Garven v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 91 /2007 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an Application for Leave to Appeal to the High Court pursuant to Section 162 of the Act BETWEEN SHARON GARVEN (Al 527/00) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant has made application for Leave to Appeal to the High Court from the decision of His Honour Judge J D Hole, delivered on 15 September 2004. The applicant was the unsuccessful appellant in that appeal. (2] By letter dated 15 September 2004 the Appeals Registry forwarded a copy of the decision in the appeal to the applicant by ordinary post to the address previously provided by the applicant as her address for service. The letter included advice that Leave to Appeal to the High Court must be sought within 21 days of the Court's decision. [3] By letter dated 3 December 2004, but received by the Registry on 10 December 2004, the applicant advised that she had only received the Court's decision a matter of days ago and she advised that she wished to seek leave to appeal that decision to the High Court. 2 [4] The address given by the applicant as her contact address was a different address in Nelson than that to which the decision had been forwarded by the Registry on 15 September 2004. 15] The applicant's letter to the Registry of 3 December 2004 would indicate that the Registry's letter had gone to two addresses before finally being received by the applicant at her present address. 6] By Memorandum dated 2 February 2005, Counsel for the Respondent contended that the Application for Leave could not be considered as it had been sought after the expiry of the 21 days provided for in Section 162(2), and that there was no power for the District Court to extend the time for so filing such an application. [7] Subsequent correspondence from the applicant has not addressed that issue raised by Counsel for the Respondent, but she has purported to give the grounds for seeking leave, the essence of her application being that she disputed the assessment carried out by the Independence Allowance Assessor. [8] The issue in the appeal was whether the respondent was correct to decline her application for an Independence Allowance. The grounds for declinationere that the Assessor had determined that her Whole Person Impairment was 8%, being less than the 10% minimum required under the Act for an Independence Allowance entitlement. (9] It is the case that no evidence was introduced which would bring the assessment of the duly authorised assessor into question. [10] From the foregoing, two issues arise. Firstly whether it can be said that the applicant lodged her application for leave to appeal within the time specified by Section 162(2), and secondly if it was found to be so, whether this is a case where leave should be granted on the basis that a bona fide and arguable question of law is in issue which ought to be considered by the High Court. [11] From the correspondence received from the applicant, the Court can accept that she did not receive advice of the District Court's decision until early December 3 2004, and it is the case that she made an application for leave within 21 days of actual receipt of the decision. [12] Prima facie it might be said that the applicant therefore came within the 21 day period, but I find that the matter is not as simple as that. [13] By virtue of Section 150 of the Act, Rules made under the District Courts Act 1947, are to apply, subject to any modifications made by this Act. [14] It is the case that the Registry forwarded the Court's decision to the appellant at her given address for service, namely 46 Whitby Road, Wakefield, Nelson. [15] By virtue of Rules 214 and 233 of the District Court Rules, service or notice of a document that is required to be given can be done so by posting the document to the address for service, and if so posted shall be deemed to have been duly served on the earlier of the fifth working day after the day on which it was so posted or, the day on which it was received. [16] Thus, I find it can be held that notice of the decision can be said to have been given to the applicant on or before 22 September 2004. It was for the applicant to have notified the Registry of any change of address. [17] Having found as I have, I must rule as a matter of law that the Application for Leave to Appeal to the High Court is out of time, and the District Court has no jurisdiction to extend the time for so filing beyond the statutory period. [18] In that regard I refer to the District Court decisions of Strange (Decision 295/04) and Purches (Decision 35/07). It is to be noted that the District Court's decision on this point of law has been confirmed by the High Court in MacPherson v ACC (Auckland High Court - CIV 2005-419-1347) at para 20. [19] Following the decision of MacPherson, it must be the case that if the applicant wished to seek an extension of time for the filing of her Application for Leave to Appeal, that application must be made to the High Court under Part 10 of the High Court Rules. 4 20] It is the case that if the High Court were to grant an extension of time for filing the Application for Leave, it would then send the Application for Leave back to the District Court for it to determine whether leave to appeal should be granted. 21] I have also considered the substantive issue of whether the decision of His Honour Judge Hole is one which involved the determination of a question of law, being a question of law which ought to be referred to the High Court for further determination, I can indicate that no such question of law arises. His Honour's decision was simply confirming the Review Decision that there was no evidence that the assessment of the duly appointed Independence Allowance Assessor was in any way flawed and in those circumstances it had to be accepted. It was wholly a decision on the facts. 22] In those circumstances, I consider it to be the case that leave to appeal would not be granted. [23] For the foregoing reasons, therefore, I dismiss the application for leave to appeal on the grounds that such application was brought outside the statutory time limit provided for in Section 162(2) of the Act. DATED at AUCKLAND this 14 the day of May 2007 M J Beattie District Court Judge