GOH v ACCIDENT COMPENSATION CORPORATION (of Wellington) [2021] NZHC 3372

GOH v ACCIDENT COMPENSATION CORPORATION (of Wellington) [2021] NZHC 3372 [9 December2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2021-404-001326[2021] NZHC 3372UNDER The Accident Compensation Act 2001IN THE MATTER OF an application for special leave to appealpursuant to s 162 of the ActBETWEEN IRENE GOHAppellantAND ACCIDENT COMPENSATIONCORPORATION (of Wellington)RespondentHearing: 23 November 2021Appearances: Appellant in person with M Murphy as McKenzie friendS M Bisley and L W D Kibblewhite for the RespondentJudgment: 9 December 2021JUDGMENT OF VAN BOHEMEN J[reasons for decision]This judgment was delivered by me on 9 December 2021 at 3.30pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors:Buddle Findlay, AucklandCopy to:The AppellantIntroduction[1] Ms Goh has applied for special leave under s 162 of the AccidentCompensation Act 2001 (ACC Act) to appeal a decision of Judge AA Sinclair in theDistrict Court on 4 September 2020,1 after Judge K D Kelly in the District Courtrefused leave to appeal in the first instance.2[2] Judge Sinclair dismissed Ms Goh's appeal against a decision of the AccidentCompensation Corporation (ACC) in August 2019 refusing to review a decision it tookin 2005 (the 2005 Decision) regarding Ms Goh's entitlement to backdated weeklycompensation under the ACC Act and ACC's obligation under the ACC Act to deductfrom the compensation paid to Ms Goh a proportion of the benefits Ms Goh hadreceived from the Ministry of Social Development (MSD) in respect of the sameperiod.[3] The present application and appeals are the Ms Goh's most recent attempt tochallenge the 2005 Decision. In form, the application relates to ACC's decision of16 August 2019, dismissing Ms Goh's review application. In substance, it seeks areconsideration of the 2005 Decision which has already been comprehensivelyconsidered and conclusively determined in earlier decisions of the District Court, HighCourt and Court of Appeal.[4] In addition, Ms Goh has misunderstood the factual and legal bases on whichshe has sought to advance her appeal – namely the rate at which her MSD benefit wasabated for the purposes of the deduction made by ACC and the relevance and effect ofan unrelated decision of the Human Rights Review Tribunal regarding the consistencyof deductions made under s 71A of the Social Security Act 1964 with rights recognisedunder the New Zealand Bill of Rights Act 1990 and the Human Rights Act 1993.[5] For these reasons, Ms Goh's appeal is not capable of bona fide and seriousargument. In addition, the appeal raises no question of general or public importance1 Goh v Accident Compensation Corporation [2020] NZACC 119.2 Goh v Accident Compensation Corporation [2021] NZACC 90.and no question of private interest of sufficient importance to outweigh the delay andcost of a further appeal.[6] At the conclusion of the hearing on 23 November 2021, I dismissed Ms Goh'sappeal and said my reasons would follow. I also told Ms Goh that she must stop herefforts to try to revisit the 2005 Decision and that I would issue directions to ensurethat any further attempt to relitigate these issues was brought to the attention of a Judgefor consideration of striking out the proceeding as an abuse of process.Background[7] Ms Goh suffered an injury in a motor vehicle accident on 1 August 1997.Because of that injury, Ms Goh received weekly compensation payments from ACCuntil March 1998 – at which point compensation ceased. From that time, Ms Gohreceived a Work and Income benefit from MSD.The 2005 Decision[8] In August 2005, ACC accepted that Ms Goh's chronic pain condition had beencaused by the accident in 1997 and that Ms Goh was entitled to weekly compensationpayments from ACC. ACC advised MSD accordingly.[9] On 18 November 2005, MSD informed Ms Goh that ACC had told them thatACC owed her weekly compensation for the period from 15 March 1998 to20 November 2005 (the Compensation Period). The letter advised that MSD hadreviewed Ms Goh's benefits for the Compensation Period and had found that MSDhad overpaid Ms Goh $48,404.56 net. The letter also advised that ACC law requiredACC to pay MSD the overpaid benefits from Ms Goh's weekly compensation and that,once ACC had done that, ACC would pay any remaining money to Ms Goh.