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Thomas v Accident Compensation Corporation [2008] NZACC 241 (23 September 2008)

IN THE DISTRICT COURT WELLINGTON REGISTRY

IN THE MATTER of an application for leave to

appeal to the High Court pursuant to Section 162 of the Act

BETWEEN ALAN THOMAS

Appellant

AND ACCIDENT COMPENSATION

CORPORATION

Respondent

BY CONSENT HEARD ON THE PAPERS

DATE OF THIS RULING 2J September 2008

APPEARANCES

The appellant on his own behalf Mr D Tui, Counsel for ACC

DECISION OF JUDGE P F BARBER ON APPLICATION
FOR LEAVE TO APPEAL TO THE HIGH COURT

The Issue

[1] The appellant seeks leave to appeal to the High Court from Decision No. 219/2007 issued by Beattie DCJ on 10 September 2007. ACC opposes the application on the basis that the application is out of time and the appellant fails to raise an arguable question of law.

DISTRICT COURT DECISION (per Judge Beattie)

[2] The issue before the District Court was a 17 November 2005 decision by ACC determining that the appellant was not entitled to compensation under section 60 of the Accident Compensation Act 1982 ("the 1982 Act") as such compensation was prohibited by virtue of section 368(4) of the Injury Prevention, Rehabilitation, & Compensation Act 2001 ("the 2001 Act").

• [3] Pursuant to section 368(4), compensation is not payable under section 60 (dealing with assessment of % of permanent incapacity) of the 1982 Act unless a permanent incapacity assessment under section 60 was completed before 1 October 1992 or, alternatively, after 1 October 1992 where the assessment is undertaken as a result of an application for review lodged before 1 October 1992.
• [4] Judge Beattie noted that section 368 had been considered by the High Court in White v ACC CIV 2005-409-629 (Christchurch Registry per Randerson J) and held at page 4:

"[11] The circumstances of this appellant mirror those of the appellant White in that no assessment had been made in respect of his permanent incapacity prior to 1 October 1992, nor was there any decision made before 1 October 1992 in respect of an assessment which was the subject of review or appeal.

[12] In his submissions, the appellant relied on the decision of King v ACC [1994] NZAR 159. Justice Randerson distinguished King on the facts, as do I for the same reasons he gave. In the King decision, Justice Barker determined, on the facts, that prior to the relevant cut off date the Corporation had effectively decided to make a nil award under section 60. That situation does not pertain in the case of this appellant.
[13] Accordingly, I find the respondent was correct to decline the appellant's application for section 60 assessment as it did, and the review decision determining the correctness of that decision is upheld."

My Reasons for Ruling

[5] The appellant is entitled to seek leave to appeal to the High Court, pursuant to section 162 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 ("the 2001 Act"), on questions of law. It is settled law that the contended point of law must be capable of bona fide and serious argument to qualify for the grant of such leave to appeal. Care must be taken to avoid allowing issues of fact to be dressed up as questions of law as appeals on the former are proscribed. However, a mixed question of law and fact is a matter of law and a Judge's treatment of facts can amount to an error of law.
[6] Even if the qualifying criteria are made out, this Court has an extensive discretion in the grant or refusal of leave so as to ensure proper use of scarce judicial resources; and leave to appeal is not to be granted as a matter of course.

Late application for Leave

[7] Pursuant to section 162(2) of the 2001 Act, the application for leave must be filed within 21 days of the date of the decision; such period running from the date the District Court Decision is issued — refer to Thomas 283/05, Siola'a 211/03 and Khan 175/07.

[8] Failure to file an application within time is fatal. The result is that a late

application is a nullity — refer to High Court decisions of Reden-Oldfield v ACC (Whangarei Registry, Lang J, CIV 2005-485-185, 8 December 2005) and Zhang v ACC & Anor (Auckland Registry, Yenning J, CIV 2005-404-7101).

[9] In the present matter, the decision was issued by the District Court on 10 September 2007. According to the Registry, the decision was sent to the appellant on 10 September 2007 and the application for leave was received by the Registry on 8 October 2007. The 21 days within which the appellant was required to file his application for leave expired on 1 October 2007. The application was therefore filed 7 days out of time.
[10] For the above reasons, the appellant's late application for leave to appeal is a nullity.

Grounds of appeal

[11] My above findings concerning the appellant's late application for leave dispose of the application. However, for the sake of completeness, I deal with the appellant's grounds of appeal.
[12] The appellant's submissions suggest that he is seeking to re-litigate the same matters which were argued before the District Court. He contends that ACC made a decision under section 60 before 1 October 1992 and further contends that he applied for a review in respect of that decision before 1 October 1992. These arguments have no merit and Judge Beattie rejected them in his decision as I have cited from it above.
[13] In any case, whether or not the respondent made a decision and/or a review application was lodged by or before 1 October 1992 is a matter of fact and not a question of law.
[14] The appellant also relies on King which was distinguished on its facts by Beattie DCJ — refer para 11 of Judge Beattie's decision set out above. Again, this is a matter of fact and not law.
[15] Also, it seems to me that the suggestion by the appellant that he was provided with insufficient time to make his submissions at the appeal hearing is without substance.

[16] For the above reasons, this application for leave to appeal is hereby dismissed.

Judge P F Barber District Court Judge WELLINGTON