CROCKETT v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2432

CROCKETT v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2432 [14 September 2018]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2018-409-417[2018] NZHC 2432IN THE MATTER OF an application for special leave to appealunder section 162 of the AccidentCompensation Act 2001BETWEEN ERROL GRAEME CROCKETTApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 4 September 2018Appearances: Applicant in personC Light for respondentJudgment: 14 September 2018RESERVED JUDGMENT OF DOBSON JIntroduction[1] This judgment determines an application for special leave to appeal from aDistrict Court decision on appeal from a review decision of the respondentCorporation (the ACC).1[2] The original ACC decision dated 14 September 2016 related to the extent ofthe ACC's contribution to the cost of hearing aids for the applicant (Mr Crockett).Where, as in this case, the District Court has declined leave to bring a second appeal,1 Crockett v Accident Compensation Corporation [2018] NZACC 11 and [2018] NZACC 80(decision declining leave).the High Court may grant special leave on a question of law.2 The High Court mustbe satisfied there is a serious question of law capable of bona fide and serious argumentin a case involving some interest, public or private, of sufficient importance tooutweigh the cost and delay of a further appeal.3[3] Section 162(4) of the Accident Compensation Act 2001 (the Act) requires thatsuch an application for special leave must be brought within 21 days after the DistrictCourt refused leave.[4] Mr Crockett's application is opposed by the ACC on two bases. First, the ACCargued it was not brought within 21 days of his being refused leave by the DistrictCourt. Secondly, the issue Mr Crockett seeks to argue does not, on the ACC's view,give rise to a question of law that is capable of bona fide and serious argument.The factual context[5] Mr Crockett was formerly employed as a pilot, with his relevant work dutiesincluding flying Harvards and Turboprop aircraft, the noise of which contributed toimpairment of his hearing. On the substance of his claims, Mr Crockett criticises theopinions of the medical experts retained by the ACC to assess the causes of his hearingimpairment. He relies on certain international research, the published reports of whicharguably support his claim that his work environment was the predominant cause ofhis hearing impairment. However, those differences of view about the causes thatcontributed to his disability are not directly relevant for present purposes.[6] Mr Crockett now uses hearing aids. His audiologist applied to the ACC forassistance in funding the hearing aids and the application was processed pursuant tothe Accident Compensation (Apportioning Entitlements for Hearing Loss)Regulations 2010 (the Regulations). Where hearing loss is covered by ACC, aschedule to the Regulations specifies three percentage levels of total hearing loss andthe maximum contribution that ACC will pay for hearing aids in relation to each level:2 Accident Compensation Act 2001, s 162.3 Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].60-100 per cent $1,52730-59.9 per cent $ 9160-29.9 per cent $ 458[7] In Mr Crockett's case, the relevant contributing causes, as assessed for ACC,placed him in the lowest of these bands. In addition to disputing the medical opinionsas to other contributing causes of his hearing loss, Mr Crockett challenged the limitedcontribution on the grounds that the Regulations were inconsistent with theNew Zealand Bill of Rights Act 1990 (NZBORA) and also inconsistent with theobligations assumed by New Zealand on acceding to the United Nations Conventionon the Rights of Persons with Disabilities (UNCRPD).4 Mr Crockett argued that theRegulations were ultra vires and invalid.[8] ACC rejected Mr Crockett's challenge and he pursued an appeal that was heardin the District Court at Christchurch on 29 November 2017. The reserved judgmentof Judge Powell was delivered on 31 January 2018.5 The Judge held that the DistrictCourt did not have jurisdiction to declare statutory regulations invalid. His Honourpointed out that the limits on various forms of cover provided under the ACC schemeare "appropriately debated both in the New Zealand legislature and in the widerNew Zealand community given the importance of the Accident Compensation systemto New Zealand society generally".6Was the application for leave filed out of time?[9] On 23 May 2018, Judge Harrison declined leave for Mr Crockett to pursue anappeal to the High Court from Judge's Powell's decision. Mr Crockett's applicationfor special leave was filed in the High Court on 21 June 2018, just within 20 workingdays but inarguably outside the 21 days following 23 May 2018.[10] Mr Crockett was explicit in submitting that he did not seek an extension oftime for filing his application. Rather, he urged an interpretation of s 162(4) of the Actthat stipulated that the application must be brought "within 21 working days after the4 Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature30 March 2007, entered into force 3 May 2008).5 Crockett v Accident Compensation Corporation [2018] NZACC 11.6 At [6].District Court refused leave". I took Mr Crockett's reason for this contention to bethat other time limits for the taking of steps in court proceedings were measured bythe concept of working days and that approach ought to be applied consistently.