[10] On 22 November 2005, ACC advised Ms Goh that she had won her review forcompensation from 15 March 1998 (the 2005 Decision) and that ACC was paying herbackdated weekly compensation as follows:Total (before tax): $95,891.90Less the amount you owe Work and Income: $58,453.64Total you are owed (before tax): $37,438.26[11] The sum of $58,453.64 comprised sums owing to MSD ($48,404) and theInland Revenue Department (IRD) ($10,049).[12] It is common ground that ACC's deduction of the amount owed to MSD fromthe sum paid to Ms Goh were taken in accordance with s 252 of the ACC Act, whichrequires ACC to refund to MSD any benefit payment received by a person from MSDin excess of the amount of benefit properly payable with regard to the entitlementunder the ACC Act.Ms Goh's challenges[13] Since the 2005 Decision, Ms Goh has brought a series of challenges to thecalculation and payment of the backdated compensation in accordance with the 2005Decision.First challenge[14] Ms Goh's first challenge was to review MSD's decision to review the benefitspaid to Ms Goh in respect of the Compensation Period and to request ACC to deductand refund money it had paid to Ms Goh. As a result of that review, MSD acceptedthat the backdated ACC payments received by Ms Goh should be treated as income.As a further result, the amount of the refund to be paid to MSD, referred to as Ms Goh'sdebt to MSD, was reduced. However, Ms Goh appealed that decision, arguing that thelump sum payment received from ACC should have been treated as income only forthe week it was received and not for the whole of the Compensation Period.[15] Ms Goh's appeal was dismissed by the High Court.3 Asher J recorded in hisdecision that, as a result of Ms Goh's review, MSD had accepted that the ACCpayments received by Ms Goh should be treated as income, rather than being a direct3 Goh v Chief Executive of the Ministry of Social Development HC Auckland CIV-2008-485-2391,30 June 2009.deduction, under s 71A(4) of the Social Security Act 1964.4 Asher J also recordedthat, following a further review, the amount of Ms Goh's debt to MSD had beenreduced from $48,404.56 to $35,591.00.5[16] In considering the application of the Social Security Act and the then titledInjury Prevention, Rehabilitation, and Compensation Act 2001,6 Asher J noted thatMs Goh had had the benefit of the compensation being treated as income so that herbenefit was reduced only by a percentage rather than suffering a dollar for dollarreduction as might otherwise have been the case.7 Asher J held that there had been noerror in MSD retrospectively reviewing Ms Goh's benefit and in treating Ms Goh'sACC compensation as income for the Compensation Period.8[17] The Court of Appeal dismissed Ms Goh's application for special leave toappeal and upheld the High Court's decision.9 It said that the arguments made byMs Goh, if accepted, would have resulted in an unjustified windful and would entail apreposterous result.10Second challenge[18] Ms Goh's second challenge, which was brought before her appeal to the Courtof Appeal on the first challenge had been decided, was to bring judicial reviewproceedings against IRD's decision to decline her claim for a tax credit on theapproximately $10,000 that ACC had paid to IRD in accordance with the 2005Decision. Ms Goh argued that that sum should not have been deducted from themoney paid to her and, because it had been paid to the IRD, amounted to a tax paymentby her.[19] In the High Court, Woodhouse J rejected Ms Goh's arguments and held thatthe deduction of tax had been properly made by MSD in accordance with s 85A of the4 At [8].5 At [9].6 The title to the Act was changed in 2010 to the Accident Compensation Act 2001.7 Goh v Chief Executive of the Ministry of Social Development, above n 3, at [16].8 At [32].9 Goh v Chief Executive of the Ministry of Social Development [2010] NZCA 110.10 At [15].Social Security Act.11 Woodhouse J noted that if Ms Goh was correct, she would havereceived a windfall of $10,000 and struck out the proceeding.12[20] The Court of Appeal dismissed Ms Goh's appeal of Woodhouse J's decisionand held that the Ms Goh's proceeding had been rightly struck out by the High Courtas both untenable and an abuse of process.13Third challenge[21] Ms Goh's third challenge was to seek interest on the backdated weeklycompensation that had been paid to her by ACC. Although ACC initially declinedMs Goh's claim, it later agreed that interest was payable in respect of theCompensation Period on the net sum received by Ms Goh – that is, after deduction ofthe amount paid to MSD. Ms Goh argued that she was entitled to interest on the fullamount of the backdated weekly compensation.