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JOHN LESLIE SPENCER V THE DISTRICT COURT AT WELLINGTON AND ANOR HC WN CIV 2006-485-1601 [2007] NZHC 1011 (5 October 2007)

IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
                                                                CIV 2006-485-1601

                UNDER                    the Judicature Amendment Act 1972 and
                                         Rule 626
of the High Court Rules


                BETWEEN                  JOHN LESLIE SPENCER
                                         Plaintiff

                AND                      THE DISTRICT COURT AT
                                         WELLINGTON
            
                            First Defendant

                AND                      ACCIDENT COMPENSATION
                    
                    CORPORATION
                                         Second Defendant


Hearing:        5 September 2007

Appearances:
P McKenzie QC for the Plaintiff
             First Defendant Abides
             A Barnett for the Second Defendant

Judgment:  
    5 October 2007


                      JUDGMENT OF SIMON FRANCE J



[1]    On 10 July 2002 the second defendant, through its
agent, suspended
Mr Spencer's entitlements to compensation. Mr Spencer sought a review of the
decision.     The review was declined
on 22 November 2002.         Mr Spencer then
appealed to the District Court. A reserved decision dated 22 April 2004 dismissed
the
appeal.


[2]    In May 2004 Mr Spencer sought leave from the District Court to appeal the
District Court decision. The application
for leave was filed out of time by around a
week. The application was declined on the basis that there was no power to extend
the
time for filing an application for leave to appeal. Mr Spencer sought special
leave from the High Court, but abandoned it before
it was heard, presumably in
recognition that the special leave power could not cure the defect in the application
JOHN LESLIE SPENCER
V THE DISTRICT COURT AT WELLINGTON AND ANOR HC WN CIV 2006-
485-1601 5 October 2007

for leave to appeal.       Instead these judicial
review proceedings were issued,
challenging the 2004 reserved decision of the District Court.


Preliminary issue


[3]    A preliminary
issue which arises is whether it is open to the plaintiff to bring
these review proceedings. The respondent submits the proceedings
are barred by
virtue of s 133(5) of the Injury Prevention Rehabilitation and Compensation Act
2001. Mr Barnett, in his submissions,
first addressed the review on its merits before
relying on the provision. That is understandable in that it is preferable for the
defendant to succeed on the merits. However, I consider it is proper to first address
the issue of whether there is a statutory bar.


[4]    Section 133(5) provides:

       133     Effect of review or appeal on decisions

       (5)      If a person has a claim
under this Act, and has a right of review or
       appeal in relation to that claim, no court, Employment Relations Authority,

      Disputes Tribunal, or other body may consider or grant remedies in relation
       to that matter if it is covered by this
Act, unless this Act otherwise provides.

[5]    The starting point is Ramsay v Wellington District Court  [2001] NZAR 136
(CA). That case considered the predecessor to s 133(5). The Court held that the
presumption of interpretation that limits the scope
of privative clauses did not apply
with full force where the provision is one such as s 133(5) which does not purport to
exclude
the jurisdiction of the High Court, but dictates the form of the review. The
Court observed (at paragraph [33]):

       [33]   
 In the case of s 134(4) the drafter has been careful to confine the
       scope of the statutory exclusion of the courts to matters
where the person has
       a right to invoke the statutory process of review and appeal. Accordingly, if
       the perceived error
or invalidity cannot be fitted within that procedure, then
       the exclusion of other remedies will not apply. This is clear on
the language
       of s 134 and the presumption of interpretation does not arise for
       consideration. It will accordingly be
sufficient, in the present case, for the
       appellant to maintain its judicial review proceeding if he can show that the
   
   grounds on which he relies in seeking judicial review remedies could not be
       determined under the statutory process. But
if they are amenable to decision
       under the statutory scheme, the effect of s 134(4) is that the Court is barred
       from
granting relief in the separate judicial review proceedings.

[6]    Ramsay is binding upon the Court. The issue would therefore
appear to be
whether the challenges brought in these proceedings could have been brought on
appeal. However, it is appropriate to
first address Mr McKenzie's submissions on
why s 133(5) did not operate as a bar.


[7]    Mr McKenzie submits that, narrowly interpreted
in accordance with the
statutory presumption discussed in Ramsay, and in light of s 27 of the New Zealand
Bill of Rights Act 1990,
s 133(5) does not apply to this case. That is because it is
applicable only where the person has a "right of appeal". Mr Spencer
cannot be said
to have a right of appeal because there was no capacity in the Court to extend the
time limit, and consider his application
on its merits. That being so, s 133(5) should
be narrowly construed so as not to apply to a situation where someone is unable to
appeal for a procedural reason ­ eg non compliance with a time limit. In reply
submissions Mr McKenzie summarised his position as
being that an alternative
remedy to appeal is available if, at the time of seeking it, an appeal is not reasonably
available or has
been denied to the applicant for procedural reasons.           It was
submitted that an application of the approach set out by the
Court of Appeal in
Moonen v Film and Literature Board of Review  [2000] 2 NZLR 9, at paragraphs
[17] ­ [20] would lead to an appropriately narrow reading of s 133(5). Mr McKenzie
submitted that the first three
steps of the Moonen test were not affected by
Hansen v R  [2007] 3 NZLR 1. Whilst I doubt that is so, it is not necessary for me to
consider it as I regard Ramsay as plainly dictating the inquiry I am obliged
to make.


