Vehicle Testing New Zealand v Accident Compensation Corporation

[2016] NZHC 734

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001626 [2016] NZHC 734

UNDER

the Accident Compensation Act 2001

IN THE MATTER OF

an appeal against the decision of the District Court, pursuant to section 162 of the Accident Compensation Act 2001 ("the Act"

BETWEEN

VEHICLE TESTING NEW ZEALAND Appellant

AND

ACCIDENT COMPENSATION CORPORATION

Respondent

Hearing:	[On the Papers]
Counsel:	A D Sharp for the Appellant P J Radich QC and G M Richards for the Respondent
Judgment:	20 April 2016

JUDGMENT OF EDWARDS J [re Leave Application]

This judgment was delivered by Justice Edwards on 20 April 2016 at 11.30 am, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

VEHICLE TESTING NZ v ACCIDENT COMPENSATION CORPORATION [2016] NZHC 734 [20 April

2016]

Introduction

[1]      By decision dated 9 February 2016, I dismissed an appeal on a question of law from a decision of the District Court.1     The applicant seeks leave to appeal pursuant to s 163 of the Accident Compensation Act 2001 (Act).  The application is not opposed by the respondent.

Application for special leave

[2]      The  principles  applicable  to  an  application  for  leave  under  s  67  of  the

Judicature Act 1908 apply equally to an application under s 163 of the Act.2

[3]      Those principles require an appeal to raise a question of law or fact capable of bona fide and serious argument in a case involving some interest,  public or private, of sufficient importance to outweigh the cost and delay of a further appeal. Other relevant considerations include the desirability of finality of litigation and the overall interests of justice.3   The primary focus is on whether the question of law is

worthy of consideration.4

[4]      The applicant seeks leave on the following question of law:

If under Section 236 of the Accident Compensation Act 2001 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 the Experience Rating Assessment is a work-related personal injury which is suffered in the experience period?

Judgment

[5]      My judgment followed the grant of leave to appeal from the District Court on two questions of law.  The first question of law was framed in the same terms as that

upon which the applicant now seeks leave to appeal from this Court.

1      Vehicle Testing New Zealand v Accident Compensation Corporation [2016] NZHC 117.

2      Knight v Accident Compensation Corporation HC Christchurch CIV-2005-485-1582, 6 April

2006 at [18]; and Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].

3      Knight v Accident Compensation Corporation, above n 2, at [18].

4      Cullen  v  Accident  Compensation  Corporation, above n 2, at [5]; and Khan  v  Accident

Compensation Corporation HC Auckland CIV-2007-485-1632 at [5].

[6]      I found that an employer was not entitled to challenge whether a qualifying claim is a work-related personal injury in a review brought pursuant to s 236 of the Act.  I did so on the basis that the plain meaning of s 236(1) is that review is only available for a decision “in respect of any levy”.   I considered that the challenges made by VTNZ in the s 236 review were not challenges to a “decision in respect of any levy”, but were challenges directed to the decision of the Corporation to accept a claim as one of work-related personal injury.  That challenge fell outside the scope of

review under s 236.5

[7]      I further found that VTNZ’s challenges were not directed at the definition of “qualifying claim” under the Act.  That definition refers to a claim made under s 48 for work-related personal injury accepted by the Corporation.  I found that a review right under s 236(1) might exist if a claim which had not been made under s 48 or which  had  not  been  accepted  by the  Corporation  was  used  in  the  calculations. However, I considered VTNZ’s challenge was not aimed at the definition of qualifying claim under the Act, but was rather directed at the original basis upon which  the  Corporation  had  accepted  the  claim  as  one  of  work-related  personal

injury.6

[8]      I considered a more narrow interpretation of s 236 was consistent with the review rights provided for in s 134 and the timeframes within which those rights had to be exercised as provided for in s 135 of the Act.  A wider right of review would undermine the efficacy and purpose of those statutory timeframes in my view.7

[9]      The  approach  I  took  was  different  to  that  established  in  a  line  of District Court authority under earlier legislation.  I did not accept the argument that Parliament must have intended s 236 to be interpreted consistently with that line of authority because there was no express provision in the legislation curtailing those

rights of review.8

5 At [36].

6 At [37].

7 At [40].

8      At [42]–[43].

Leave

[10]     This is the first decision of the High Court to consider the scope of a review under s 236 of the Act.

[11]     All employers who pay levies under the Act will be affected by the scope of any review in respect of such a levy brought pursuant to s 236.  In that respect, there is a public interest in the decision that goes beyond the particular circumstances of this case.

[12]     I also accept that given the decision departed from a line of authority in the District Court, the matter raises a question of law capable of both bona fide and serious argument.  It is a question of law which is worthy of consideration.

[13]     For these reasons, I accept that the circumstances of this case warrant the grant of leave to appeal.

Result

[14]     I therefore grant leave to appeal on the following question of law:

If under Section 236 of the Accident Compensation Act 2001 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 the Experience Rating Assessment is a work-related personal injury which is suffered in the experience period?

Edwards J