Khan v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 156 12007 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 YOUMNA KHAN (Al 30/99) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] The applicant, through her then Counsel, Mr P H Bremer, lodged an Application for Leave to Appeal to the High Court from the decision of His Honour Judge P F Barber, delivered on 2 August 2005. 2] The issue in that appeal was whether the applicant was an earner immediately prior to the date of her incapacity on 18 June 1993. [3] For the purposes of determining that issue the Learned Judge heard fresh evidence from the applicant lead by her then Counsel, and the Court also heard from another witness, a Mr Singh, and it also had the details of the evidence given by the applicant and others at the Review Hearing. 30.99 (pg) 2 [4] In his decision the Learned Judge considered all the evidence, both oral and written, which written evidence included two agreed bundles of documents, and he determined, after considering all that evidence that the applicant's testimony was both confusing and inconsistent and he found her not credible. The Judge went on to state that he was not satisfied that the applicant was self-employed at any time during the twelve months prior to the date of her incapacity. [5] In the course of his Judgment the Learned Judge traversed the considerable evidence in great detail and I find that the decision made by the Judge was a decision entirely on the facts, based on the evidence which he heard. I find that the decision so made was one where no issues of law were in contention. The statutory definition of earner was duly noted by His Honour, but that did not call for any ruling of law by way of statutory interpretation. [6] Section 162 of the Act allows for a party to an appeal who is dissatisfied with the decision of the District Court as being wrong in law to appeal, with leave to the High Court. The jurisprudence in this field makes it clear that the point of law sought to be appealed must be one capable of a bona fide and serious argument. The position is also that issues of fact cannot be dressed up as questions of law. [7] I find that the extensive submissions subsequently made on the applicant's behalf are all addressing questions of fact, which His Honour has already made findings on. [8] No question of law arises in the decision of Judge Barber and accordingly leave to appeal to the High Court is refused. DATED at AUCKLAND this 20 ' of July 2007 M J Beattie District Court Judge