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Accident Compensation Cases

Fitzgerald v Accident Compensation Corporation (DC, 25/10/13)

Judgment Text

JUDGMENT OF JUDGE D A ONGLEY DISMISSING APPEAL UNDER S 161(2)(b) 
Judge D A Ongley
[1]
The respondent has applied under s 161(3) of the Act to dismiss this appeal on the ground that the appellant has not prosecuted the appeal with due diligence. 
[2]
Notice of appeal was filed on 9 July 2010. Mr Kenyon acted as advocate for the appellant and filed submissions in support of the appeal on 30 August 2011. The respondent's submissions were filed in January 2012 and the Registry set down the appeal for a hearing date of 10 September 2012. 
[3]
Mr Kenyon then notified the Registry that he had lost contact with the appellant. The Registry rescheduled the hearing date to 9 May 2013. 
[4]
Mr Kenyon was still unable to contact the appellant. He appeared on 8 May 2013 and requested leave to withdraw from acting on her behalf. I deferred Mr Kenyon's application until the Registry could contact the appellant. Mr Kenyon advised that her mobile appeared to accept recorded calls but he had no response from her. He said he had tried ringing all similar names in the Rotorua telephone directory. 
[5]
I recorded that the appeal could be dismissed under s 161(3) and directed the Registry to attempt to contact the appellant. 
[6]
The Registry advises that an enquiry was then made to ACC which responded that the last known address was 141A Otonga Road, Rotorua. On 20 September 2013, the Registry sent a notice of hearing to that address, advising that the appeal would be heard on 23 October 2013. There was no response. 
[7]
Meanwhile the Registry attempted to contact the appellant on a mobile phone number, probably that obtained from Mr Kenyon. A check was made in the electoral roll without success. 
[8]
I am satisfied that all reasonable steps have been taken in an attempt to notify the appellant of the need for her to appear. She failed to appear today at the time appointed for hearing of the appeal. Mr Carlyle attended on behalf of Mr Kenyon in case the appellant might have appeared. He had no instructions to argue the appeal. 
[9]
Ms Becroft applied on behalf of the respondent for the appeal to be dismissed. 
[10]
I am satisfied that the appellant has not prosecuted her appeal with due diligence. The appeal is therefore dismissed under the power in s 161(3)(b) of the Accident Compensation Act 2001. The appeal is therefore dismissed. 

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