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. We have been handed short minutes of order and following those short minutes of order I propose the following orders: 1. The decision of Registrar Jupp made on 23 March 1998 be set aside. 2. The claimant is to be granted an extension of time to institute an appeal against the decision of Master Malpass of 14 August 1997, that appeal to be filed no later than 4pm today. 3. The appeal is to be heard together with the proceedings already pending in this Court in appeal number 40553/97. 4. The appellant/claimant is to serve on the respondent/opponent appeal books, together with copies of the written submissions already filed between the parties in the appeal number 40553/97. Such documents to be served by 1 May 1998. 5. Submissions are to be exchanged as between the parties to this application in relation to the appeal for which leave has been given today in accordance with the rules. 6. The claimant is to pay the opponent's costs of the application which include the costs of the application before Registrar Jupp. Sheller JA I agree. UNREPORTED JUDGMENTS Powell JA I also agree. Mason P Those are the orders made on the application. 1. 2. The decision of Registrar Jupp made on 23 March 1998 be set aside. The claimant is to be granted an extension of time to institute an appeal against the decision of Master Malpass of 14 August 1997, that appeal to be filed no later than 4pm today. The appeal is to be heard together with the proceedings already pending in this Court in appeal number 40553/97. The appellant/claimant is to serve on the respondent/opponent appeal books, together with copies of the written submissions already filed between the parties in the appeal number 40553/97. Such documents to be served by 1 May 1998. Submissions are to be exchanged as between the parties to this application in relation to the appeal for which leave has been given today in accordance with the rules. The claimant is to pay the opponent's costs of the application which include the costs of the application before Registrar Jupp.