Allianz Australia Insurance Ltd v TIO - [2008] NTCA 8

Allianz Australia Insurance Ltd v TIO [2008] NTCA 08
PARTIES:ALLIANZ AUSTRALIA INSURANCE LTD

v
TERRITORY INSURANCE OFFICE

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: SINGLE JUDGE EXERCISING JURISDICTION UNDER S 52(3)(b) OF THE SUPREME COURT ACT AND RULE 85.12(2) OF THE SUPREME COURT RULES
FILE NO:AP 8 of 2008 (20622570)
DELIVERED:  30 September 2008
HEARING DATES:  Written submissions filed 21 August 2008
JUDGMENT OF:  MILDREN J
APPLICATION:  For an extension of time to serve a notice of appeal
CATCHWORDS:

PRACTICE AND PROCEDURE – Appeal – Application for extension of time to serve a notice of appeal – administration error – no objection by respondent – whether special circumstances justify granting leave to grant extension – Supreme Court Act s.52(3) & Rules r.85.12
Statutes:
Supreme Court Act s.52(3)
Supreme Court Rules r.85.12(1) & r.85.12(2)
Work Health Act (NT) s.126A & 126A(2)
CITATIONS:
Referred to:

Szabo v Dasford Holdings Pty Ltd (2003) 196 ALR 625
Kidron & Andrew Spaile Architects Pty Ltd v Garrett (1994) 35 NSWLR 572
REPRESENTATION:
Counsel:
Applicant:A Robertson
Respondent:  No appearance
Solicitors:
Applicant:Cridlands
Respondent:  Minter Ellison
Judgment category classification:    B
Number of pages:  8

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Allianz Australia Insurance Ltd v TIO [2008] NTCA 08

No. AP 8 of 2008 (20622570)
BETWEEN:

ALLIANZ AUSTRALIA INSURANCE LTD

Applicant

AND:

TERRITORY INSURANCE OFFICE

Respondent

CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 30 September 2008)
Mildren J:

