Supertex Industries Pty Limited v McTernan

[1999] NSWCA 76

CITATION:	Supertex Industries Pty Limited v McTernan [1999] NSWCA 76
FILE NUMBER(S):	CA 40035/99
HEARING DATE(S):	29.03.99
JUDGMENT DATE:	29 March 1999
PARTIES :	Supertex Industries Pty Limited (claimant) Eula Doone McTernan (opponent)
JUDGMENT OF:	Registrar Jupp

LOWER COURT JURISDICTION:	Compensation Court
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Neilson CCJ

COUNSEL:	Priestley - claimant Trainor - opponent
SOLICITORS:	Keddies - claimant no appearance filed for opponent
CATCHWORDS:	Extension of time
DECISION:	Time to appeal extended to 1 April 1999; claimant to pay opponent's costs of motion; claimant to pay opponent's costs of appeal as a conditon of the extension of time; appeal expedited

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

No 40035/99

REGISTRAR JUPP

MONDAY 29 MARCH 1999

SUPERTEX INDUSTRIES PTY LIMITED V. EULA DOONE McTERNAN

JUDGMENT: (on application for extension of time to appeal - adjourned part heard from 15 March 1999)

1. REGISTRAR: This is a borderline case. On balance it appears to me that I should grant an extension of time to appeal in this matter. The claimant has provided written submissions of the proposed grounds of appeal and the arguments that will be raised on the appeal if the extension of time is granted. I have briefly analysed those submissions. Many of those submissions do not appear to me to be likely to be successful. There are some grounds of appeal however which may be ultimately successful.

2. The motion originally filed sought an extension of time to file a holding summons for leave to appeal. However it has become apparent that there is an appeal of right provided the grounds of appeal raise some questions of law. Again, analysing the submissions by the appellant and the proposed grounds of appeal, some of the grounds clearly do not raise issues of law but only raise questions of fact. However, there are grounds of appeal which arguably raise questions of law.

3. The opponent worker suffers severe anxiety and a medical report has been tendered by the opponent to establish a special prejudice that she may suffer if the extension of time is granted. The Judge in his reasons for judgment indicated that in his opinion the ongoing Compensation Court proceedings contributed to the anxiety that the worker was suffering and it was his hope that the conclusion of those proceedings might alleviate some of the symptoms that the opponent was suffering. It is for that reason that I am hesitant in ordering an extension of time to appeal. I accept that a special prejudice to the opponent has been demonstrated. Nevertheless if I were to refuse an extension of time to appeal the claimant would be entitled to seek a review of my decision and that may involve the matter remaining on foot for another few months in any event.

4. The appropriate order as I see it is that time to appeal should be extended but on the terms which were suggested on the prior occasion (15 March 1999), namely that the claimant pay the opponent's costs of the appeal in any event.

5. The orders that I make are:
· that time for the claimant to file a notice of appeal (with appointment) be extended to 4pm on 1 April 1999.
· that the claimant pay the opponent's costs of this motion.
· that the claimant pay the opponent's costs of the appeal if they file a notice of appeal pursuant to the order extending time to appeal; and
· that if an appeal is filed by 1 April 1999 that the appeal be expedited and listed for a directions call over on 15 April 1999 .
Certified correct
Steve Jupp 31/3/99