IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2018-409-417
[2018] NZHC 2432	

IN THE MATTER OF	an application for special leave to appeal under section 162 of the Accident
Compensation Act 2001	
BETWEEN	ERROL GRAEME CROCKETT
Applicant	
AND	ACCIDENT COMPENSATION CORPORATION
Respondent	

Hearing:	4 September 2018	
Appearances:	Applicant in person
C Light for respondent	
Judgment:	14 September 2018	

RESERVED JUDGMENT OF DOBSON J

Introduction

[1]	This judgment determines an application for special leave to appeal from a District Court decision on appeal from a review decision of the respondent Corporation (the ACC).1

[2]	The original ACC decision dated 14 September 2016 related to the extent of the ACC’s contribution to the cost of hearing aids for the applicant (Mr Crockett). Where, as in this case, the District Court has declined leave to bring a second appeal,

1	Crockett v Accident Compensation Corporation [2018] NZACC 11 and [2018] NZACC 80 (decision declining leave).

CROCKETT v ACCIDENT COMPENSATION CORPORATION [2018] NZHC 2432 [14 September 2018]

the High Court may grant special leave on a question of law.2 The High Court must be satisfied there is a serious question of law 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.3

[3]	Section 162(4) of the Accident Compensation Act 2001 (the Act) requires that such an application for special leave must be brought within 21 days after the District Court refused leave.

[4]	Mr Crockett’s application is opposed by the ACC on two bases. First, the ACC argued it was not brought within 21 days of his being refused leave by the District Court. Secondly, the issue Mr Crockett seeks to argue does not, on the ACC’s view, give rise to a question of law that is capable of bona fide and serious argument.

The factual context

[5]	Mr Crockett was formerly employed as a pilot, with his relevant work duties including flying Harvards and Turboprop aircraft, the noise of which contributed to impairment of his hearing. On the substance of his claims, Mr Crockett criticises the opinions of the medical experts retained by the ACC to assess the causes of his hearing impairment. He relies on certain international research, the published reports of which arguably support his claim that his work environment was the predominant cause of his hearing impairment. However, those differences of view about the causes that contributed to his disability are not directly relevant for present purposes.

[6]	Mr Crockett now uses hearing aids. His audiologist applied to the ACC for assistance in funding the hearing aids and the application was processed pursuant to the Accident Compensation (Apportioning Entitlements for Hearing Loss) Regulations 2010 (the Regulations). Where hearing loss is covered by ACC, a schedule to the Regulations specifies three percentage levels of total hearing loss and the maximum contribution that ACC will pay for hearing aids in relation to each level:

2	Accident Compensation Act 2001, s 162.
3	Cullen v Accident Compensation Corporation [2014] NZCA 94 at [5].

60-100 per cent	$1,527	
30-59.9 per cent	$ 916	
0-29.9 per cent	$ 458	

[7]	In Mr Crockett’s case, the relevant contributing causes, as assessed for ACC, placed him in the lowest of these bands. In addition to disputing the medical opinions as to other contributing causes of his hearing loss, Mr Crockett challenged the limited contribution on the grounds  that  the  Regulations  were  inconsistent  with  the  New Zealand Bill of Rights Act 1990 (NZBORA) and also inconsistent with the obligations assumed by New Zealand on acceding to the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD).4 Mr Crockett argued that the Regulations were ultra vires and invalid.

[8]	ACC rejected Mr Crockett’s challenge and he pursued an appeal that was heard in the District Court at Christchurch on 29 November 2017. The reserved judgment of Judge Powell was delivered on 31 January 2018.5 The Judge held that the District Court did not have jurisdiction to declare statutory regulations invalid. His Honour pointed out that the limits on various forms of cover provided under the ACC scheme are “appropriately debated both in the New Zealand legislature and in the  wider New Zealand community given the importance of the Accident Compensation system to New Zealand society generally”.6

Was the application for leave filed out of time?

[9]	On 23 May 2018, Judge Harrison declined leave for Mr Crockett to pursue an appeal to the High Court from Judge’s Powell’s decision. Mr Crockett’s application for special leave was filed in the High Court on 21 June 2018, just within 20 working days but inarguably outside the 21 days following 23 May 2018.