[22] Judge L G Powell in the District Court dismissed Ms Goh's appeal.14 JudgePowell held that the appeal could not succeed because the issue Ms Goh sought toargue had been decided in the High Court's decision in Cullen v AccidentCompensation Corporation,15 which had been upheld by the Court of Appeal.16[23] Ms Goh's application for leave to appeal Judge Powell's decision wasdismissed by the District Court.17 Ms Goh's subsequent application for special leavewas dismissed by the High Court, which held that Ms Goh's claim had no substantivemerit and that, if Ms Goh succeeded, her bonus would be unfair to ACC and othergenuinely out of pocket claimants.1811 Goh v Commissioner of Inland Revenue HC Auckland CIV-2009-041-3258, 11 November 2009at [29] – [30].12 At [34] – [36].13 Goh v Commissioner of Inland Revenue [2011] NZCA 344 at [43].14 Goh v Accident Compensation Corporation [2014] NZACC 294.15 Cullen v Accident Compensation Corporation [2013] NZHC 941.16 Cullen v Accident Compensation Corporation [2014] NZCA 94.17 Goh v Accident Compensation Corporation [2015] NZACC 191.18 Goh v Accident Compensation Corporation [2015] NZHC 3353 at [23].Fourth challenge[24] Despite Ms Goh's lack of success in the first three challenges, Ms Goh thensought to review the 2005 Decision itself.[25] In April 2016, Judge Henare dismissed Ms Goh's appeal against ACC'sdecision to reject her late application to review ACC's decision to reimburse MSDunder s 252 of the ACC Act.19 Judge Henare held that Ms Goh's argument, that ACChad unlawfully withheld payment of compensation due to her in respect of theCompensation Period so that s 252 of the ACC Act did not apply and ACC had nopower to reimburse MSD, was not available on any construction of the section, whichwas mandatory and required ACC to reimburse MSD.20 Judge Henare agreed thatMs Goh's appeal amounted to a collateral attack on the Court of Appeal's decisionrejecting Ms Goh's application to review MSD's decision to require ACC to reimburseit for the money paid to Ms Goh.21 The Judge concluded that the proceeding wasessentially a re-litigation of the same issues already unsuccessfully pursued byMs Goh.22The current challenge[26] The fifth and current challenge arises from a second late application byMs Goh to review the 2005 Decision based on her contention that s 252 of the ACCAct discriminates against people on the grounds of employment status under theHuman Right Act. This challenge was based on the finding of the Human RightsReview Tribunal in Hennessy v Attorney-General that s 71A of the Social Security Actwas inconsistent with the right to freedom from discrimination affirmed in s 19 of theNew Zealand Bill of Rights Act because it discriminated against persons on the groundof their employment status.2319 Goh v Accident Compensation Corporation [2016] NZACC 95.20 At [23] – [24].21 At [27].22 At [30].23 Hennessy v Attorney-General [2019] NZHRRT 4. Section 19(1) of the New Zealand Bill of RightsAct 1990 provides that everyone has the right to freedom from discrimination on the grounds ofdiscrimination in the Human Rights Act 1993. Section 21(1)(k) of the Human Rights Act providesthat employment status, including being a recipient under the Social Security Act or an entitlementunder the ACC Act, is a prohibited ground of discrimination.[27] On 2 August 2019, the ACC reviewer dismissed Ms Goh's application on thebasis that the principle of res judicata applied. The reviewer stated:At the heart of Ms Goh's review application is her belief that she should havebeen entitled to retain her WINZ benefit and receive the full payment of thebackdated weekly compensation. This issue was addressed in the Court ofAppeal decision and the decision of Judge Henare dated 14 April 2016.