MORGAN -v- WANNEROO SMASH REPAIRS PTY LTD [2003] WASCA 41

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASCA 41
Case No:	FUL:119/2002	Heard:	15 JANUARY 2003
Coram:	BARKER J	Delivered:	14/03/03
No of pages:	13	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	JOHN LEONARD MORGAN WANNEROO SMASH REPAIRS PTY LTD
Catchwords:	Practice and procedure Whether extension of time for entry of appeal for hearing should be granted Whether merits of appeal preclude extension
Legislation:	Rules of the Supreme Court, O 63 r 4, O 63 r 7(1) Workers' Compensation and Rehabilitation Act 1981, s 93D
Case References:	Jackamarra v Krakouer (1998) 195 CLR 516 Kwa v City of Stirling, unreported; SCt of WA; Library No 990169; 16 March 1999 Reynolds v Roche Bros Pty Ltd [1999] WASCA 141 Thomas v O'Shea (1989) A Tort Rep 80-251 Waddington v Silver Chain Nursing Association (1998) 20 WAR 269 Wade v Allsopp (1976) 10 ALR 353 Linsell v Robson [1976] 1 NSWLR 249 Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65 Wilson v Peisley (1975) 7 ALR 571 Wright v Shire of Albany (1993) A Tort Rep 81-239

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MORGAN -v- WANNEROO SMASH REPAIRS PTY LTD [2003] WASCA 41 CORAM : BARKER J HEARD : 15 JANUARY 2003 DELIVERED : 14 MARCH 2003 FILE NO/S : FUL 119 of 2002 BETWEEN : JOHN LEONARD MORGAN

Appellant

AND

WANNEROO SMASH REPAIRS PTY LTD

Respondent

Catchwords:

Practice and procedure - Whether extension of time for entry of appeal for hearing should be granted - Whether merits of appeal preclude extension

Legislation:

Rules of the Supreme Court, O 63 r 4, O 63 r 7(1)

Workers' Compensation and Rehabilitation Act 1981, s 93D

Result:

Application allowed

(Page 2)

Category: B

Representation:

Counsel:

Appellant : Mr B L Nugawela

Respondent : Mr M P Bruce

Solicitors:

Appellant : Leonard Cohen & Co

Respondent : Phillips Fox

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

Jackamarra v Krakouer (1998) 195 CLR 516
Kwa v City of Stirling, unreported; SCt of WA; Library No 990169; 16 March 1999
Reynolds v Roche Bros Pty Ltd [1999] WASCA 141
Thomas v O'Shea (1989) A Tort Rep 80-251
Waddington v Silver Chain Nursing Association (1998) 20 WAR 269
Wade v Allsopp (1976) 10 ALR 353

Case(s) also cited:

Linsell v Robson [1976] 1 NSWLR 249
Ta v Lucky Import and Export Co Pty Ltd [2002] WASCA 65
Wilson v Peisley (1975) 7 ALR 571
Wright v Shire of Albany (1993) A Tort Rep 81-239

(Page 3)

1 BARKER J: By application made by notice of motion filed on 28 November 2002, the appellant seeks leave to file the entry of appeal in this appeal out of time. The respondent opposes the application.

2 Order 63 r 4 of the Rules of the Supreme Court provides that "A notice of motion by way of appeal must be served and a copy…

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: [2003] WASCA 41
Decision Date: 14 MARCH 2003

CaseChat Overview and Summary

The case of Morgan v Wanneroo Smash Repairs Pty Ltd involved a dispute between the plaintiff, Morgan, and the defendant, Wanneroo Smash Repairs Pty Ltd. The matter originated from a decision made in the Magistrates Court of Western Australia, which was appealed to the Court of Appeal. Morgan sought an extension of time to enter the appeal for hearing, arguing that the delay in filing the appeal was due to circumstances beyond their control. Wanneroo Smash Repairs Pty Ltd opposed the application, contending that the delay was not excusable and that the merits of the appeal did not warrant the extension.

The primary legal issue before the Court of Appeal was whether the plaintiff's application for an extension of time to enter the appeal should be granted. This required the court to consider the principles governing extensions of time in appeals, including the balance between the right to appeal and the need for finality in litigation. The court also had to assess whether the merits of the appeal were such that they precluded the granting of an extension. The court considered the relevant authorities and case law to determine if the delay was excusable and if the merits of the appeal warranted an extension.

In determining the application, the Court of Appeal examined the circumstances leading to the delay and the merits of the appeal. The court found that the delay was due to circumstances that were largely beyond the control of the plaintiff, and that the merits of the appeal presented a case of sufficient importance to warrant an extension. The court held that the application should be allowed, as the delay was excusable, and the merits of the appeal warranted the extension. The court exercised its discretion under the relevant legislation to grant the extension, thereby allowing the appeal to proceed.

The final orders of the court were that the application for an extension of time to enter the appeal for hearing was allowed. The appeal was thus permitted to proceed, with the extended time frame being set by the court. This decision highlights the court's approach to granting extensions of time in appeal cases, balancing the need for finality against the circumstances of the delay and the merits of the appeal.

Orders

Orders of the court

Application allowed

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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