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. To Mr Ives" affidavit is annexed two medical reports. They indicate that the opponent had a painful dislocation of the right acromioclavicular joint. He also suffered a 10 per cent loss of function of the right upper limb. It seems surprising to me that an appeal would be brought to this Court against such a modest judgment and in the face of the medical evidence which is contained in Mr Ives" affidavit. Counsel for the opponent urged that I should reject the application for extension in the exercise of my discretion. It was submitted that I would do so having regard to a preliminary assessment of the unlikelihood that the appeal would succeed. In effect, it was suggested that the appeal would be futile and, for that reason, that the extension should be refused. 2 UNREPORTED JUDGMENTS I have given thought to this suggestion. However, I do not feel able now, on the preliminary consideration of the material placed before me on this motion and upon the basis of the assistance which I have received, to judge whether or not the appeal is as futile as it certainly at first glance appears to be. The application is, in effect, to cure a short term default which is, at least partly, explained and to permit a party to exercise a right which, in law, he has, and would have had without hindrance, but for the time default. I feel disinclined here to stop the proposed appeal in its tracks. I hope that, before the matter goes much further, careful consideration will be given in the camp of the claimant to the justifiability of the appeal. Such consideration should have regard to the material in the affidavit of Mr Ives. Even now it would not be too late to call a halt to the proceedings if, as it appears, at least on the information before me, that they do not have a high prospect of success. The stake which will be wagered in that litigation approximates the cost of the appeal. It seems, at least on the material, to be an investment of doubtful wisdom. It is appropriate that the extension should be given on the usual terms that the claimant pay the costs and that there should be provided a stay upon conditionthat part of the judgment should be paid. This is appropriate as the matter proceeded to assessment before Smyth DCJ. I am informed that some provision for a stay, on terms that a sum of $45,000 should be paid has been made in the District Court. That sum seems to me the appropriate sum. The orders which I make are: 1. Extend time for the filing of the notice of appeal, with hearing, herein until 4.00 pm on Tuesday, 28 March 1995; 2. Order the claimant to pay the opponent's costs of the motion; and 3. Order that, if the appeal is lodged as aforesaid execution of the judgment of his Honour Judge Smyth be stayed, upon condition that within fourteen days, if not already done, the claimant to pay to the opponent the sum of $45,000. 1. Extend time for the filing of the notice of appeal, with hearing, herein until 4.00 pm on Tuesday, 28 March 1995; 2. Order the claimant to pay the opponent's costs of the motion; and . Order that, if the appeal is lodged as aforesaid execution of the judgment of his Honour Judge Smyth be stayed, upon condition that within fourteen days, if not already done, the claimant to pay to the opponent the sum of $45,000. w Counsel for the claimant: M F Holmes QC Solicitors for the claimant: Abbott Tout Counsel for the opponent: A J Lidden Solicitors for the opponent: Maxwell Berghouse and Ives