[28] Ms Goh appealed that decision to the District Court. The appeal was dismissedby Judge AA Sinclair by judgment dated 4 September 2020.24[29] On 24 June 2021, Judge Kelly declined Ms Goh's application for leave toappeal.25[30] Ms Goh has now applied to the High Court for special leave to appeal JudgeSinclair's judgment of September 2020.District Court DecisionsJudge Sinclair's decision[31] Judge Sinclair reviewed the history of Ms Goh's challenges to the 2005Decision in some detail.26 The Judge noted the various comments made in the HighCourt and Court of Appeal about the mandatory nature of s 252 of the ACC Act andMs Goh's challenges amounting to attempts to secure a windfall and as constitutingan abuse of process. The Judge also noted Judge Henare's statement that the issue thatMs Goh had sought to raise on appeal before her was a collateral attack on the Courtof Appeal's decision.[32] Judge Sinclair recorded that Ms Goh's substantive arguments on appealappeared to be that:27(a) Ms Goh disputed the validity of an ACC 172 form, which had beencompleted by MSD in December 2005 but which Ms Goh had found24 Goh v Accident Compensation Corporation, above n 1.25 Goh v Accident Compensation Corporation, above n 2.26 Goh v Accident Compensation Corporation, above n 1, at [6] – [18].27 At [21]. I omit reference to a claim for costs on the review hearing.after April 2019, and which Ms Goh said showed that thereimbursement amount to MSD had been incorrectly calculated and thebenefit reimbursement made by ACC had been unlawful; and(b) The decision of the Human Rights Review Tribunal in Hennessyconfirmed that an income-tested benefit revoked by the amount of anACC entitlement was unjust, which raised questions as to whetherreimbursement of the benefit payments to MSD had been justified.[33] Judge Sinclair also recorded that ACC's position was that the doctrine of resjudicata applied and that Ms Goh was estopped from seeking a redetermination of the2005 decision, and that, even if res judicata did not apply, its decision to reimburseMSD was correct and the matters raised by Ms Goh did not alter that position.[34] Judge Sinclair found that the subject of the appeal before her was the 2005Decision and the correctness of the benefit reimbursement by the Corporation to theMinistry and, consequently, that issue had already been determined by Judge Henarein 2016. Accordingly, Judge Sinclair found that cause of action estoppel clearlyapplied.[35] The Judge then considered whether there were special circumstances thatprevented the operation of cause of action estoppel arising from the matters raised byMs Goh. The Judge concluded there were not.[36] With respect to the ACC 172 form, the Judge did not accept that the form wasnew information and held that the arguments Ms Goh wished to raise about the formhad no merit. The Judge observed that the reimbursement amount was calculated byMSD and repaid in accordance with the mandatory requirements of s 252 of the ACCAct.[37] With respect to the argument concerning Hennessy, Judge Sinclair found thatthe decision in Hennessy had no relevance in the present case because Ms Goh'ssituation was materially different to that of Ms Hennessy, whose income-tested benefithad been abated at 100 per cent of the payment received from the ACC as comparedwith others whose benefit had been abated at 70 per cent. The Judge considered thatMs Goh's situation was more akin to that comparator group.28 The Judge also notedthat, in accordance with s 92K of the Human Rights Act, a declaration of inconsistencywould not affect the validity of the 2005 Decision or the outcome of Ms Goh'sappeal.29[38] Finally, Judge Sinclair noted that this second late-stage review was a re-litigation of the issues already pursued by Ms Goh on multiple occasions and wasplainly a re-litigation of Judge Henare's judgment. Her Honour considered that theappeal was a collateral attack on earlier decisions and could also be dismissed as anabuse of process. Her Honour concluded:[37] The High Court and Court of Appeal in their various decisions havegone to considerable lengths to explain to Mrs Goh the meaning and effect ofs 252 and its application in her situation. There are no grounds for dispute.While Mrs Goh may not agree with the outcome, it is time to stop thislitigation.Judge Kelly's decision[39] Judge Kelly dismissed the application for leave to appeal under s 162 of theACC Act.