Keall v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. [2010] NZACC 225 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ANNE KEALL (Al 185/06) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR REINSTATEMENT OF APPEAL [1] The applicant, through her husband, has made application for reinstatement of an appeal lodged by Notice of Appeal on 27 April 2006. [2] That application was lodged through the applicant's then solicitors, John Miller Law, and it sought to appeal a review decision given on 24 April 2006. [3] The issue in the appeal was whether the applicant was entitled to weekly compensation for loss of earning potential. [4] Following the lodging of the appeal, no steps were made on the applicant's behalf to progress it, and it seems to be the case that there were other issues between the applicant and the Corporation ongoing at the time. (5] Despite requests from the Appeal Registry to the applicant's solicitors, no submissions were filed or steps taken to pursue the matter until advice was 2 received from John Miller Law on 1 December 2008 that with the agreement of the applicant the appeal could be withdrawn and it was so withdrawn. [6] In November 2009, Mr Keall, on behalf of the applicant, sought to have the appeal reinstated, he simply stating that he was now of the understanding that he could pursue the case himself rather than have lawyers and with the need for legal aid in respect thereof. [7] It is the respondent's position that it opposes the reinstatement of the appeal, it contending that the Court has no jurisdiction to do so, but that in any event, it is contended that the appeal has little prospect of success. [8] The question of reinstatement of appeals has been considered on a number of occasions by this Court, and it has been identified that the only statutory basis for reinstatement would be that provided for in the District Court Rules, now the District Court Rules 2009, but which rule, namely Rule 12.6 is in exactly the same terms as the previous Rules under the District Court Rules 1992 and being Rule 485. [9] It is the case that the Rule is confined to allowing for a reinstatement where a proceeding has been struck out for non-appearance. The Rule goes on to state that the Court may order it to be reinstated on a good cause being shown. [10] In a number of decisions of this Court, it has been held that reinstatement will only be allowed if it was shown that the earlier withdrawal was a mistake, the principal decision for that line of authority being the decision of His Honour Judge Cadenhead in Corby v ACC (Decision 274/04). [11] In a subsequent decision of Saggers v ACC (Decision 138/07), 1 determined that the only power to reinstate was that which was encompassed by Rule 485 of the District Court Rules 1992 (now Rule 12.6 of the 2009 Rules) and that the Court's jurisdiction was limited to where the appeal had been struck out for non-appearance of either party. In that case I found that the criteria for reinstatement could not be stretched to where the proceedings had been withdrawn with the approval and consent of the parties. 3 [12] Accordingly, therefore, I find that in the circumstances of this case the Court has no power or jurisdiction to make an order for reinstatement of the appeal which was withdrawn by the solicitor then acting for the applicant, and with the agreement of the applicant. [13] Accordingly, the application for reinstatement is refused. DATED this 13 day of December 2010 M J Beattie - District Court Judge