This is an application brought under s 52(3) of the Supreme Court Act and Rule 85.12(2) for an extension of time to serve a notice of appeal.
On 16 September 2008 I made an order granting an extension of time for service of the notice of appeal until 25 June 2008. These are my reasons for making that order.
The applicant applied for an order from the Work Health Court seeking leave nunc pro tunc to commence proceedings against the respondent pursuant to s 126A of the Work Health Act (NT).
S 126A provides:
“Liability as between approved insurers
(1) Subject to subsection (2), where an employer is liable under this Act to pay compensation to a worker, the approved insurer of the employer at the time the claim is made shall indemnify the employer for the full amount of the employer's liability to the worker notwithstanding that the approved insurer may allege that, at the time the injury was sustained or the disease was caused, the liability to indemnify the employer (whether in whole or in part) was that of another approved insurer.
(2) Where an approved insurer who has indemnified an employer for the employer's liability to pay compensation to a worker under this Act is aware that another approved insurer may be liable to indemnify the employer for all or a part of the compensation paid, the first-mentioned insurer –
(a) shall notify the other insurer as soon as practicable after becoming aware of the insurer's potential liability; and
(b) may, within 6 months after becoming aware of the other insurer's potential liability or such longer period as the Court may allow –
(i) commence proceedings under Part 6, Division 4 to recover from the other insurer all or a part of the compensation paid; or
(ii) where other proceedings in respect of the claim for compensation have been commenced under that Division, join the other insurer as a party to those proceedings.
(3) Where an approved insurer has indemnified an employer for the employer's liability to pay compensation to a worker under this Act and it is subsequently established that another approved insurer was liable to indemnify that employer in whole or in part, that other insurer shall reimburse the first-mentioned insurer such amount or amounts –
(a) as agreed between the 2 insurers; or
(b) in the absence of such agreement, as the Court determines.
(4) In this section, approved insurer includes –
(a) a self-insurer; and
(b) the Territory.
A worker, Shane Nayda, suffered 3 successive injuries in the course of his employment as a diesel fitter in the mining industry with Newmont Mining Services PTY Ltd. He suffered a back injury on 3 October 1993, a further back injury on 25 May 2000 and another on 14 August 2001.
The respondent was the insurer liable to indemnify Newmont Mining Services PTY Ltd against liability for compensation payable to the worker in respect of the injury of 5 October 1993 and paid compensation to Mr Nayda until he resumed full duties on 26 October 1993.
The applicant replaced the respondent as the insurer of Newmont Mining Services Proprietary Ltd on 1 July 1993.
On 3 June 2002 the applicant received a medical report stating inter alia that the worker had sustained an aggravation of the 1993 injury in respect of which the respondent had paid compensation. On 23 September 2005 the applicant received a medical report which expressed the view that 80% of the worker’s current total permanent disability was due to the 1993 injury.
On 4 November 2005 the applicant gave notice to the respondent that it may be liable pursuant to s 126A of the Work Health Act NT to contribute towards compensation payable to the worker.
Liability to pay for compensation for the claim in 2005 was not accepted by the applicant (apparently) until 23 September 2005. Notice of the claim was given by the applicant to the respondent on 4 November 2005. The learned magistrate and Angel J on appeal held that the giving of the notice was within the bounds of “as soon as practicable” in terms of s 126A(2).
However the application was refused by the Work Health Court and on appeal Angel J dismissed the appeal because the policies were found to be consecutive and the respondent had no liability to indemnify Newmont Mining Services Pty Ltd in respect of the 2005 injury. Angel J also held that the principles of double insurance did not apply in this case.
Angel J’s judgment was delivered on 15 May 2008. Rule 85.12(1) required a notice of appeal from his Honour’s judgment to be filed and served within 28 days after the “material date”, which in this case was 15 May 2008. Accordingly, the applicant needed to file its notice of appeal and serve it by no later than 12 June 2008.
The applicant filed its notice of appeal on 11 June 2008 and therefore within the time permitted by the rules, but failed to serve the notice within time.
The circumstances giving rise to the failure to serve the notice of appeal in time are set out in the affidavit of Ms Robertson affirmed on 20 August 2008.
In summary the problem arose because the registry of the Court issued a notice of requisition requiring an authenticated order to be filed in relation to the judgment to be appealed from. A sealed copy of the notice of appeal was apparently not returned to the solicitors for the applicant at that time.
The requisition notice did not come to the attention of the solicitor for the applicant until the morning of 13 June 2008. The order was settled by Ms Robertson on 13 June and was delivered to the Court by the applicant’s solicitors on 16 June.
The authenticated order arrived back at the offices of the solicitors for the applicant on 17 June 2008. It was not until 24 June 2008 that the solicitor for the applicant realised that the sealed copy of the notice of appeal had not been received back from the registry and she began to make enquiries about it. As a result a search was conducted for the notice and it was discovered clipped to a bundle of pleadings, court notices and orders which had been placed at the back of a correspondence folder for the matter.
The sealed copy of the notice of appeal was delivered to the respondent’s solicitor’s court box on the afternoon of 24 June 2008.
Ms Robertson says that as a result of enquiries conducted with the registry, the sealed copy of the notice of appeal was placed in the applicant’s solicitor’s court box on 12 June. However a check of the solicitor’s computer database mail register revealed that there was no record of the notice of appeal being logged as having been received in her office on 12 June or on any other day up to and including 27 June 2008.
Further enquiries made by Ms Robertson revealed that no other relevant staff in the applicant’s solicitor’s office recalled seeing the sealed copy of the notice of appeal at any time prior to 25 June 2008.
Precisely why the sealed copy of the notice of appeal became lost in transit from the Supreme Court registry to the solicitor handling the matter, namely Ms Robertson, is unexplained and can only be put down to some kind of administrative error.
The solicitors for the respondent have indicated that they do not oppose any application for leave to extend time for service of the notice of appeal and have filed no submissions in response to the application.
Order 85.12(2) is in similar terms to Order 52 r.15(1)(a) of the Federal Court Rules. In Szabo v Dasford Holdings Pty Ltd & Ors[1], R D Nicholson J said:
[34] the expression “for special reasons” has been explained as requiring the establishment of grounds sufficient in the particular circumstances to justify departure from the time period for an appeal as prescribed by Order 52 rule 15(1)(a): see Jess v Scott (1986) 12 FCR 187 at 195; 70 ALR 185 at 193 per Lockhart, Sheppard and Burchett JJ. Their Honours said:
“…the expression “special reasons” is intended to distinguish the case from the usual course according to which the time is 21 days. But it may be so distinguished (not necessarily will, for the rule gives a discretion) wherever the Court sees a ground which does justify the departure from the general rule in a particular case. Such a ground is a special reason because it takes the case out of the ordinary”.
Their Honours also pointed out that the power contained in Order 52 rule 15(2) is a discretionary one.
[35] However, as Carr J has recently pointed out in WABX v Minister for Immigration and Multicultural and Indigenous Affairs [2002] FCA 300; BC200200937 the Full Court in Jess at FCR 196 was at pains to point out that a discretion to relax the requirements of general rules should not itself become entangled in a web of rules spun out of the court’s discretionary decisions. It is the facts of each particular case which must decide the matter”.
In some cases it is necessary for the court to consider the likelihood of success in the appeal if leave were to be granted: see Szabo v Dasford Holdings Pty Ltd[2]. However this is not an invariable rule, and I do not think that it needs to be considered in a case like the present. Suffice it to say that I have examined his Honour’s reasons and the grounds set out in the notice of appeal and I am not satisfied that the applicant’s prospects of appeal are hopeless: c.f Kidron & Andrew Spaile Architects Pty Ltd v Garrett[3].
As a general rule the Court should not punish litigants for errors by their solicitors. In all the circumstances I consider that having regard to the very short period of time for which an extension is sought, the fact that the failure to serve the notice of appeal in time was due to an administrative error by the applicant’s solicitors, the lack of any prejudice to the respondent, the fact that the respondent does not oppose the application and that the appeal is not a hopeless one, in the exercise of my discretion I should grant the extension of time sought.

[1] (2003) 196 ALR 625 at 633-634 paras [34] – [35]

[2] Supra, at p634, para [36]

[3] (1994) 35 NSWLR 572 at 578