[40] Judge Kelly recorded that Ms Goh's application for leave to appeal was basedon the submission that the ACC had acted wrongfully by deducting 100 per cent of theamount of her MSD benefit and should have reimbursed MSD only 70 per cent of thebenefit. Ms Goh contended that, because Judge Sinclair had found that Ms Goh'sposition was materially different from that of Ms Hennessy and was more akin to thecomparator group whose benefit had been abated at 70 per cent, the Judge should havemodified or quashed the reviewer's decision dismissing her application for review.30[41] Judge Kelly said the application for leave to appeal appeared to be premisedon a misreading of Judge Sinclair's decision and of Hennessy. Judge Sinclair had not28 At [33].29 At [34]. Under ss 92J and 92K of the Human Rights Act, a declaration that an enactment isinconsistent with the right to freedom from discrimination affirmed by s 19 of the New ZealandBill of Rights Act does not affect the validity, application, or enforcement of the enactment inrespect of which it is given.30 Goh v Accident Compensation Corporation, above n 2, at [19] – [20].determined that Ms Goh's income-tested benefit should have been abated at a rate of70 per cent and that that question had not been before the Judge.31 Judge Kelly agreedthat Hennessy was of no relevance and did not provide the Court jurisdiction todetermine that Ms Goh's benefit should have been abated such that ACC ought to havereimbursed MSD otherwise than it did.32[42] His Honour noted that the question of whether res judicata applied incircumstances where the appellant still contended that the original decision wasincorrectly decided was not capable of bona fide and serious argument. Nor was thequestion of whether Mrs Goh should have been able to retain both her full benefit andthe ACC pay-out calculated on a weekly basis in respect of exactly the same period.In any event, the application had been dismissed as an abuse of process – a fact whichMs Goh had not challenged.[43] Judge Kelly concluded:[50] In short, as Judge Sinclair said, the meaning and effect of s 252 andits application to Mrs Goh's situation has been explained by the High Courtand Court of Appeal and there are no grounds for dispute. The 'one benefit'principle has already been determined and as Judge Sinclair says, while MrsGoh may not agree with the outcome, as she clearly does not, it is time to stopthis litigation.(footnotes omitted)Ms Goh's questions of law on application to High Court for special leave to appeal[44] In her application for special leave to appeal, Ms Goh set out two questions oflaw for the High Court to determine. However, in her submissions filed in advance ofthe hearing on 23 November 2021, Ms Goh set out two somewhat different questions,although they generally covered the same ground. At the hearing, Ms Goh confirmedthat the questions in her submissions were the ones for which she sought special leaveto appeal.[45] The questions, slightly reformulated for the sake of clarity, are:31 At [43].32 At [44].(a) If the benefit rate of abatement under s 71A of the Social Security Act1964 of 100 per cent does not apply, should the benefit be refunded infull to MSD by way of s 252 of the ACC Act?(b) Does ACC use the benefit paid by MSD to substitute for thecompensation payment in a reimbursement by way of s 252(4) for abenefit refunded to MSD?Submissions by Ms Goh[46] Ms Goh said she never agreed with the 2005 Decision when ACC deducted$58,453.64 from her backdated payment of $95,891.90 without her authority.