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Accident Compensation Cases

O'Brien v Accident Compensation Corporation (DC, 22/04/08)

Judgment Text

ORDER OF JUDGE D A ONGLEY STRIKING OUT APPEAL 
Judge D A Ongley
[1]
This appeal was called today and there was no appearance for either party. Ms P Jegatheeson acting for QBE had filed an application to strike out the appeal. 
[2]
The appellant has done nothing to advance the appeal since filing a notice of appeal on 20 April 2006. She was initially represented by John Miller Law. On 4 October 2006, that firm advised the Appeals Registry that it had no instructions and that the Registry should communicate directly with the appellant. The Appeals Case Manager wrote to the appellant on 1 October 2006 and then on 9 January 2007 notifying a callover date of 14 February 2007 on which the appeal could be struck out if not prosecuted with diligence. On 7 February 2006 the appellant telephoned to say that she could not attend. The file notes indicate that it was understood that the appellant had a conflicting assessment appointment, but when that was not able to be confirmed it was noted on 12 February 2006, after another telephone conversation with the appellant, that the appellant was not able to attend for personal reasons. 
[3]
A Judge directed a telephone directions conference in order to consider whether the appeal questions could be resolved following the appellant's scheduled specialist examination on 15 March. 
[4]
On 3 May 2007 the Case Manager wrote to the appellant following a telephone discussion. The letter required the appellant to advise by 25 May 2006 what steps she would take to advance the appeal. No reply was received and the appeal was set down for a directions conference on 20 November 2007. 
[5]
The Court offered a telephone conference on 9 October 2007 for the convenience of the parties. The appellant advised by telephone that she was not available on that day because it was a treatment day and that she would prefer the matter to be called on 20 November. She stated that she had a relevant medical review on 30 October. A Judge directed that the furnish written advice as to the nature of the medical review. That direction was given because the appellant had made no attempt to prosecute the appeal and had given unconfirmed reasons for not attending conference dates to discuss the progress of the appeal. 
[6]
On 2 November the appellant telephoned the Registry and advised that she would not be able to attend on 20 November because her injury caused her too much pain, and also that she could not advance her appeal until obtaining a medical report later in the month. 
[7]
On 20 November the appellant failed to attend the directions conference and I recorded that she appeared reluctant or unable to the the steps necessary to make the appeal ready for hearing, and noted that QBE would apply on notice to strike out the appeal. That minute was conveyed to the appellant by letter on 22 November 2007. 
[8]
Ms Jegatheeson filed an application to strike out but has not filed any proof of the application being notified to the appellant. The Court has power under s 161(3)(b) of the Injury Prevention, Rehabilitation, and Compensation Act 2001 to strike out an appeal on the application of a party if the appellant does not prosecute the appeal with due diligence. In ordinary circumstances such an application should be notified by serving on the appellant a notice of the application to strike out. 
[9]
It is the respondent's obligation to serve that notice. However in this case the Registry wrote to the appellant on 31 January 2008 enclosing a copy of the notice and informing the appellant that it would be considered on 14 February 2008 unless final submissions were filed by then. Nothing was received and the Registry again wrote advising that the appeal was set down for calling before a judge on 22 April 2008 at 10.00 am. The letter was returned marked “Gone overseas return to sender”
[10]
I am satisfed that the appellant is not prosecuting the appeal with due diligence despite a number of attempts by the Court to encourage her to take at least one step in advancing the appeal for hearing. 
[11]
For those reasons the appeal is now struck out. 

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