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. While there is no doubt that the application to file a notice of cross appeal is substantially out of time and no complete explanation is given for the delay, it was conceded by Mr Evans, who appears on behalf of the opponent, that the filing at this stage of a notice of cross appeal will not cause his client prejudice. Apparently the appeal is set down for hearing in September 1995. In my opinion the cross appeal raises the issue as to whether the award of Commissioner Grayson should be confirmed. This is an issue which should be before the Court and does not appear to be thrown up by the notice of appeal. In all the circumstances I think that this is an appropriate case in which to make the orders sought in the claimant's notice of motion. The need for this application was brought about by the claimant's failure to file his notice of cross appeal within time. However, I understand that the matter was brought toapplication was brought about by the claimant's failure to file his notice of cross appeal within time. However, I understand that the matter was brought to the attention of the opponent and consent was not forthcoming to the application. 2 UNREPORTED JUDGMENTS In all the circumstances I think it appropriate to make no order as to costs of the application. Accordingly the orders I make are that the time in which the claimant is permitted to file a notice of cross appeal be extended up to and including 13 April 1995. There will be no order as to costs. Orders accordingly.