Levi v Unisure Pty Ltd - [1999] SASC 432

LEVI v UNISURE PTY LTD

[1999] SASC 432

MAGISTRATES APPEAL

1 LANDER J The applicant, who was employed by the respondent, brought a claim against the respondent for compensation pursuant to the Workers Rehabilitation and Compensation Act 1986 ("the Act"). The respondent rejected the applicant's claim and the applicant sought a review of that rejection. A review officer found that the applicant was entitled to compensation pursuant to s 30A of the Act.
2 The respondent appealed from that review to the Workers' Compensation Appeal Tribunal and on 21 October 1998 the Tribunal upheld the appeal and dismissed the claim for compensation.
3 On 23 November 1998 the applicant purported to appeal from that decision. On that day she lodged a Notice of Appeal to the Full Court seeking orders:
"1. That the appeal be allowed.

That the decision of the Workers Compensation Appeal Tribunal made on 21 October 1998 to over-turn (sic) the decision of a Review Officer made on 17 December 1997, be quashed.
That the decision of the Review Officer to accept the appellants [sic] claim for compensation be restored.
Costs of and incidental to the Appeal."
4 No action was taken in relation to the purported appeal until, on 31 August 1999, the appellant issued a document entitled "Interlocutory Application" in which the appellant sought the following orders:
"1. Leave to appeal to the Full Court of the Supreme Court from a decision of a Judge in the Workers Compensation Tribunal pursuant to Section 100 of the Workers Rehabilitation and Compensation Act 1986.
Leave to extend the time for setting down an appeal between the abovementioned (sic) parties on the basis of the Notice of Appeal filed herein.
Such further or other order as this Honourable Court deems fit."
5 The matter came on before Prior J on 3 September 1999 and His Honour allowed an amendment of the "interlocutory application" to allow the applicant to seek an extension of time and leave to the appeal to the Full Court from the decision complained of.
6 The application sought two quite separate orders. The first order sought was really a qualifying order for the institution of an Appeal. It was required because of s100 of the Act. The second order rather supposed that the Notice of Appeal was, apart from the particular order sought, competent. The second order, if the appeal was competent, was required by R95.11 which relevantly provides:
"95.11(3) (a) Where an appeal has not been set down within 6 months from its institution, or from when the appellant first became entitled to set it down, whichever is the latter, it shall lapse at that time unless the time for setting down has been extended prior to the time set by this Rule expiring, or, where in special circumstances only, such time has been extended after the time limited by this Rule has expired.
(b) In the event of an appeal lapsing pursuant to subrule (a) above, any respondent to that appeal shall bear…

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.

Continue reading Levi v Unisure Pty Ltd

Details

AGLC: Levi v Unisure Pty Ltd [1999] SASC 432
Case: [1999] SASC 432
Decision Date: 13 October 1999

CaseChat Overview and Summary

The applicant in Levi v Unisure Pty Ltd was an employee who sought compensation from her employer, Unisure Pty Ltd, pursuant to the Workers Rehabilitation and Compensation Act 1986. The employer rejected the claim, and after a review officer found in the applicant's favour, the employer appealed to the Workers Compensation Appeal Tribunal. The Tribunal dismissed the claim, and the applicant then attempted to appeal to the Full Court of the Supreme Court. However, the appeal lapsed due to the applicant's failure to obtain leave to appeal within the required time frame.

The primary legal issues in this case were whether the applicant's appeal was brought within the required time frame, and whether the applicant was entitled to an extension of time to obtain leave to appeal and set down the appeal. The court had to determine whether the applicant's solicitors' failure to comply with the rules should result in the applicant suffering irremediable prejudice.

The court found that the applicant's appeal was brought within time, but the procedural requirements after the appeal had been brought were not complied with. The court noted that the applicant was blameless, and her solicitors had admitted their own fault. The court also found that the respondent had wrongly assumed that the appeal was competent, and had not led any evidence of prejudice. The court held that it would be in the interests of justice to grant an extension of time within which to seek leave to appeal.

In reaching its decision, the court considered the principles that a court is more likely to grant an indulgence for failing to comply with the rules if the appeal has been brought within time, but a procedure not complied with after the appeal has been brought, than in circumstances where the appeal has not been brought within time. The court also considered that the discretion to extend time exists for the purpose of doing justice between the parties.

Based on these findings, the court made orders extending the time within which to seek leave to appeal, granting leave to appeal, and extending the time within which to appeal. The court found that the grounds of appeal raised questions of law and that leave to appeal should be granted.

Orders