Marino v Accident Compensation Corporation
The appellant failed to prosecute the appeal with due diligence by not responding to repeated registry notices, not filing submissions and not attending directions conferences; under s 161(3)(b) the proper order is dismissal of the appeal.
Source-derived case information.
- Citation
- [2008] NZACC 295
- Parties
- Appellant: Marion Marino; Respondent: Accident Compensation Corporation
- Court
- District Court
- Jurisdiction
- New Zealand
- Judgment Date
- 18 December 2008
- Procedural Posture
- Appeal Under the Injury Prevention, Rehabilitation and Compensation Act 2001 / Directions Conferences and Final Dismissal for Failure to Prosecute
- Outcome
- Appeal dismissed
- Legal Topics
- Dismissal for Want of Prosecution, Section 161(3)(b) IPRC Act, Service and Notice, Failure to Attend Directions Conference
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marion Marino
Appellant
Accident Compensation Corporation
Respondent
Procedural Posture
Appeal Under the Injury Prevention, Rehabilitation and Compensation Act 2001 / Directions Conferences and Final Dismissal for Failure to Prosecute
Legal Issues
- 1 Whether the appellant prosecuted the appeal with due diligence under s 161(3)(b)
- 2 Whether notices to the appellant's last known address and failure to attend directions conferences justified dismissal
- 3 Whether solicitors' inability to obtain instructions prevented dismissal
Ratio Decidendi
The appellant failed to prosecute the appeal with due diligence by not responding to repeated registry notices, not filing submissions and not attending directions conferences; under s 161(3)(b) the proper order is dismissal of the appeal.
Court Disposition
Appeal dismissed
Orders
- Appeal dismissed
Full Case Text
Judgment text and source record
1 paragraphs
IN THE DISTRICT COURT AT WELLINGTON DECISION No. 295 /2008 UNDER The Injury Prevention, Rehabilitation and Compensation Act 2001 IN THE MATTER OF an appeal pursuant to section 149 of the Act Appeal No. AI 246/06) BETWEEN MARION MARINO Appellant AND ACCIDENT COMPENSATION CORPORATION Respondent Hearing: 3 December 2008 Appearances: No appearance for appellant Mr S Hack for respondent Judgment: 18 December 2008 ORDER OF JUDGE D A ONGLEY DISMISSING APPEAL [1] This appeal was filed on 12 June 2006. Initially Miller Law acted for the appellant and corresponded with the Registry. Time was requested to enable the appellant to fund the appeal. The solicitors indicated that the appeal might be withdrawn, and on 18 March 2008 advised that they could not get further instructions. [2] The solicitors advised the Registry that the appellant's last known address was 44 Song Street, Narre Warren, Victoria 3805, Melbourne, Australia. The Registry wrote to the appellant at that address on 19 March and 20 May but received no reply. [3] On 21 July 2008 the Registry notified the appellant of a directions conference on 6 August. The appellant did not appear on 6 August 2008 and a Judge ordered that the appellant to be advised that failing to file submissions as directed may result in the appeal being dismissed. [4] On 12 August 2008 the Registry wrote to the appellant with a copy of that direction, and on 21 November 2008 notified the appellant by letter that a directions conference would be called on 3 December, [5] Under section 161(3)(b) the Court may dismiss the appeal if the appellant does not prosecute the appeal with due diligence. [6] The appellant did not appear at the directions conference on 3 December 2008 and I find that he has not prosecuted the appeal with due diligence. [7] The appeal is now dismissed. Judge D A Ongley District Court Judge