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Appeal from arbitrator, lodged out of time

Baldwin v Greater Building Society Ltd [2011] NSWWCCPD 18. Roche DP. 

[19] Ms Baldwin’s solicitors originally lodged the appeal on 14 October 2010, within the 28-day time limit in s 352(4) of the 1998 Act.

However, the Registrar rejected it in a letter dated 15 October 2010 because it failed to identify any grounds upon which the decision was appealed or present any arguments in support.

[20] The appeal was lodged out of time on 12 November 2010 and Ms Baldwin seeks an extension of time in which to appeal and has submitted:

(a) the grounds of appeal could not be finalised until a copy of the transcript was obtained;

(b) the appeal raises issues that are arguable, and

(c) strict compliance with the time limits will work a substantial injustice to Ms Baldwin as she will lose the right to have her matter determined according to its substantial merits.

[21] The respondent has properly conceded that there is no prejudice in the “application being dealt with on its merits” and that the delay in lodging the appeal was not significant.

[22] An extension of time in which to appeal is governed by Pt 16.2 r 12 of the Workers Compensation Commission Rules 2010, which provides:

“(12) The Commission constituted by a Presidential member may, if a party satisfies the Presidential member, in exceptional circumstances, that to lose the right to seek leave to appeal would work demonstrable and substantial injustice, by order extend the time for making an appeal.”

[23] The unavailability of a transcript provides no basis for not complying with the procedures in Practice Direction No 6, which sets out the steps parties are to follow on appeal.

Appeals must properly identify the grounds of the appeal and the submissions in support of those grounds.

The Commission’s practice is to give leave for the parties to make further submissions in support once the transcript is available.

[24] The appeal was initially lodged within time, there is no prejudice to the respondent, and the appeal raises issues that are arguable.

For these reasons, I am satisfied that exceptional circumstances exist in the present matter and that to lose the right to appeal would result in a substantial injustice.

Time to appeal is extended until 12 November 2010. I grant leave to appeal.


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