[11] Mr Crockett submitted that interpretation was open to me, and that there wasno reason not to disagree with other High Court judgments that have interpreted thetime limit literally.[12] Mr Crockett submitted that failure to entertain his appeal would be in breachof his right to justice under s 27 of NZBORA, and the provisions of s 6 of NZBORArequired the Court to adopt the meaning of the time limit that was consistent with hisright to justice.[13] Mr Crockett's reliance on both those sections in NZBORA is misconceived.Section 27 affirms the right to have proceedings, which a court or tribunal hasjurisdiction to deal with, to be conducted in accordance with the principles of naturaljustice. There is nothing in s 27 that requires the Court to expand what is otherwisethe natural meaning of a time limit as imposed by the legislature. Because of that, Isee no justification for giving the words "within 21 days" the more confined meaningof "within 21 working days" and the latter is not a meaning that could be given to thatprovision in the Act.[14] In the context of another unqualified time stipulation in the Human Rights Act1993, in Attorney-General v Howard the Court of Appeal has observed that the courtscannot extend time unless the statute expressly provides that discretion.7 Incommenting on the statutory time frame expressed in the same terms in the HumanRights Act, Glazebrook J acknowledged that the statute meant what it said:8As the timeframes for filing and service are set out in the [Human Rights Act],they are mandatory. They cannot be extended by the courts as there is nothingin the [Human Rights Act] authorising such an extension. 7 Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.8 At [100].[15] Unsurprisingly, the High Court has adopted that same approach in numerouscases about the time limit in s 162(4) of the Act.9 Those decisions reflect a uniformrecognition that the statute in contexts such as this must be taken to mean what it says.Those challenging ACC decisions will have had a first appeal to the District Court,and there is a legitimate interest in imposing some limit on the resources committedto revisiting such decisions. A clear time constraint is a legitimate means of doing so.[16] I respectfully agree with the observations of Ellis J in Armstrong v AccidentCompensation Corporation:10[18] In particular it seems to me that the absence of any right to appeal, thefact that the applicant will already have been afforded one appeal and therelatively high threshold for obtaining special leave all point in favour of aprovision such as s 162(4) being interpreted in a way that does not permitwaiver of the time limit.[19] Secondly, it is significant that the Act in which s 162 appears containsother provisions which expressly contemplate or permit the waiving ofspecified time limits. [17] This is not a context in which there is any justification for Mr Crockett'sapproach in reading in a qualification to the clear time limit stipulated by Parliament.He did not identify any analogies where the time was limited to working days, wherethat qualification is not explicit.[18] Mr Crockett was philosophical about the prospects of his success in persuadingme to adopt his interpretation of the time limit for seeking special leave, as he was onthe prospects of persuading me on the question of law he had identified about theRegulations being ultra vires. Mr Crockett characterised a loss on these argumentsbefore me as still being a success because it would mean that he has exhausted all hisdomestic avenues for pursuing relief on his complaints against ACC, which is a pre-condition to his pursuing a complaint about his treatment before the appropriate UnitedNations Committee.9 Zhang v Accident Compensation Corporation HC Auckland CIV-2005-404-7101, 27 October2006; Wyman v Accident Compensation Corporation HC Wellington CIV-2007-485-451, 23 May2007; Armstrong v Accident Compensation Corporation (2011) 20 PRNZ 834 (HC); Aalderink vAccident Compensation Corporation [2013] NZAR 1003 (HC); Jones v Accident CompensationCorporation [2016] NZHC 973; and M v Accident Compensation Corporation [2018] NZHC1919.10 Armstrong v Accident Compensation Corporation, above n 9.[19] Against the remote contingency that I and all the other judges who haveinterpreted the reference to 21 days in s 162(4) in the same way are subsequently heldto be wrong, and respecting the apparent conviction with which Mr Crockettcourteously advanced the legal arguments he would seek to make in challenging theRegulations, I summarise his propositions and the reasons why I would find that theydo not raise a serious question of law capable of bona fide and serious argument.Grounds for claiming the Regulations are ultra vires[20] Mr Crockett treats the Court of Appeal's decision in Drew v Attorney-Generalas authority for the jurisdiction of the High Court to strike down statutory regulationson the ground of inconsistency with NZBORA.11 In that litigation Mr Drew, who wasa serving prisoner, complained of deficiencies in the process adopted by a visitingjustice in dealing with an appeal from internal disciplinary measures ordered againstMr Drew for misconduct in prison. Mr Drew had been convicted and penaltiesimposed on complaints that raised relatively complex evidentiary and legal issues.