Itek Graphix Pty Ltd v Elliott

Case [2002] NSWCA 104

Reported Decision:

 54 NSWLR 207

New South Wales


Court of Appeal

CITATION: Itex Graphix Pty Limited v Elliott [2002] NSWCA 104
FILE NUMBER(S): CA 40069/01
HEARING DATE(S): 09/11/01
JUDGMENT DATE:
11 February 2002

PARTIES :
Itex 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 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…

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AGLC
Itek Graphix Pty Ltd v Elliott [2002] NSWCA 104
Case
[2002] NSWCA 104
Decision Date

CaseChat Overview and Summary

The New South Wales Court of Appeal considered an appeal by Itek Graphix Pty Ltd against a decision of the District Court of New South Wales, which had granted an extension of time for Mr. Elliott to pursue a workers compensation claim. The primary dispute concerned whether the District Court had erred in exercising its discretion to allow Mr. Elliott's claim to proceed out of time, despite the statutory limitation period having expired.

The central legal issues before the Court of Appeal were twofold. Firstly, it had to determine the proper test for assessing the reasonableness of an applicant's delay in seeking an extension of time under section 151D(2) of the *Workers Compensation Act 1987* (NSW). Secondly, the Court was required to consider whether the District Court's decision to dispense with a jury in the proceedings was a valid exercise of its discretion under section 79A of the *District Court Act 1973* (NSW).

The Court of Appeal analysed the scope of the discretion granted by section 151D(2) of the *Workers Compensation Act*, emphasising that the applicant must provide a reasonable excuse for the delay. It held that a fully informed decision by the applicant to allow the statutory period to expire, without any compelling reason for the delay, would generally weigh against granting an extension. Regarding the jury issue, the Court affirmed that the decision to dispense with a jury under section 79A is a matter within the trial judge's discretion, to be exercised judicially based on the circumstances of the case.

The Court of Appeal allowed the appeal, setting aside the District Court's order granting the extension of time and remitting the matter for further consideration. The order dispensing with the jury was upheld.

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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