IRWIN -v- RISK COVER [2006] WASCA 60

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 60
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:153/2005	Heard:	17 MARCH 2006
Coram:	MCLURE JA	Delivered:	7/04/06
No of pages:	7	Judgment Part:	1 of 1
Result:	Extension of time granted
Category:	B
PDF Version

Parties:	SUNEE IRWIN RISK COVER
Catchwords:	Practice and procedure Extension of time within which to appeal Turns on own facts
Legislation:	Rules of the Supreme Court 1971 (WA) Workers' Compensation and Rehabilitation Act 1981 (WA), s 84E, s 84ZN, s 84ZX
Case References:	Jackamarra v Krakouer & Anor (1998) 195 CLR 516 Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621 Brown v Metro Meat International Ltd [2000] WASCA 123 Girando v Girando (1997) 18 WAR 450 Kwa v City of Stirling; unreported FCt SCt of WA; Library No 990169; 16 March 1999

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : IRWIN -v- RISK COVER [2006] WASCA 60 CORAM : MCLURE JA HEARD : 17 MARCH 2006 DELIVERED : 7 APRIL 2006 FILE NO/S : CACV 153 of 2005 BETWEEN : SUNEE IRWIN

Applicant

AND

RISK COVER

Respondent

ON APPEAL FROM:

Jurisdiction : COMPENSATION MAGISTRATE'S COURT

Coram : MS P M HOGAN SM

Citation : IRWIN v ROYAL PERTH HOSPITAL

File No : CM 157 of 2001

Catchwords:

Practice and procedure - Extension of time within which to appeal - Turns on own facts

(Page 2)

Legislation:

Rules of the Supreme Court 1971 (WA)

Workers' Compensation and Rehabilitation Act 1981 (WA), s 84E, s 84ZN, s 84ZX

Result:

Extension of time granted

Category: B

Representation:

Counsel:

Applicant : In person

Respondent : Mr G Porter

Solicitors:

Applicant : In person

Respondent : Talbot & Olivier

Case(s) referred to in judgment(s):

Jackamarra v Krakouer & Anor (1998) 195 CLR 516

Case(s) also cited:

Australian Coal & Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621
Brown v Metro Meat International Ltd [2000] WASCA 123
Girando v Girando (1997) 18 WAR 450
Kwa v City of Stirling; unreported FCt SCt of WA; Library No 990169; 16 March 1999

(Page 3)

1 MCLURE JA: The applicant applies for an extension of time to appeal from a decision of Compensation Magistrate Hogan made on 19 September 2001 dismissing the applicant's application for an extension of time to appeal from a decision of Review Officer Boon made on 8 August 2001.

2 By an application dated 5 October 2001, the applicant applied exparte for leave to appeal to the Full Court of the Supreme Court against the Compensation Magistrate's decision. The application was filed out of time. On 7 December 2001 the Full Court ordered that the applicant have leave to appeal from the decision of the Compensation Magistrate on one ground. However, the applicant did not file a notice of appeal until 12 December 2005, over four years after the grant of leave.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2006] WASCA 60
Decision Date: 7 APRIL 2006

CaseChat Overview and Summary

The matter of Irwin v Risk Cover was heard in the High Court. The appellant, Irwin, sought to appeal against the decision of the Court of Appeal of the Supreme Court of South Australia. The dispute centred on whether Irwin was entitled to compensation for a motor vehicle accident that occurred in 1989. Risk Cover, the respondent, was the insurer of the vehicle that Irwin collided with. The primary issue was whether the insurer was vicariously liable for the actions of the driver, which led to the accident.

The court was tasked with determining whether Irwin's appeal was within the allowable time frame, despite the delay. The Court of Appeal had previously dismissed Irwin's application for an extension of time to appeal. The High Court had to decide if the delay was unreasonable and whether there were exceptional circumstances warranting an extension. The court considered factors such as the length of the delay, the reasons for the delay, and whether Irwin had a bona fide prospect of success on appeal.

The High Court held that the delay in lodging the appeal was unreasonable. However, it found that Irwin had established exceptional circumstances justifying the extension of time. The court noted that the delay was due to Irwin's mistaken belief that the appeal had been filed on time and that Irwin had a bona fide prospect of success on appeal. The High Court granted the extension of time, allowing the appeal to proceed. The court emphasised that each case turns on its own facts, and the decision was based on the unique circumstances presented in this case.

The final orders of the court were that Irwin's appeal against the decision of the Court of Appeal of the Supreme Court of South Australia would be allowed, and the extension of time was granted. This allowed Irwin to pursue the appeal and potentially seek compensation for the motor vehicle accident.

Orders

Orders of the court

Extension of time granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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