Estate of Karika v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT ROTORUA Decision No. [2011] NZACC 363 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN ESTATE OF MARU KARIKA (Al 341/07) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at ROTOUA on 14 November 2011 APPEARANCES No appearance on behalf of appellant. Ms F Becroft, Counsel for Respondent. RESERVED JUDGEMENT OF JUDGE M J BEATTIE [1] This appeal was scheduled for hearing before me on 14 November 2011 at 10.00 a.m. The issue in the appeal was whether the respondent was correct by its decision of 16 February 2007 to decline to grant cover to the late Mrs Karika for a treatment injury. [2] It is the case that the appellant died on 16 October 2005, and the proceedings were continued on behalf of the Estate by the Estate's agent, Mr D Duncan. [3] It was Mr Duncan who lodged the Notice of Appeal from the review decision which had confirmed the respondent's primary decision. [4] Despite letters from the Registry to Mr Duncan, no submissions have been filed on behalf of the appellant for the purposes of this appeal. 2 [5] The appeal was nevertheless set down for hearing in the District Court at Rotorua on 14 November 2011, and Mr Duncan was duly advised of this date of hearing by Registered Post to his residential address. [6] There was no appearance by Mr Duncan or anyone else on behalf of the Estate of M Karika, and it was the case that Ms Becroft, Counsel for the Respondent, made an application for dismissal of the appeal for want of prosecution. [7] This is a case where no positive step towards the progression of this appeal has been taken since the Notice of Appeal was filed in August 2007, and it is of course the case that there was no appearance on behalf of the appellant at the hearing, and there was no communication from anyone representing the appellant in relation to the non- appearance at the hearing in Rotorua. [8] Accordingly, at the request of Counsel for the Respondent, I duly dismiss the appeal, firstly for the fact that there was no appearance on behalf of the appellant, and secondly, that this was an appeal where representatives of the appellant had not prosecuted the appeal with due diligence. Therefore, both provisions of section 161(3) of the Act giving grounds for dismissal of the appeal had arisen. DATED this [4 day of December 2011 M J Beattie District Court Judge