Laurentino v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT AUCKLAND [2012] NZACC 208 IN THE MATTER of the Accident Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN LUCIANY LAURENTINO (Al 518/08) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent DECISION OF JUDGE M J BEATTIE FOR DISMISSAL OF APPEAL FOR WANT OF PROSECUTION [1] On 4 November 2008, the appellant through her Advocate Mr T Prendeville, lodged an appeal to this Court from a review decision dated 17 October 2008. [2] Despite correspondence from the Registry to Mr Prendeville subsequent thereto requesting that he file submissions in support of the appeal, no such submissions were forthcoming. [3] On 23 September 2009, a Directions Hearing took place in the Tauranga District Court, at which Mr Prendeville appeared representing the appellant, and it was the Court's direction that the appellant file written submissions within 28 days of that Directions Hearing. [4] No such submissions were filed and it is the case that the Registry again wrote to Mr Prendeville in October 2010, indicating that unless submissions were filed within 28 days the appeal was likely to be dismissed for want of prosecution. It is the case that Mr Prendeville did contact the Registry to indicate that he had lost contact with the appellant and that subsequently by letter dated 3 January 2012, Mr 2 Prendeville advised of his withdrawal from representing the appellant for the reason that he had been unable to make contact with her at the addresses which he had. [5] The Registry has never at any stage had any contact from the appellant in person and a letter from the Registry to her at her last known address, on 9 May 2012, brought no response. [6] By application dated 29 May 2012, the respondent, through Counsel, Mr Roberts, made an application for dismissal of the appeal for want of prosecution. [7] This is clearly a case where there has been no positive action to have this appeal proceed to a determination, and it would seem that there has been a total failure on the appellant's part to make contact with her Advocate or the Registry, relating to the progression of this appeal. (8] Accordingly, I find that this is a clear case where there has been a failure to prosecute the appeal with due diligence, and therefore this appeal is hereby dismissed for want of prosecution pursuant to section 161(3)(b) of the Act DATED this 22nd day of June 2012 M J Beattie District Court Judge