[8]    It is necessary to consider the facts of Ramsay. In that case Mr Ramsay had,
like Mr Spencer, appealed to the District
Court. When unsuccessful, he sought leave
from the District Court to appeal to the High Court, just as Mr Spencer did.
However, unlike
Mr Spencer, Mr Ramsay applied in time so the Court had
jurisdiction to consider the application.


[9]    The application was declined,
and Mr Ramsay then sought special leave from
the High Court, which likewise declined leave.         Mr Ramsay then initiated the
judicial review proceedings seeking to challenge the District Court decision
concerning which leave to appeal had been declined.
Against that background the
Court of Appeal identified the true effect of the privative provision.

[10]   The effect of Mr McKenzie's
submission in this case is that Mr Spencer
would be better off than Mr Ramsay by virtue of not having sought leave to appeal in
a
timely way. Because Mr Spencer's application was thereby procedurally time-
barred, s 133(5) is said to have no application, whereas
it applied to Mr Ramsay
because he complied with the statute and applied within time.


[11]   That cannot be a correct outcome,
and there is nothing in Ramsay that would
support the proposition. There is no suggestion that one who failed to seek leave
could
thereby avoid the limitations contained in s 133(5). It was not expressly
submitted to me that Ramsay was wrong, but that in reality
is the argument the
plaintiff must make (in another forum). In this Court it is necessary to consider
whether the challenges brought
by the plaintiff could have been brought under the
appeal provisions of the Act. If they could, s 133(5) prevents the same challenges
being brought by way of judicial review.


What are the challenges?


[12]   The essence of Mr Spencer's case is that the District
Court has wrongly used,
or not used, the evidence before it. As often happens in these cases, there are several
specialist assessments.
The plaintiff's grievance focuses on two of those reports:


       a)      First, it is said that the District Court gave no consideration
or
               apparent weight to a report by Mr Peter Grayson. That report had
               been prepared at Mr Spencer's request
for the purposes of the review
               of ACC's initial decision to suspend his entitlements;


       b)      Second, the
District Court wrongly used the evidence of a second
               specialist, Mr Peter Welsh. Mr Welsh had provided an initial
report
               which generally was not favourable to the plaintiff's case. However,
               subsequent to Mr Grayson's
favourable report, Mr Welsh was asked
               to look again at the issue. It is the plaintiff's case that Mr Welsh's
    
          second report, where he acknowledges a modification of an aspect of
               his views as a result of Mr Grayson's
report, is particularly helpful to

               the plaintiff. However, the District Court referred only to Mr Welsh's
     
         initial report.


[13]   Against that background, the judicial review proceedings are advanced under
several headings.


[14]   The first challenge is error of law; it is said that the District Court applied an
incorrect legal test as to what link there
must be between the original injury suffered
by Mr Spencer and his on-going condition. The plaintiff did not seek to argue that
this
ground of review could not have been advanced on appeal.


[15]   The second challenge is failing to take account of relevant considerations,
namely the relevant available medical evidence.                 The third challenge is
unreasonableness, on the basis that no tribunal
properly directing itself to the
evidence, could have reached the outcome. The fourth challenge is substantive
unfairness, it being
argued the outcome is not substantively forgiven the evidence.


[16]   In Ramsay the Court observed (at paragraph [35]):

       "While the
ground might be categorised as irrationality, it is in essence that
       the facts found were such that no body citing judicially
and correctly
       understanding the law could have reached the determination under appeal. If
       that were established there
would be an error of law of the type identified by
       Lord Radcliffe in Edwards v Bairstow [1955] UKHL 3;  [1956] AC 14, 36 requiring
       intervention of the Court. The question is however one which could readily
       be raised by application to
the High Court for leave to appeal on a question
       of law under s 165. That is sufficient for s 134(4) to preclude the appellant
       from seeking judicial review remedies."

[17]   Mr Barnett referred me to a helpful encapsulation of what is a question of
law
given by Doogue J in Impact Manufacturing Limited v ARCIC AP 266/00,
Wellington, 6 July 2001 (at paragraphs [5] ­ [9]):

   
   What is point of law?

       [5]     Whether or not a statutory provision has been properly construed or
       interpreted and
applied to the facts is a question of law: Commissioner of
       Inland Revenue v Walker  [1963] NZLR 339, 353-354 (CA); Edwards v
       Bairstow [1955] 3 A11 ER 48, 57; P & O Services (NZ) Ltd v ARCIC.

