J & M LOJE BUILDING CONTRACTORS PTY LTD v LOJE [1995] NSWCA 213

J & M LOJE BUILDING CONTRACTORS PTY LTD v LOJE

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 10 April 1995

[1995] NSWCA 213

Sheller JA. The respondent claimant applies by notice of motion for an order that the time in which he is permitted to file a notice of cross appeal be extended. The application is supported by an affidavit of his solicitor, Gervase Liddy, sworn 9 March 1995 which to some extent explains the delay in filing a notice of cross appeal.

The opponent filed its notice of appeal on 26 June 1992 so that the filing of a notice of cross appeal will be almost three years out of time. The delay is at least in part explained by the claimant's physical condition which was the result of the accident, the subject of his application in the Compensation Court.

The appeal is from a decision of Moroney J on 29 May 1992. The application before Moroney J was for review of a determination made by Commissioner Grayson on 5 September 1991. The determination involved an award in favour of the claimant.

The issues were whether the claimant, who was a director of the opponent, was at the relevant time a worker and whether the accident occurred in the course of his employment. Apparently Commissioner Grayson was satisfied that the claimant was a worker but came to the conclusion that the need to show that the accident occurred in the course of his employment was overcome by an exception in the legislation.

His Honour reviewed the decision, noted the agreement between the parties that the matter should be re-heard, and said that in the circumstances of the case, he would order a re-hearing before a judge. In the notice of appeal, the opponent says that his Honour erred in ordering a re-hearing. Having set aside the award of the Commissioner in favour of the claimant, he also erred in failing to substitute an award in favour of the opponent.