[10]	Mr Crockett was explicit in submitting that he did not seek an extension of time for filing his application. Rather, he urged an interpretation of s 162(4) of the Act that stipulated that the application must be brought “within 21 working days after the

4	Convention on the  Rights of Persons with Disabilities 2515 UNTS 3 (opened for  signature     30 March 2007, entered into force 3 May 2008).
5	Crockett v Accident Compensation Corporation [2018] NZACC 11.
6	At [6].

District Court refused leave”. I took Mr Crockett’s reason for this contention to be that other time limits for the taking of steps in court proceedings were measured by the concept of working days and that approach ought to be applied consistently.

[11]	Mr Crockett submitted that interpretation was open to me, and that there was no reason not to disagree with other High Court judgments that have interpreted the time limit literally.

[12]	Mr Crockett submitted that failure to entertain his appeal would be in breach of his right to justice under s 27 of NZBORA, and the provisions of s 6 of NZBORA required the Court to adopt the meaning of the time limit that was consistent with his right to justice.

[13]	Mr Crockett’s reliance on both those sections in NZBORA is misconceived. Section 27 affirms the right to have proceedings, which a court or tribunal has jurisdiction to deal with, to be conducted in accordance with the principles of natural justice. There is nothing in s 27 that requires the Court to expand what is otherwise the natural meaning of a time limit as imposed by the legislature. Because of that, I see no justification for giving the words “within 21 days” the more confined meaning of “within 21 working days” and the latter is not a meaning that could be given to that provision in the Act.

[14]	In the context of another unqualified time stipulation in the Human Rights Act 1993, in Attorney-General v Howard the Court of Appeal has observed that the courts cannot extend time unless the statute expressly provides that discretion.7 In commenting on the statutory time frame expressed in the same terms in the Human Rights Act, Glazebrook J acknowledged that the statute meant what it said:8
As the timeframes for filing and service are set out in the [Human Rights Act], they are mandatory. They cannot be extended by the courts as there is nothing in the [Human Rights Act] authorising such an extension. …

7	Attorney-General v Howard [2010] NZCA 58, [2011] 1 NZLR 58.
8	At [100].

[15]	Unsurprisingly, the High Court has adopted that same approach in numerous cases about the time limit in s 162(4) of the Act.9 Those decisions reflect a uniform recognition that the statute in contexts such as this must be taken to mean what it says. Those challenging ACC decisions will have had a first appeal to the District Court, and there is a legitimate interest in imposing some limit on the resources committed to revisiting such decisions. A clear time constraint is a legitimate means of doing so.

[16]	I respectfully agree with the observations of Ellis J in Armstrong v Accident Compensation Corporation:10

[18]	In particular it seems to me that the absence of any right to appeal, the fact that the applicant will already have been afforded one appeal and the relatively high threshold for obtaining special leave all point in favour of a provision such as s 162(4) being interpreted in a way that does not permit waiver of the time limit.

[19]	Secondly, it is significant that the Act in which s 162 appears contains other provisions which expressly contemplate or permit the waiving of specified time limits. …

[17]	This is not a context in which there is any justification for Mr Crockett’s approach in reading in a qualification to the clear time limit stipulated by Parliament. He did not identify any analogies where the time was limited to working days, where that qualification is not explicit.

[18]	Mr Crockett was philosophical about the prospects of his success in persuading me to adopt his interpretation of the time limit for seeking special leave, as he was on the prospects of persuading me on the question of law he had identified about the Regulations being ultra vires. Mr Crockett characterised a loss on these arguments before me as still being a success because it would mean that he has exhausted all his domestic avenues for pursuing relief on his complaints against ACC, which is a pre- condition to his pursuing a complaint about his treatment before the appropriate United Nations Committee.

9	Zhang v Accident Compensation Corporation HC Auckland CIV-2005-404-7101, 27 October 2006; Wyman v Accident Compensation Corporation HC Wellington CIV-2007-485-451, 23 May 2007; Armstrong v Accident Compensation Corporation (2011) 20 PRNZ 834 (HC); Aalderink v Accident Compensation Corporation [2013] NZAR 1003 (HC); Jones v Accident Compensation Corporation [2016] NZHC 973; and M v Accident Compensation Corporation [2018] NZHC 1919.
10	Armstrong v Accident Compensation Corporation, above n 9.

[19]	Against the remote contingency that I and all the other judges who have interpreted the reference to 21 days in s 162(4) in the same way are subsequently held to be wrong, and respecting the apparent conviction with which Mr Crockett courteously advanced the legal arguments he would seek to make in challenging the Regulations, I summarise his propositions and the reasons why I would find that they do not raise a serious question of law capable of bona fide and serious argument.

