JONES v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 973

JONES v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 973 [16 May 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-225IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRY(transferred to AUCKLAND REGISRYCIV-2016-404-19[2016] NZHC 973IN THE MATTER of an application for special leave unders 162 of the Accident Compensation Act2001BETWEEN MICHAEL JOHN JONESAppellantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: (on the papers)Appearances: Appellant in personC J Hlavac for the RespondentJudgment: 16 May 2016JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 16 May 2016 at 2:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarParties / Solicitors: The Appellant Mr C J Hlavac, Young Hunter, Solicitors, Christchurch[1] Mr Jones has filed an application for special leave to appeal against a decision of Judge D A Ongley dismissing two appeals by Mr Jones from review decisions which confirmed decisions of the Accident Compensation Corporation.1Special leave is sought under s 162(4) of the Accident Compensation Act 2001 (the Act) because an application for leave of the District Court under s 162(2) was declined by Judge G M Harrison.2[2] The Corporation seeks an order dismissing the application on the grounds that it was filed out of time and there is no discretion to extend time. Submissions were filed by the Corporation in support of that application and Mr Jones responded. It was agreed that I should determine this question on the papers.[3] Section 162 of the Act, so far as relevant, is as follows:162 Appeal to High Court on question of law(1) A party to an appeal who is dissatisfied with the decision of a District Court 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 the District Court's decision.(3) If the District Court refuses to grant leave, the High Court may grant special leave to appeal.(4) The special leave of the High Court must be sought within 21 days after the District Court refused leave.The facts[4] The most relevant facts are those relating to the date of filing of the application and what Mr Jones has said in that regard. There was no affidavit from Mr Jones, but I have decided that there will be no prejudice to the Corporation if I take account of what he said in his memorandum. This evidence is supplemented by the court file.1 Jones v Accident Compensation Corporation [2015] NZACC 36.2 Jones v Accident Compensation Corporation [2015] NZACC 403.[5] The District Court decision dismissing the application for leave was made on 22 December 2015. In consequence, applying s 162(4), Mr Jones' application forleave should have been filed in the High Court on 12 January 2016. It was in fact filed on 13 January 2016.[6] Mr Jones said that he sent the document by courier, from Auckland, on 11January. But it was couriered to the street address of the District Court inWellington, not the High Court. There is some suggestion by Mr Jones that theremay have been a mistake by the person assisting him at the Grey Lynn Post Centre inAuckland, who put the street address of the District Court on the package. Forreasons I will come to, the cause of the error is not material because of themandatory nature of the provisions. But it is in any event apparent from other thingsMr Jones says in his memorandum that he knew his application had to go to the HighCourt. He did not suggest otherwise.[7] The documents on the court file record that the application reached theDistrict Court in Wellington on 12 January. The High Court registry in Wellingtonreceived the documents from the District Court in Wellington on 13 January, with acovering note from a Deputy Registrar of the Wellington District Court stating thatthe documents were received at the District Court on 12 January 2016.Evaluation[8] The interpretation and application of s 162, and in particular in this case subsection (4), is clear. The following points, relevant to the main arguments advanced by Mr Jones, come from the clear meaning of the words used in s 162(4) and a number of decisions.3(a) The 21 days begin to run from the day after the date of the decision.3 Siola'a v Wellington District Court [2008] NZCA 483 (Siola'a); Reden-Oldfield v ACC HC Whangarei CIV-2005-485-185, 8 December 2005; Zhang v ACC HC Auckland CIV-2005-404- 7101, 27 October 2006 (statement at [8] disapproved in Siola'a at [34], but otherwise approvedby the Court of Appeal in Siola'a at [20]); Wyman v ACC HC Wellington CIV-2007-485-451, 23May 2007; ACC v Sutton [2015] NZACC 55 (Sutton); Saipe v ACC HC Auckland CIV-2008-404-1053, 20 June 2008 (Saipe).(b) 21 days is not 21 working days. In consequence, no allowance is made for court holidays, as defined in r 3.2 of the High Court Rules, unless the last day for filing falls on a court holiday, in which case s 35(6) of the Interpretation Act 1999 applies. Section 35(6) has no application in this case.(c) Section 162(4) (and s 162(2)) is mandatory. The High Court has no discretion to extend the time.