[21] Proceedings before the visiting justice were governed by reg 144 of the PenalInstitutions Regulations 1999, which precluded legal representation of an inmate at anappeal hearing before the visiting justice. However, Mr Drew complained thatrefusing him legal assistance was in breach of natural justice obligations owed to him.[22] The Court of Appeal found that a regulation in those terms was inconsistentwith the provisions in the Penal Institutions Act 1954, which implicitly contemplateda procedure that allowed inmates to be represented by counsel. There was aninconsistency between the Penal Institutions Act, which provided a right of cross-examination that in complex situations many inmates could not avail themselves ofwithout representation, and the content of reg 144, which was promulgated pursuantto the regulation-making power in that Act. It denied an inmate legal representation,irrespective of the seriousness of the charge. That prohibition was inconsistent with aprocess that included the right of cross-examination. It followed that Parliament couldnot have intended a regulation which excluded rights to representation in absolute11 Drew v Attorney-General [2002] 1 NZLR 58 (CA).terms.12 Regulation 144 was therefore ultra vires the provision empowering themaking of regulations and for this reason was found to be invalid.[23] In Drew, the Court of Appeal found it unnecessary to refer to the guarantee ofthe observance of principles of natural justice in s 27 of NZBORA. That section wasseen as a guarantee that necessarily affirmed and strengthened Mr Drew's case on theultra vires ground.13[24] The Regulations at issue in this case stipulate that they are made pursuant tos 324 of the Act. That creates a regulation-making power in broad terms, materiallyincluding:324 Regulations relating to rehabilitation(1) For the purposes of Part 4 and Schedule 1, the Governor-General may,on the recommendation of the Minister, by Order in Council, makeregulations—(a) prescribing the costs that the Corporation is liable to pay forthe entitlement of rehabilitation:(b) prescribing the circumstances in which, and the method bywhich, the Corporation must make any payment forrehabilitation:(c) prescribing the circumstances in which, and the method bywhich, the Corporation may make arrangements, and makecontributions, for rehabilitation:(d) prescribing the persons to whom those payments may bemade.(3) Without limiting the matters that may be prescribed by regulations,regulations made under subsection (1) may—(a) prescribe—(i) a percentage, or different percentages, of the totalcosts to be paid by the Corporation; or(ii) a specified amount, or specified amounts, that theCorporation is liable to pay in respect of those costsin specified circumstances:12 At [66].13 At [67].(b) provide that the Corporation is liable to make payments inrespect of costs only to the extent that costs exceed amountsspecified in the regulations:(c) provide that the Corporation is liable to make payments inrespect of rehabilitation only if a person who is a member ofa class prescribed in the regulations—(i) provides rehabilitation; or(ii) refers a claimant to rehabilitation; or(iii) directly supervises the provision of rehabilitation:(d) provide that the Corporation—(i) must not pay any of the cost of specifiedrehabilitation; or(ii) is liable to pay some or all of such costs only ifconditions specified in the regulations or by theCorporation are met:(e) prescribe—(i) an amount that the claimant must or must not pay forrehabilitation that is treatment; or(ii) a percentage that the claimant must or must not payof the total amount payable for treatment.(4) Without limiting the matters that may be prescribed by regulations,regulations made under subsection (1) may contain differentprovisions in respect of—(a) payments relating to work-related personal injury andpayments relating to other personal injury:(b) payments relating to claimants based on—(i) the need of a claimant as assessed by the Corporation;or(ii) assessments conducted by or on behalf of any otherrelevant government agency; or(iii) both:(c) payments to persons not resident in New Zealand at the timeof receiving the payments.Mr Crockett's submissions did not include any analysis of the scope of matters thatare permitted in regulations by this section.