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Accident Compensation Cases

Kelly v Accident Compensation Corporation (DC, 29/08/11)

Judgment Text

Judge P F Barber
A 25 September 2008 email from Mr Mike Dixon-McIver, advocate, of Upper Hutt, has been treated as an application for leave to appeal to the High Court against Judge Beattie's 16 September 2008 decision (no. 227/08). There, the issue arose from the 29 October 2007 decision of PPCS Ltd, an accredited employer under Act, dated declining to reinstate weekly compensation to the appellant from 26 February 2006 onwards. Judge Beattie dismissed the appellant's appeal to this Court. 
Since that email notice of 25 September 2008, the appellant seems to have been represented by the said advocate and by John Miller Law; although the latter law firm did not seem to be involved until about July 2009 and withdrew on 26 July 2010 having been unable to obtain further instructions from the appellant. 
Mr Dixon-McIver has been involved throughout. The registrar wrote to him on 26 September 2008 requiring submissions in support of the application for leave to appeal within 21 days and there has been similar correspondence from the registrar to Mr Dixon-McIver on 6 November 2008, 17 June 2009, 9 July 2009 (which caused the appellant to telephone and advise that John Miller Law were now acting), and 21 August 2009. That led to a telephone call of 5 October 2009 from Mr Dixon-McIver to the registrar at which Mr Dixon-McIver advised he would file submissions in support of the application by 1 November 2009. That did not happen. 
The registrar wrote direct to the appellant on 27 July 2010 giving him until 27 August 2010 to file submissions. That led to a letter from the appellant to the registrar advising, inter alia, that Mr Dixon-McIver was representing the appellant and that the appellant lives at a camping ground where mail is often misplaced. 
On 2 September 2010, the registrar wrote again to the appellant at a new address provided inter alia, requiring submissions in support of the application within 21 days. This led to a 21 December 2010 telephone call from the appellant to the registrar asking the registrar to deal with Mr Dixon-McIver. Accordingly, the registrar emailed the latter appropriately on 22 December 2010 and Mr Dixon-McIver undertook to file submissions by the end of February 2011 advising he had been ill. 
The registrar telephoned Mr Dixon-McIver on 2 February 2011 but the voice mail advised that Mr Dixon-McIver did not answer voice mail. Accordingly, the registrar emailed Mr Dixon-McIver again on 1 April 2011 but the email did not seem to reach any recipient. The registrar spoke to Mr Dixon-McIver by telephone on 26 July 2011 and was told that the latter is aware of the situation “and will do it as soon as he can” (i.e. file submissions in support of the application for leave to appeal). Four weeks have now passed with no further contact from or for the appellant applicant. 
In terms of the circumstances set out above, I hereby dismiss this application for leave to appeal to the High Court on the ground of non-prosecution by the applicant/appellant. 

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