Reckin v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON [2011] NZACC 140 Al 13/04 IN THE MATTER of an intended appeal under s. 162 of the Accident Compensation Act 2001 BETWEEN KELLY RECKIN Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent BY CONSENT HEARD ON THE PAPERS DATE OF THIS DECISION 12 May 2011 APPEARANCES Appellant on his own behalf Mr J Castle, counsel for ACC DECISION OF JUDGE P F BARBER ON APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT The issue [1] By reserved decision dated 1 November 2006 No. 265/2006, His Honour Judge M J Beattie dealt with the issue whether the appellant is entitled to interest for any period on the backdated weekly compensation which ACC paid him in March 2003. Judge Beattie explained in detail his decision that ACC was correct on 31 March 2003 to decline to pay such interest to the applicant/appellant. [2] By 1 November 2006 covering letter, the Registrar explained to the then counsel for the appellant (Mr I S Young-Gough) that leave to appeal to the High Court must be sought within 21 days after Judge Beattie's decision, which was then enclosed, and there was a reference to s. 162 of the Act providing for such further right of appeal. [3] Then counsel for the appellant responded by 15 November 2006 letter to the Registrar which, inter alia, sought leave to appeal to the High Court, and referred to counsel providing submissions in support of the application upon confirmation of the Registrar "that the matter is in order to proceed". By letter of 17 November 2006 to then counsel for the appellant, the Registrar acknowledged receipt of an application from the appellant for leave to appeal to the High Court the said decision of Judge 2 Beattie and sought submissions in support of the application within 21 days, and referred to appropriate procedures. [4] By 20 November 2006 letter, then counsel for the appellant acknowledged the position and advised that he was about to undergo surgery, was unlikely to work on this matter until the New Year, and that he was seeking instructions from his client "on whether he wishes the matter to proceed by hearing or on the papers (as is the usual course)". [5] The Registrar sought progress by 21 February 2007 letter to then counsel for the appellant dated and the response from that counsel was that he was seeking instructions from the appellant. [6] However, by letter of 2 March 2007 then counsel sought to withdraw and understood the present application was being taken up by a Mr E Mclaughlin, advocate. The Registrar acknowledged the position and communicated with Mr McLaughlin on 5 March 2007 and 17 May 2007. Mr Mclaughlin advised by letter of 20 April 2007 that he could not file submissions until he had received relevant files from the District Court apparently at Napier. 7] The Registrar wrote again to Mr Mclaughlin on 24 August 2007 seeking progress, and received a telephone response that Mr Mclaughlin cannot file submissions as he is still trying to get information from ACC. [8] The Registrar sought further progress by letter of 24 October 2007 to Mr McLaughlin who telephoned, in response, to say that he had now received the ACC files and would endeavour to file submissions within two months. [9] Accordingly, the Registrar sent a reminder letter to Mr Mclaughlin on 12 December 2007 and the response was that submissions should be filed mid January 2008. However, on 9 January 2008 Mr McLaughlin sought that the matter be placed on hold until mid February 2008 "while a related appeal is heard". [10] On being again contacted by the Registrar on 15 July 2008, Mr McLaughlin advised he was no longer acting for the appellant and to contact the former counsel from Masterton referred to above. Accordingly that counsel was written to by the Registrar on 15 July 2008 and Mr I S Young-Gough confirmed by letter of 16 July 2008 that he had been instructed and "at the present time [the appellant] and I are endeavouring to recover the file material associated with this matter. Until that information is received I cannot confirm when written submissions will be provided or, in fact, whether the matter will proceed any further. I will let you know when I have all of the necessary material and revert either with a time scale to file submissions or to withdraw". [11] On 16 September 2008 the Registrar sent a reminder letter to counsel who replied by letter of 22 September 2008 advising, inter alia, that the appellant had changed address and also had had another serious accident and that the Registrar would be further advised in due course. The Registrar sent a further reminder letter of 19 June 2009 but, by response letter of 23 June 2009, Mr Young-Gough advised that he was no longer acting and provided the then current address of the appellant. [12] The Registrar sent a letter of 24 June 2009 to the appellant requesting progress and again on 31 July 2009 and 21 August 2009. The Registry spoke with the 3 appellant by telephone on 29 June 2010 and followed up with an email that day allowing the appellant three months to seek representation; referring to the background of delay; requiring monthly updates from the appellant; and advising in default of that the file would be put before a Judge and that "the Judge may make an order in relation to timetabling of submissions which must be followed or the application may be struck out for want of prosecution". [13] Since then, there have been unsuccessful attempts to contact the appellant by telephone on 18 October and 30 November 2010 and similarly unsuccessful attempts to obtain a response from the appellant by email on 18 October and 30 November 2010. There has been no response from or on behalf of the appellant. [14] Because of the circumstances I have listed above, I consider that quite enough latitude has been given to the applicant/appellant to progress application for leave to appeal to the High Court. Accordingly, that application is hereby struck out for non prosecution. Judge P F Barber District Court Judge WELLINGTON Al 13-04.doc(aw)