Itek Graphix Pty Limited v Elliott

Case [2001] NSWCA 442


CITATION: Itek Graphix Pty Limited v Elliott [2001] NSWCA 442
FILE NUMBER(S): CA 40069/01
HEARING DATE(S): 09/11/01
JUDGMENT DATE:
11 February 2002

PARTIES :


Itek Graphix Pty Limited v Ann Elliott
JUDGMENT OF: Spigelman CJ at 1; Sheller JA at 2; Ipp AJA at 6
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) :
1825/99; 426/00
LOWER COURT
JUDICIAL OFFICER :
Patten DCJ; Graham DCJ
COUNSEL: L King SC/R S Sheldon (Appellant)
S Norton SC/A Healey (Respondent)
SOLICITORS: Leigh Virtue & Associates (Appellant)
Brydens Law Office (Respondent)
CATCHWORDS: WORKERS COMPENSATION - limitation period - extension of time - scope of discretion - test for reasonableness of delay - conduct of applicant for leave - fully informed decision to allow statutory period to expire - Workers Compensation Act, s 151D(2) - APPEAL - interlocutory appeal capable of disposing of entire case - time when appeal should be heard - PRACTICE AND PROCEDURE - decision to dispense with jury - decision within discretion - District Court Act 1973, s 79A. D
LEGISLATION CITED: Workers Compensation Act 1987
Motor Accidents Act 1988
Law Reform (Miscellaneous Provisions) Act 1946
Limitation of Actions Act 1974 (Qld)
Limitation Act 1969 (NSW)
District Court Act 1973
District Court Rules 1973
CASES CITED:
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
Salido v Nominal Defendant (1993) 32 NSWLR 524
Holt v Wynter (2000) 49 NSWLR 128
Parsons v Doukas [2001] NSWCA 128
Re Commonwealth of Australia; Ex Parte Marks (2000) 75 ALJR 470
Mason v Murray's Charter Coaches & Travel Services Pty Limited (1998) 159 ALR 45
Australian Croatian Cultural and Educational Association "Braca Radici" Blacktown Limited v Benkovic (1999] NSWCA 210
FAI General Insurance Company Limited s v Southern Cross Exploration NL (1988) 165 CLR 286
Secretary of State for Trade and Industry v Davies [1996] 4 All ER 289
Gallo v Dawson (1990) 64 ALJR 458
South Western Sydney Area Health Service v Gabriel [2001] NSWCA 477
Nowlan v Marson Transport Pty Limited [2001] NSWCA 346
Malone v New South Wales National Parks and Wildlife Service [2001] NSWCA 345
Ratnam v Cumarasamy [1965] 1 WLR 8
Henricks v Agnew (1997) 26 MVR 277
Bartlett v Bartlett (2000) 170 ALR 25
Nominal Defendant v Manning (2000) 50 NSWLR 139
Girando v Girando (1997) 18 WAR 450
Hoy v Honan [1997] QCA 250
Reid v Agco Australia Ltd [2000] VSC 363
Pomeroy v Thwaites Witham Pty Ltd 2001) 79 SASR 489
Menzies v Hoechst Australia Limited (1991) Aust Torts Reports 81-122
Hunter Valley Developments Pty Limited v Cohen (1984) 3 FCR 344
Clark v Robb (1994) 118 FLR 71
Knight v Smith [1975] Tas SR 83
Sargent v ASL Developments Ltd (1974) 131 CLR 634
Ramton v Cassin (1995) 38 NSWLR 88
Futuris Corporation Ltd v Exicom Ltd [1995) 18 ACSR 413
Wentworth v Wentworth (Unreported, NSWCA, 23 November 1995)
Brambles Australia Limited v Hall (Unreported, NSWCA, 8 November 1995)
Kessey v Golledge (1999) 30 MVR 95
Queensland v JL Holdings Pty Limited…

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AGLC
Itek Graphix Pty Limited v Elliott [2001] NSWCA 442
Case
[2001] NSWCA 442
Decision Date

CaseChat Overview and Summary

Itek Graphix Pty Limited appealed to the Court of Appeal of New South Wales against a decision of the District Court of New South Wales that granted an extension of time for the respondent, Mr. Elliott, to commence proceedings for workers' compensation. The underlying dispute concerned Mr. Elliott's claim for workers' compensation for an injury sustained in the course of his employment with Itek Graphix.

The primary legal issues before the Court of Appeal were whether the District Court judge erred in exercising his discretion to extend the time for Mr. Elliott to commence proceedings under section 151D(2) of the *Workers Compensation Act 1987* (NSW), and whether the judge had erred in dispensing with a jury trial pursuant to section 79A of the *District Court Act 1973* (NSW). The court also considered the appropriate time for hearing an interlocutory appeal that was capable of disposing of the entire case.

The Court of Appeal held that the District Court judge had erred in granting the extension of time. The court applied the principles established in *R v Director of Public Prosecutions; Ex parte Law Society of New South Wales* and *M v M*, emphasizing that the discretion to extend time under section 151D(2) is not unfettered and requires a careful balancing of competing interests. The court found that Mr. Elliott had made a fully informed decision to allow the statutory period to expire and had not provided sufficient reasons to justify an extension, particularly given the prejudice to the appellant. Regarding the dispensing with a jury, the court found no error in the judge's exercise of discretion.

The Court of Appeal allowed the appeal, set aside the order granting the extension of time, and ordered that Mr. Elliott's proceedings be dismissed. The court also made orders regarding the costs of the appeal.

Orders

Orders of the court

See para 166.

Background

Background to the litigation

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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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