New South Wales Court of Appeal CITATION : GEORGE v THE BROKEN HILL PROPRIETARY COMPANY LIMITED & 1 ORS [2003] NSWCA 365 HEARING DATE(S) : 23/09/2003 JUDGMENT DATE : 15 December 2003 JUDGMENT OF : Meagher JA at 1; McColl JA at 2; Foster AJA at 77 DECISION : 1. Grant leave to appeal; 2. Claimant to file his Notice of Appeal within 21 days of these orders; 3. Opponents' motions dated 4 December 2002 dismissed; 4. Opponents to pay the claimant's costs of the motions before Registrar Schell; 5. Costs of the leave application to be costs in the appeal CATCHWORDS : PRACTICE AND PROCEDURE - leave to appeal - whether claimant's case sufficiently arguable - where no direct evidence of breach of duty of care - whether evidence sufficient to enable the trial judge to find the burden of proof discharged in the absence of any contradiction - review of Registrar's decision to dismiss appeal as incompetent - whether grant of extension of time based upon extraneous or irrelevant matters. Construction Safety Regulations 1950 (NSW) District Court Act 1973 (NSW) LEGISLATION CITED : Factories, Shops and Industries Act 1962 (NSW) Supreme Court Rules 1970 (NSW) Workers Compensation Act 1987 (NSW) Armory v Delamirie (1722) 1 Stra 505, 93 ER 664 Blatch v Archer (1774) 1 Cowp. 63, 98 ER 969 Carolan v AMF Bowling Pty Limited t/as Bennetts Green Bowl (unreported, NSWCA, 16 November 1995) Council of the Municipality of Woollahra v Sved & Anor (NSWCA, unreported, 24 July 1998) Hampton Court Limited v Crooks (1957) 97 CLR 367 CASES CITED : Ho v Powell (2001) 51 NSWLR 572 House v The King (1936) 55 CLR 499 In Re the Will of Gilbert (Dec'd) (1946) 46 S.R. (NSW) 318 Jones v Dunkel (1959) 101 CLR 298 Kondis v State Transport Authority (1984) 154 CLR 672 Shoeys Pty Limited v Allan (1991) Australian Torts Reports 81-104 Craig GEORGE - Claimant PARTIES : THE BROKEN HILL PROPRIETARY COMPANY LIMITED - 1st Opponent CONVATECH PTY LTD (Formerly BELL BANE (NCLE) PTY LTD) - 2nd Opponent FILE NUMBER(S) : CA 40425/03; 40558/02 Mr M Aldridge SC - Claimant COUNSEL : Mr R Margo SC with Mr A Spencer - 1st Opponent Mr G McGrath - 2nd Opponent Bale Boshev Lawyers - Claimant SOLICITORS : Blake Dawson Waldron - 1st Opponent Arnold Lawyers - 2nd Opponent LOWER COURT District Court JURISDICTION : LOWER COURT 287/00 FILE NUMBER(S) : LOWER COURT Phegan DCJ JUDICIAL OFFICER : IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40425/03 40558/02 DC 287/00 MEAGHER JA McCOLL JA FOSTER AJA MONDAY, 15 DECEMBER, 2003 Craig GEORGE v THE BROKEN HILL PROPRIETARY COMPANY LIMITED & 1 ORS FACTS The claimant, an employee of the second opponent Convatech Pty Ltd, worked at the Sinter Plant which was owned and occupied by the first opponent BHP. On 11 September 1998 a large piece of timber fell on him during the course of his employment. The claimant brought proceedings alleging negligence and breach of statutory duty against both BHP and Convatech to recover damages. On 20 June 2002 Phegan DCJ dismissed the claim on the basis that the claimant had failed to establish that either of the opponents was negligent. The claimant's solicitors filed a Notice of Appeal and an affidavit purporting to state facts showing that the $100,000 limit in s 127(2)(c) of the District Court Act 1973 (NSW) did not apply. The opponents moved the Court for orders that the appeal be struck out or dismissed as incompetent. On 3 April 2003 Registrar Schell granted the opponents an extension of time to bring their applications as to incompetence and dismissed the appeal as incompetent. The claimant sought both leave to appeal against Phegan DCJ's decision and a review of Registrar Schell's decision of 3 April 2003. HELD per McColl JA (Meagher JA and Foster AJA agreeing): On the leave application, granting leave to appeal: 1. The claimant's submission that Phegan DCJ was in error in finding BHP had not breached its duty of care is sufficiently arguable to warrant leave to appeal against BHP on the basis that: · The documentary evidence was capable of founding an inference of negligence against BHP in the absence of any contradiction from BHP: Hampton Court Limited v Crooks (1957) 97 CLR 367; Shoeys Pty Limited v Allan (1991) Australian Torts Reports ¶81-104. · Phegan DCJ failed to refer to such evidence or to consider why it did not constitute evidence of negligence sufficient to discharge the claimant's burden of proof. 2. Phegan DCJ's failure to address the issue of Convatech's non-delegable duty was erroneous such as to warrant leave to appeal against Convatech. On the review of the Registrar's decision striking out the appeals as incompetent: 1. Registrar Schell erred by relying on extraneous or irrelevant matters in granting the opponents an extension of time within which to bring their motions: House v The King (1936) 55 CLR 499. 2. The claimant has an arguable case that he could recover damages in excess of $100,000. ORDERS 1. Grant leave to appeal. 2. Claimant to file his Notice of Appeal within 21 days of these orders. 3. Opponents' motions dated 4 December 2002 dismissed. 4. Opponents to pay the claimant's costs of the motions before Registrar Schell. 5. Costs of the leave application to be costs in the appeal. ****************** IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40425/03 40558/02 DC 287/00 MEAGHER JA McCOLL JA FOSTER AJA MONDAY, 15 DECEMBER, 2003 Craig GEORGE v THE BROKEN HILL PROPRIETARY COMPANY LIMITED & 1 ORS Judgment 1 MEAGHER JA I agree with McColl JA. 2 McCOLL JA: This case raises two issues. In strict order, the first is whether the decision of Registrar Schell dismissing the appeal as incompetent ought be reviewed. The second is whether, in any event, the claimant should be given leave to appeal. Mr Aldridge SC, counsel for the claimant, pressed the leave to appeal case in preference to the review of the Registrar's decision. If the second issue is resolved in the claimant's favour, the first does not arise, save on the issue of costs. I shall, therefore, consider the application for leave to appeal first. 3 The notice of appeal the claimant seeks to file if granted leave to appeal, seeks an order for judgment against each opponent and asks that the matter be remitted to the District Court for the determination of the quantum of damages. Procedural Background 4 On 20 June 2002 Phegan DCJ dismissed the claimant's claim for damages arising out of an injury he sustained on 10 September 1998 at the Sinter Plant which belonged to BHP Company Pty Limited ("BHP"), the first opponent. At the time of his injury the claimant was employed by Convatech Pty Limited (formerly Belle Banne (Newcastle) Pty Ltd) ("Convatech"), the second opponent. 5 On 2 July 2002, within the twenty-eight days limited by Part 51 r 4 of the Supreme Court Rules for appeal, the claimant's solicitors filed a Notice of Appeal. They also filed an affidavit pursuant to Part 51 r 8 purporting to state facts showing that the $100,000 limit in s 127(2)(c) of the District Court Act 1973 (NSW) did not apply. 6 On 9 December 2002 Convatech moved the Court for orders pursuant to Part 51 r 25 that the appeal be struck out or dismissed as incompetent (the "incompetence application"). The motion also sought an order that the time fixed for making the incompetence application be extended. 7 A like motion was filed on behalf of BHP. 8 The motion filed on behalf of Convatech was supported by an affidavit sworn by its solicitor, Mr Arnold. That affidavit stated, in apparent support of the application for an extension of time to bring the incompetence application, that the claimant's Part 51 r 8 affidavit had not been served on Convatech until 3 October 2002. 9 On 3 April 2003 Registrar Schell granted an extension of time to bring the incompetence applications. He dismissed the appeal as incompetent on the basis that the claimant's Part 51 r 8 affidavit was inadequate, and secondly, that in any event the amount in issue did not involve or exceed $100,000. He ordered the claimant to pay the opponents' costs of the applications. 10 On 15 April 2003 the claimant's solicitors filed a motion to review Registrar Schell's decision. 11 On 16 May 2003 the claimant's solicitors filed a summons seeking both leave to appeal from Phegan DCJ's decision and an extension of time in which to seek that order. On 2 June 2003 Meagher JA granted leave for the leave application to be brought out of time. He also directed that the motion seeking to review Registrar Schell's decision be heard with the summons for leave to appeal. 12 The summons for leave to appeal appears to have been a fallback filed to guard against the possibility that the review of Registrar Schell's decision might fail. However, as I have noted, Mr Aldridge SC primarily pressed the leave application. Out of abundant caution he also submitted that Registrar Schell had erred both in his factual findings and in concluding that the appeal did not involve an amount of $100,000. 13 The opponents do not contend that the application for leave to appeal is incompetent if Registrar Schell's decision is not set aside. Counsel for BHP, Mr Margo SC, submitted, however, that the claimant's tardiness in seeking leave to appeal militated against granting the application. Leave to Appeal The facts 14 There was no dispute about the circumstances in which the claimant was injured. At about 7.00 am on 11 September 1998 he went to the Sinter Plant to turn off the power to a conveyer belt to enable a team of Convatech employees to carry out maintenance in the Plant. He was at the top of the stairs at a point known as the "transfer station", when a large piece of timber ("dunnage") fell on him. The dunnage was estimated to be a metre long and 8 – 10 cm square. It struck a heavy blow to his safety helmet, sufficient to split it from the centre down towards its front. The claimant was rendered unconscious. He was taken to hospital and treated. 15 The claimant brought proceedings against BHP and Convatech to recover damages in relation to the injuries he sustained as a result of the accident. 16 The claimant's case against BHP was that, as the occupier of the Sinter Plant, it was obliged to remove any potential danger to entrants to the building to ensure their safety. His case against Convatech was that it failed to provide a safe system of work and failed to comply with various provisions of the Construction Safety Regulations 1950 (NSW) and provisions of the Factories, Shops and Industries Act 1962 (NSW). 17 The claimant also claimed that to the extent BHP was found to have been negligent, Convatech owed him a non-delegable duty which rendered it liable not only for its own negligence, but also for that of BHP. (Red 46 – 47) Liability 18 There was no direct evidence as to who left the dunnage in the position from which it fell or as to what caused it to fall. Indeed, the trial judge concluded that the way in which the dunnage came to hit the claimant remained "a mystery". The claimant's case depended upon persuading the trial judge to draw an inference of negligence from the circumstances of his injury and the respective duties of BHP and Convatech, both in relation to the premises and to the claimant. 19 The trial judge was prepared to conclude that, as occupier of the building, BHP was responsible for the maintenance of the building in a condition which was sufficiently safe for those who were using it. He was also prepared to conclude that because Convatech used the building frequently in its role as the company engaged to maintain the plant operating within it, that might be also seen as a sufficient basis for imposing on it a duty to exercise "some control over the general condition of the premises, particularly with regard to the safety of its own employees". 20 At the trial, the claimant tendered three BHP documents without objection. The first document appears to be a BHP Newsletter entitled "Front End Forum" dated 4 September 1998. The date is curious having regard to the fact that part of it clearly related to the claimant's injury which, of course, was suffered on 10 September 1998. The document stated: "A person whilst walking through TS2 was struck on the helmet by a large piece of dunnage. The force of the impact smashed his helmet knocking him unconscious. He is lucky to be alive. The cause of this injury was people not cleaning up after themselves." (Emphasis supplied) 21 The second was a "BHP Steel Significant Safety Occurrence Report" dated 10 September 1998, dealing with the claimant's accident. After referring to the circumstances of the incident, the document continued: "DETAILS: A Belle Banne employee was walking through a transfer station (TS2) to carry out an isolation. It appears a length of 100 x 100 dunnage fell from above striking his helmet … investigations showed that nobody was working in the area and no belts operating at the time of the incident … ROOT CAUSES: Material left in position where it may fall. CORRECTIVE ACTIONS: Reinforce need to clean up at the time of the job with all maintenance, operations and contract personnel. Ongoing clean-up organised for the immediate area and remainder of plant . … KEY LEARNINGS: Any material left at heights may fall and cause serious injury. Cleanup after each job . All tools and equipment should be stored correctly." (Emphasis supplied) 22 The report identified "C Purkiss, Sinter Plant Maintenance Supervisor" as the "contact". 23 The third document was another issue of "Front End Forum" dated 25 September 1998, approximately a fortnight after the claimant was injured. Under the heading "Manager's Report" it included the following: " CLEANUP DAYS: Recent cleanup days at the Blast Furnace and Sinter Plant have been a great success. Even though we have reached a high level of housekeeping it still amazed people just how much rubbish was collected. Some of our recent injuries and incidents are directly attributable to people not cleaning after they have finished their work. Please think of others safety and cleanup when you have finished." (emphasis supplied) 24 It appears that the cleanup of the Sinter Plant referred to in this document took place after the claimant was injured. 25 His Honour gave these documents short shrift. He did not refer to the first Front End Forum document or the Significant Safety Occurrence Report at all. Insofar as the second Front End Forum document was concerned, he referred only to the passage expressing amazement at the quantity of rubbish which had been collected. He rejected the claimant's submission that the document constituted an admission by BHP that the piece of dunnage which struck the claimant had been left in a position where part of it projected beyond its resting point so that it slipped and fell under the weight of accumulated dust. (Red 50, 48) He regarded it as "very unfair on the first defendant (BHP) to suggest that it is either in whole or in part some kind of admission of responsibility." He made no reference to the statement that recent injuries had been "directly attributable to people not cleaning after they have finished their work". He also did not refer to the final sentence exhorting the recipients to have regard to others and ensure they cleaned up after completing a job. 26 The claimant had submitted the trial judge should find that while it was impossible to identify which of the two opponents was the party responsible for his injury, having regard to their respective roles in relation to the premises, it was one or other of them whose negligence led to the dunnage falling. The trial judge rejected that submission. 27 His Honour's reluctance to reach this conclusion was partly attributable to evidence demonstrating that there were at least two other entities, not joined in the proceedings, who had sufficient involvement with the building to have created the danger. In such circumstances, his Honour concluded: "The prospect of an inference of the kind on which the plaintiff sought to rely becomes extremely remote and in the end, impossible." 28 He also rejected the claimant's submission that, in the circumstances, he could call in aid the doctrine of res ipsa loquitur. 29 The claimant also relied upon an expert's report which proffered various theories as to how the dunnage may have come to fall and strike the claimant. It is not necessary for the purposes of determining the leave application to consider the expert's theories. I note, however, that the claimant ultimately submitted to the trial judge that even if the expert's report was "no more than illustrative", it indicated the dunnage would not have fallen if it were not for negligence on somebody's part. (Red 50) 30 The claimant failed because Phegan DCJ found that the claimant was unable to establish, to the requisite standard of proof, that either of the two opponents was negligent. (Red 53). His Honour concluded that the expert's report amounted "to no more than a range of speculative alternatives, however well founded they may be in terms of general experience. What happened in this particular case remains mere conjecture." (Red 49) 31 To guard against the possibility that his decision on liability may be erroneous, the trial judge considered the issue of damages. He did so, however, on a very general basis. He concluded (Red 62) that the claimant did not stand to recover "a very significant amount by way of damages over and above the compensation he had already received under the Workers Compensation Act". He did not quantify that amount or any component of a possible award. 32 His Honour entered judgment for both opponents. Consideration 33 The claimant submitted that leave to appeal should be granted because the trial judge had erred in finding that he had failed to discharge his burden of proving that at least one, if not both, of the opponents had breached their duty of care. 34 The claimant submitted that the Significant Safety Occurrence Report demonstrated that BHP had a responsibility to take reasonable steps to prevent falling dunnage and to keep the Sinter Plant clean. He also submitted that the document supported the inference that BHP had not discharged that duty. 35 BHP did not call any evidence as to what, if any, system it had devised and/or implemented to maintain the Sinter Plant in a safe condition. In such circumstances, the claimant submitted the trial judge was entitled to infer BHP had been negligent even when others may have had access to the area. Mr Aldridge SC relied upon Shoeys Pty Limited v Allan (1991) Australian Torts Reports ¶81-104 as supporting the proposition that there was sufficient evidence to enable the trial judge to find the claimant had discharged the burden of proving BHP had breached its duty of care in a manner which led to his accident. 36 Insofar as Convatech was concerned, the claimant submitted that his Honour failed to consider the principles of non-delegable duty of an employer referring to Kondis v State Transport Authority (1984) 154 CLR 672. 37 In Shoeys Pty Limited v Allan, Handley JA (with whom Priestley JA agreed) considered whether the trial judge had been correct in concluding that the defendant supermarket had breached its duty of care to an entrant where the plaintiff gave evidence of the circumstances of slipping on a substance on the floor and falling and the defendant called no evidence as to what, if any, system it maintained to keep the floor of its premises clean. Handley JA first noted (at 68,492) that it was incumbent upon a plaintiff to establish a prima facie case of negligence before the defendant could be called upon to explain how an accident occurred or might have occurred consistently with the absence of negligence on its part. He said that the principles to be applied to determine whether the plaintiff had discharged that onus were stated by Dixon CJ in Hampton Court Limited v Crooks (1957) 97 CLR 367 at 371: "… the case is one where the facts can hardly be within the knowledge of the plaintiff and, at all events so far as concerns the care and control of the premises and the precautions taken, must be peculiarly within the knowledge of the defendant … But a plaintiff is not relieved of the necessity of offering some evidence of negligence by the fact that the material circumstances are peculiarly within the knowledge of the defendant; all that it means is that slight evidence may be enough unless explained away by the defendant and that the evidence should be weighed according to the power of the party to produce it. …" 38 Handley JA concluded that although the evidence the plaintiff had educed was sparse, it supported the inference that the defendant employed a shop walker to keep the floor of its premises clean. In circumstances where the defendant did not call that person as a witness and he was not shown to have been unavailable and no other evidence was called by the defendant, the Court was entitled to infer that his evidence would not have assisted the defendant's case. His Honour, indeed, said that: "The further inference is available that if he had been called his evidence would have disclosed either that the defendant's cleaning system itself was negligent or that he had failed that day to carry out that system." 39 He concluded therefore, that the trial judge had been entitled to find that the defendant was in breach of its duty of care to the plaintiff in failing either to establish or to maintain a proper system for the cleaning of the shop premises. 40 Mr Margo SC submitted that the trial judge had referred to the Significant Safety Occurrence Report in that passage of his judgment rejecting the claimant's submission that BHP had admitted responsibility. In my view, his Honour's judgment is not susceptible of that interpretation. Nothing in the trial judge's judgment (which appears to have been a reserved judgment) indicates his Honour paid any regard to the Significant Safety Occurrence Report, let alone the significance of its contents. 41 In his submissions on liability, Mr Margo SC sought to heighten the air of mystery which his Honour found surrounded the circumstances in which the dunnage was left in the position from whence it fell onto the claimant's head. Thus he drew attention to the size of the Sinter Plant (1 ½ kilometres long), the absence of evidence as to how long the dunnage had been in position or as to whether the dunnage fell accidentally or was pushed or thrown as "a lark of some sort". 42 Mr Margo SC did not address the significance of BHP failing to call any witness to explain the three documents to which I have referred. He submitted that one of the purposes of the Significant Safety Occurrence Report was to remind all those working on the site of their obligation to be careful. Assuming that was its purpose, that supports the inference that BHP bore primary responsibility for implementing and supervising a safe system within the Sinter Plant, and that the fact the dunnage fell and struck the claimant was some evidence that it had failed to discharge that responsibility. 43 Mr McGrath for Convatech adopted Mr Margo SC's submissions. He also submitted that the claimant had not conducted his case on Convatech's non-delegable duty in the manner in which Mr Aldridge SC had advanced the point. 44 In my view, the portions of the Significant Safety Occurrence Report and the Front End Forum documents which I have emphasised were capable of amounting to evidence favourable to the claimant's case of breach of duty by BHP in the following respects: · first that it was responsible for implementing and supervising the system whereby its premises were kept safe; · secondly, those responsible for work in the Sinter Plant had left a piece of dunnage in a position from which it might fall on persons working/walking below; · thirdly, that it was BHP's responsibility to detect and remove such precariously balanced and dangerous pieces of timber or to ensure that those who were responsible for cleaning up discharged that responsibility. · fourthly, that the piece of dunnage had been left in that position because BHP had not adequately reinforced the need to clean up after jobs with all those who came to its premises. · Fifthly, that BHP and/or those under its control had failed to detect and remove the piece of dunnage, leaving it in the position from which it fell. 45 The documents were capable of founding an adverse inference in the absence of any contradiction from BHP: Blatch v Archer (1774) 1 Cowp. 63 at 65, 98 ER 969 at 970 per Lord Mansfield; Armory v Delamirie (1722) 1 Stra 505, 93 ER 664; Jones v Dunkel (1959) 101 CLR 298; Ho v Powell (2001) 51 NSWLR 572; Hampton Court Limited v Crooks (1957) 97 CLR 367; Shoeys Pty Limited v Allan (1991) Australian Torts Reports ¶ 81-104. 46 The Significant Safety Occurrence Report was a document which called for an explanation from BHP. His Honour's failure to refer to it at all, let alone to consider why it did not constitute evidence of negligence in the Hampton Court Limited v Crooks sense sufficient to discharge the claimant's burden of proof as against BHP, is strongly suggestive of error on his part. 47 The matters Mr Margo raises may be cogent matters to be advanced on appeal. They are insufficient to refute the claimant's submissions on this leave application. 48 In my view, the claimant's submission that his Honour was in error in not finding BHP had breached its duty of care is sufficiently arguable to warrant leave to appeal. 49 The documents do not directly assist the claimant in so far as Convatech is concerned. The claimant is correct, however, to note that his Honour failed to consider the principles of non-delegable duty of care Convatech owed the claimant. Convatech sent its employees to the Sinter Plant as part of a long-standing relationship with BHP. In such circumstances, the claimant submitted, Convatech should have ensured BHP implemented and properly monitored a policy of good housekeeping in the Sinter Plant. 50 This submission should also be understood in light of the evidence of the exhortations BHP addressed to those who attended its premises to cleanup after jobs were completed. It was in my view at least arguable that Convatech's duty as the claimant's employer extended to ensuring BHP discharged its responsibility as occupier of the Sinter Plant. 51 The trial judge's failure to address the issue of Convatech's non-delegable duty at all and whether or not it was breached, was erroneous such as to warrant leave to appeal against Convatech also. The issue as to how the trial was conducted should be determined on the appeal. Damages 52 The trial judge found that the claimant suffered "a very real and quite serious injury". (Red 56) He concluded that the claimant was left with residual symptoms which had never quite resolved, including permanent stiffness and pain in his neck. He concluded that the plaintiff did not present as a person who sought to overstate the physical nature of his injuries although he did conclude that there was considerable overstatement of at least some of the financial consequences. (Red 57) 53 Although his Honour concluded that the claimant's injury was sufficiently serious and the residual effects sufficiently real to entitle him to more than a nominal award by way of general damages, he concluded, having regard to the claimant's ability to resume "a reasonably full life", such damages would not have been overly large. He found that the claimant did not stand to recover a very significant amount by way of damages over and above the compensation he already had received under the Workers Compensation Act 1987 (NSW). (Red 62) 54 Mr Margo SC sought to resist the application for leave by arguing, as I understood his submission, that a grant of leave, and presumably a successful appeal, would be futile having regard to the trial judge's conclusion that even if successful on liability, the claimant would not receive a very significant amount in excess of his worker's compensation payments. He submitted the trial judge's assessment of the claimant's likely recovery was arguably correct. He handed up a schedule in which BHP estimated the range of damages the claimant might recover at $65,000 to $85,000. The schedule did not include any allowance for future economic loss on the basis that the claimant had returned to his secure pre-accident employment. Mr Margo SC also submitted that the claimant would be unable to make out such a claim having regard to the trial judge's credit findings of overstatement of some of the financial consequences of his injuries. 55 Mr Aldridge SC submitted that the claimant had a substantial case worth well in excess of $100,000. His solicitor swore in his Part 51 rule 8 affidavit that on economic loss alone, the claimant could be entitled to a cushion of $119,787 after allowing for vicissitudes. 56 The claimant, in my view, has an arguable case that he could recover damages in excess of $100,000. Further, the claimant was entitled to a determination of his case according to law. In my view, he has not received it. I would be loathe to deny him leave to appeal on the basis that the trial judge's approach to damages which, as I have noted, did not descend to particularity, was correct. The issue of damages should be approached in a detailed manner in a quantum hearing should the claimant succeed on liability on appeal. Leave to Appeal: Timing of application 57 As I have noted, Mr Margo SC submitted that a factor militating against the grant of leave to appeal was the claimant's tardiness in seeking that leave. 58 This Court has made it clear that a party faced with a formal objection to the competency of its appeal should, if it wishes to fall back on an application for leave to appeal, ensure that that application is duly made before any contested competency application: Council of the Municipality of Woollahra v Sved & Anor (NSW Court of Appeal, unreported, 24 July 1998 per Mason P with whom Sheller JA agreed). As Mason P said: "The case for leave may be strong, indeed, overwhelming. In such a situation there may be no point in debating a difficult issue of competency." 59 Registrar Schell drew the claimant's attention to this practice although he did not refer expressly to Sved's case. The significance of Registrar Schell's observation was, apparently, completely lost on those who appeared for the claimant at the hearing of the motion, as demonstrated by the fact that the application for leave to appeal was not filed until some considerable time after Registrar Schell's decision was delivered. The leave application came before the Court because Meagher JA granted an extension of time for it to be filed. 60 The claimant's appeal appears to have become bogged in a procedural quagmire, most of which does not appear to have been his or his legal practitioner's responsibility. 61 While it would have been desirable for the claimant to have made his leave application earlier in accordance with Council of the Municipality of Woollahra v Sved & Anor, in my view that tardiness does not outweigh his significant case for leave to appeal. This is particularly the case when, if the time had not been extended for the incompetence applications, the leave application would have been unnecessary. Conclusion on leave application 62 In my view the claimant should have leave to appeal from Phegan DCJ's judgment. Review of Registrar Schell's decision 63 The grant of leave to appeal, as I earlier noted, strictly speaking obviates the need to consider whether the Court ought review Registrar Schell's decision. It is necessary to consider it, however, to determine the issue of the costs of that motion. 64 Registrar Schell's decision to grant the opponents an extension of time within which to bring their motions and to dismiss the appeal as incompetent was an exercise of discretion and, as such, should not be disturbed unless it can be demonstrated that he allowed extraneous or irrelevant matters to affect him: House v The King (1936) 55 CLR 499 at 505; In Re the Will of Gilbert (Dec'd) (1946) 46 S.R. (NSW) 318 at 323. In my view this is a case where the Registrar's decision was so influenced. 65 Before the Registrar, BHP and Convatech originally asked that the appeal be dismissed for want of prosecution as well as because it was said to be incompetent. 66 Mr Arnold, Convatech's solicitor, detailed the chronology of the appeal and asserted in various paragraphs of his affidavit that the claimant had not complied with orders made by the Registrar at call-overs. The claimant's solicitor, Mr Hart, swore an affidavit in which he sought to explain the delays. 67 By the time the incompetence applications were heard, the portion of the motion asking that the appeal be dismissed for want of prosecution was not pressed on the basis that the opponents' complaints had been attended to (BHP) or satisfactorily explained (Convatech). In those circumstances, it might be thought that those portions of Mr Arnold's affidavit dealing with the claimant's alleged non-compliance with the Registrar's orders would not have been read or, even if read, would have been irrelevant to the remaining paragraphs of the opponents' motions. 68 Registrar Schell, however, referred to Mr Arnold's affidavit outlining the claimant's alleged non-compliance with the timetables as well as Mr Hart's affidavit seeking to explain the delays and noted: "While all documents subject to directions thus far have now been filed, the opponents have endured an inordinate waiting period to ascertain the particulars of the appeal they are expected to answer. Because of the earlier non-compliance with directions by the claimant, I consider it appropriate that the opponents have an extension of time … to bring these notices of motion." 69 Convatech also sought to justify an extension of the time to make its incompetence application on the basis that the claimant's Part 51 r 8 affidavit had not been served within the time limited by the Rules. The Court was informed that this complaint had been abandoned before Registrar Schell, yet his judgment nevertheless records the opponents' erroneous complaint that they did not receive a copy of the Part 51 r 8 affidavit until service of the Red Appeal Book in early October 2002. Mr McGrath conceded that Registrar Schell was in error in referring to that complaint. Granting that, it is not clear why Registrar Schell did refer to it as it does not appear to have been one of the reasons he granted the extension of time. 70 The consequence of Registrar Schell's reliance on the abandoned material, educed to support the want of prosecution application, is that the opponents' extension of time was based on irrelevant matters. 71 The notice of appeal was served on the opponents on 8 July 2002. The incompetence applications were required to be filed within 21 days of service of the notice of appeal: Part 51 r 25. They were not filed until 4 December 2002, in circumstances where the opponents originally sought to point the finger of blame for this egregious delay at the claimant. 72 Further, the opponents did not need the claimant's Part 51 r 8 affidavit if they wished to complain the appeal was incompetent because it did not concern a matter which reached the monetary threshold. Legal practitioners who wish to contend that an appeal is incompetent should determine that matter as a matter of their independent judgment as well as on a review of the Part 51 r 8 affidavit if one is available: see Carolan v AMF Bowling Pty Limited t/as Bennetts Green Bowl (unreported, NSWCA, 16 November 1995). The explanation that the delay in filing the incompetence applications was attributable to the wrong assertion concerning the Part 51 r 8 affidavit was spurious. Once that was abandoned the opponents proffered no explanation to the Registrar as to why the incompetence applications were substantially out of time. 73 In my view, the opponents should not have been given an extension of time in which to bring the incompetence applications. 74 Further, Registrar Schell concluded that the matter in issue did not amount to $100,000 or more. In my view the claimant has an arguable case that he could recover $100,000 or more. I, therefore, also disagree with Registrar Schell's decision on the substantive issue before him. 75 I would therefore set aside Registrar Schell's decision dismissing the appeal as incompetent and dismiss the opponents' motions dated 4 December 2002 with costs. Orders 76 I propose the following orders; 1. Grant leave to appeal. 2. Claimant to file his Notice of Appeal within 21 days of these orders. 3. Opponents' motions dated 4 December 2002 dismissed. 4. Opponents to pay the claimant's costs of the motions before Registrar Schell. 5. Costs of the leave application to be costs in the appeal. 77 FOSTER AJA: I agree with McColl JA. ********** Last Modified: 12/16/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.