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Accident Compensation Cases

Corby v Accident Compensation Corporation (DC, 08/09/04)

Judgment Text

RESERVED JUDGMENT OF JUDGE J. CADENHEAD 
Judge J. Cadenhead
[1]
This notice of appeal was brought against a decision of a review officer dated 15 December 2003. 
[2]
The notice of appeal was against the dismissal of the review application, and the notice of appeal was received by the registry on 12 January 2004. 
[3]
On 21 April 2004, under cover of a letter received from Messrs Gresson Grayson & Calver, Solicitors, Hastings, the registry received notification the appellant no longer required the information requested in a previous letter of 4 February 2004, as that legal firm had received instructions to withdraw their client's appeal. A notice of withdrawal of appeal was enclosed with such letter, and this letter gave notice that the appellant withdrew the appeal, and was signed by counsel for the appellant dated 21 April 2004. 
[4]
On 17 May 2004, by email, the registry was advised that Megan Williams, Advocate, had been consulted on the basis that the appellant now wished to go ahead with the appeal. 
[5]
On 21 May 2004, Megan Williams, the Advocate for the appellant, wrote to the Deputy Registrar, Accident Insurance Appeals, to set out a reason why the appellant had withdrawn her appeal, and requesting on the basis of the grounds in that letter that the appeal be reinstated. The reason advanced why the appeal should be reinstated is that the appellant visited a lawyer and requested legal aid to assist the costs of the appeal. However, because she was married and her husband was working, she was unable to claim legal aid. She says the lawyer then wrote to the registry asking for the case to be withdrawn. It is said that it would be unjust not to reinstate the case because the lawyer withdrew the matter because the appellant had not qualified for legal aid, and she was not able to pay a higher fee. 
[6]
The respondent resists the reinstatement of the appeal. The respondent says there is nothing on the papers to indicate that the withdrawal of the appeal was done by mistake. The respondent referred to the decisions of Miller v ACC (251/96), Cortesi v ACC (92/03) and Franklin v ACC (102/03). All these decisions refer to Simpson v Police (High Court, Christchurch, AP 228/90, Tipping J). 
[7]
It seems clear to me that the appellant would have to bring herself inside the principles enunciated by the decisions that I have referred to in the preceding paragraph. 
[8]
In order to do this, formal application would have to be made, and it is my view that this application would have to be supported by affidavits from the appellant and the former solicitor. 
[9]
I appreciate that the issue of solicitor/client privilege might arise, but in the circumstances where an indulgence is being sought, it is common for that privilege to be waived, so that the Court may adequately assess the exact context of the circumstances in which the withdrawal was made. If no affidavit is filed by the former solicitor, then it is open for a Court to draw an adverse inference. 
[10]
If the appellant desires to reinstate this matter, then I direct that a formal application is made, along with supporting affidavits as I have indicated. I would expect this application to be made within the next 21 days. 

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