HERBST v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2953

HERBST v ACCIDENT COMPENSATION CORPORATION [2019] NZHC 2953 [12 November 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-485-312[2019] NZHC 2953UNDER the Accident Compensation Act 2001IN THE MATTER of an application under s 162 of the Act toappeal to the High Court on a question oflawBETWEEN MICHELLE HERBSTApplicantAND ACCIDENT COMPENSATIONCORPORATIONRespondentHearing: 8 November 2019Appearances: Applicant in personF L Becroft for the RespondentJudgment: 12 November 2019JUDGMENT OF GAULT JThis judgment was delivered by me on 12 November 2019 at 4:00 p.m.pursuant to r 11.5 of the High Court Rules 2016.Registrar/Deputy RegistrarSolicitors / Parties:The ApplicantMs F L Becroft, Medico Law Ltd, Auckland[1] This is an application for special leave to appeal against an interim judgmentof the District Court dated 31 October 20171 and a minute dated 7 June 2018.2[2] The applicant, Ms Herbst, applied for leave to appeal in the District Court on25 January 2019. This was outside the 21 day period mandated in s 162(2) of theAccident Compensation Act 2001 (the Act). On 1 May 2019 Judge G M Harrisonstruck out the application for leave to appeal on the basis that the District Court hadno jurisdiction to extend time unless the Accident Compensation Corporation (ACC)waived compliance with the time limit under s 3 of the Inferior Courts Procedure Act1909, which had not occurred.3Factual background[3] Ms Herbst suffered multiple injuries in a car accident on 5 March 2015.ACC has accepted cover for some injuries but declined cover in other respects.[4] The District Court's 31 October 2017 interim judgment concerned an appealagainst ACC's decision dated 13 May 2016 to decline cover for post-concussionsyndrome (PCS) and chronic pain. The District Court's judgment addressed whetherthere was jurisdiction because further decisions had been made since ACC's decisionin May 2016. A review of the May 2016 decision in October 2016 had determinedthat the decision was correct at the time it was made but noted that further coverdecisions would be issued in due course. In July 2017 ACC issued two furtherdecisions, a decision on 12 July 2017 declining cover for PCS and a decision on 14July 2017 declining cover for chronic pain. Ms Herbst nevertheless chose to pursueher appeal against the earlier May 2016 decision.[5] The District Court Judge concluded that developments, including furthermedical reports, since the provisional May 2016 decision, superseded it. The July2017 cover decisions became the new decisions. It made sense for the July 2017decisions to be tested at review.1 Herbst v Accident Compensation Corporation [2017] NZACC 132.2 Herbst v Accident Compensation Corporation DC Auckland ACR 373/16, 243/17, 244/17, 302/17minute of Judge A P Christiansen, 7 June 2018.3 Herbst v Accident Compensation Corporation DC Auckland ACR 373/16, 1 May 2019 minute ofJudge G M Harrison.[6] The Judge considered that the reviewer could have quashed the May 2016decision. Upholding it left Ms Herbst with no choice but to appeal the review decision.Given that Ms Herbst had indicated her intention to challenge the July 2017 decisions,the Judge concluded that the Court's jurisdiction in relation to the appeal from the May2016 decision was as to whether ACC had sufficient evidence to determine cover.The issue appeared moot but could be argued fully at a hearing.[7] Following that interim judgment, Ms Herbst discontinued the appeal.[8] Following review, in February 2018 the reviewer quashed ACC's 14 July 2017decision and granted cover for the pain disorder.[9] In April 2018 Ms Herbst sought to reinstate her appeal. The minute of JudgeChristiansen dated 7 June 2018 noted that Ms Herbst's right to challenge thesubstantive issues was preserved by the other proceedings and refused reinstatementof the appeal.[10] At that time, a review decision in relation to ACC's 12 July 2017 PCS decisionwas pending.Submissions[11] Ms Herbst submitted that she sought leave to appeal on a legal issue.She should have received cover for her spinal and brain injuries. She is in need ofcover for transport costs, help at home and rehabilitation. She has recently had tomove home to be nearer to public transport.[12] She also raised concern that some of the specialists who had provided reportsworked at the hospital where she was assessed, and that review decisions needed to betaken by someone independent.[13] Ms Becroft, counsel for ACC, submitted that special leave to appeal should berefused as this Court has no jurisdiction where the appeal is out of time.[14] Ms Becroft responsibly acknowledged the underlying issues. This is a largeand complex claim. There are 17 appeals in the District Court. Ms Becroft advisedthat ACC has proposed mediation and offered to pay for Ms Herbst to engage a lawyer.Ms Herbst now has cover for chronic pain (following the February 2018 reviewdecision). One of the pending District Court appeals relates to ACC's decision todecline cover for PCS.Statutory framework for further appeals[15] Section 162 of the Act provides:162 Appeal to High Court on question of law(1) A party to an appeal who is dissatisfied with the decision of theDistrict Court as being wrong in law may, with the leave of the DistrictCourt, appeal to the High Court.(2) The leave of the District Court must be sought within 21 days afterthe District Court's decision.(3) If the District Court refuses to grant leave, the High Court may grantspecial leave to appeal.(4) The special leave of the High Court must be sought within 21 daysafter the District Court refused leave.(5) The High Court Rules and sections 126 to 130 of the District CourtAct 2016, with all necessary modifications, apply to an appeal underthis section as if it were an appeal under section 124 of that Act.Discussion[16] This Court cannot grant special leave to appeal. As Judge Harrison stated, theDistrict Court had no jurisdiction to extend the 21 day time for an application for leaveto appeal unless ACC waived compliance. Applying s 162 of the Act and the Court ofAppeal's decision in Siola'a v Wellington District Court and ACC,4 the Judge wascorrect to strike out the application for leave to appeal.[17] A decision striking out the application for leave to appeal on the basis there isno jurisdiction is not a decision refusing to grant leave to appeal.5 In those4 Siola'a v Wellington District Court and ACC [2008] NZCA 483, [2009] NZAR 23 at [33].5 Goh v ACC [2014] NZHC 533 at [15]; and Le Pine v ACC [2014] NZHC 538 at [16].circumstances, the District Court has not refused to grant leave in terms of s 162(3) ofthe Act, so this Court has no power to grant special leave to appeal.Result[18] The application is dismissed.________________________________Gault J