Appellant. ACCLAIM OTAGO INC Applicant Intervener. P G Schmidt for Appellant C J Hlavac for Respondent W A Forster for Applicant Intervener

Transcription

1 IN THE COURT OF APPEAL OF NEW ZEALAND CA395/2014 [2014] NZCA 552 BETWEEN DIANE HAWKE Appellant ACCIDENT COMPENSATION CORPORATION Respondent AND ACCLAIM OTAGO INC Applicant Intervener Hearing: 3 November 2014 Court: Counsel: Judgment: Wild, White and Cooper JJ P G Schmidt for Appellant C J Hlavac for Respondent W A Forster for Applicant Intervener 14 November 2014 at 3.15 pm JUDGMENT OF THE COURT A The application by Acclaim Otago Incorporated for leave to intervene is declined. B There will be no order as to costs. Introduction REASONS OF THE COURT (Given by White J) [1] Acclaim Otago Inc has applied for leave to intervene in this appeal under s 48(1)(a)(ii) of the Court of Appeal (Civil) Rules HAWKE V ACCIDENT COMPENSATION CORPORATION CA395/2014 [2014] NZCA 552 [14 November 2014]

2 [2] The application is supported by the appellant, Mrs Hawke, but opposed by the respondent, the Accident Compensation Corporation (the ACC). Background [3] Mrs Hawke has been granted leave to appeal to this Court by the High Court on the following question of law: 1 When ACC issues a decision under Section 53 of the Accident Compensation Act 2001, declining a claim for an entitlement under the Accident Compensation Act 1982 on the basis that the claim is lodged late and the lateness prejudices ACC in its ability to make a decision, which appellate body has jurisdiction to hear the dispute about that decision: the District Court or the Accident Compensation Appeal Authority. [4] The question of law arises because the High Court decided that it was the District Court not the Appeal Authority which had jurisdiction to hear Mrs Hawke s appeal. 2 [5] Mrs Hawke s appeal relates to a decision of the ACC in 2005 declining to pay backdated earnings related compensation for the period 1978 to 30 June The ACC declined Mrs Hawke s claim on the ground of lateness prejudicing its ability to make a decision. [6] In the High Court Woolford J decided that the ACC s decision was a procedural decision under the Accident Compensation Act 2001, namely whether or not the Corporation will provide any entitlements to the claimant. 3 The Judge then held that the District Court had jurisdiction to hear the appeal not the Appeal Authority. Grounds of application [7] Acclaim Otago, a non-profit incorporated society formed as a support group for people with disabilities covered by ACC, seeks to intervene on the grounds that: Hawke v Accident Compensation Corporation HC Auckland CIV , 15 July 2014 (minute of Woolford J). Accident Compensation Corporation v Hawke [2014] NZHC At [57].

3 (a) The appeal raises issues of general principle and wide importance to the 320,000 people with long term disability caused by accident or injury in New Zealand; (b) Acclaim Otago has specific knowledge and interest in cases of this type and is able to assist the Court by making submissions; (c) The appeal raises novel questions of law regarding the role of the Convention on the Rights of Persons with Disabilities art 13 right to access to justice; (d) The appeal involves the Court s special jurisdiction under the Accident Compensation Act 2001; (e) The outcome of the dispute will have an effect on the members of Acclaim Otago; and (f) The interests of Acclaim Otago and its members are different from the interests of Mrs Hawke and the ACC, and it is in the public interest that the Court have regard to the wider implications of this dispute. ACC opposition [8] The ACC opposes the application on the grounds that: (a) The appeal concerns an issue of statutory interpretation, not one involving general public policy. (b) The issue does not affect the question of access to justice for ACC claimants, nor is it likely to result in undue litigation. (c) Acclaim Otago does not have special expertise in respect of the issue of statutory interpretation.

