McKenzie v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND [2012] NZACC 52 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an application pursuant to Rule 12.6 of the District Court Rules 2009 BETWEEN CHRISTINA MCKENZIE (Al 347/08) Applicant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR REINSTATEMENT OF APPEAL [1] The applicant has made application to the Court for reinstatement of an appeal lodged by Notice of Appeal on 16 September 2008. By that Notice of Appeal the applicant sought to appeal a review decision dated 7 June 2007. [2] In that review decision the Reviewer confirmed the respondent's primary decision of 15 September 2006 that the applicant could not establish an entitlement to cover for a treatment injury claimed to have been suffered by her in one or two treatment procedures in 1991 and 1997 respectively. [3] In that review decision the Reviewer determined that the independent evidence of Dr Donoghue, Obstetrician and Gynaecologist, had identified that many of the applicant's symptoms pre-existed the two treatments, and that in any event there was no evidence that the applicant had sustained any physical injury from treatment in either 1991 or 1997. [4] The Reviewer went on to state that there was no medical evidence to support the applicant's submission that she had suffered a personal injury as a result of treatment. 2 [5] It is to be noted that the Notice of Appeal against that review decision was lodged some 15 months after the date of that review decision, and where it is the statutory requirement that a Notice of Appeal must be lodged within 28 days after the date of the review decision. [6] Whilst the applicant was advised that her appeal was lodged significantly out of time and that she would need to obtain leave of the Court to have her appeal proceed, that issue was never determined by reason of the fact that by letter dated 26 May 2009 the applicant advised the Registry that she did not wish to proceed further with her appeal, and she asked that the appeal be withdrawn. The applicant was advised by the Registry on 26 May 2009 that in response to her request, her appeal was now withdrawn and closed [7] It is the case that by application made on or about 3 November 2011, the applicant sought to have her appeal reinstated. [8] In her application for reinstatement the applicant indicated that she was too traumatised at the time and that her failing health has been her problem. [9] In support of her application the applicant has also produced an amount of medical information and a number of photographs, but it is the case that none of the medical evidence is relevant to the issue which was at the core of the respondent's decision, and no specialist medical evidence relating to the issue of cover for a treatment injury has been introduced. [10] It is the case that the respondent, through its counsel, Mr D Tui, opposes the reinstatement of the appeal and in written submissions received by the Court he asserts that there was no evidence to demonstrate that the withdrawal of the appeal was influenced or brought about by the applicant's then health. [11] Counsel further asserted that the late lodging of the original Notice of Appeal and then the withdrawal, and now some two years later, an application for reinstatement, further compounds the delay which has occurred in this case. Counsel also contends that there is no specialist medical evidence which would support the applicant's claim for cover. [12] This is a case where the applicant, by her own decision, elected to withdraw her appeal, and I find that it is clear from Rule 12.6 of the District Court Rules 2009, that only a very limited power of reinstatement is given to the Court. 3 [13] In a previous decision of this Court, being an application by B Saggers for reinstatement (Decision 138/07) I made the following comments about the relevant District Court Rule, which at the time of that decision was Rule 485 of the District Court Rules 1992, and which Rule has been brought forward to the 2009 Rules unchanged. In the Saggers decision I stated as follows: [19] It is clear from that Rule that the District Court has jurisdiction to reinstate a proceeding that has been struck out due to the non-appearance of either party. The commentary on this Rule is wholly referable to that state of affairs, and I find that it would be stretching it beyond the intention of the Rule to hold that this Rule gave the Court jurisdiction to reinstate an appeal which had been withdrawn by consent, or at least by the applicant. [14] In all the circumstances I find that there is no basis for this appeal to be reinstated, and I include in that this Court's assessment that this appeal would have little prospect of success, even if the Court were to have allowed an extension of time for the bringing of the appeal, which is doubtful, as there is simply no medical evidence to support the applicant's claim. [15] Accordingly therefore, I rule as both a matter of both fact and law, that there is no basis for the reinstatement of the applicant's appeal and that application is therefore declined. DATED this 22nd day of February 2012 M J'Beattie District Court Judge