GOH v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 3353

GOH v ACCIDENT COMPENSATION CORPORATION [2015] NZHC 3353 [21 December 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2015-404-001719[2015] NZHC 3353UNDER the Accident Compensation Act 2001IN THE MATTER of an application for special leave toappeal to the High Court pursuant tos 162(3) of the ActBETWEEN IRENE GOHApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 10 December 2015Appearances: Applicant in person with M Murphy as McKenzie friendD Tuiqereqere for RespondentJudgment: 21 December 2015JUDGMENT OF ASHER JThis judgment was delivered by me on Monday, 21 December 2015 at 4 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors:Medico Law Ltd, Auckland.Copy to:Applicant[1] Irene Goh seeks special leave to appeal a decision of Judge L G Powell in theDistrict Court at Auckland of 30 October 2014 (the decision).1 The respondent,Accident Compensation Corporation (ACC), opposes the application.[2] The background can be briefly stated. Ms Goh suffered a significant injury ina motor vehicle accident on 1 August 1997. She received weekly compensationpayments up to March 1998 when they were stopped. In August 2005 ACCdetermined that Ms Goh was entitled to reimbursement for the weekly compensationshe did not receive from they were stopped. It was calculated as follows:a) Ms Goh should have received $95,891.90 in weekly compensation from ACC for the seven year period between 1998 and 2005.b) She did in fact receive $58,453.64 from Work and Income New Zealand (WINZ) during the same seven year period.2c) The difference between what she was paid and what she should have received was $37,438.26.[3] An arrears payment of $37,438.26 was paid to Ms Goh on 14 December 2005. In June 2012 Ms Goh applied for interest from 1998 to 2005 on that sum,being the additional backdated weekly ACC compensation she should have received.[4] On 4 July 2012 ACC declined her application on the grounds that it had not made an unlawful decision on 9 September 1998 when it suspended her payments. Itdid, however, later that year on 29 October 2012 by letter to Ms Goh, make anex gratia payment of interest for 21 January 2003 to 14 December 2005 of$6,661.17.[5] On 1 November 2012 an ACC reviewer quashed ACC's interest decision of4 July 2012 and held that "Ms Goh was entitled to interest on the backdated weeklycompensation from 15 March 1998 to 11 September 2005".1 Accident Compensation Corporation v Goh [2014] NZACC 294.2 ACC reimbursed this amount to Work and Income New Zealand pursuant to s 252 of the Accident Compensation Act 2001.[6] On 11 December 2012 ACC wrote to Ms Goh forwarding an interestpayment. It is that letter which was the subject of the review to the District Courtand is the subject of this leave to appeal. That letter advised that ACC: has now calculated the amount of interest owing to you for late paymentof your weekly compensation for the period 15 March 1998 to 22 September2005. This has been calculated at $11,520.84 (gross).[7] The letter noted that the $6,661.17 of the $11,520.84 had already been paid and that the net amount of $4,859.67 would be paid to her by a direct credit shortly.[8] Ms Goh initially applied to review that decision, but was unsuccessful. Anappeal was then filed in the District Court. In the District Court two argumentsmaterial to this appeal were advanced:a) whether interest was payable on the amount of $58,453.64 reimbursedto WINZ under s 252; andb) whether the earlier payment of $6,661.17 ought to have been deducted from the payment in December 2012.[9] Those arguments were dismissed by Judge Powell in his decision, and heheld that ACC had correctly calculated the interest and was entitled to deduct the$6,661.17.3[10] Ms Goh then applied to the District Court for leave to appeal to the High Court. In a decision dated 7 July 2015 Judge G M Harrison declined leave to appealto the High Court. Ms Goh has since filed her application for special leave in thisCourt, and that is the issue to be determined.Approach[11] Section 162 of the Accident Compensation Act 2001 (the Act) provides that a party to an appeal who is dissatisfied with the decision of the District Court as beingwrong in law may with the leave of the District Court appeal to the High Court, first3 Goh v Accident Compensation Corporation [2015] NZACC 293.by seeking leave from the District Court and, if the District Court refuses leave, by grant of special leave to appeal from the High Court.[12] The circumstances where special leave may be granted were considered bythe High Court in Kenyon v Accident Compensation Corporation.4 Fisher J stated:5In his helpful submissions Mr Corkhill summarised the effect of the authorities relating to special leave as follows:(a) The purpose of requiring leave for certain appeals is to ensure that scarce judicial time is allocated sensibly: Sandle v Stewart [1982] 1 NZLR 708 (CA).(b) Although it is ultimately a matter for the discretion of the Court, it will normally be necessary to show that there is an issue of principal at stake or that a considerable amount hinges on the decision, and that there is a reasonable prospect of success: Sandle; Manawatu Co-op Dairy Company Limited v Lawry [1988] DCR 509; Brown v Chowmein Fashions Limited (1993) 7 PRNZ 43.(c) The fact that special leave is required is significant and suggests that leave ought not to be granted as a matter of course: O'Loughlin v Healing Industries Limited (1990) PRNZ 464.