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Accident Compensation Cases

Farrington v Accident Compensation Corporation (DC, 05/09/13)

Judgment Text

RESERVED JUDGMENT OF JUDGE D A ONGLEY APPEAL DISMISSED UNDER s 161(3) 
Judge D A Ongley
[1]
The respondent issued a decision on 4 November 2008 that the appellant was vocationally independent. The decision letter conveyed rights of review. 
[2]
Section 135 of the Act provided that a review application must be in writing and be made within 3 months of the date of the decision. The period of 3 months expired on 4 February 2009 and the appellant did not make application for review until 2 March 2009. 
[3]
The review application was filed by Mr Prendeville. The appellant's authority to Mr Prendeville to act on his behalf was dated 25 February 2009. Mr Prendeville applied for a finding of extenuating circumstances justifying a late application for review under s 135(3) of the Act. The respondent issued a second decision on 20 March 2009 declining to accept that there were extenuating circumstances. 
[4]
That decision was taken to review. At the review hearing, the appellant explained that he had been unable to get a specialist's report in time to apply for review by 4 February 2009. There was no good reason why the appellant could not have made his application for review before obtaining a report and the Reviewer decided that there were no extenuating circumstances justifying a late review. 
[5]
On 14 September 2009, Mr Prendeville filed a notice of appeal against the reviewer's decision. The Registry gave the usual notice requiring written submissions within 6 months. None were received. 
[6]
The Registry requested updates from Mr Prendeville on at least four occasions between August 2010 and September 2012. On 30 January 2013 the Registrar notified Mr Prendeville that the appeal would be set down for a directions hearing on 10 April 2013. 
[7]
Mr Prendeville attended the hearing on 10 April 2013. He had received no instructions from the appellant. The Court directed that Mr Prendeville should advise within 6 weeks whether the appeal was proceeding. The direction stated “If not proceeding; to give formal notice withdrawing unless Mr Prendeville can't make contact in which case Court will direct further”
[8]
After some reminders, Mr Prendeville emailed on 8 September 2013 “I wish to request the withdrawal of the above appeal as I have been unable to contact Mr Farrington. Search of Electoral rolls has proven fruitless as have letter to his last known family address. Stephen and I have not been in contact for over 2 years and for these reasons please withdraw the appeal”
[9]
Mr Prendeville had authority to act for the appellant. It is not clear whether that authority extended to withdrawing the appeal. It is however abundantly clear that the appellant has not prosecuted the appeal with due diligence. In case there is any question about the authority to withdraw the appeal, this appeal is now dismissed under the power contained in s 161(3) of the Accident Compensation Act 2001 to dismiss the appeal because the appellant has not prosecuted it with due diligence. 

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