Flanders v Accident Compensation Corporation

IN THE DISTRICT COURT HELD AT WELLINGTON Decision No. 299/2006 UNDER The Accident Insurance Act 1998 AND IN THE MATTER of an application for reinstatement of application for leave to appeal to the High Court pursuant to Section 165 of the Act BETWEEN MICHAEL FLANDERS Appellant (Appeal No. AI 368/01) AND QBE INSURANCE (INTERNATIONAL) LIMITED Respondent DECISION ON APPLICATION TO REINSTATE APPLICATION FOR LEAVE TO APPEAL TO THE HIGH COURT Introduction 1. Judge Beattie's reserved decision was given on 9 March 2004. An application for leave to appeal was filed on 8 April 2004. When dismissing it for want of prosecution on 5 October 2006, inter alia I noted that the original application filed was out of time. 2. The appellant has filed an application dated 26 October 2006 to reinstate the original application. The grounds advanced in support of the application are that the appellant has been unwell and has changed his address. Thus, neither his counsel nor the Court could contact him. 3. There is no evidence that the appellant tried to contact either his counsel or the Court during the intervening period. Decision. 4. The application is without merit. Even if evidence had been adduced in support of the application, good reasons for its success needed to be advanced. It cannot be a coincidence that the appellant suddenly resumed his health and his ability to contact counsel almost immediately his application was dismissed on 5 October 2006. 5. In any event, there is no point in granting this application. The fact that the original application for leave to appeal was filed out of time is fatal. 6. .Section 162(2) Injury Prevention, Rehabilitation and Compensation Act 2001 is mandatory. It states that leave to appeal to the High Court "must be sought under Part 5 of the District Courts Act 1947 and within 21 days after the District Court's decision". 7. In Thomas (283/05) the District Court considered the equivalent provision under the Accident Insurance Act 1988. The wording of s 165(2) of the 1988 Act is identical to the wording of s 162(2) of the 2001 Act. The Court determined that the 21 days ran from the date that the decision was issued. The Court stated: " ...that lateness [of the application for leave] is fatal and I do not have any discretion to enlarge me time. The 21 days prescribed under s 165(2) runs from the date of the District Court's decision and not from the date the appellant received a copy of the decision". Thus, because the original notice of appeal was filed outside the time limit prescribed by s 162(2) of the 2001 Act, this Court has no power to grant leave to appeal to the High Court. 8. Accordingly, the application for reinstatement is declined. Dated at Wellington the 30 day of November 2006 at 4 a.m/p.m X Judge J D Hole.