[47] Ms Goh said that the ACC 172 form completed by MSD shows MSD paid heran income-tested benefit of $58,453.64 gross over the Compensation Period. Ms Gohthen referred to the decision of the Human Rights Review Tribunal in Hennessy, theHigh Court's decision in Hennessy v the Chief Executive of the Ministry of SocialDevelopment,33 and Judge Sinclair's statement about Ms Goh's situation beingmaterially different from that of Ms Hennessy. Ms Goh said that Judge Sinclair'sstatement suggested that the Judge had determined that the abatement rate of 100 percent did not apply to Ms Goh. Ms Goh said that if her benefit entitlement should havebeen abated only at the rate of 70 per cent, she was excluded from any statutoryobligation to reimburse MSD $58,453.64 in full and MSD could not refund her benefitin full to MSD. Therefore, the 2005 Decision was in question.[48] Ms Goh said it is necessary to clarify the abatement rate of her benefit and thatthis issue had not been the subject of determination in previous decisions. For thatreason, Judge Sinclair was wrong to hold that the doctrine of res judicata applied andthat her appeal had been an abuse of process.[49] Ms Goh also said that ACC's reimbursement of the amount of her MSD benefitmeant ACC was using her benefit entitlement to substitute for the payment ofcompensation.33 Hennessy v Chief Executive of the Ministry of Social Development [2012] NZHC 3104.Submission by counsel for ACC[50] Mr Bisley and Mr Kibblewhite said Ms Goh's application for special leave wasa further attempt to relitigate a matter that has been conclusively determined. JudgeSinclair correctly found that the decision in Hennessy v Attorney-General was notrelevant. Even if it were relevant, it was not new information constituting anexceptional circumstance to avoid res judicata and was a decision of the HumanRights Review Tribunal, which, in accordance with s 92K of the Human Rights Act,could not affect the legality of the statutory provisions to which ACC was givingeffect.[51] In relation to Ms Goh's second question, counsel said that the question wasmoot as it did not suggest that any element of Judge Sinclair's decision was wrong inlaw. Even if it was not moot, the question was not capable of bona fide and seriousargument because the application of s 252 of the ACC Act to Ms Goh's compensationpayments was clear, as had been explained by the courts in Goh v Chief Executive ofMSD,34 Goh v Chief Executive of MSD,35 and Goh v Accident CompensationCorporation.36 ACC had no discretion under that section.[52] In oral submissions, Mr Bisley observed that, to the extent that Ms Goh wishedto challenge the calculation of the amount ACC had reimbursed to MSD, that was adecision of MSD and could not be challenged by reviewing the 2005 Decision madeby ACC.Relevant law[53] Section 162 of the ACC Act provides that a party to an appeal who isdissatisfied with the decision of the District Court as being wrong in law may, with theleave of the District Court, appeal to the High Court. The section further provides thatif the District Court refuses to grant leave, the High Court may grant special leave toappeal.34 Goh v Chief Executive of the Ministry of Social Development, above n 3.35 Goh v Chief Executive of the Ministry of Social Development, above n 9, at [4] and [15].36 Goh v Accident Compensation Corporation, above n 19 at [23], [24] and [27].[54] As summarised by Fisher J in Kenyon v Accident Compensation Corporation,the principles relating to the grant of special leave from decisions of the District Courtare that:37(1) The purpose of requiring leave for certain appeals is to ensure that scarcejudicial time is allocated sensibly.38(2) Although it is ultimately a matter for the discretion of the Court, it willnormally be necessary to show that there is an issue of principle at stake orthat a considerable amount hinges on the decision, and that there is areasonable prospect of success.39(3) The fact that special leave is required is significant and suggests thatleave ought not to be granted as a matter of course.40(4) It is for the applicant to show that leave is required in the interests ofjustice.41(5) If leave has already been refused by the District Court, there willnormally have to be some extraordinary factor which has not been properlytaken into account.42Discussion[55] As Ms Goh said in her submissions, she has never agreed with the 2005Decision. As became evident in discussion with Ms Goh at the hearing, this appealwas indeed one more attempt by Ms Goh to revisit decisions already made by the HighCourt and the Court of Appeal