Grounds for claiming the Regulations are ultra vires

[20]	Mr Crockett treats the Court of Appeal’s decision in Drew v Attorney-General as authority for the jurisdiction of the High Court to strike down statutory regulations on the ground of inconsistency with NZBORA.11 In that litigation Mr Drew, who was a serving prisoner, complained of deficiencies in the process adopted by a visiting justice in dealing with an appeal from internal disciplinary measures ordered against Mr Drew for misconduct in prison. Mr Drew had been convicted and penalties imposed on complaints that raised relatively complex evidentiary and legal issues.

[21]	Proceedings before the visiting justice were governed by reg 144 of the Penal Institutions Regulations 1999, which precluded legal representation of an inmate at an appeal hearing before the visiting justice. However, Mr Drew complained that refusing him legal assistance was in breach of natural justice obligations owed to him.

[22]	The Court of Appeal found that a regulation in those terms was inconsistent with the provisions in the Penal Institutions Act 1954, which implicitly contemplated a procedure that allowed inmates to be represented by counsel. There was an inconsistency between the Penal Institutions Act, which provided a right of cross- examination that in complex situations many inmates could not avail themselves of without representation, and the content of reg 144, which was promulgated pursuant to the regulation-making power in that Act. It denied an inmate legal representation, irrespective of the seriousness of the charge. That prohibition was inconsistent with a process that included the right of cross-examination. It followed that Parliament could not have intended a regulation which excluded rights to representation in absolute

11	Drew v Attorney-General [2002] 1 NZLR 58 (CA).

terms.12 Regulation 144 was therefore ultra vires the provision empowering the making of regulations and for this reason was found to be invalid.

[23]	In Drew, the Court of Appeal found it unnecessary to refer to the guarantee of the observance of principles of natural justice in s 27 of NZBORA. That section was seen as a guarantee that necessarily affirmed and strengthened Mr Drew’s case on the ultra vires ground.13

[24]	The Regulations at issue in this case stipulate that they are made pursuant to  s 324 of the Act. That creates a regulation-making power in broad terms, materially including:

324	Regulations relating to rehabilitation

(1)	For the purposes of Part 4 and Schedule 1, the Governor-General may, on the recommendation of the Minister, by Order in Council, make regulations—

(a)	prescribing the costs that the Corporation is liable to pay for the entitlement of rehabilitation:

(b)	prescribing the circumstances in which, and the method by which, the Corporation must make any payment for rehabilitation:

(c)	prescribing the circumstances in which, and the method by which, the Corporation may make arrangements, and make contributions, for rehabilitation:

(d)	prescribing the persons to whom those payments may be made.

…

(3)	Without limiting the matters that may be prescribed by regulations, regulations made under subsection (1) may—

(a)	prescribe—

(i)	a percentage, or different percentages, of the total costs to be paid by the Corporation; or

(ii)	a specified amount, or specified amounts, that the Corporation is liable to pay in respect of those costs in specified circumstances:

12	At [66].
13	At [67].

(b)	provide that the Corporation is liable to make payments in respect of costs only to the extent that costs exceed amounts specified in the regulations:

(c)	provide that the Corporation is liable to make payments in respect of rehabilitation only if a person who is a member of a class prescribed in the regulations—

(i)	provides rehabilitation; or

(ii)	refers a claimant to rehabilitation; or

(iii)	directly supervises the provision of rehabilitation:

(d)	provide that the Corporation—

(i)	must not pay any of the cost of specified rehabilitation; or

(ii)	is liable to pay some or all of such costs only if conditions specified in the regulations or by the Corporation are met:

(e)	prescribe—

(i)	an amount that the claimant must or must not pay for rehabilitation that is treatment; or

(ii)	a percentage that the claimant must or must not pay of the total amount payable for treatment.

(4)	Without limiting the matters that may be prescribed by regulations, regulations made under subsection (1) may contain different provisions in respect of—

(a)	payments relating to work-related personal injury and payments relating to other personal injury:

(b)	payments relating to claimants based on—

(i)	the need of a claimant as assessed by the Corporation; or

(ii)	assessments conducted by or on behalf of any other relevant government agency; or

(iii)	both:

(c)	payments to persons not resident in New Zealand at the time of receiving the payments.

