MAREE HOWARD v ACCIDENT COMPENSATION CORPORATION [2019] NZSC 78

MAREE HOWARD v ACCIDENT COMPENSATION CORPORATION [2019] NZSC 78 [24 July 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 42/2019[2019] NZSC 78BETWEEN MAREE HOWARDApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentCourt: Glazebrook, O'Regan and Williams JJCounsel: Applicant in personP A McBride for RespondentJudgment: 24 July 2019JUDGMENT OF THE COURTA The application for leave to appeal is dismissed.B The applicant must pay costs of $2,500 to the respondent.____________________________________________________________________REASONS[1] The applicant wished to appeal to the High Court against a decision of theDistrict Court dismissing her appeal to that Court against a review decision which hadbeen made under s 134 of the Accident Compensation Act 2001.1[2] She applied to the District Court for leave to appeal against the District Courtdecision but leave was refused.2 She then applied to the High Court for special leaveto appeal to that Court but special leave was declined.3 The effect of the High Court1 Howard v Accident Compensation Corporation [2017] NZACC 76 (Judge Powell).2 Howard v Accident Compensation Corporation [2018] NZACC 97 (Judge Christiansen).3 Howard v Accident Compensation Corporation [2018] NZHC 3342 (Courtney J).decision was that the applicant was not permitted to commence an appeal to the HighCourt against the District Court decision.[3] Nevertheless, the applicant filed an application for leave to appeal to the Courtof Appeal. This application was said to be advanced pursuant to s 56(5) of the SeniorCourts Act 2016. Section 56 of that Act provides:56 Jurisdiction(1) The Court of Appeal may hear and determine appeals—(a) from a judgment, decree, or order of the High Court:(b) under the Criminal Procedure Act 2011:(c) from any court or tribunal under any other Act that confers onthe Court of Appeal jurisdiction and power to hear anddetermine an appeal.(2) Subsection (1) is subject to subsections (3) and (5) and to rules madeunder section 148.(3) No appeal, except an appeal under subsection (4), lies from any orderor decision of the High Court made on an interlocutory application inrespect of any civil proceeding unless leave to appeal to the Court ofAppeal is given by the High Court on application made within20 working days after the date of that order or decision or within anyfurther time that the High Court may allow.(4) Any party to any proceedings may appeal without leave to the Courtof Appeal against any order or decision of the High Court—(a) striking out or dismissing the whole or part of a proceeding,claim, or defence; or(b) granting summary judgment.(5) If the High Court refuses leave to appeal under subsection (3), theCourt of Appeal may grant that leave on application made to the Courtof Appeal within 20 working days after the date of the refusal of leaveby the High Court.(6) If leave to appeal under subsection (3) or (5) is refused in respect ofan order or a decision of the High Court made on an interlocutoryapplication, nothing in this section prevents any point raised in theapplication for leave to appeal from being raised in an appeal againstthe substantive High Court decision.[4] The application for leave to appeal to the Court of Appeal was rejected by aDeputy Registrar of the Court of Appeal, who informed the applicant by letter dated1 February 2019 that there was no right of appeal against a decision of the High Courtdeclining leave to appeal to that Court under s 56(5).[5] The applicant then applied for review of the decision of the Deputy Registrarto refuse to accept her application for leave to appeal to the Court of Appeal. Theapplication for review was dealt with by Miller J. He declined the application forreview, upholding the decision of the Deputy Registrar to refuse to accept the leaveapplication for filing.4 Miller J said it was settled law that a decision refusing leavewas not a substantive determination or a decision on an appeal, and that no furtherright of appeal was available under s 163 of the Accident Compensation Act, citingMcCafferty v Accident Compensation Corporation5, which was affirmed in an earlierdecision involving the applicant.6 Miller J also rejected the applicant's argument thatshe had a right of appeal under the general appellate jurisdiction contained in ss 56and 60 of the Senior Courts Act.[6] The applicant now seeks leave to appeal against the decision of Miller J. Shealso seeks a leave hearing, but we are satisfied that a hearing is not required, given thematters at issue.[7] The applicant does not seek to relitigate the law as set out in McCafferty.Rather, she wishes to argue that there is a right of appeal against the High Courtdecision under s 56 of the Senior Courts Act. In order to succeed, the applicant wouldneed to convince the Court that s 56 provides for a parallel appeal process to thatcontained in the Accident Compensation Act. This would require the Court to acceptthat the specific appeal provisions in the Accident Compensation Act prevent anyappeal being advanced by the applicant but that the general appeal provisions in theSenior Courts Act allow such an appeal. We do not see any realistic prospect ofsuccess in such an argument.[8] The applicant places some reliance on an observation made by this Court whendetermining a similar issue raised by the applicant prior to the enactment of the Senior4 Howard v Accident Compensation Corporation [2019] NZCA 128.5 McCafferty v Accident Compensation Corporation (2003) 16 PRNZ 843 (CA).6 Howard v Accident Compensation Corporation [2013] NZCA 617.Courts Act.7 In that case, the Court noted that the applicant had argued that a decisionof a High Court Judge refusing leave to appeal was subject to a direct appeal unders 66 of the Judicature Act 1908 (the predecessor to s 56(1)(a) of the Senior Courts Act)in accordance with the principles discussed in Siemer v Heron.8 This Court then madethis observation:[9] It may be that the Court of Appeal could have treated the applicationfor leave to appeal as if it were an appeal under s 66 and in this way wouldhave resolved the jurisdiction just referred to.[9] We do not consider that this was an indication by this Court that it thought anappeal was available under s 66 of the Judicature Act. Rather, it was saying that if theCourt of Appeal had treated her application for leave to appeal as if it were an appealunder s 66, it could have made a definitive ruling that there was no jurisdiction forsuch an appeal, rather than leaving the issue unresolved. In any event, the decision ofthis Court in Siemer v Heron must now be read subject to s 56 of the Senior CourtsAct.[10] We do not consider that the proposed appeal raises any issue of publicimportance, nor do we consider that any miscarriage of justice will arise if leave isrefused. We therefore dismiss the application for leave to appeal.[11] As the Corporation was required to file submissions in opposition to theapplication for leave, we award it costs of $2,500.Solicitors:McBride Davenport James, Wellington for Respondent7 Howard v Accident Compensation Corporation [2014] NZSC 31, (2014) 21 PRNZ 815.8 Siemer v Heron [2011] NZSC 133, [2012] 1 NZLR 309.