Kelly v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 2 26 / 99 UNDER The Accident Rehabilitation and Compensation Insurance Act 1992 AND IN THE MATTER of an appeal pursuant to Section 91 of the Act BETWEEN ANDREW MARTIN KELLY of Tauranga Appellant (Ref: DCA 202/98) AND ACCIDENT REHABILITATION AND COMPENSATION INSURANCE CORPORATION a body corporate duly constituted under the provisions of the said Act Respondent DECISION OF JUDGE A W MIDDLETON ON THE PAPERS On 8 May 1998, Mr Jeff Smith, solicitor for the appellant gave notice of his intention to lodge an appeal against a decision of a Review Officer, which was issued on 2 December 1997. On 17 June 1998 submissions were requested and on 9 July 1998 Mr Smith was granted an extension of time until 15 August 1998. Verbal and written requests over the ensuing 3 months failed to produce submissions and in correspondence on 13 August and 19 November 1998, Mr Smith advised that, as the appellant had moved out of the country and had left no forwarding address, he was unable to advance the matter any further. A telephone call on 19 November 1998 by the Registrar to the appellant's last known address revealed that he was no longer in residence and his current whereabouts was unknown. On 3 December 1998 Mr Smith withdrew as Counsel and provided the registry with the appellant's last known residential and postal addresses. On 9 December 1998 the Registrar wrote to the appellant at both his residential address and his post box address advising of the current situation and requesting that he advise, by 22 January 1999, whether or not he wished to proceed with the appeal. He was advised that if there was no reply the matter would be referred to the Court with a recommendation that the appeal be struck out for want of prosecution. On 18 December 1998 the letter to the appellant's residential address was returned to the Registry unopened. Enquiries by the Registrar of the NZ Post Office in Tauranga on 28 January 1999 revealed that the appellant's post box had not been cleared since late 1998. As the appellant had initially travelled overseas, I instructed the Registrar to wait 6 months and then follow up with a final request on whether he wished to proceed with the appeal. On 30 July 1999 the Registrar wrote to the appellant requesting that he advise, within 28 days, whether or not he wished to proceed with the appeal and that if there was no reply by 30 August 1999 the matter would be referred to the Court with a recommendation that the appeal be struck out for want of prosecution. On 4 August 1999 that letter was returned unopened. Enquiries by the Registrar of the Tauranga Branch office of ARCIC on 9 August 1999 revealed that the appellant had not advised of any change of address. As the Registrar has been unable to contact the appellant and the appellant or a representative made any further attempt to prosecute the appeal, I dismiss the appeal for want of prosecution. DATED at WELLINGTON this ( -" day of August 1999. bunddub District Court Judge