[25] The closest analogy that Mr Crockett could draw to the Court of Appeal'sapproach in Drew would be to argue that s 324 of the Act could not be used to limitthe extent of entitlements provided where that was done in conflict with the purposesof the Act as expressed in s 3. Those purposes are expressed, in part, as providing fora fair and sustainable scheme for managing personal injury. This is to occur throughmechanisms including that the ACC's primary focus in dealing with injuries should beon rehabilitation, with the goal of achieving an appropriate quality of life through theprovision of entitlements that restore a claimant's health to the maximum practicalextent.14[26] There is, however, no comparable inconsistency to that identified in Drew. Ithas never been a purpose of the ACC scheme to provide reimbursement for the totalcost of injury in all relevant circumstances. Those administering the scheme aredirected by policies as promulgated by government from time to time, including byregulation such as the Regulations in issue here, to balance an achievable level ofpayments to claimants against the anticipated level of income received by ACC fromlevies, investments and all relevant sources.[27] This point is well-illustrated, albeit in a different context, by a judgment ofElias CJ for a majority of the Supreme Court in Davies v Police.15 That appealinvolved a challenge to a District Court Judge's approach to sentencing the appellantfor careless driving causing injury. The appellant had caused harm to a cyclist whena mattress he was carrying on a trailer being towed by his car flew off and injured thecyclist. The District Court Judge had allocated an amount of reparation, projected bya process of elimination by the Supreme Court to be approximately $11,500, as theamount required to top up lost earnings that the cyclist was unable to recover from theACC. Her earnings-related ACC compensation was limited to 80 per cent of the actualloss of earnings.14 Accident Compensation Act 2001, s 3(c).15 Davies (Peter) v Police [2009] NZSC 47, [2009] 3 NZLR 189.[28] That approach had been adopted on sentencing notwithstanding s 32(5) of theSentencing Act 2002 which provides: the Court must not order the making of reparation in respect of anyconsequential loss or damage for which the court believes that a person hasentitlements under the Injury Prevention, Rehabilitation, and CompensationAct 2001.[29] The Supreme Court differed from the approach adopted in unsuccessfulappeals to the High Court and the Court of Appeal. The Supreme Court interpreteds 32(5) of the Sentencing Act as precluding an order for reparation that represented thedifference between the full financial loss suffered by a victim of injury, and whatevercontribution to that loss was payable by ACC. In explaining the role of the ACCsystem, Elias CJ observed:16[18] The 80 per cent cap in cl 32 of Schedule 1 is to be considered in thelight of the legislative aims described in s 3. Consistently with the origins ofthe accident compensation system, the benefits provided under the system, forreasons of affordability and the public interest in providing incentives torehabilitation, were not set to be a complete indemnity. Claimants are toreceive "during their rehabilitation" compensation for loss which is "fair"rather than full. That is a central plank in the "social contract" implementedthrough the legislation and its predecessors.[19] Section 317 prevents any person from bringing proceedings outsidethe Injury Prevention, Rehabilitation, and Compensation Act for damagesarising out of personal injury, covered by the Act. The only exception to thegeneral prohibition relates to "damage to property". Under s 317(7) theprohibition on bringing proceedings for personal injury is unaffected by "thefact that a person who has suffered personal injury . . . is not entitled to anyentitlement under this Act". Disentitlement under the provisions of the Actdoes not therefore revive any common law or statutory remedy for damagesarising directly or indirectly out of personal injury for which there is coverunder the Act. The person injured has no redress outside the statutory regimeof the Injury Prevention, Rehabilitation, and Compensation Act.[30] Claimants for cover under the ACC scheme are likely to complain that thelevels of cover for various categories of costs consequential on injury for which thescheme does provide cover are indeed not "fair". However, the purposes in s 3 of theAct cannot be treated as conflicting with regulations such as those being challengedin this case because such regulations adopt rules about the level of cover that areinconsistent with the claimant's expectation of what would be "fair".16 Citations omitted.[31] Mr Crockett could not raise any tenable argument that the Regulations hechallenges go beyond the scope of the regulation-making power in s 324 of the Act.Nor could he argue that the terms of the regulation-making power in the Act arematerially inconsistent with the purposes specified in s 3 of the Act.