(d) It is for the Applicant to show that leave is required in the interests of justice: Avery v No. 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).(e) As leave has already been refused by the District Court, however, there will normally have to be some extraordinary factor which has not been properly taken into account: Brown v Chowmein Fashions Limited (supra).I am grateful for that summary, and agree with it.[13] I adopt this approach. Although Ms Goh identifies valid questions of law,that is not in of itself enough to meet the test for special leave. The importance of theissues, the amount at stake, and the prospects of success must all be considered. Theoverriding test is whether it is in the interests of justice for the applicant to begranted leave.The issues[14] Ms Goh seeks to advance two arguments.4 Kenyon v Accident Compensation Corporation [2002] NZAR 385.5 At [15].[15] First, she says that interest should have been calculated on the total sum of$95,891.90 that was not paid by ACC, whereas ACC has argued throughout,successfully to date, that the WINZ benefits she received of $58,453.64 must bededucted from $95,891.90 for the purposes of calculating interest, and that thereforeACC was correct in assessing interest on the balance only of $37,438.26. The issueturns on whether s 252(6) of the Act (whereby the WINZ payments are deemed to beweekly compensation payments) applies in a situation where ACC unlawfullysuspended the payments of weekly compensation or unlawfully withheld thepayments of weekly compensation.[16] Second, Ms Goh submits that the payment of $6,661.17 was an ex gratia payment made under s 68(3) of the Act and was not in payment of the interest due to her. Therefore, she is entitled to a second payment of that sum as interest.DiscussionInterest calculated on $37,438.26 or $95,891.90?[17] Section 114(1) provides:114 Payment of interest when Corporation makes late payment of weekly compensation(1) The Corporation is liable to pay interest on any payment of weekly compensation to which the claimant is entitled, if the Corporation has not made the payment within 1 month after the Corporation has received all information necessary to enable the Corporation to calculate and make the payment.[18] Section 252 provides:252 Relationship with social security benefits: reimbursement by Corporation(1) This section applies if a person—(a) receives a payment of an income-tested benefit under the Social Security Act 1964 in respect of a period; and(b) establishes a claim to an entitlement from the Corporation in respect of all or part of the same period.(2) An excess benefit payment is regarded as having been paid in respect of that entitlement.(3) An excess benefit payment is the part of the benefit payment (up to the amount of the entitlement) that is in excess of the amount of benefit properly payable, having regard to the entitlement under this Act.(4) The Corporation must refund the excess benefit payment to the department responsible for the administration of the Social Security Act 1964—(a) if the Corporation knows that this section applies; or(b) if requested to do so by that department.(6) Any amount that is treated under this section as having been paid in respect of any treatment, service, rehabilitation, related transport, compensation, grant or allowance is deemed for all purposes to have been so paid.[19] It can be seen that a payment of the type that ACC made to WINZ is deemed for all purposes to have been paid in respect of the ACC entitlement. The issue is theimpact that has on the obligation to repay interest.[20] This issue of law raised has already been considered by the High Court andCourt of Appeal. In the case of Cullen v Accident Compensation Corporation6 leavewas refused to appeal a decision of the High Court on this issue. It was held thatwhen ss 114 and 252 are read together it is clear that no interest is payable unders 114 on a late payment for that part of the late payment that is represented by theamount of an ACC refund to WINZ under s 252. This is because the claimant inpractical effect has not in fact received any late payment to which he or she wasentitled, and in respect of which interest is payable.7 Toogood J stated:8Put simply in relation to the appellant's situation, the benefit payments received from WINZ are deemed "for all purposes" to have been paid inrespect of his entitlement to compensation under the Act.[21] The Court held in that case that Mr Cullen was entitled under s 114 of the Act to the interest he had received on late payment of arrears of compensation, but onlyon the basis that a refund paid by ACC to WINZ under s 252 of the Act should bededucted.6 Cullen v Accident Compensation Corporation [2014] NZCA 94.7 At [14].8 Cullen v Accident Compensation Corporation [2013] NZHC 941 at [34].[22] I am bound by the Court of Appeal decision and I cannot accept Ms Goh'sefforts to distinguish it or put it to one side. I respectfully observe that the decisionis clearly correct and in accordance with the basic concept of interest in this contextbeing a fee charged or reward given for the use of money.9 What Ms Goh is seekingis interest on a sum that she in fact received, although it was from WINZ rather thanACC. If she succeeded she would have a windfall.