WHITING v JDS ENGINEERING & LABOUR SERVICES PTY LTD [2010] NSWCA 28

WHITING v JDS ENGINEERING & LABOUR SERVICES PTY LTD [2010] NSWCA 28

The applicant was entitled to an extension of time and leave to appeal because the proposed appeal was strongly supported by Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276, the delay was explicable by the applicant's legal advisers having proceeded on the assumption that the District Court ruling was correct...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
04 March 2010
Procedural Posture
Application for Extension of Time and Leave to Appeal / Court of Appeal Application Following District Court Dismissal of Damages Claim
Outcome
Extension of time granted and leave to appeal granted.
Legal Topics
['extension of Time to Seek Leave to Appeal' 'election Under S 151 a of the Workers Compensation Act 1987 (nsw)' 'workers Compensation Lump Sum Claim and Common Law Damages Claim' 'presumptive Prejudice and Actual Prejudice' 'leave to Appeal']
['limitation of Actions' 'workers Compensation' 'civil Procedure' 'appeals'] ['extension of Time to Seek Leave to Appeal' 'election Under S 151 a of the Workers Compensation Act 1987 (nsw)' 'workers Compensation Lump Sum Claim and Common Law Damages Claim' 'presumptive Prejudice and Actual Prejudice' 'leave to Appeal']

Source-derived case record

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Procedural Posture

Application for Extension of Time and Leave to Appeal / Court of Appeal Application Following District Court Dismissal of Damages Claim

Legal Issues

  1. 1 ['Whether the applicant had provided any explanation for the delay in seeking leave to appeal.' 'Whether the explanation warranted a significant extension of time.' 'Whether it was necessary for the applicant to demonstrate an arguable case with respect to his substantive claim for damages.' 'Whether, in the absence of evidence of actual prejudice, the respondent could rely upon presumptive prejudice as a basis for resisting the extension of time.' 'Whether leave to appeal should be granted against the District Court judgment of 11 August 2005.']

Ratio Decidendi

The applicant was entitled to an extension of time and leave to appeal because the proposed appeal was strongly supported by Taylor v Centennial Newstan Pty Ltd [2009] NSWCA 276, the delay was explicable by the applicant's legal advisers having proceeded on the assumption that the District Court ruling was correct until contrary advice was received, there was no disentitling conduct by the applicant, the substantive damages claim was on its face arguable, the respondent showed no actual prejudice, and presumed prejudice was slight so that an extension would not create a real chance of an unfair trial.

Court Disposition

Extension of time granted and leave to appeal granted.

Orders

  • ['Grant the applicant an extension of time within which to file and serve the summons seeking leave to appeal to 10 July 2009.' 'Grant leave to appeal against the judgment in the District Court of 11 August 2005.']