Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Naidu v State of New South Wales (No. 2) [2020] NSWCA 170 Hearing dates: 3 August 2020 Date of orders: 3 August 2020 Decision date: 03 August 2020 Before: White JA Decision: (1) Order that the purported notice of appeal filed on 18 December 2019 be dismissed as incompetent. (2) Order that the appellant pay the respondent's costs of the purported notice of appeal. Catchwords: Civil Procedure – Court of Appeal – Competency of Notice of Appeal – No issue of principle – Appeal dismissed Legislation Cited: Workers Compensation Act 1987 (NSW), ss 66, 67 Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 353 Cases Cited: Bryce v Department of Corrective Services [2009] NSWCA 188 Naidu v State of New South Wales [2020] NSWCA 147 Southern Cross Exploration NL v Fire and All Risks Insurance Co Limited (No. 2) (1990) 21 NSWLR 200 Category: Principal judgment Parties: Mala Ranjini Naidu (Applicant) State of New South Wales (Respondent) Representation: Counsel: S Wijesinghe, Solicitor (Applicant) F Doak (Respondent) Solicitors: Oxbridge Associates (Applicant) Turks Legal (Respondent) File Number(s): 2019/397696 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Judgment 1. HIS HONOUR: On 18 December 2019 the appellant, Ms Mala Naidu, purportedly as of right, filed a notice of appeal in respect of a decision of a deputy president of the Workers' Compensation Commission made on 22 November 2019. The Deputy President refused Ms Naidu's application to extend time to appeal from the decision of an arbitrator rejecting her claim for lump sum compensation. 2. A party to proceedings before the Commission constituted by a Presidential Member who is aggrieved by a decision of the Presidential Member in a point of law may appeal to this Court (Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353(1)). In the case of an interlocutory decision, the appeal may only be made with leave of this Court (s 353(4)(a)). 3. On 28 April 2020 Ms Naidu filed a notice of motion seeking leave to appeal and an order that the application for leave to appeal be heard at the same time as the appeal. 4. The solicitor for Ms Naidu affirmed an affidavit in support of the notice of motion deposing that the appeal was commenced when the appellant did not have legal representation. The solicitor deposed that he had prepared the matter on the basis that leave was not required, but had recently become aware of case law which caused him to form the view that leave to appeal was required (affidavit of Don Sanjeewa Wijesinghe of 28 April 2020 at [24] and [25]). 5. No order was made for the concurrent hearing of the application for leave to appeal and the appeal. The application for leave to appeal was heard on the papers. On 15 July 2020 this Court (Basten and Leeming JJA) refused leave to appeal (Naidu v State of New South Wales [2020] NSWCA 147). In the course of their Honours' reasons they stated that the decision to which the application related was an interlocutory decision (at [19]). 6. On 17 July 2020 the Registrar wrote to the parties stating that the notice of appeal appeared to be incompetent because of the absence of leave to appeal. The matter was listed for hearing today to show cause why the appeal should not be dismissed as incompetent. 7. Ms Naidu sought the adjournment of the application on the ground of ill health. She provided a certificate of a psychiatrist who stated that due to distress and depression, she was not fit to attend court. 8. The appellant is represented by a solicitor, Mr Wijesinghe. He appears for Ms Naidu this morning and has sought the adjournment requested by her. However, quite properly, he cannot point to any good reason for its being arguable that the notice of appeal is competent. He was clearly right in apprehending that leave to appeal was required, as Basten and Leeming JJA stated in their reasons. (Southern Cross Exploration NL v Fire and All Risks Insurance Co Limited (No. 2) (1990) 21 NSWLR 200 at 207, 208, 215, 217; Bryce v Department of Corrective Services [2009] NSWCA 188 at [3]). 9. No purpose would be served in acceding to the appellant's application for an adjournment. The appeal is clearly incompetent. 10. For these reasons I make the following orders: 1. Order that the purported notice of appeal filed on 18 December 2019 be dismissed as incompetent. 2. Order that the appellant pay the respondent's costs of the purported notice of appeal. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 August 2020