4 Relevant principles [9] As was common ground in the submissions for the parties, the principles which the Court applies when considering whether to grant leave for intervention are well-established: (a) the power is broad in nature, but should be exercised with restraint to avoid the risk of expanding issues, elongation of hearings and increasing the costs of litigation; 4 (b) in an appeal involving issues of general and wide importance, the Court may grant leave when satisfied that it would be assisted by submissions from the intervener; 5 (c) the power may be exercised more liberally in appeals involving the Court s special jurisdiction under legislation such as the Employment Relations Act and the Rating Powers Act 1988; 7 but (d) leave will not be granted when the appeal is essentially one of statutory interpretation and is unlikely to involve broad questions of policy. 8 Decision [10] Applying these principles, we are satisfied for the following reasons that the application by Acclaim Otago for leave to intervene in this appeal should not be granted. [11] First, the question of law for this Court on appeal is a relatively narrow one of statutory interpretation focussing on the relevant transitional provisions in the ACC legislation and the correct meaning of the expression decision in the context Drew v Attorney-General [2001] 2 NZLR 428 (CA) at [11]. Wellington City Council v Woolworths New Zealand Ltd [1996] 2 NZLR 436 (CA); Drew v Attorney-General, above n 4, at [17]; and Chamberlains v Lai [2005] NZSC 32 at [5]. New Zealand Fire Service Commission v Ivamy (1995) 8 PRNZ 632 (CA) at 633 (in relation to the then Employment Contracts Act 1991). Wellington City Council v Woolworths New Zealand Ltd, above n 5. D v C [Intervention] (2001) 15 PRNZ 474 (CA).

5 of that legislation. The question will involve the application of well-established principles of statutory interpretation. 9 [12] Second, unlike the decision in C v ACC relied on by Mr Forster for Acclaim Otago, 10 Mrs Hawke s case does not involve any wider principle of general or public importance. To the extent that Acclaim Otago identified wider implications from the issues, they are matters for Parliament rather than the Court as they are not directly relevant to the specific issue of statutory interpretation raised in Mrs Hawke s case. [13] Third, all the arguments relevant to the question of statutory interpretation will be able to be addressed fully by counsel for the parties. As Mr Schmidt, counsel for Mrs Hawke demonstrated and acknowledged before us, he would be well able to present all the submissions which Acclaim Otago wish to raise, including in particular any relevant submissions based on the United Nations Convention on the Rights of Persons with Disabilities which Mr Forster emphasised in his oral submissions. 11 Whether there are any relevant submissions based on the United Convention will be for this Court to determine in the substantive appeal based on relevant principles of statutory interpretation. 12 [14] Fourth, this is not a case where in our view the Court would be assisted by submissions from Acclaim Otago. While we do not doubt that Acclaim Otago, with its privileged status under the United Nations Convention, genuinely believes that it would be able to assist the Court with submissions on the wider matters which Mr Forster has identified, we do not consider that such assistance is warranted in a case involving a narrow issue of statutory interpretation of this nature Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22]; Fonterra Co-Operative Group Ltd v The Grate Kiwi Cheese Company Ltd [2012] NZSC 15, [2012] 2 NZLR 184; and JF Burrows and RI Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009) at 201. C v Accident Compensation Corporation [2013] NZCA 34. United Nations Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature 30 March 2007, entered into force 3 May 2008) and see Disability (United Nations Convention on the Rights of Persons with Disabilities) Act New Zealand Air Line Pilots Assoc Inc v Attorney-General [1997] 3 NZLR 269 (CA) at 289; United States of America v Dotcom [2013] NZCA 38, [2013] 2 NZLR 139 at [19] aff d Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355; Attorney-General v Dotcom [Search Warrants] [2014] NZCA 19, [2014] 2 NZLR 629 (leave to appeal granted on other grounds: Dotcom v Attorney-General [2014] NZSC 52); Teddy v New Zealand Police [2014] NZCA 422 at [33]; and Burrows and Carter, above n 9, at

6 Result [15] Accordingly, the application for leave to appeal by Acclaim Otago is declined. [16] As the ACC has not sought an order, there will be no order as to costs. Solicitors: Schmidt & Peart Law Auckland for Appellant Young Hunter, Christchurch, for Respondent