Carrington v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT CHRISTCHURCH Decision No. 94 /2009 IN THE MATTER of the Injury Prevention, Rehabilitation and Compensation Act 2001 AND IN THE MATTER of an appeal pursuant to Section 149 of the Act BETWEEN MAIRE ANNE CARRINGTON (Al 81/08) Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent HEARD at CHRISTCHURCH on 5 May 2009 APPEARANCES No appearance for appellant Mr C Hlavac, Counsel for Respondent. DECISION OF JUDGE M J BEATTIE [1] On 10 March 2008, the Registry received a Notice of Appeal signed by the appellant in respect of a review decision delivered on 11 February 2008 [2] Although the appellant had been represented by Mr A Cadenhead, Barrister, at . the review hearing, the Notice of Appeal from that review decision was issued and signed by the appellant herself. [3] By letter dated 11 March 2008, the Registry acknowledged receipt of that Notice of Appeal and provided the appellant with details of the Practice Note setting out the procedural steps required to progress the appeal. 81.08 (pg) 2 [4] In a letter received by the Registry on 1 September 2008 from the appellant, she requested that progress of her appeal be held in abeyance for six months, she citing sickness and inability to find someone to represent her. 5] By letter dated 1 September 2008 the Registry advised the appellant that such a delay could not be accepted. [6] By letter dated 10 September 2008, the Registry advised the appellant that her appeal would be called on 23 September 2008 for mention and for directions. As a consequence of a telephone request from the appellant, the Registry agreed to adjourn the directions hearing to 22 October 2008. 7] Prior to that directions hearing the Registry received a letter from a Debbie Matheson, a friend of the appellant, who sought to explain the appellant's medical and social predicaments. [8] When the appeal came on for mention on 22 October 2008 before His Honour Judge Barber, he noted the file as follows: "In view of the letter from Ms Matheson, the above appeal is adjourned for mention in the first 2009 circuit. " That advice was duly forwarded to the appellant. [9] The appeal was again scheduled for directions on 11 March 2009 and the appellant was duly advised of that time, date and place. [10] The appellant duly appeared at the directions hearing on 11 March 2009 and after discussions with the Court she undertook to file her submissions within 21 days thereof and with the respondent being required to file its submissions in reply within a further 14 days [11] No submissions have been received from the appellant and the matter was therefore scheduled for a further directions hearing on 5 May 2009 [12] At that directions hearing there was no appearance of the appellant, nor had the Registry or the Court received any communication from her or on her behalf regarding that directions hearing. 3 [13] Mr Hlavac, Counsel for the Respondent, submitted that the appellant had been shown significant leniency in the time allowed within which to prosecute her appeal, but no active step had been taken. Counsel made application for the dismissal of the appeal for want of prosecution. [14] In view of the history of this appeal, and of the failure of the appellant to prosecute her appeal, i find that a proper basis for dismissal in accordance with s. 161 of the Act has been made out. [15] In finding as I do, I note for the record that the dismissal of this appeal does not irrevocably affect the appellant's rights under the Act. The issue for appeal was the respondent's decision of 16 January 2007, determining that the appellant was eligible for an Independence Allowance based on a Whole Person Impairment of 35%. That Whole Person Impairment is for mental injury arising from sexual abuse suffered by the appellant at a young age. [16] The fact of the matter is that the Act does allow for the appellant to apply for a further assessment of her impairment for an Independence Allowance after the lapse of 12 months or more from the date of the last assessment. The assessment under review was an assessment made on 27 October 2006, and it is now therefore open for the appellant to make application to the respondent pursuant to Clause 61 of Schedule 1 to the Accident Insurance Act 1998 that she be reassessed. [17] For the foregoing reasons, however, this appeal has not been prosecuted as is required and it is therefore dismissed. DATED this 21 day of May 2009 M J Beattie District Court Judge