LESLIE NORMAN AUSTIN v ROCHE PRODUCTS (NEW ZEALAND) LIMITED [2021] NZSC 62

LESLIE NORMAN AUSTIN v ROCHE PRODUCTS (NEW ZEALAND) LIMITED [2021] NZSC 62[16 June 2021]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 5/2020[2021] NZSC 62BETWEEN LESLIE NORMAN AUSTINApplicantAND ROCHE PRODUCTS (NEW ZEALAND)LIMITEDRespondentCourt: Glazebrook, O'Regan, Ellen France, Williams and Arnold JJCounsel: G J Thwaite for ApplicantJ A MacGillivray for RespondentJ B Orpin-Dowell for Accident Compensation Corporation asIntervenerJudgment: 16 June 2021Reissued: 22 February 2022JUDGMENT OF THE COURTA This Court's decision in Austin v Roche Products(New Zealand) Ltd [2021] NZSC 30 is stayed until furtherorder of this Court.B Either the respondent or ACC may apply to discharge thestay on the ground that the applicant has not continued topursue his appeal before the Accident CompensationAppeal Authority diligently or on any other ground.C Costs are reserved.____________________________________________________________________REASONS(Given by Williams J)[1] On 31 March 2021, this Court dismissed Mr Austin's appeal against thestriking out of his claim for damages for personal injury.1 But the Court provided hima brief opportunity before the decision took effect in which to apply to the AccidentCompensation Corporation (ACC) to review its decision to grant him coverage.2Mr Austin has taken advantage of that opportunity although he is well out of time.3He now applies for a stay of this proceeding while ACC considers his reviewapplication, so that he does not lose the placeholder effect of the current proceedingfor the purposes of limitations.[2] Mr Austin seeks a stay "until further notice". The respondent opposes theapplication. ACC abides.[3] In support of his application, Mr Austin points to the long history of thislitigation and its burden on him; the unfair effect in relation to limitations if thisproceeding is struck out; the late introduction of the issue in relation to s 133(5) of theAccident Compensation Act 2001, which in the end proved decisive; the promptmanner in which he commenced the ACC review; and the continued relevance of thepunitive damages component of his claim. Mr Austin's preference would be to remitthe matter back to the High Court to consider his stay application. Finally, Mr Austinsubmits that his security for costs should be returned.[4] The respondent submits that a stay is inappropriate primarily because theapplication for review is without merit. The respondent argues that Mr Austin'sprimary motivation is protection against a limitation defence when the delay incommencing proceedings is a result of his own decisions. The respondent accepts thata stay would not cause it specific prejudice, but points out that it will encourageMr Austin to pursue further appeals in the (in its view) likely event that the applicationfor review is rejected by ACC.1 Austin v Roche Products (New Zealand) Ltd [2021] NZSC 30 [substantive decision].2 At [36]–[37].3 Accident Compensation Act 2001, s 135(3).[5] On balance, we consider that a limited stay is justified. This strikes anappropriate balance between the interests of the respondent, which responsibly acceptsthe absence of any immediate prejudice, and that of Mr Austin in not being denied anopportunity to submit to ACC that his delay in seeking review was due to "extenuatingcircumstances".4[6] Remitting the matter back to the High Court would not be appropriate. Norwould the release of any funds held as security for costs.[7] This Court's decision in Austin v Roche Products (New Zealand) Ltd5 is stayeduntil further order of this Court.[8] Either the respondent or ACC may apply to discharge the stay on the groundthat the applicant has not continued to pursue his appeal before the AccidentCompensation Appeal Authority diligently or on any other ground.[9] Costs are reserved.Solicitors:Tompkins Wake, Hamilton for RespondentS Cohen-Ronen, Accident Compensation Corporation, Wellington for Intervener4 Section 135(3).5 Substantive decision, above n 1.