Estate of Fisher v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 31 /2010 IN THE MATTER of the Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an application for a Rehearing/ Leave to Appeal to the High Court pursuant to Section 162 of the Act BETWEEN ESTATE OF NEIL FISHER (Al 392/04) Applicant AND THE ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE [1] The applicant Estate, represented by the deceased's widow Mary Fisher, lodged a document headed up Application for Leave to Appeal on 19 December 2008. That application related to the decision of His Honour Judge P F Barber, given on 10 December 2008 under Decision No.290/08, and which decision struck out the appeal lodged by the deceased's estate for want of prosecution. [2] In a lengthy letter which accompanied that application for leave, Mrs Fisher was advancing reasons why the appeal should not have been struck out, and on the basis that she had not been given proper notice of the hearing, specifically the changed date of the hearing. [3] Subsequent to that initial indication of grounds for leave to appeal, further submissions have been received from Mrs Fisher, both of which now seek that the Court 2 grant a re-hearing of the appeal on the basis that the Judge made a decision in relation to the appeal without hearing all the submissions of the applicant. [4] The respondent has filed submissions in opposition to the granting of leave in this case [5] The fact of the matter is that when the matter came on for hearing before His Honour Judge Barber on 5 December 2008, there was no appearance by Mrs Fisher and the Court was satisfied that she had been given notice of the date. The decision also notes that attempts were made to contact her by telephone, but without success. [6] Although it may not have been necessary, His Honour Judge Barber did proceed to consider the potential merit of the appeal which was in relation to the issue of whether the deceased's death had been caused by medical misadventure. His Honour found that the evidence clearly identified that the fall which the deceased had suffered was not the cause of death but rather it was the extensive chronic lymphocytec leukaemia which was the cause of his death. [7] In his decision, which was ultimately to strike the appeal out for want of prosecution, His Honour nevertheless indicated that the appeal had no chance of success on the merits. [8] As noted, Mrs Fisher seems to be seeking that she be offered a re-hearing of this appeal. The fact of the matter, however, is that the District Court has no jurisdiction to grant a re-hearing of an appeal and earlier decisions of it to that effect have been confirmed by the High Court, particularly the decision of His Honour Justice Cooper in the decision of Kahan v ACC (Auckland Registry CIV 2007-485-001632). [9] Accordingly, this Court cannot grant the applicant a re-hearing of this appeal. [10] Insofar as the application for leave to appeal is concerned, that requires the applicant to identify a question of law which ought to referred to the High Court for a ruling. [11] In his decision Judge Barber identified that all proper procedures had been followed leading up to the hearing of the appeal and he determined that this was a situation where Section 161(3) of the Act applied, where there was no appearance on the part of the applicant and there was a situation where the appeal had not been prosecuted with due 3 diligence, and on a finding that those circumstances pertained, he applied the provisions of Section 161 and dismissed the appeal [12] The decision made by the Learned Judge was a decision based on the facts and involves no question of law and there is simply no basis for that decision to be referred to the High Court for further consideration as a question of law. [13] Accordingly, leave to appeal to the High Court is refused. DATED this 16th day of February 2010 M J Beattie District Court Judge