upholding the validity of the 2005 Decision and thedeductions made by ACC and refunded to MSD in accordance with s 252 of the ACCAct. There can be no doubt that the principle of res judicata applies and that thedecisions of Judge Sinclair to dismiss Ms Goh's appeal and of Judge Kelly to refuseleave to appeal were correct.37 Kenyon v Accident Compensation Corporation [2002] NZAR 385 (HC) at [15].38 Sandle v Stewart [1982] 1 NZLR 708 (CA).39 Sandle v Stewart, above n 38; Manawatu Co-op Dairy Company Ltd v Lawry [1988] DCR 509;and Brown v Chowmein Fashions Ltd (1993) 7 PRNZ 43.40 O'Loughlin v Healing Industries Ltd (1990) PRNZ 464.41 Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 (CA).42 Brown v Chowmein Fashions Ltd (1993) 7 PRNZ 43.Questions discussed at hearing[56] At her own election, Ms Goh took part in the hearing by telephone rather thanby Virtual Meeting Room.43 Ms Goh acknowledged that she was accompanied byMr Murphy, who has been Ms Goh's McKenzie friend through most of Ms Goh'schallenges to the 2005 Decision.[57] In an effort to explain to Ms Goh and Mr Murphy why Ms Goh's applicationwas misconceived and had never had any prospect of success, I asked Ms Goh toconfirm that her application was based on the proposition that her MSD benefit hadbeen abated at the rate of 100 per cent when MSD had calculated the amount to bereimbursed by ACC and deducted from the amount paid to Ms Goh, and that it shouldhave been abated only at the rate of 70 per cent. Ms Goh confirmed that that was so,and she referred to the completed ACC 172 form as establishing that MSD paid her anincome-tested benefit of $58,453.64 and had required that sum to be deducted fromthe compensate paid by ACC.[58] I pointed out to Ms Goh that, as recorded in Asher J's judgment of 30 June2009, MSD had reviewed the amount that ACC had to reimburse MSD and deductfrom the compensation it paid to Ms Goh.44 Asher J had recorded the revised sum asbeing $35,591.00.45 That was slightly more than 70 per cent of the sum of $48,404.56,which Asher J had recorded as being the initial calculation of Ms Goh's debt to MSD(after excluding the tax payable to IRD). Asher J had also recorded that thisadjustment was the consequence of the compensation Ms Goh received from ACCbeing treated as income under s 71A(4) of the Social Security Act.46 As aconsequence, the requirement of s 71A(2) that the rate of benefit payable must bereduced by the amount of compensation received did not apply. On the face of theCourt decision, therefore, Ms Goh's compensation had not been abated at 100 per centbut had been abated at an amount close to 70 per cent.43 See Goh v Accident Compensation Corporation HC Auckland CIV-2021-404-1326, 17 November2021 (Minute of Moore J). Ms Goh had previously sought an adjournment of proceedings untilMarch 2022 to enable her to appear in person. Moore J declined to grant the adjournment basedon the need for early finality of the application for special leave to appeal which had already beenadjourned once before at Ms Goh's request.44 Goh v Chief Executive of the Ministry of Social Development, above n 33, at [8].45 At [9].46 At [8].[59] Ms Goh disputed these propositions by saying that the amount had beenreduced to take account of depreciation claimed in respect of rental income Ms Gohhad been earning. Leaving aside the fact there is no evidence of those matters,Ms Goh's assertions do not accord with the Court record.[60] I pointed out it to Ms Goh that Judge Sinclair's observation that Ms Goh'ssituation was materially different from that of Ms Hennessy, whose benefit had beenabated at 100 per cent, and was closer to that of the comparator group, whose benefithad been abated at 70 per cent, was consistent with the Asher J's decision. I wassatisfied that there could be no issue that the deduction made for Ms Goh had beeninconsistent with the New Zealand Bill of Rights Act because it was the deduction atthe rate of 100 per cent rather than 70 per cent that had been the basis of the HumanRights Review Tribunal's finding in Hennessy.47[61] Faced with these propositions, Ms Goh asserted that the discrimination wasagainst anyone who had received a benefit from MSD. The benefit had been paid toher lawfully. She had not done anything wrong. It was not right that that money hadbeen taken from her. Ms Goh denied that she was seeking to obtain a windfall; shewas just looking to retain what she had lawfully received. Ms Goh also said it waswrong that there had been no negative consequences for ACC for their poor decisions.Ms Goh also referred to a memorandum she had filed in Court earlier that morningabout a complaint she had filed with ACC.