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Accident Compensation Cases

Meyrick v Accident Compensation Corporation (DC, 28/01/10)

Judgment Text

Judge J Cadenhead
The Issue 
The issue is whether I should refuse the application to bring this appeal out of time. 
The respondent neither consents to nor opposes the application to hear the matter out of the time and will abide by the decision of the Court. 
Background of Facts 
The general position in regards to considering applications to appeal out of time is the four step test set out in McDougall v ACC (1984) 4 NZAR 85, i.e. the length of the delay, the reasons for the delay, the strength or merits of the applicant's case, and the prejudice to the other party if an extension is granted. 
The Length of the Delay 
Section 151 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 (“the Act”) requires a notice of appeal to be filed within 28 days of the review decision. In this case the appeal was filed approximately more than two years out of time, which is significant. 
The Reasons for the Delay 
While the appellant has not given reasons for the delay in filing the appeal, there is a suggestion that the appellant was influenced by advice from previous counsel that he did not have a particularly strong case. His current representative disagrees with this advice and has levelled some quite severe criticism at the appellant's previous counsel. With respect, the respondent does not share the appellant's concerns in this regard and there appears to be no basis to call into question the professionalism of other counsel in this matter. 
While the current representative may have adopted a different approach to this case, the fact remains that the appellant was represented, and took advice from counsel, and the fact that his current representative has a different opinion on the merits of the case, does not in itself provide good reason for the delay. 
The Strengths or Merits of the Appellant's Case 
The respondent considers that the reviewer's case was sound and well reasoned and will be defending the appeal accordingly. It entirely rejects the submission put forward by the appellant that the reviewer had predetermined the matter or that ACC had misinterpreted the claim made by the appellant. 
However it accepts that the case is not beyond argument, and considers that the appeal is probably worthy of consideration by the Court. 
While the delay is significant, the respondent acknowledges that there is sufficient evidence on the file relating to the appellant's condition at the relevant time and therefore accepts that it would not be unduly prejudiced by the lateness of the appeal. 
I have perused the file and the medical reports with some care. I have also considered in some detail the submissions of the appellant and read the affidavits filed in support of this application. On the one hand is the long delay involved, however, balanced against that is the lack of prejudice and the fact that appellant may have some merit with his arguments. However, I do not consider that I should go into the prospects of the claims to any extent, as that will be the function of another Judge. 
After considering all the facts and the law, I have decided that the application to extend time should be granted and the appeal be heard by another Judge. There is no order as to costs. 

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