[2020] NSWCA 170
Naidu v State of New South Wales (No. 2)
(1) Order that the purported notice of appeal filed on 18 December 2019 be dismissed as incompetent. (2) Order that the appellant pay the respondent’s costs of the purported notice of appeal.
Catchwords
Civil Procedure – Court of Appeal – Competency of Notice of Appeal – No issue of principle – Appeal dismissed
Cases cited
- Bryce v Department of Corrective Services[2009] NSWCA 188
- Naidu v State of New South Wales[2020] NSWCA 147
- Southern Cross Exploration NL v Fire and All Risks Insurance Co Limited (No. 2)(1990) 21 NSWLR 200
Legislation cited
- Workers Compensation Act 1987 (NSW), § 66, 67
- Workplace Injury Management and Workers Compensation Act 1998 (NSW), § 353
Judgment
- [1]
HIS HONOUR: On 18 December 2019 the appellant, Ms Mala Naidu, purportedly as of right, filed a notice of appeal in respect of a decision of a deputy president of the Workers’ Compensation Commission made on 22 November 2019. The Deputy President refused Ms Naidu’s application to extend time to appeal from the decision of an arbitrator rejecting her claim for lump sum compensation.
- [2]
A party to proceedings before the Commission constituted by a Presidential Member who is aggrieved by a decision of the Presidential Member in a point of law may appeal to this Court (Workplace Injury Management and Workers Compensation Act 1998 (NSW) s 353(1)). In the case of an interlocutory decision, the appeal may only be made with leave of this Court (s 353(4)(a)).
- [3]
On 28 April 2020 Ms Naidu filed a notice of motion seeking leave to appeal and an order that the application for leave to appeal be heard at the same time as the appeal.
- [4]
The solicitor for Ms Naidu affirmed an affidavit in support of the notice of motion deposing that the appeal was commenced when the appellant did not have legal representation. The solicitor deposed that he had prepared the matter on the basis that leave was not required, but had recently become aware of case law which caused him to form the view that leave to appeal was required (affidavit of Don Sanjeewa Wijesinghe of 28 April 2020 at [24] and [25]).
- [5]
No order was made for the concurrent hearing of the application for leave to appeal and the appeal. The application for leave to appeal was heard on the papers. On 15 July 2020 this Court (Basten and Leeming JJA) refused leave to appeal (Naidu v State of New South Wales [2020] NSWCA 147). In the course of their Honours’ reasons they stated that the decision to which the application related was an interlocutory decision (at [19]).
- [6]
On 17 July 2020 the Registrar wrote to the parties stating that the notice of appeal appeared to be incompetent because of the absence of leave to appeal. The matter was listed for hearing today to show cause why the appeal should not be dismissed as incompetent.
- [7]
Ms Naidu sought the adjournment of the application on the ground of ill health. She provided a certificate of a psychiatrist who stated that due to distress and depression, she was not fit to attend court.
- [8]
The appellant is represented by a solicitor, Mr Wijesinghe. He appears for Ms Naidu this morning and has sought the adjournment requested by her. However, quite properly, he cannot point to any good reason for its being arguable that the notice of appeal is competent. He was clearly right in apprehending that leave to appeal was required, as Basten and Leeming JJA stated in their reasons. (Southern Cross Exploration NL v Fire and All Risks Insurance Co Limited (No. 2) (1990) 21 NSWLR 200 at 207, 208, 215, 217; Bryce v Department of Corrective Services [2009] NSWCA 188 at [3]).
- [9]
No purpose would be served in acceding to the appellant’s application for an adjournment. The appeal is clearly incompetent.
- [10]
For these reasons I make the following orders:
- (1)
Order that the purported notice of appeal filed on 18 December 2019 be dismissed as incompetent.
- (2)
Order that the appellant pay the respondent’s costs of the purported notice of appeal.
- (1)