GIO WORKERS COMPENSATION v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD [1998] NSWCA 94

GIO WORKERS COMPENSATION v MERCANTILE MUTUAL INSURANCE (AUSTRALIA) LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, SHELLER and POWELL JJA 27 April 1998 [1998] NSWCA 94

Mason P The claimant seeks the review of the decision of the Registrar made on 23 March 1998. It concerns what is essentially a defensive appeal touching the rights of insurers appendant to principal litigation which was to be heard some weeks back. Unfortunately the hearing date was vacated and a fresh date has been fixed for late May.

There appears to have been some misunderstanding. The claimant had indicated its intention to file this defensive appeal. This had been noted by the court but then there was a delay which the Registrar thought to be unexplained and in exercise of his discretion led him to refuse the leave for this Notice of Appeal to be filed out of time.

This is an appeal as of right, albeit as I say a defensive one. The Registrar took into account the fact that the opponent would suffer a prejudice if the extension of time were granted. He referred to the costs of defending the appeal and to the potential liability to the order that would follow were the appeal to be successful. With respect to the Registrar I do not think this is the type of prejudice which is relevant to the exercise of a discretion of this nature touching an appeal as a right.

Accordingly the discretion is in my view available to be re-exercised and I would exercise it in favour of granting the leave, having regard to the fact that it is an appeal as a right. It is peripheral to the pending litigation and the would be appellant did notify the intention to bring that application some very considerable time ago. It is true that the appellant has been tardy and I think that ought to be reflected, not punitively but just in terms of the fact that they are seeking the indulgence, in the order for costs which I propose making.