Vehicle Testing New Zealand v Accident Compensation Corporation

IN THE DISTRICT COURT AT AUCKLAND [2015] NZACC 154 ACR 687/12 UNDER THE ACCIDENT COMPENSATION ACT 2001 IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT ON A QUESTION OF LAW UNDER SECTION 162 OF THE ACT BETWEEN VEHICLE TESTING NEW ZEALAND Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: On the papers at Wellington Judgment: 19 June 2015 JUDGMENT OF JUDGE L G POWELL [1] This is an application for leave to appeal against my judgment of 19 December 2014 dismissing the applicant's appeal." 2] Pursuant to s 162 the District Court has jurisdiction to grant leave to appeal on a question of law, with leave granted if the issue of law identified is "capable of bona fide and serious argument".? [3] The practice is long established in this jurisdiction that applications for leave to appeal are determined by a different District Court Judge to the one who has heard the appeal. In practice this means that the issues are given fresh consideration, albeit on a limited basis, which is a matter of some importance for litigants in this 2014] NZACC 339 N Impact Manufacturing (unreported, High Court, Wellington, per Doogue J, AP 266/00, 6 July 2001 jurisdiction dealing with serious issues involving their health and wellbeing. Therefore having another Judge look at the file for the purposes of a leave to appeal application assists in providing confidence in the jurisdiction as a whole. [4] Notwithstanding the benefits of this approach there will be occasions, as here, where it leads to delay there will necessarily be a delay in getting another Judge to consider the matter when the Judge originally seized of the matter is in a position to dispose of the application expeditiously. In this regard there is nothing in law to prevent a Judge who has heard the appeal from determining the application for leave to appeal. Specifically in most other New Zealand jurisdictions, and in particular the High Court, it is the "routine and longstanding" practice that the Judge hearing the substantive matter determines the application for leave to appeal." [5] With regard to the present application the parties are in fact agreed that the issues raised in the application are indeed "capable of bona fide and serious argument" and that leave should be granted. [6] I agree that leave should be granted. As noted by Mckenzie J in Accident Compensation Corporation v Algie': It is generally appropriate when a Court grants leave to appeal to say less rather than more, since the judgment must stand for itself and it is not appropriate to make any further comment on the judgment itself. [7] Given this position I need note only that the judgment sought to be appealed from involved a primarily legal analysis of the basis for calculation of the ACC levies payable by the applicant for the period 1 April 2011-31 March 2012 and involved detailed consideration of both Part 6 of the Accident Compensation Act 2001 and the Accident Compensation (Experience Rating) Regulations 2011. In my judgment, while ultimately finding that the current legislative regime was substantively the same as the equivalent provisions under the Accident Rehabilitation and Compensation Insurance Act 1992 ("1992 Act"), I declined to follow the previous cases determined under the 1992 Act, and whether I was correct in doing so Geary v Accident Compensation Corporation [2014] NZCA 534 at [5]-[8] and Geary v Accident Compensation Corporation [2015] NZSC 12 at [2]-[4]. [2014] NZHC 1582 at [4] is clearly a matter capable of bona fide and serious argument, as indeed was the case in the hearing before me. [8] Having determined that leave should be granted, the issue becomes what questions should be referred to the High Court. Both parties have made submissions on the issue and are generally in agreement on two questions, with the applicant also proposing a third question for determination. On reflection I consider the applicant's additional question is encompassed by the primary question at issue, and as a result I grant leave on the following two questions only: [a] If under Section 236 of the Accident Compensation Act 2001 ("the Act") an employer seeks a review of an Experience Rating Assessment issued by the Corporation (ACC) pursuant to the Accident Compensation (Experience Rating) Regulations 2011, is the employer at law entitled to challenge on review whether a qualifying claim used by ACC in determining that Experience Rating Assessment is a work- related personal injury which is suffered in the Experience Period? [b] If question [a] is answered in the affirmative, does the failure then in this matter to set a date for review of the matter within three months of ACC receiving the application for review, entitle the appellant to a decision in its favour pursuant to section 146 of the Act? [9] Costs on the application are reserved pending the outcome of the substantive appeal. Judge L G Powell District Court Judge ACR 687-12-Vehicle Testing.doc(aw)