Accident Compensation Corporation v Anderson & O'Leary Limited

[2022] NZHC 2517

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2022

[2022] NZHC 2517

UNDER

the Accident Compensation Act 2001

IN THE MATTER

of an application for leave to appeal to the Court of Appeal from a decision of the High Court under s 163 of the Act

BETWEEN

ACCIDENT COMPENSATION CORPORATION

Appellant

AND

ANDERSON & O’LEARY LIMITED

Respondent

…./2

Hearing:

On the papers

Appearances:

D Laurenson QC and C Hlavac for Appellant V Sullivan for Anderson & O’Leary Ltd

G D Pearson / A Isherwood for Southern Lakes Building Ltd and Building Connexion Ltd

Judgment:

3 October 2022

JUDGMENT OF LANG J

This judgment was delivered by me on 3 October 2022 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

ACC v ANDERSON & O’LEARY LIMITED [2022] NZHC 2517 [3 October 2022]

CIV-2021-404-2023

UNDER  the Accident Compensation Act 2001

IN THE MATTER              of an application for leave to appeal to the

Court of Appeal from a decision of the High Court under s 163 of the Act.

BETWEENACCIDENT                COMPENSATION CORPORATION

AND  BUILDING CONNEXION LIMITED

Respondent

CIV-2021-404-2024

UNDER  the Accident Compensation Act 2001

IN THE MATTER              of an application for leave to appeal to the

Court of Appeal from a decision of the High Court under s 163 of the Act.

BETWEENACCIDENT                COMPENSATION CORPORATION

ANDSOUTHERN      LAKES      BUILDING LIMITED

Respondent

Solicitors:

Young Hunter, Christchurch EY Law Ltd, Auckland

Isherwood Le Gros Law Ltd, Nelson Legalfocus Ltd, Nelson

[1]                 On 3 June 2022, I delivered a judgment in which I dismissed appeals by the Accident Compensation Corporation (ACC) against decisions delivered in the District Court.1 The decisions that were the subject of the appeal to this Court were themselves appeals against findings made in a review process instigated by ACC.

[2]ACC seeks leave to appeal to the Court of Appeal against my decision.

The statutory test

[3]                 The principles that apply in the present context are well established. Section 163(1) of the Accident Compensation Act 2001 (the Act) allows leave to appeal to be granted only on a point of law. The test for granting leave is whether the proposed question is serious and arguable. The proposed question must also raise an issue of sufficient importance to outweigh the cost and delay of a further appeal.2

Decision

[4]                 I do not propose to outline the arguments advanced by ACC and the respondents. This is because I consider it is appropriate to grant leave on the basis that the judgment highlights an important issue of principle that is likely to be applied in a wide variety of circumstances.

[5]                 At the heart of my decision was my conclusion that s 170(2) of the Act will only be engaged where an enterprise operates two separately identifiable businesses.3 I accept that a serious and arguable argument can be raised to the contrary. I therefore grant leave to appeal to the Court of Appeal on the following question:

Was the High Court correct to conclude that s 170(2) of the Act will only be engaged where an employer operates two or more separately identifiable businesses, each of which must be a separate and distinct activity?

1      ACC v Southern Lakes Building Ltd [2022] NZHC 1288.

2      Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].

3      Accident Compensation Corporation v Southern Lakes Building Ltd, above n 1 at [25].

[6]                 If any party considers it necessary for additional questions of law to be argued on the appeals they may raise those with the Court of Appeal.

Lang J