Moore v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 26 /2010 IN THE MATTER of the Injury Prevention, Rehabilitation, and Compensation Act 2001 AND IN THE MATTER of an application for Leave to Appeal to the High Court pursuant to Section 162 of the Act BETWEEN JULIAN WARREN MOORE (Al 421/05) Applicant AND THE ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT [1] On 8 December 2006 the applicant's then solicitor, Mr P J Sara, lodged an application for leave to appeal to the High Court with the Registry. That application sought leave to appeal the decision of His Honour Judge J Cadenhead, delivered on 29 November 2006, being Decision 293/06. [2] The issue in the appeal was whether the respondent was correct to cease the appellant's weekly compensation entitlement on the basis that he had been determined fit to return to his pre-injury employment as an IT Systems Administrator. [3] In his decision Judge Cadenhead considered the medical evidence and he found, as had the Reviewer before him, that the medical evidence identified that the applicant was no longer incapacitated from his pre-injury employment. [4] Following the filing of the application for leave to appeal the Registry sought submissions from the solicitor for the applicant in support of that application, but in a series 2 of correspondence between Mr Sara and the Registry, the Registry was advised that Mr Sara was having difficulty obtaining instructions as the applicant was believed to be then residing in Thailand. 5] After further correspondence between Mr Sara and the Registry, by letter dated 29 June 2009, the Registry was advised that Mr Sara had not been able to make contact with the applicant and was uncertain as to where he was currently residing. In those circumstances he advised that he was withdrawing from acting for the applicant. [6] The last known address of the applicant was advised to the Registry and further correspondence was had direct with the applicant on him being required to progress his application for leave to appeal. [7] The Registry has received no contact from the applicant and indeed the last letter to him, being a registered letter, was returned with the advice that he was "not at this address". [8] . The situation now is that the application for leave has been marking time for over three years with no prospect of it proceeding further in view of the failure of the applicant to respond either to his former counsel's correspondence or that of the Registry. In those circumstances I consider it appropriate that the application for leave be dismissed on the grounds that there has been a total failure to prosecute it. [9] Accordingly, the application for leave to appeal to the High Court is dismissed for want of prosecution. DATED this 16th day of February 2010 M J Beattie District Court Judge