[23] A purpose of the Act is to ensure that during their rehabilitation claimantsreceive "fair" compensation for loss from injury including "fair" determination ofweekly compensation.10 Fairness does not require Ms Goh to receive interest onmonies that she actually received on time, albeit from the wrong source. Ms Goh'sclaim has no substantive merit, and if she succeeded her bonus would be unfair toACC and other genuinely out of pocket claimants.[24] I do not ignore the sense of grievance that Ms Goh has because she wasforced to go to WINZ for income for many years when she should have beenreceiving ACC payments. However, the Act does not make any provision for extracompensation for such circumstances, and the Courts will not bend the plainmeaning of the Act to compensate for that sort of inconvenience.[25] Ms Goh emphasised the fact that ACC were culpable and referred to thedecision of Accident Compensation Corporation v Miller where it was noted that thedual purposes of s 114 were both compensatory and punitive in the sense it seeks todeter ACC from unnecessary delays.11 That purpose may be seen as what has led tothe enactment of s 114. However, Ms Goh in wishing to receive interest on moniesthat she in fact received, wants to obtain an extra payment for her inconvenience inhaving to accept a WINZ benefit. The deterrence purpose referred to in Miller that isbehind s 114 does not require an interpretation of ss 114 and 252 to give an applicantany such extra payment. I respectfully agree with the observation of Judge Harrisonwhen he refused the application for leave and said:129 See New Zealand Oxford Dictionary.10 Accident Compensation Act 2001, s 3(d).11 Accident Compensation Corporation v Miller [2013] NZCA 141, [2013] 3 NZLR 312 at [40].12 Goh v Accident Compensation Corporation [2015] NZACC 191 at [9].If Ms Goh's argument is correct, it would amount to a windfall gain to her, to which she is not entitled. In so far as the Corporation's conduct has anyrelevance, the requirement for it to pay interest on the excess ofcompensation payable, against benefits received, is sufficient compensationfor the late payment of the excess.[26] Given that both the decision of Cullen v Accident Compensation Corporationand the purpose of the Act are clear obstacles against Ms Goh realising thecompensation she is seeking by pursuing the appeal, the appeal must be consideredto be of low merit and importance. There is no extraordinary factor which JudgePowell failed to take into account, and indeed in the light of Cullen his decision isplainly right.A second payment of $6,661.17?[27] Section 68(3) provides:68 Corporation provides entitlements in accordance with this Act(3) However, the Corporation may, at its own discretion, provide an entitlement or a payment to a claimant if it is satisfied that—(a) the entitlement or payment could be provided but for a requirement in section 127(4) or section 129 or section 379(2), or in any of clauses 4, 13, 15, 17, 19(3)(e), 19(3)(i), 19(3)(j), 22(1), 22(2)(b), 22(2)(c), 22(2)(e), or 22(2)(f) of Schedule 1; and(b) the provision of the entitlement or payment would be consistent with the purpose of this Act.[28] Section 68 is in Part 4 of the Act which deals with entitlements and relatedmatters. The section makes no reference to s 114.[29] There was a reference in the ACC letter of 29 October 2012 that forwardedthe payment of the $6,661.17 to the payment being "appropriate under s 68(3)".Judge Powell held that the reference to s 68(3) of the Act was an error. I agree.Despite the reference in the letter to the payment being under s 68(3), as a matter ofoverall impression it was clearly an interest payment pursuant to s 114.[30] The payment was not in any direct way a payment made under s 68(3),although there was the erroneous reference to that section in the letter that stated thatthe payment would be made. The letter made it quite clear that the payment was towards interest. As Judge Harrison said, to treat it otherwise would give Ms Goh"an unwarranted windfall".13[31] As with the first point, Ms Goh is effectively seeking to put forward atechnical legal argument to get more money. She has had the benefit of $6,661.17and now wants it a second time, using an erroneous reference to s 68(3). If thishappened it would not be fair and would be contrary to the purposes of the Act.There is no estoppel or other doctrine which precludes ACC from treating thispayment as a payment towards interest, and it is deductible from the interest owed byACC.[32] It is also the case that in terms of the stated point of law, s 68(3) plainly doesnot relate to ACC's liability to pay interest on late compensation. It is a section thatcreates a discretion in relation to certain sections that do not include ss 114 and 252,and do not relate to interest.[33] Accordingly this second point of law has no significance or merit, and given the small sum claimed, it is also of little practical importance.Conclusion[34] Neither of Ms Goh's points has any particular importance because the lawthat relates to the arguments raised is clear and well settled. Her arguments havelittle substantive merit and are unlikely to succeed. They are technical and, onanalysis, wrong. The amounts involved are modest. As the application falls a longway short of meeting the criteria for the granting of leave, it must be declined.Result[35] The application for leave is declined.13 At [15].[36] Both parties indicated that they were content to leave costs lie where they fall. There will be no order as to costs...Asher J