THE DEPARTMENT OF CORRECTIVE SERVICES v SMITH [1998] NSWCA 228

DEPARTMENT OF CORRECTIVE SERVICES v SMITH SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, SHELLER and STEIN JA

8 May 1998, 27 May 1998 [1998] NSWCA 228

Workers Compensation Act 1987 — s40 determination of weekly compensation in respect of any period of partial incapacity s40(2)(a) and S40(2)(b) — whether exercise of s40(1) discretion miscarried.

Practice and procedure — late application to amend notice of appeal — potential prejudice — merits of amendment — refusal of leave.

Priestley JA I have had the benefit of reading in draft Stein JA's reasons in this appeal.

The application to amend the notice of appeal was made very late, and in a way that arguably caused relevant prejudice to the respondent. Late applications of this kind seem to be increasing. They should be discouraged, in the interests of all the parties in an appeal, and in the interests of the court's best use of precious time. I agree that in this case the application to amend should be dismissed. In my view it was, in any event, without merit.

I agree with Stein JA that it is reasonably clear, on an examination of Moran CCJ's reasons, that he complied with the requirements of s40 of the Workers Compensation Act 1987 in working out the relevant awards for weekly compensation and that no appellable error was shown.

I agree with the orders proposed by Stein JA.

Sheller JA I have had the benefit of reading the judgment of Stein JA in draft. I agree with the orders that his Honour proposes. In my opinion, the amended grounds of appeal upon which the appellant relied were for the reasons given without any merit and, accordingly, the application for leave to amend the notice of appeal should be refused and the appeal dismissed.

Stein JA This is an appeal from a decision of Moran CCJ in the Compensation Court. The Notice of Appeal was filed on 16 June 1997. It contained two substantive grounds of appeal and a third ground which stated: