New South Wales Court of Appeal CITATION : Guyra Meatpacking Pty Ltd & ors v E. Wright & ors [1999] NSWCA 430 FILE NUMBER(S) : CA 40819/98; CA 40820/98; CA 40821/98 HEARING DATE(S) : Friday 6 August 1999 JUDGMENT DATE : 6 August 1999 Appellant:1. D R Johnstone Group Pty Ltd Appellant: 2.Guyra Meatpacking Pty Ltd PARTIES : Respondent: 1Lexwood Edward Wright Respondent: 2.John Stephen Roberts Respondent: 3.Christopher James Love JUDGMENT OF : Priestley JA at 12; Meagher JA at 1; Beazley JA at 17 LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 35/98; 39/98; 36/98 LOWER COURT JUDICIAL OFFICER : Blanch CJDC COUNSEL : Appellant: J Maconachie QC / I Neal Respondent: P Menzies QC / D Jenkyn SOLICITORS : Appellant: Hickson Wisewoulds Respondent: Watson, McNamara & Watt CATCHWORDS : Extension of time to appeal; prejudice; onus of proof; discretion of court to grant extension. ACTS CITED : Workers Compensation Act 1987 CASES CITED: Brisbane South Regional Health Authority v Taylor(1996) 186 CLR 541 SCC v Zegarac (1998) 43 NSWLR 195 DECISION : Appeal Dismissed THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40819/98 40820/98 40821/98 PRISTLEY JA MEAGHER JA BEAZLEY JA FRIDAY 6 AUGUST 1999 D R JOHNSTONE GROUP PTY LTD v LEXWOOD EDWARD WRIGHT GUYRA MEAT PACKING PTY LTD v JOHN STEPHEN ROBERTS GUYRA MEAT PACKING PTY LTD v CHRISTOPHHER JAMES LOVE JUDGMENT 1 PRIESTLEY JA I will ask Meagher JA to give the first judgment in this matter. 2 MEAGHER JA: This case consists of three applications for leave to appeal against a decision by his Honour Judge Blanch granting three employees an extension of time in which to sue their employers for damages. The extension was granted pursuant to s151D(2) of the Workers Compensation Act 1987 which says: "A person to whom compensation is payable under this Act is not entitled to commence court proceedings for damages in respect of the injury concerned against the employer liable to pay that compensation more than three years after the date on which the injury was received, except with the leave of the court in which the proceedings are to be taken." All three matters are related. Each employee was employed in an abattoir at Guyra. Each alleged that he had contracted Q fever at work. 3 The opponent Love alleged he was employed as a labourer on the mutton chain and also in the beef section and contracted the fever in November 1998. 4 The opponent Wright alleged he was employed there in the handling of waste animal product and contracted the fever in or about July 1993. 5 The opponent Roberts alleged he was employed in the abattoir as a boner in the boning room and contracted the fever in 1988. 6 There is prima facie evidence supportive of these allegations. 7 There is no doubt that the onus of proving an extension should be granted lies on the person claiming the extension, namely the workers in this case, Love, Wright and Roberts. The Act impliedly says so. His Honour so decided and the claimants vociferously submitted so. Moreover, his Honour did approach the matter on that basis and ultimately held that the onus had been discharged. 8 In the circumstances of these cases, as in most cases seeking an extension of time under any Act, the greatest barrier to success is prejudice to the other side. In this regard both the applicant and his Honour relied on the decision of the High Court in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, subject to the gloss suggested by Mason P in SCC v Zegarac (1998) 43 NSWLR 195. His Honour considered these matters and also considered that the employees do or had rights, which they did have, under the Workers Compensation Act. He also considered the crucial question of whether there can be a fair trial if leave were granted. 9 In the present case his Honour accepted the present claimants' submissions that prejudice would be caused to the claimants if the applications were granted because many documents had been lost, one potential witness had died, the business has been closed down and no monitoring of the disease has been possible. However, his Honour felt that these disabilities were not as grave as they seemed at first sight and that fact, coupled with the obvious desirability of affording a trial for those who suffered serious injury, inclined his Honour to grant an extension. It is against his Honour's decision in this respect that the present application for leave to appeal is brought. 10 His Honour's judgment is a discretionary one. It seems wholly admirable to me. It contains no error of law or mistaken assertion of fact. It is far from being obviously unreasonable. 11 I would make an order refusing leave and dismiss the motions with costs. 12 PRIESTLEY JA: I agree generally with what Meagher JA has said, but wish to add little to that. 13 One matter on which I wish to say something is a submission made on behalf of the claimants here that the differences between the legislation which was considered by the High Court in the Brisbane South case and s 151D of the Workers Compensation Act require that a different test be applied in the present case from that to be derived from Brisbane South. 14 This submission may in the fullness of time be accepted as correct. Equally it may not, but whichever test be the appropriate one in the present case does not, in my opinion, affect the result. If Brisbane South should be applied, for the reasons given by Meagher JA, I see no relevant error in the opinion of the judge below. If the test contended for by the claimants should be correct, then I think the opinion of the judge below would inevitably have been the same. 15 The other matter I wish to add is that the proceedings today were thoroughly argued on behalf of the claimants as if they were an appeal. This was completely proper because the court had indicated that the course should be followed in case the court thought it was appropriate for leave to be granted. However, as the court has reached the view that the cases are not appropriate ones for the grant of leave, there is no need for any fuller statement of reasons than we are giving. 16 I concur with the orders proposed by Meagher JA 17 BEAZLEY JA: I agree with Meagher JA and Priestley JA. 18 PRIESTLEY JA: The orders of the court are, therefore, as stated by Meagher JA. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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