Mitchell v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 26 /2007 IN THE MATTER of the Injury Prevention, Rehabilitation & Compensation Act 2001 AND IN THE MATTER of an APPLICATION FOR REHEARING BETWEEN GLORIA MITCHELL (Al 176/01) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR REHEARING [1] The applicant has applied for a rehearing of her appeal following delivery of my decision on 17 April 2002, being Decision No. 108/02. [2] The applicant was the appellant in that appeal, she seeking to overturn the respondent's decision of 5 May 2000 suspending entitlements to her. The reason for that decision was that her ongoing incapacity was not related to the personal injury for which she had been granted cover. (3] That decision of the respondent had earlier been confirmed by Review Decision dated 20 April 2001. [4] Following the issuing of this Court's decision in the appeal from that Review Decision, the applicant sought leave to appeal that decision to the High Court. That application was considered by His Honour, Judge Cadenhead, who delivered a decision on 2 April 2004 declining leave to appeal on the grounds that there was no question of law involved in the decision sought to be appealed. It was not until 3 July 2006 that the applicant lodged an application for rehearing of her appeal to this Court. 176.01 (pg) 2 [5] Although by Rules 493 and 494 of the District Court Rules 1992 there is power given to the District Court to grant a rehearing in a civil proceeding, that rule is one which applies when the District Court is exercising its original jurisdiction provided for under the District Courts Act 1947. [6] The question of whether the District Court has jurisdiction to direct a rehearing when it is exercising an appellate function has now been considered on a number of occasions by this Court, in particular two decisions of His Honour Judge Cadenhead in J D Howard v ACC (Decision 241/05) and D H McNicol v ACC (Decision 253/05). [7] In those decisions His Honour ruled as a matter of law that when the District Court is exercising its special jurisdiction on appeal in accordance with the provisions of the Injury Prevention, Rehabilitation and Compensation Act 2001, no power of rehearing can be had by the District Court acting in an appellate role, and the Act provides for the pursuit of further rights of appeal if the grounds can be made out. [8] In essence, this applicant is contending that my original decision was wrong and she seeks to give reasons why that is so. In so doing she is simply seeking to re- litigate again the appeal procedure which was heard and determined on 17 April 2002. [9] In my earlier decision of Rand-Wildbore (Decision 272/05) I stated the position as follows: "I have come to the clear view that this Court has no jurisdiction to consider the granting of a rehearing of an appeal, which in effect would amount to this Court being asked to hear an appeal from its earlier decision because it was contended that the decision was wrong. This Court has no such appellate jurisdiction and a claimant's only course would be to seek to obtain leave either of this Court or Special Leave of the High Court to appeal to the High Court on a question of law." [10] The applicant has in fact sought to exercise that right of appeal, which right has been declined, and there I find the matter must end. [11] As an additional matter, I simply note that even if it were to be determined that Rules 493 and 494 were applicable, which I have found they were not, it is the case that an application for rehearing must be made within 14 days of the date of the delivery of the judgment sought to be reheard. In the case of this applicant, the 3 application is made some four years after the delivery of the judgment and would therefore be considered seriously out of time. [12] For the foregoing reasons, therefore, the application is refused. DATED at AUCKLAND this 13"- day of Heb may 2007 M J Beattie District Court Judge