[62] Whatever the merits of that complaint, it has no bearing on Ms Goh'sapplication for special leave.Analysis[63] My exchanges with Ms Goh confirmed that, as found by Judge Sinclair and byJudge Kelly, Ms Goh's application to review the 2005 Decision, and her effort toappeal the decision declining that review, was an attempt to relitigate matters alreadydecided by the Court of Appeal and the other courts.47 Hennessy v Attorney-General, above n 23, at [12].[64] There was no adequate factual basis for Ms Goh's application. Even if therehad been, it could not support the granting of special leave under s 162 of the ACCAct which is restricted to questions of law. The information in the ACC 172 form didnot amount to fresh evidence and had been superseded by the review of the amountthat Ms Goh owed to MSD as recorded by Asher J. Ms Goh's contention that hersituation was analogous to that of Ms Hennessy was wrong in fact. Even if there hadbeen some similarity with Ms Hennessy's situation and Ms Goh had beendiscriminated against on the grounds of her employment status in the calculation ofthe amount to be refunded to MSD, that would not have affected the operation of s 252of the ACC Act which required ACC to refund to MSD the amount as calculated byMSD. That had been made clear in the High Court decision in Hennessy, whereHeath J referred to the Court of Appeal's decisions concerning Ms Goh and had notedthat the Court of Appeal had held that s 71A of the Social Security Act 1964 and s 252of the ACC Act were designed to prevent a beneficiary from receiving a doublepayment under the two Acts.48[65] Ms Goh's contention that ACC had used the money it had deducted from theamount of her compensation to meet its obligations to pay her compensation waswrong as a matter of fact and law. Section 252 required ACC to refund to MSD themoney it had deducted from her compensation. ACC had not taken money away fromMs Goh. All that had happened was that a proportion of the amount Ms Goh hadreceived from MSD had been deducted from the backdated compensation for the sameperiod for which she had received the MSD benefits.[66] For all these reasons, with respect to Ms Goh's application for special leave toappeal, I find that:(a) There is no issue of principle at stake;(b) There is no significant sum that hinges on the decision;(c) There is no prospect of success; and48 Hennessy v Chief Executive of the Ministry of Social Development, above n 33, at [30].(d) Ms Goh's second application to review the 2005 Decision and to appealthe decision declining that review are an abuse of process.Result[67] I dismiss Ms Goh's application for special leave to appeal Judge Sinclair'sdecision.Costs[68] ACC has sought costs on Ms Goh's application for special leave to appeal.[69] While it is not usual to award costs against a litigant in person who has been inreceipt of a benefit, I consider an award of costs is appropriate in this case. Ms Gohhas pursued a meritless appeal in the face of strong directions from both Judge Sinclairand Judge Kelly that it was time to stop this litigation.[70] I award costs to ACC on a 2B basis.[71] If ACC and Ms Goh are unable to agree costs, they may file and servememoranda of no more than five pages.[72] Any memorandum by ACC is to be filed and served by 4 February 2022.[73] Any reply by Ms Goh is to be filed and served by 18 February 2022.Direction to Court registrars[74] Ms Goh's challenges to the 2005 Decision have taken up an inordinate amountof judicial time.[75] I direct that any further proceeding which is filed by Ms Goh and whichappears to be an attempt again to revisit the 2005 Decision should be referred to aJudge for consideration as to whether it should be struck out for abuse of process.______________________G J van Bohemen J