SKINNER v BARAC [1995] NSWCA 433

SKINNER v BARAC SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KIRBY P 27 March 1995 [1995] NSWCA 433

PRACTICE & PROCEDURE — Court of Appeal — extension of time for lodging appeal out of time — explanation of time default — appeal against judgment in damages assessment case — whether appeal futile — held: Extension of time should be granted to cure time default — reconsideration of wisdom of appeal recommended.

Kirby P. I have before me a contested application for an extension of time within which to file an appeal against a judgment entered in the District Court by Smyth DCJ. The facts are deposed to in two affidavits. The first is an affidavit filed on behalf of the claimant by his solicitor, Mr Williams. The second is an affidavit filed on behalf of the opponent by his solicitor, Mr Ives.

Mr Williams deposes to the recovery of judgment in the sum of $78,769. A delay in prosecuting the appeal which ensued during the long Vacation. The explanation offered, such as it is, is attributed to Mr Paul Hargrave, claims officer with NRMA Insurance Ltd, who is recorded as saying:

Due to my absence and volume of work I have just had an opportunity to look at your work and talk to my solicitor.

It seems that this delay and pressure of work occasioned the failure to appeal within time.

The appeal was filed directly after the matter had been considered by Mr Hargrave. He gave instructions to his solicitor. The question is whether this Court should repair the short interval.

Mr Ives" affidavit deposes to the breakdown in the judgment of Smyth DCJ of the non-economic loss component of $56,660 and to the out-of-pockets and future past wage loss and future wage loss which together constitute approximately $22,000.

The proposed notice of appeal challenges the award for non-economic loss,the award for economic loss and his Honour's alleged failure to give proper weight to the medical evidence which was tendered.