MALAWEERA v ALLIANZ NEW ZEALAND LTD [2018] NZCA 514

MALAWEERA v ALLIANZ NEW ZEALAND LTD [2018] NZCA 514 [21 November 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA N/A[2018] NZCA 514BETWEEN DON WIJAYANTHA INDRAMALAWEERAApplicantAND ALLIANZ NEW ZEALAND LIMITEDRespondentJudgment:(On the papers)21 November 2018 at 3pmJUDGMENT OF GILBERT JThe application for review of the Registrar's decision is declined.____________________________________________________________________REASONS[1] Mr Malaweera applies for a review of the Registrar's decision declining toaccept for filing an application for an extension of time to appeal against a decision ofVenning J dated 8 February 2018. Venning J declined Mr Malaweera's application forleave to appeal to the Court of Appeal concerning Mr Malaweera's entitlements underthe then applicable Accident Insurance Act 1998 (the Act).1[2] The following brief background is taken from Venning J's decision.Mr Malaweera's entitlements under the Act were suspended on 12 March 2000.Mr Malaweera's application for review of that decision was declined. He appealed tothe District Court but his appeal was dismissed on 7 March 2002. Mr Malaweera then1 Malaweera v Allianz New Zealand Ltd HC Wellington CIV-2002-485-32, 8 February 2018(Minute of Venning J).applied to the District Court for leave to appeal to the High Court. That applicationwas declined on 15 October 2002 because the proposed appeal did not raise a questionof law. On 18 February 2003, Mr Malaweera filed in the High Court a notice of appealagainst the decision declining leave to appeal. Not only was this appeal filed out oftime, there was no jurisdiction to entertain it. The District Court having declined leaveto appeal, the only potentially available course was to apply to the High Court forspecial leave to appeal under s 165(3) of the Act. The respondent filed an applicationto strike out the purported appeal on 5 March 2004. Mr Malaweera did not oppose theapplication. On 14 April 2005, Associate Judge Gendall made an unless order to theeffect that unless Mr Malaweera filed and served a notice of opposition by 12 May2005, his appeal would be struck out. Mr Malaweera did not comply and accordinglyAssociate Judge Gendall struck out the purported appeal on 9 June 2005.[3] Twelve and a half years later, on 4 December 2017, Mr Malaweera applied tothe High Court for leave to appeal to the Court of Appeal. Venning J dismissed thisapplication for two reasons. First, appeals to the High Court or to the Court of Appealunder the Act are restricted to questions of law. Venning J noted that no question oflaw had been identified by Mr Malaweera. Second, the application for leave to appealwas grossly out of time.[4] Although s 165 of the Act has been repealed, it remains applicable for thepurposes of the proposed appeal.2 It provides that a party to an appeal who isdissatisfied with the decision of the District Court as being wrong in law may, withthe leave of the District Court, appeal to the High Court. Such leave must be soughtwithin 21 days after the District Court's decision (in this case 21 days from 7 March2002). If the District Court refuses leave, as occurred here, the High Court may grantspecial leave on application made within 21 days of the District Court's decisionrefusing leave (in this case 21 days from 15 October 2002). There is no right of appealagainst a decision of the High Court refusing leave. Accordingly, the Registrar wascorrect to decline Mr Malaweera's application for an extension of time to appealagainst Venning J's decision. The application for review of the Registrar's decisionmust be declined.2 Accident Compensation Act 2001, s 391(3).Result[5] The application for review of the Registrar's decision is declined._______________________M A Gilbert J