SAVAGE v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2441

SAVAGE v ACCIDENT COMPENSATION CORPORATION [2023] NZHC 2441 [5 September 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-996[2023] NZHC 2441UNDER The Accident Compensation Act 2001IN THE MATTER Of an application for special leave to appealunder s 162(3) of the ActBETWEEN GRAHAME SAVAGEApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 20 June 2023Appearances:Further submissionscompleted:Appellant in PersonH Ifwersen for the Respondent30 June 2023Judgment: 5 September 2023JUDGMENT OF POWELL J[Jurisdiction for Special Leave to Appeal]This judgment was delivered by me on 5 September 2023 at 4.00 pm pursuant toR 11.5 of the High Court Rules..Registrar/Deputy RegistrarSolicitors:Meredith Connell, Auckland[1] Grahame Savage has cover under the Accident Compensation Scheme for anumber of injuries. He seeks an additional lump sum payment from the AccidentCompensation Corporation ("the Corporation") as a result of those injuries. In thecourse of a long and protracted battle with the Corporation, Mr Savage seeks specialleave to appeal a reserved judgment of Judge C J McGuire dated 30 November 2022,1leave to appeal having been declined by Judge P R Spiller on 4 April 2023.2[2] As a preliminary issue, Ms Ifwersen on behalf of the Corporation has submittedMr Savage's application for special leave has been filed outside the time prescribed ins 162(4) of the Accident Compensation Act 2001 ("the Act"). As a result, she submitsthat this Court has no jurisdiction to entertain the application.[3] At Mr Savage's request we had a brief oral hearing following the first call ofhis application on 20 June 2023. At the conclusion of that hearing, Mr Savagerequested more time to consider the issue. I therefore set a timetable for furthersubmissions and confirmed I would then determine the issue on the papers.[4] Further submissions were filed as directed. Mr Savage accepted that hisapplication for special leave to appeal had been filed late but submitted this was, atleast in part, due to the advice he had received from the Accident CompensationDistrict Court Registry which led to him initially attempting to file his application inthe District Court Registry in Wellington rather than in the Auckland High Court. Inany event, Mr Savage submitted that the delay in filing the appeal was not substantialand sought leave to extend time for bringing the application, submitting also that hisright to bring the application was protected by s 27 of the New Zealand Bill of RightsAct 1990 (NZBORA).[5] In response, Ms Ifwersen reiterated her submission on behalf of theCorporation that s 162(4) of the Act does not allow the Court to extend the time for anapplication for special leave that has not been filed within the 21 day period specified,and accordingly, this Court has no jurisdiction to determine Mr Savage's applicationfor special leave.1 Savage v Accident Compensation Corporation [2022] NZACC 227.2 Savage v Accident Compensation Corporation [2023] NZACC 53.Discussion[6] The limited jurisdiction for accident compensation appeals to the High Courtis set out in s 162 of the Act. This provides:162 Appeal to High Court on question of law(1) A party to an appeal who is dissatisfied with the decision of the DistrictCourt as being wrong in law may, with the leave of the District Court,appeal to the High Court.(2) The leave of the District Court must be sought within 21 days after theDistrict Court's decision.(3) If the District Court refuses to grant leave, the High Court may grantspecial leave to appeal.(4) The special leave of the High Court must be sought within 21 days afterthe District Court refused leave.(5) The High Court Rules 2016 and sections 126 to 130 of the District CourtAct 2016, with all necessary modifications, apply to an appeal underthis section as if it were an appeal under section 124 of that Act.[7] In this case it is not disputed that with leave to appeal having been declined byJudge Spiller on 4 April 2023, the last day for filing Mr Savage's application forspecial leave to appeal should have been 25 April 2023. As this was ANZAC day anda public holiday however, this meant that the last day for Mr Savage to file hisapplication for special leave was 26 April 2023.3 As Mr Savage explained, followingcorrespondence with the Accident Compensation District Court Registry he initiallyattempted to file his application in that registry. After being advised that the DistrictCourt Registry was incorrect, he encountered a number of difficulties filing in the HighCourt. As a result, Mr Savage was only able to successfully file his application in theHigh Court at Auckland on 2 May 2023.[8] As Ms Ifwersen has submitted, there is a long and settled line of authoritywhich makes it utterly clear that if an application for special leave is filed late, thenregardless of the reason for the late filing and regardless of the length of that delay,the High Court has no jurisdiction to hear the application. Instead, Ms Ifwersensubmitted the effect of s 162(4) of the Act is as follows:3 Legislation Act 2019, s 55.(a) the provision is mandatory and the High Court has no discretion toextend the time;4(b) the 21 days are not working days;5(c) the period for filing the application runs 21 days from the day after thedate of the decision in respect of which leave to appeal is being sought;6(d) the seeking of leave under s 162(4) can only be effected by filing in theHigh Court in the appropriate form together with payment of the filingfee;7 and(e) the general power provided by the High Court Rules for extending theperiod of time to bring an application for leave to appeal do not applyto applications for leave under s 162 of the Act.8[9] It is also well established that s 27 of the NZBORA does not change the effectof s 162(4).9[10] Unfortunately for Mr Savage, the fact that his application was filed latedeprives this Court of any jurisdiction to hear it. As a result, his application must bedismissed for want of jurisdiction.Decision[11] The application for special leave to appeal is dismissed.[12] At the request of the Corporation there is no order as to costs._______________________________Powell J4 Siola'a v Wellington District Court [2008] NZCA 483, [2009] NZAR 23; Gallagher-Scott vAccident Compensation Corporation [2021] NZHC 1881; Rosenberg v Accident CompensationCorporation [2019] NZHC 1442; Howard v Accident Compensation Corporation [2018] NZHC3342; M v Accident Compensation Corporation [2018] NZHC 1919; Crockett v AccidentCompensation Corporation [2018] NZHC 2432; Jones v Accident Compensation Corporation[2016] NZHC 973; Armstrong v Accident Compensation Corporation (2011) 20 PRNZ 834 (HC);and Saipe v Accident Compensation Corporation HC Auckland CIV-2008-404-1053, 10 April2008.5 Saipe v Accident Compensation Corporation, above n 4, at [23].6 At [15].7 Jones v Accident Compensation Corporation, above n 4, at [16]; and see also Saipe v AccidentCompensation Corporation, above n 4, at [16].8 Saipe v Accident Compensation Corporation, above n 4, at [25]–[27]; and see also Gallagher-Scott v Accident Compensation Corporation, above n 4, at [22].9 See for example Siola'a v Wellington District Court, above n 4, at [19]–[20].