(d) Rule 20.3(5) of the High Court Rules makes provision for the Court to extend the period for bringing an application for leave to appeal, but this power can only be used if the enactment under which the appeal is sought to be brought either permits the extension, or does not limit the time prescribed for making the application. Neither exception applies to applications for leave under s 162.[9] If there was discretion to extend time the circumstances I have described would support the granting of an extension. The reason for the delay has been explained. It was a simple mistake in relation to a document that was in factaddressed to the High Court. The length of the delay was inconsequential. There isno suggestion of any prejudice to the respondent. In addition, and without intendingany criticism of the Deputy Registrar in the District Court, it may be that thedocument could have been delivered from the District Court to the High Court on12 January. Given the location of the two registries, it probably would have taken nomore than five to ten minutes on foot to get the document from the District Court tothe High Court.[10] Because there is no discretion for the Court to extend time, on the application of the party seeking leave, I asked the respondent if it would, in the circumstances outlined, waive the time requirement. The question of waiver had not been addressed in the earlier written submissions. Mr Hlavac, for the respondent, submitted that the Corporation cannot waive the time limit. He referred to thedecision of this Court in Armstrong v Accident Compensation Corporation.4 Justice Ellis held that, when an application to the High Court under s 162(4) is filed out of time, the statutory consequence of late filing cannot be waived. A contrary conclusion was reached by the Court of Appeal in Siola'a,5 but the decision in that case related to an application for leave to the District Court under s 162(2) and the application of the Inferior Courts Procedure Act 1909.[11] Although the decision in Armstrong is not binding on me, this is not an occasion to review it. As I made clear to Mr Hlavac, waiver was entirely a matter for the Corporation, and there was no suggestion that the Corporation would be prepared to waive the point if it had the power to do so.[12] As there is no discretion to extend time, Mr Jones' application for leavecannot proceed.[13] Although that conclusion disposes of the application, I will comment briefly on some other submissions of by Mr Jones. Acting on his own behalf he presented clear and careful submissions.[14] Mr Jones submitted that, if there was discretion to allow an extension of time,"it would be hard to see a worthier case for an exercise of that discretion". As I havealready noted, the facts I have recorded, in the absence of any apparent prejudice to the Corporation, would provide strong grounds for the granting of leave if there was discretion. But an important point needs to be made. This is that, on an application for an extension of time there would be need not only to explain the delay, but also to establish that there is at least a reasonably arguable case on a point of law. It is not appropriate to go into the merit of the substantive issues that Mr Jones would have wanted to advance, but the reality is that he has already been unsuccessful on his application on his general appeal to the District Court, and then on his application to the District Court for leave to appeal on a point of law.4 Armstrong v Accident Compensation Corporation HC Auckland CIV-2011-485-0860, 5 September 2011 (Armstrong).5 Siola'a, above n 3.[15] Mr Jones sought to rely on an argument advanced by the Corporation inSutton.6 As Mr Jones notes, the argument was unsuccessful in the District Court. That did not, of course, prevent Mr Jones from adopting the same argument in this Court, but it is contrary to the decisions I have already referred to, and in particular the decision of the Court of Appeal in Siola'a, binding on this Court.[16] Mr Jones argued that the words "must be sought" in s 162(4) (and in s 162(2)) are to be interpreted as referring to the point of time when the applicant evinces an intention to seek leave, so that he sought leave when he despatched the application by courier on 11 January. This argument was rejected by Venning J inSaipe.7 Mr Jones submitted that Saipe could be distinguished, but if I concluded that it could not, he invited me to come to a different conclusion. I am satisfied thatSaipe is not distinguishable and that the decision is, with respect, undoubtedly correct.[17] There were some further arguments advanced by Mr Jones. I have taken account of them, but they do not assist on the essential question as to whether his application was out of time. Unfortunately for him it was and the application must therefore be dismissed.___________________________________Woodhouse J6 Sutton, above n 3, at [6]-[7].7 Saipe, above n 3.