…

Mr Crockett’s submissions did not include any analysis of the scope of matters that are permitted in regulations by this section.

[25]	The closest analogy that Mr Crockett could draw to the Court of Appeal’s approach in Drew would be to argue that s 324 of the Act could not be used to limit the extent of entitlements provided where that was done in conflict with the purposes of the Act as expressed in s 3. Those purposes are expressed, in part, as providing for a fair and sustainable scheme for managing personal injury. This is to occur through mechanisms including that the ACC’s primary focus in dealing with injuries should be on rehabilitation, with the goal of achieving an appropriate quality of life through the provision of entitlements that restore a claimant’s health to the maximum practical extent.14

[26]	There is, however, no comparable inconsistency to that identified in Drew. It has never been a purpose of the ACC scheme to provide reimbursement for the total cost of injury in all relevant circumstances. Those administering the scheme are directed by policies as promulgated by government from time to time, including by regulation such as the Regulations in issue here, to balance an achievable level of payments to claimants against the anticipated level of income received by ACC from levies, investments and all relevant sources.

[27]	This point is well-illustrated, albeit in a different context, by a judgment of Elias CJ for a majority of the Supreme Court in Davies v Police.15 That appeal involved a challenge to a District Court Judge’s approach to sentencing the appellant for careless driving causing injury. The appellant had caused harm to a cyclist when  a mattress he was carrying on a trailer being towed by his car flew off and injured the cyclist. The District Court Judge had allocated an amount of reparation, projected by a process of elimination by the Supreme Court to be approximately $11,500, as the amount required to top up lost earnings that the cyclist was unable to recover from the ACC. Her earnings-related ACC compensation was limited to 80 per cent of the actual loss of earnings.

14	Accident Compensation Act 2001, s 3(c).
15	Davies (Peter) v Police [2009] NZSC 47, [2009] 3 NZLR 189.

[28]	That approach had been adopted on sentencing notwithstanding s 32(5) of the Sentencing Act 2002 which provides:

… the Court must not order the making of reparation in respect of any consequential loss or damage … for which the court believes that a person has entitlements under the Injury Prevention, Rehabilitation, and Compensation Act 2001.

[29]	The Supreme Court differed from the approach adopted in unsuccessful appeals to the High Court and the Court of Appeal.  The Supreme Court interpreted  s 32(5) of the Sentencing Act as precluding an order for reparation that represented the difference between the full financial loss suffered by a victim of injury, and whatever contribution to that loss was payable by ACC. In explaining the role of the ACC system, Elias CJ observed:16
[18]	The 80 per cent cap in cl 32 of Schedule 1 is to be considered in the light of the legislative aims described in s 3. Consistently with the origins of the accident compensation system, the benefits provided under the system, for reasons of affordability and the public interest in providing incentives to rehabilitation, were not set to be a complete indemnity. Claimants are to receive “during their rehabilitation” compensation for loss which is “fair” rather than full. That is a central plank in the “social contract” implemented through the legislation and its predecessors.

[19]	Section 317 prevents any person from bringing proceedings outside the Injury Prevention, Rehabilitation, and Compensation Act for damages arising out of personal injury, covered by the Act. The only exception to the general prohibition relates to “damage to property”. Under s 317(7) the prohibition on bringing proceedings for personal injury is unaffected by “the fact that a person who has suffered personal injury . . . is not entitled to any entitlement under this Act”. Disentitlement under the provisions of the Act does not therefore revive any common law or statutory remedy for damages arising directly or indirectly out of personal injury for which there is cover under the Act. The person injured has no redress outside the statutory regime of the Injury Prevention, Rehabilitation, and Compensation Act.

[30]	Claimants for cover under the ACC scheme are likely to complain that the levels of cover for various categories of costs consequential on injury for which the scheme does provide cover are indeed not “fair”. However, the purposes in s 3 of the Act cannot be treated as conflicting with regulations such as those being challenged in this case because such regulations adopt rules about the level of cover that are inconsistent with the claimant’s expectation of what would be “fair”.

16	Citations omitted.

[31]	Mr Crockett could not raise any tenable argument that the Regulations he challenges go beyond the scope of the regulation-making power in s 324 of the Act. Nor could he argue that the terms of the regulation-making power in the Act are materially inconsistent with the purposes specified in s 3 of the Act.

