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Exceptional circumstances

Yang v Topline Holdings Pty Ltd [2010] NSWWCCPD 117. Keating P. 5.11.10.

[24] The respondent submits Acting Deputy President Snell (as he then was) considered the meaning of “exceptional circumstances” in RTA v Cormick [2007] NSWWCCPD 220 at [25]–[27]:

25. ‘Exceptional circumstances’ are necessary to enliven the discretion contained in rule 16.2(11). Recently in Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 the New South Wales Court of Appeal considered the phrase, in the context of rule 31.18(4) of theUniform Civil Procedure Rules 2005. Campbell JA (with whom Tobias JA and Handley AJA agreed) said:

‘66. Another question of construction concerned exceptional circumstances in rule 31.18(4). In San v Rumble (No 2) (2007) NSWCA 259 at [59]- [69], I gave consideration to the expression exceptional circumstances in a different statutory context to the present. Without repeating that discussion in full, I shall state such of the conclusions as seem to me applicable in the construction of rule 31.18(4).

(a) Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encounteredR v Kelly (Edward) [2000] 1 QB 198 (at 208).

(b) Exceptional circumstances can exist not only by reference to quantitative matters concerning relative frequency of occurrence, but also by reference to qualitative factorsR v Buckland [2000] EWCA Crim 1[2000] 1 WLR 1262[2000] 1 All ER 907 (at 1268; 912-913).

(c) Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 (at [26]).

(d) In deciding whether circumstances are exceptional within the meaning of a particular statutory provision, one must keep in mind the rationale of that particular statutory provisionR v Buckland (at 1268; 912-913).

(e) Beyond these general guidelines, whether exceptional circumstances exist depends upon a careful consideration of the facts of the individual case: Awa v Independent News Auckland [1996] 2 NZLR 184 (at 186).

67. In the context of rule 31.18(4) UCP Rules, any decision about whether there are exceptional circumstances would need to bear in mind the explicit statement of objectives of a court in the management of litigation contained in sections 56-59 Civil Procedure Act 2005’.”

25. The respondent submits that the appellant has not provided any adequate explanation for the delay and has not established that “exceptional circumstances” exist such as to warrant an extension of time to file the appeal. Further, the respondent submits that the appeal has no reasonable prospects of success."


Lawrence-Plant v J & S Plant PL t/as Bluey's Hire (now dereg’d) [Allianz] [2009] NSWWCCPD 64. Moore ADP. 10.06.09.

The bankrupt applicant was formerly a director of the respondent, and failed on worker. His appeal was a week late.

Moore ADP found “considerable merit” in the fund’s application for appeal costs, quoting the arbitrator’s finding of claim without justification but refusing the costs order for want of practical utility, given the bankruptcy.

To late filing, Moore ADP noted Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479 per McHugh J at 480, applied in Dep’t  Corrective Services v Buxton [2007] NSWWCCPD 55, O’Carroll Constructions PL v Burgess [2007] NSWWCCPD 224 [21 WCMS 2] and NSW Fire Brigades v Turton [2008] NSWWCCPD 66.

The acting deputy president said: “The Appellant submits that the appeal was filed out of time because Counsel’s advice to proceed was not received until 11 February 2009. In his submissions filed on 6 May 2009, the Appellant adds that, because of the Arbitrator’s findings (on the issue of costs) at [39] that the claim had been made without justification as was alleged by the Respondent, it was inappropriate to proceed without Counsel’s advice as to the prospects of success. While I accept the validity of that submission, there remains no explanation in those submissions as to the delay in obtaining such advice.

“What constitutes ‘exceptional circumstances’ has been considered by the Commission in a number of decisions. In Dept Education &c v Mekhail [2006] NSWWCCPD 1 [9 WCMS 3] Handley ADP dealt with an appeal filed a few days out of time, when appeal documents were given to the filing section of the appellant’s solicitors, but not filed for some days due to ‘unforeseen error’. Handley ADP said the appeal was filed out of time due to ‘administrative error’, which did not constitute ‘exceptional circumstances’ so as to enliven the discretion in rule 16.2(11).

Moore ADP continued infra [27]: “In Buxton ADP Snell dealt with an appeal lodged approximately one week out of time, after the appellant’s solicitors miscalculated the time within which an appeal could be brought.

"As he said at [26]: ‘An error by the solicitors for the Appellant Employer, in calculating the period during which any appeal needed to be filed, is the dominant, probably the only, reason for the appeal being out of time in the current matter. The circumstances of each case require consideration on their own facts.

"I am not obliged to take the same approach as Handley ADP, in forming a view regarding whether ‘exceptional circumstances’ are made out. I have however reached a similar view. I cannot see a simple error, in calculating the time in which an appeal could be brought, is sufficient to constitute ‘exceptional circumstances’.

"I am not satisfied ‘exceptional circumstances’ exist, so as to enliven the discretion in Rule 16.2(11). For this reason the application to extend the time for making the appeal should be refused.”

“And as DP Roche noted in Burgess at [22], ‘… inadvertence or administrative errors by a legal practitioner do not amount to exceptional circumstances’.” [27]

Moore DP continued [28]: “In the present case, I am similarly not persuaded that exceptional circumstances exist. I have been guided in my determination by the observations of Campbell JA in Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290, dealing with the phrase ‘exceptional circumstances’ in the Uniform Civil Procedure Rules 2005 where he said: ‘Exceptional circumstances are out of the ordinary course or unusual, or special, or uncommon. They need not be unique, or unprecedented, or very rare, but they cannot be circumstances that are regularly, routinely or normally encountered: R v Kelly (Edward) [2000] 1 QB 198 (at 208).”

“In my view, delays by Counsel in providing timely advice are regularly encountered. That factor by itself then does not constitute exceptional circumstances. It is the absence of any explanation by the Appellant for the delay upon which my decision to decline to extend the time for making the appeal is primarily based.” [29]

There had been five previous applications by the worker without improved evidence. The appeal did not offer prospects, notwithstanding a statement from a Mr Bob De Bus having observed the applicant engaged in operations with the respondent. Records showed director’s fees paid to the applicant but he was not among wage earners shown. The records appeared to show $88,000 director’s loan repayment in 2003.

The arbitrator’s findings were consistent with Riverwood Legion &c v Morse [2007] NSWWCCPD 88 per Roche DP, and further working director cases cited therein, Moore ADP said, noting too Williamson v Suncorp Metway &c [2008] QSC 244.

There was no doubt the applicant was suffering a depressive illness, but such could not be said to have arisen from his employment, nor such warrant substantial contributing factor. No proofs attended assertion of prior claims met.

No costs.

A: Higgins & Higgins. R: Ellison Tillyard Callanan.

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