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Accident Compensation Cases

Boyd v Accident Compensation Corporation (DC, 20/05/09)

Judgment Text

Judge P F Barber
On 3 January 2008, the registrar received a Notice of Appeal from John Miller Law on behalf of the appellant. It was from a 19 December 2007 decision of Reviewer P Barker in which he confirmed ACC's 19 March 2006 decision that the appellant had no entitlement to an independence allowance as her impairment is less than 10%. The Notice of Appeal seemed to be on the basis that the assessment was flawed or there had been a failure by ACC to adequately investigate the appellant's claim. 
The appellant has cover for a personal injury of nerve damage in her right arm caused by medical misadventure in October 1998. She applied for an independence allowance in 2005 and appropriate assessment procedures were implemented. The issue became whether there is sufficient evidence of a mental injury to require reassessment of impairment and that seemed to relate to a possible diagnosis of complex regional pain syndrome. The Reviewer proceeded on the basis that there is no confirmed mental injury but there is physical injury to the appellant's nerve which has the effect of causing her physical pain. 
The usual procedures were followed by the Registry. Then there was a letter of 5 May 2008 from a deputy registrar to counsel for the appellant pressing for submissions. There was a properly arranged 6 August 2008 directions hearing before Judge Beattie at Wellington where His Honour noted that Mr Miller had lost contact with the appellant; there had been no reply to letters to the appellant's last known address; Mr Miller has withdrawn as counsel and is to confirm to the Registry the appellant's last known address and the registry is to write to the appellant requiring submissions within 28 days on the basis that failure to comply may result in dismissal of the appeal. 
Mr Jonathan Miller duly communicated/confirmed the appellant's last known address and advised that she had gone overseas. 
The deputy registrar wrote appropriately to the appellant on 10 December 2008 at her last known address seeking the filing of her submissions by 21 January 2008. There has been quite some endeavour by all concerned to communicate with the appellant. 
A further directions hearing was arranged for 4 March 2009 before Judge Ongley and his orders were sent to the appellant's address by registered post. These were that the appellant is to file and serve written submissions within 28 days from the posting of that letter upon which ACC is to file and serve submissions within a further 28 days and the matter be set down for hearing; but there was an “unless order” reading “unless the appellant complies with para [1] or provides in writing a reason for further delay of this appeal, then after the expiry of the period in para [1] the appeal will be dismissed for non prosecution without further notice to the appellant”
Against that history, the matter was set down with proper notice before me on 14 May 2009. I noted that Judge Ongley's “unless order” had been served but not complied with, and that there was no appearance before me by the appellant nor anyone on her behalf nor any explanation for such non appearance. I suspect that communications from the Registry may not have been personally received by the appellant as she has gone overseas. 
Ms Scott, counsel for ACC, made application for dismissal of the appeal for want of prosecution based on the fact that the appellant did not appear at the hearing and had taken no step in the appeal since early 2008. 
On 14 May 2009 I considered that grounds for dismissal for non-prosecution (and non-appearance) had been made out and I accordingly then dismissed the appeal pursuant to s 161(3)(a) and/or (b) of the Act. 

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