[32]	Mr Crockett was wrong to rely on Drew as authority for the proposition that regulations could be declared invalid for inconsistency with the substantive rights provisions of NZBORA. The Court of Appeal in Drew expressly left that issue open and it has not subsequently been considered. Mr Crockett’s submission was not explicit on the nature of the inconsistency, but I took his oral comments to infer that the limits on cover provided for in the Regulations create discrimination against those with disabilities and were therefore in breach of provisions in NZBORA that prohibited relevant forms of discrimination.17

[33]	In this regard, Mr Crockett invoked New Zealand’s accession to the UNCRPD. I understood Mr Crockett to be arguing that payment of a lesser contribution to the cost of hearing aids for some who are disabled compared with the extent of contribution paid to others would amount to a form of discrimination of those disabled persons that was contrary to the UNCRPD which prohibited discrimination of persons with disabilities.

[34]	It is not tenable to argue that an inconsistency between the content of the Regulations and aspirational commitments to prohibit discrimination against those with disabilities can override the otherwise lawful promulgation of regulations provided for in the Act.

[35]	In any event, without invoking issues of fact as to the correctness of the percentage of Mr Crockett’s hearing disability that is attributable to his work-related injury, I am not satisfied that he could raise a tenable argument of any discrimination against him. All those determined by appropriate medical experts to have a certain level of hearing impairment caused by work-related injuries would receive the same amount of contribution to the cost of hearing aids. Unless Mr Crockett invoked the

17	New Zealand Bill of Rights Act 1990, s 19, incorporating the forms of discrimination specified in s 21 of the Human Rights Act 1993 (relevantly s 21(1)(h)).

argument that the level of hearing impairment had been wrongly calculated (which is a matter of fact that could not be argued on an appeal on points of law), he could not make out any discrimination between him and ACC’s treatment of others with a hearing disability caused to a similar extent by work-related injuries.

[36]	If the discrimination on account of disability that Mr Crockett is relying on is a difference in the level of compensation that ACC makes to those requiring hearing aids because of a hearing disability caused in part by work-related injury and, say, the level of contribution to those requiring spectacles because of impairment of sight caused by work-related injury, then that is a policy choice which cannot be related to the lawfulness of the Regulations in the sense that might render them ultra vires the regulation-making power in the Act.

[37]	For these reasons, if Mr Crockett’s application for special leave was to be treated as filed in time, then I would still not be minded to recognise a serious question of law capable of bona fide and serious argument.

Additional questions

[38]	At the hearing, Mr Crockett submitted additional questions relating to this matter. To the extent these questions have not been answered by the preceding discussion, or in the District Court judgments on his appeal, I set out somewhat abridged answers to them now.

[39]	First, Mr Crockett seeks clarification as to the distinction between the civil jurisdictions of the District Court and the High Court. He is concerned that the District Court had jurisdiction to strike down legislation as ultra vires and thus not waste the High Court’s time. As noted by Judge Powell, the District Court’s jurisdiction is statutory. Its powers in relation to ACC claims are limited to those contained in Part 5 of the Act and, on appeal, it may only make determinations in accordance with s 161 of the Act. The High Court, on the other hand, has an inherent jurisdiction. That jurisdiction includes judicial review of the exercise of public power, a supervisory role to ensure a decision entrusted to certain persons or bodies by Parliament is exercised according to the law that governs the decision. Drew is an example of that jurisdiction. The High Court’s inherent jurisdiction can be modified by statute, as it is in this case.

In any ACC appeal, the High Court is limited to hearing questions of law and, in disposing of the appeal, may only exercise the powers contained in s 128 of the District Court Act 2016.

[40]	Secondly, Mr Crockett asks why the Court is not bound by UN conventions ratified by the New Zealand Government. When a government agrees to be bound by an international agreement, it owes the obligations contained in the agreement solely on the international plane, that is, to other nations that are party to the agreement. If the government breaches those obligations, for instance by not passing domestic legislation in compliance with them, it is answerable to those other parties by mechanisms contained in the agreement. Domestic courts, such as this Court, may only apply the common law and legislation promulgated by Parliament. New Zealand courts may have regard to international agreements when interpreting related domestic legislation or applying the common law, but the courts cannot apply directly such international agreements.

Outcome

[41]	The application for special leave was filed out of time, and is accordingly declined.

Costs

[42]	The ACC is entitled to costs.

Dobson J

Solicitors:
Young Hunter, Christchurch for respondent

Copy to:
The applicant