical materials. That same day the registry received a CD from Ms Mckenzie and a copy of a letter that she had apparently sent to the Medical Council with a copy of the same CD on 4 May. I have directed the registry to return the CD and letter to Ms Mckenzie because the CD apparently records video footage of a kind that could only perhaps be useful to an attending or investigating doctor and the letter has no relevance to the issues at present before the Court. For, as I have said, the only current in the court issues are legal ones. [5] The file records that this minute was sent to Ms Mckenzie and to the Corporation's counsel the following day, 22 May. [6] On the same day Ms Mckenzie emailed the registry saying: I am given till the 17 June to hand in legal submissions. Which I am doing. As sent in a previous email, lawyers are turning me down so I am forced to represent myself, which I stated in my first appeal to the Court anyway. [7] On 14 June 2012, in an email which began "Legal submissions continued", Ms Mckenzie communicated once more with the registry, referring to a clinical letter from ADHB and to a diagram, indicating that such explained why she had sent CD recorded images to the Court. [8] On 15 June 2012 she emailed what she described as her legal arguments and a booklet "Wound Assessment - the Basics" to the registry. With these "submissions" she sent a specimen report relating to herself which she set out to discuss. (9] She then referred to a text called "Conquering Bladder and Prostate Problems, the Authoritative Guide for Men and Women" by a Dr Blavais before saying: Please ask the Judge if he needs to question my reasons for submitting these legal arguments as I am happy to explain. [10] Unfortunately, what she then set out did not comprise a point of law identifying argument. She asserted that she could prove she had suffered a physical injury. She referred to s 32 of the Act. But did so in terms referring to matters of alleged fact or opinion, as maintained by her, rather than to any legal point. [11] She also mentioned s 204A of the Crimes Act, the Health and Disability Act and the Health Practitioners Competence Assurance Act 2003, But in doing so, and once again, did not set out or draw attention to any point of law the Court could identify as actually or possible germane to her case. [12] On the same day, so it would appear, she sent in a letter from a general practitioner dated 24 May 2012 (and it was certainly comforting to see that she had enrolled with a new doctor). [13] This was a letter to Urogynaecology Outpatients at Auckland confirming that Ms Mckenzie was now on a waiting list to be seen there. [14] It set out, as one would expect, what the doctor had gleaned from Ms Mckenzie of her gynaecological problems and a list of her medications and known conditions. But no legal issue is raised by this correspondence, [15] Lastly I mention - simply for completeness - that the file now includes the "Wound Assessment - The Basics" materials referred to above but they simply comprise a substantial in number set of (what looked to be) facsimiles of Powerpoint slides relating to a variety of wounds. Discussion [16] It is thus the case that Ms Mckenzie has not in what she has most recently proffered (or in anything earlier sent in) raised any question of law that might be argued (even just possibly) in terms relevant to the Court's decision in this case. [17] I add that, bearing in mind the inquisitorial elements of this jurisdiction the Court has itself sought to be diligent in examining the possibility of room for any such argument, but has found none. Result [18] In this state of affairs the application for leave to appeal pursued under s 162 of the Act cannot be sustained, and is thus dismissed. Roderick Joyce QC District Court Judge