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Accident Compensation Cases

Whare v Accident Compensation Corporation (DC, 22/11/10)

Judgment Text

Judge P F Barber
By decision of 14 March 2006 Reviewer, Mrs Shirley Welsh, held that the 6 July 2005 decision of appellant's accredited employer declining the appellant cover for a cervical disc prolapse was correct. 
On 3 April 2006 the Registry received a Notice of Appeal (from counsel) for the appellant and that day the Registrar posted the usual letter to the parties (including the employer as a respondent also) commenting on procedural matters and requesting written submissions within 60 days. 
Among communications since then is a letter of 16 May 2006 from counsel for appellant advising that the appellant had been referred to a specialist occupational physician for assessment and opinion, and had also applied for legal aid. 
At a directions hearing on 2 October 2006 Judge Cadenhead adjourned the appeal sine die to await further medical reports which were expected to lead to a new primary decision. 
At a further directions hearing on 8 August 2007, Judge Beattie ordered that ACC investigate a s 30 claim. 
At a directions hearing on 21 November 2007 Judge Beattie directed that ACC counsel report to Registry and to counsel for the appellant within seven days as to progress on the s 30 claim. That led to a letter of 28 November 2007 from counsel for ACC stating: 
“I confirm that ACC has determined that it would be appropriate to obtain an occupational specialist report in relation to the claim. ACC has sent a letter to Mr Whare, and his solicitor, providing them with a choice of four occupational physicians. Depending on the Mr Whare choice an appointment may be arranged in December or alternatively late January/February. 
I will update the court once this report is available in relation to the progress of the s 30 claim. ”
At a further directions hearing on 28 March 2008 I ordered that ACC is to supply a gradual process report, and that Mr Sara endeavour to persuade the appellant to attend the specialist, and that there be a report from counsel on progress filed with the Registry by 30 May 2008 “with a view to counsel agreeing on a timetable towards a fixture”
At a further directions hearing on 5 June 2008 Judge Beattie noted that counsel for the appellant would attempt to contact the appellant and the appeal was to be called further for mention on 23 July 2008. In fact, it was called on 24 September 2008 when counsel for the appellant was required to advise the Registry of the appellant's address at Rakaia and the appellant was given until 22 October 2008 to file submissions or advise whether he wished to continue with the appeal. On 6 October 2008 counsel for the appellant supplied a specific address for the appellant at Rangiora. 
A further directions hearing was set for 18 November 2008 and, on 5 November 2008 Mr Whare telephoned his counsel and confirmed his previous instructions to his counsel and agreed to attend an occupational physician for a gradual process work injury report. The directions hearing was adjourned. 
At a further directions hearing on 18 December 2008 I directed that a fixture be allocated for early 2009 in Dunedin and that submissions be filed for the appellant by 31 January 2009 and, in response, from ACC 14 days after that. 
The Registry then received a full letter from counsel for the appellant dated 20 January 2009 advising that the appellant was to have seen Dr Beaumont in late 2008 so that it would be premature to file submissions on behalf of the appellant by 31 January 2009. 
On 4 March 2009 I noted that Mr Sara was having difficulty communicating with the appellant and, by consent, the appeal was adjourned to June 2009. 
On 12 June 2009 I noted, inter alia, that the appellant had again “vanished” and Mr Sara undertook to try and trace him; but I noted that, although the case is adjourned to August, if the appellant's whereabouts were still then unknown, the appeal would be struck out for non prosecution. 
The Registry was then provided with an address for the appellant at Oxford, Christchurch, but he had still not arranged an appointment with Mr Beaumont. 
Efforts were made to communicate with the appellant at Oxford and the Registrar holds a copy of a 28 October 2009 letter addressed to the appellant there by a technical claims manager at ACC endeavouring to expedite the appeal. Since then, all involved have endeavoured to communicate with the appellant. 
My Registrar communicated with Mr Sara on 12 November 2010 and ascertained that Mr Sara did not know the whereabouts of the appellant but felt reluctant withdraw as counsel nor could he proceed without client instruction. He indicated he would abide by my decision now in terms of my directions of 12 June 2009 which, as indicated above, included a warning that the appeal would be struck out for non prosecution. 
I am satisfied that, despite every latitude, the appellant has failed to proceed with his appeal in an acceptable manner. It is hereby dismissed for non-prosecution. 

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