       [6]    Even where, as
in this case, an appeal is limited to questions of law,
       a mixed question of law and fact is assailable as a matter of law:
CIR v
       Walker, 354; P & O Services (NZ) Ltd v ARCIC, 6.

       [7]     It is well settled that a decision-maker's treatment
of facts can
       amount to an error of law. There will be an error of law where there is no
       evidence to support the decision,
the evidence is inconsistent with, and
       contradictory of the decision, or the true and only reasonable conclusion on
     
 the evidence contradicts the decision: Edwards v Bairstow, 57.

       [8]    The Court of Appeal in Lang v Eagle Airways Ltd  [1996] 1 ERNZ
       574, 576, cited Edwards v Bairstow in support of the following statement:

               If those conclusions were not reasonably open
to the Judge then this
               Court can rule, as a matter of law, that they are unsustainable and
               should be
set aside ...

       [9]     Whether or not particular evidence is relevant to a particular issue is
       a question of law: Ogilvy
& Mather (New Zealand) Ltd v Turner  [1996] 1
       NZLR 641, 651-652.

[18]   In Ellwood v ACC CIV 2005-485-536 Wellington, 18 December 2006,
Mallon J referred to several question of law cases
in the ACC area. The context in
all those cases was the issue of causation; the point for present purposes is that these
decisions
had, on appeal, reviewed the issue of whether the causal nexus between
accident and on-going injury (the point in dispute in Mr Spencer's
situation) was
established on the evidence. As Mr Barnett submitted, those cases leave no doubt
that Mr Spencer's challenge could
have been brought via the appeal options.


[19]   In my view the present case is indistinguishable from Ramsay.                
All the
challenges have the same focus, namely that the decision of the District Court is
sufficiently out of tune with the evidence
before it that it can be brought within the
concept of unreasonableness or irrationality. Ramsay makes plain that such an
argument
can be advanced under the appeal provisions of the Act. The extract from
Impact Manufacturing and the cases discussed in Ellwood,
reinforce the breadth
given to the appeal provision.


[20]   The challenges that the plaintiff wishes to make against the decision
of the
District Court could all have been accommodated under the appeal provisions. They
are all based squarely on the record and
do not need extrinsic evidence as might be
required in relation to wider process challenges, or as Mr Barnett suggested a

challenge
to say the independence of the ACC reviewer. Section 133(5) is a bar to
the proceedings.


The merits?


[21]      I am reluctant
to engage in an analysis of the substance of the challenges
because I consider the case quite clearly falls within Ramsay and the
review
proceedings cannot continue.        In such circumstances to analyse the substantive
claims is to, in effect, ignore the bar.


[22]      However, I heard detailed and skilled arguments on the merits. For the sake
of the plaintiff I consider it appropriate
to indicate in the broadest terms my
conclusions on the merits, whilst recognising this aspect of the judgment lacks the
degree of
analysis that would be appropriate if I were formally giving a ruling on this
aspect.


[23]      The general context is that Mr
Spencer was a printer, a job that involved
considerable heavy lifting. It is accepted that on a particular day in September 1985
he suffered a strain injury to his back. The evidence also establishes that the injury
triggered dormant pre-existing conditions
in his back ­ spondylolisis and
spondylolisthesis. The factual question in issue was whether the original injury
remained a cause
of Mr Spencer's significant present day incapacity.


[24]      In general terms I must acknowledge that I did not read the medical
reports in
the way the plaintiff urged, but rather saw the conclusion the reports supported as
being exactly that which the District
Court reached. In particular Mr Welsh's second
report does not move away from his essential thesis, namely that whilst the accident
triggered the onset of a dormant disease, Mr Spencer's condition nearly 20 years on
is now explicable not by the injury but only
by the disease.


[25]      The District Court Judge held that an initial "but for" link was not sufficient;
the present condition
had to be able to be linked to some extent to the original
accident. Mr Grayson's report goes no further than affirming the "but
for" link. It
does not provide support for the idea that the injury is presently a contributing factor,

other than in the original
"but for" sense.        Accordingly, the District Court's
conclusion seemed the correct one on the evidence.


[26]    Paragraph
29 of the District Court's decision identifies the issue as being
whether there is any on-going injury caused by the accident or
whether the problems
are now sourced only in the degenerative condition. That seems to be exactly the
test Mr McKenzie urges as being
the correct one. The Court concludes the present
conditions are not attributable to any injury, and that is a conclusion that is not only
available on the evidence but in my view is the consistent
theme of the evidence.


Conclusion


[27]    The judicial review application is declined on the basis that it is barred by
s 133(5)
of the Injury Prevention Rehabilitation and Compensation Act 2001.




_________________________
Simon France J


Solicitors:
P R
Richardson, Upper Hutt Law, Upper Hutt
M Mercier, Solicitor, ACC, Wellington