Nominal Defendant v Workers Compensation Nominal Insurer [2010] NSWCA 376

Nominal Defendant v Workers Compensation Nominal Insurer [2010] NSWCA 376

The Court refused to extend time because, although the delay itself was not necessarily fatal, the applicant and its solicitors failed to act when prompted by notices about the examination, gave no reasonable explanation for further delay, had participated in arrangements for the examination, and the witness examination had been completed in full. In any event, leave to appeal would have been refused because the challenged order was interlocutory and discretionary, no House v The King error was shown, and UCPR r 24.3 was not confined to cases of witness infirmity.

Jurisdiction
Australia
Judgment Date
10 December 2010
Procedural Posture
Application for Extension of Time to File a Summons for Leave to Appeal From an Interlocutory Order for Examination of a Witness Otherwise Than at Trial / Court of Appeal Ex Tempore Judgment on Extension of Time and Summons for Leave to Appeal
Outcome
Application for extension of time refused; summons dismissed with costs.
Legal Topics
['extension of Time' 'leave to Appeal' 'interlocutory Orders' 'examination of Witness Otherwise Than at Trial' 'evidence on Commission' 'discretionary Appellate Review' 'open Justice']
['civil Procedure' 'workers Compensation'] ['extension of Time' 'leave to Appeal' 'interlocutory Orders' 'examination of Witness Otherwise Than at Trial' 'evidence on Commission' 'discretionary Appellate Review' 'open Justice']

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Procedural Posture

Application for Extension of Time to File a Summons for Leave to Appeal From an Interlocutory Order for Examination of a Witness Otherwise Than at Trial / Court of Appeal Ex Tempore Judgment on Extension of Time and Summons for Leave to Appeal

Legal Issues

  1. 1 ['Whether time should be extended for the applicant to file a summons for leave to appeal approximately 13 weeks out of time.' 'Whether leave to appeal should be granted from an interlocutory discretionary order made under Uniform Civil Procedure Rules 2005, r 24.3(1)(a).' 'Whether the primary judge erred by failing to give sufficient weight to open justice, by treating Ms Mongia as unable by reason of infirmity to give evidence at trial, or by taking irrelevant matters into account.']

Ratio Decidendi

The Court refused to extend time because, although the delay itself was not necessarily fatal, the applicant and its solicitors failed to act when prompted by notices about the examination, gave no reasonable explanation for further delay, had participated in arrangements for the examination, and the witness examination had been completed in full. In any event, leave to appeal would have been refused because the challenged order was interlocutory and discretionary, no House v The King error was shown, and UCPR r 24.3 was not confined to cases of witness infirmity.

Court Disposition

Application for extension of time refused; summons dismissed with costs.

Orders

  • ['The application for an extension of time in which to file the summons for leave to appeal be refused.' 'The summons be dismissed with costs.']