Cleary v Accident Compensation Corporation
The appeal was struck out under s161(3)(b) because the appellant failed to prosecute the appeal with due diligence, failed to comply with multiple registry directions, did not respond to notices and did not appear, leaving no basis to keep the matter on the court roll.
Source-derived case information.
- Citation
- [2008] NZACC 175
- Parties
- Appellant: Colleen Cleary; Respondent: Accident Compensation Corporation
- Court
- District Court
- Jurisdiction
- New Zealand
- Judgment Date
- 25 July 2008
- Procedural Posture
- Appeal Under Injury Prevention, Rehabilitation and Compensation Act 2001 S149 / Strike Out Application / Appeal Dismissed for Failure to Prosecute
- Outcome
- Appeal struck out and dismissed under s161(3)(b) of the Injury Prevention, Rehabilitation and Compensation Act 2001
- Legal Topics
- Timeliness of Appeal, Failure to Prosecute, Strike Out, Compliance With Court Directions
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Colleen Cleary
Appellant
Accident Compensation Corporation
Respondent
Procedural Posture
Appeal Under Injury Prevention, Rehabilitation and Compensation Act 2001 S149 / Strike Out Application / Appeal Dismissed for Failure to Prosecute
Legal Issues
- 1 Whether the appeal was filed within time
- 2 Whether the appellant prosecuted the appeal with due diligence
- 3 Whether the Court should strike out the appeal under s161(3)(b) of the Act
Ratio Decidendi
The appeal was struck out under s161(3)(b) because the appellant failed to prosecute the appeal with due diligence, failed to comply with multiple registry directions, did not respond to notices and did not appear, leaving no basis to keep the matter on the court roll.
Court Disposition
Appeal struck out and dismissed under s161(3)(b) of the Injury Prevention, Rehabilitation and Compensation Act 2001
Orders
- Appeal dismissed under s161(3)(b) of the Injury Prevention, Rehabilitation and Compensation Act 2001
Full Case Text
Judgment text and source record
1 paragraphs
IN THE DISTRICT COURT AT WELLINGTON DECISION NO.175 /2008 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act (Appeal No. AI 467/07) BETWEEN COLLEEN CLEARY Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Appearances: No appearance for appellant Ms Berry for respondent Judgment: 25 July 2008 ORDER OF JUDGE D A ONGLEY STRIKING OUT APPEAL [1] The review decision was dated 2 November 2007. Ms Cleary's notice of appeal bears two date receipt stamps, one of which is 3 December 2007. Directions given by the Court on 11 February 2008 raised the question of the appeal being out of time. It is arguable whether the appeal is out of time by one day and counsel for the respondent has now notified the Court that the respondent consents to the appeal being heard, if such consent should be necessary. [2] The appellant failed to reply to letters from the Registry dated 7 December 2007, 24 December 2007, 11 February 2008 and 2 April 2008. She has taken no steps to prosecute the appeal since filing the notice of appeal. [3] The appellant failed to appear on 29 April 2008. The respondent applied to strike out the appeal. I directed that the appellant file and serve submissions by 2 June 2008 and that strict compliance with the direction was required. [4] The direction noted that if there was no response, it will be apparent that the appellant is not prosecuting the appeal with due diligence and the appeal may be struck out without further notice. The direction was posted to the appellant at her last known address. [5] There has been no response to that direction and the appeal is now dismissed under s161(3)(b) of the Act on the ground that the appellant has not prosecuted the appeal with due diligence. Judge D A Ongley District Court Judge