PETER WARREN (FAIRFIELD) PTY LTD v McMARTIN [1995] NSWCA 367

PETER WARREN (FAIRFIELD) PTY LTD v McMARTIN

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

COLE JA 24 July 1995

[1995] NSWCA 367

Cole JA. In this matter the claimant seeks leave to file a notice of motion out of time. The matter arises in this way: On 8 June 1995 his Honour Judge Armitage made a determination that there had not been an election, which would have the effect of prohibiting worker's compensation proceedings, by the filing of a particular statement of claim. On 20 June the solicitor for the appellant, Peter Warren (Fairfield) Pty Limited, received advice from counsel that consideration should be given to lodging an appeal against that decision. The determination by Judge Armitage constitutes an award within the meaning of section 31 of the Workers" Compensation Court Act. Therefore, there is an appeal as or right to this Court.

The prospective appellant had until 6 July 1995 to lodge that appeal. The failure to lodge the appeal in time was due, according to the affidavit of David James Farrell, to an oversight on the part of the solicitors acting for the prospective appellants, that oversight being due in major part to the circumstance that his firm moved offices on 30 June and 1 July 1995. In addition there was a delay of some eight or nine days after receipt of advice on 20 June to seek a copy of the transcript of the reasons for judgment of his HonourJudge Armitage. As of today the transcript of that judgment has not yet been received by either party. Application by way of summons to file the notice of appeal out of time was filed on 13 July 1995, that is some seven days after the expiration of the time within which a notice of appeal could have been filed without leave.

The application is opposed on three bases. The first is that the provisions of Part 51 rule 4 subrule 5 provided that a party applying to the Court of Appeal for an extension of time under subrules | or 2 should lodge a draft, completed as far as possible, of the notice of appeal to be filed if an extended time is fixed. That has not been done. The point desired to be raised on appeal is a point of law and is well understood, and whilst it may be desirable to have the reasons for judgment available before settling a nature of appeal, it does seem tolerably clear a notice of appeal could have been provided. That has not been done and in one sense that rule cannot now be complied with because it requires the document to be lodged with the notice of motion.