[32] Mr Crockett was wrong to rely on Drew as authority for the proposition thatregulations could be declared invalid for inconsistency with the substantive rightsprovisions of NZBORA. The Court of Appeal in Drew expressly left that issue openand it has not subsequently been considered. Mr Crockett's submission was notexplicit on the nature of the inconsistency, but I took his oral comments to infer thatthe limits on cover provided for in the Regulations create discrimination against thosewith disabilities and were therefore in breach of provisions in NZBORA thatprohibited relevant forms of discrimination.17[33] In this regard, Mr Crockett invoked New Zealand's accession to the UNCRPD.I understood Mr Crockett to be arguing that payment of a lesser contribution to thecost of hearing aids for some who are disabled compared with the extent ofcontribution paid to others would amount to a form of discrimination of those disabledpersons that was contrary to the UNCRPD which prohibited discrimination of personswith disabilities.[34] It is not tenable to argue that an inconsistency between the content of theRegulations and aspirational commitments to prohibit discrimination against thosewith disabilities can override the otherwise lawful promulgation of regulationsprovided for in the Act.[35] In any event, without invoking issues of fact as to the correctness of thepercentage of Mr Crockett's hearing disability that is attributable to his work-relatedinjury, I am not satisfied that he could raise a tenable argument of any discriminationagainst him. All those determined by appropriate medical experts to have a certainlevel of hearing impairment caused by work-related injuries would receive the sameamount of contribution to the cost of hearing aids. Unless Mr Crockett invoked the17 New Zealand Bill of Rights Act 1990, s 19, incorporating the forms of discrimination specified ins 21 of the Human Rights Act 1993 (relevantly s 21(1)(h)).argument that the level of hearing impairment had been wrongly calculated (which isa matter of fact that could not be argued on an appeal on points of law), he could notmake out any discrimination between him and ACC's treatment of others with ahearing disability caused to a similar extent by work-related injuries.[36] If the discrimination on account of disability that Mr Crockett is relying on isa difference in the level of compensation that ACC makes to those requiring hearingaids because of a hearing disability caused in part by work-related injury and, say, thelevel of contribution to those requiring spectacles because of impairment of sightcaused by work-related injury, then that is a policy choice which cannot be related tothe lawfulness of the Regulations in the sense that might render them ultra vires theregulation-making power in the Act.[37] For these reasons, if Mr Crockett's application for special leave was to betreated as filed in time, then I would still not be minded to recognise a serious questionof law capable of bona fide and serious argument.Additional questions[38] At the hearing, Mr Crockett submitted additional questions relating to thismatter. To the extent these questions have not been answered by the precedingdiscussion, or in the District Court judgments on his appeal, I set out somewhatabridged answers to them now.[39] First, Mr Crockett seeks clarification as to the distinction between the civiljurisdictions of the District Court and the High Court. He is concerned that the DistrictCourt had jurisdiction to strike down legislation as ultra vires and thus not waste theHigh Court's time. As noted by Judge Powell, the District Court's jurisdiction isstatutory. Its powers in relation to ACC claims are limited to those contained in Part 5of the Act and, on appeal, it may only make determinations in accordance with s 161of the Act. The High Court, on the other hand, has an inherent jurisdiction. Thatjurisdiction includes judicial review of the exercise of public power, a supervisory roleto ensure a decision entrusted to certain persons or bodies by Parliament is exercisedaccording to the law that governs the decision. Drew is an example of that jurisdiction.The High Court's inherent jurisdiction can be modified by statute, as it is in this case.In any ACC appeal, the High Court is limited to hearing questions of law and, indisposing of the appeal, may only exercise the powers contained in s 128 of the DistrictCourt Act 2016.[40] Secondly, Mr Crockett asks why the Court is not bound by UN conventionsratified by the New Zealand Government. When a government agrees to be bound byan international agreement, it owes the obligations contained in the agreement solelyon the international plane, that is, to other nations that are party to the agreement. Ifthe government breaches those obligations, for instance by not passing domesticlegislation in compliance with them, it is answerable to those other parties bymechanisms contained in the agreement. Domestic courts, such as this Court, mayonly apply the common law and legislation promulgated by Parliament. New Zealandcourts may have regard to international agreements when interpreting related domesticlegislation or applying the common law, but the courts cannot apply directly suchinternational agreements.Outcome[41] The application for special leave was filed out of time, and is accordinglydeclined.Costs[42] The ACC is entitled to costs.Dobson JSolicitors:Young Hunter, Christchurch for respondentCopy to:The applicant