"The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties: see Hughes v National Trustees Executors and Agency Co of Australasia Ltd [1978] VicRp 27; (1978) VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance

with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board (1973) 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VicRp 113; (1967) VR 871 at 872; Hughes, at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council

pointed out in Ratnam v Cumarasamy (1965) 1 WLR 8 at 12; (1964) 3 All ER 933 at 935: 'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'" 7. Not being at all satisfied that the extension of time should be granted upon the material put forward to explain the delay, it is nevertheless preferable, in the light of the authorities, to examine as well the other matters referred to by McHugh J. The history of the proceedings to date based upon the material available to this Court is as follows: 11 July 1990 The respondent was injured in an accident whilst going to work at the premises of the appellant. She was paid compensation. 17 February 1991 Payments of weekly compensation ceased, being discontinued by the appellant. 18 February 1991 The respondent resumed her employment with the appellant in a different capacity to that being filled at the time that she was injured. There is a dispute as to whether or not she was capable of undertaking that new work. 26 February 1991 Her employment was terminated. 3 June 1991 A formal Workers Compensation Claim was delivered to the appellant. 18 February 1992 The respondent commenced proceedings against the appellant in the Work Health Court but these proceedings were later discontinued. 17 March 1992 An application was made by the respondent to the Work Health Court and it is from the proceedings upon that application that this appeal arises. It is discussed further below. 15 April 1992 The appellant filed an answer to that application. 17 March 1993 An order was made relating to the conduct of the proceedings upon the application and answer, the details of which are also important to the outcome of the appeal and will be considered below. 5 April 1993 The hearing commenced before the Work Health Court and the ruling giving rise to the prospective appeal was given. 7 April 1993 The hearing was adjourned part heard. 5 May 1993 Notice of appeal was filed. 11 May 1993 Notice of appeal was served. 27 May 1993 An application made to extend the time for compliance with the rules relating to filing and service of the notice of appeal. 8. It appears that the appellant cancelled payment of compensation to the respondent upon the basis that she ceased to be incapacitated (s69). In form, the application to the Court made by the respondent on 17 March 1992 was an appeal pursuant to s111 of the Act from that decision of the appellant. The Statement of Claim annexed gave details of the accident and injury sustained, of the termination of payments as from 17 February and the termination of employment thereafter. The respondent appealed on the grounds, inter alia, that the appellant had no valid reason to terminate payments of compensation and that she was still incapacitated, in particular, from a condition known as post traumatic stress disorder and had been since the date of the accident. As to remedies, the respondent sought a declaration that the appellant was not entitled to discontinue payments, and an order that it make payments for compensation for total incapacity from 17 February 1991 to the present and continuing, together with additional payments pursuant to s89 of the Act and punitive damages and interest pursuant to s109 for unreasonably terminating the payments. By its answer the appellant took issue with many of the claims of the respondent as to the facts and alleged that by reason of operation of the provisions of the Act, the respondent was not entitled to make the application under s111 and nor was she entitled to pursue her claim made on 3 June 1991 for a number of reasons which are set out in that answer. It denied that she was entitled to the orders sought or any other remedy. On 17 March 1993 a number of orders were made, amongst them the following: "1. On the question of justifying the cancellation of payments the respondent employer bears the legal onus and evidential onus and is dux litis. 2. On the question of proof of the fact and extent of present (sic) or partial incapacity, the applicant worker bears the legal and evidential onus and is dux litis. 3. Subject to any further direction of the presiding Magistrate, the respondent is to be entitled to call rebuttal evidence in relation to any matter raised in the applicant's case which are, at the time of the hearing, not within the respondent's knowledge of the applicant's case. This does not include any new medical evidence not contained in the reports served in accordance with the Work Health Rules. If an issue arises as to new medical evidence, that is a matter for the presiding Magistrate." 9. (Although the order is expressed to have been made on proceedings commenced on 18 February 1992, it seems that might be an error, but neither party makes any point about that). Presumably the order was made pursuant to the extensive powers of the Work Health Court to regulate its own procedures, as to which, for example see s107. Those orders stood at the time the hearing was embarked upon, on 5 April, and the proceedings on that and the following days were conducted in accordance with that order. Evidence was led on behalf of the appellant on the question of the cancellation of payments, at the conclusion of which counsel for the respondent invited the Court to examine the evidence, and addressed with a view to convincing the Court that the appellant had not discharged the onus upon it of satisfying the Court that its termination of compensation payments was justified. A question arose as to whether or not the circumstances were such that the respondent should elect whether to call evidence or not as a condition of the Court entertaining the submission, and whether or not that issue was a proper one for determination in the circumstances. Counsel for the respondent said that it was not proposed to call evidence and referred to the procedures that were determined prior to the commencement of the hearing. The proceedings were then accompanied by another strange quirk (or so it seems to me) when the appellant called further evidence. Counsel for the appellant addressed again and sought not only that the appeal in relation to termination of payments be dismissed, but apparently, (the transcript is not clear) that all other allegations and claims made by the respondent in her Statement of Claim also be dismissed. Counsel for the respondent replied by reference to the orders indicating that all that needed to be done at that stage was to consider whether or not the appellant had discharged the onus upon it in relation to the termination of payments, and if so satisfied, then it was up to the respondent to call evidence to substantiate her claim that she had been incapacitated from the time when those payments ceased, and that it would be open to her to call evidence in that regard and for the appellant to call evidence in defence. "The matter will proceed by way of an ordinary application, with the plaintiff bearing the onus in relation to incapacity", that is, from the date of termination. His Worship ruled that the employer was justified in cancelling payments of weekly benefits and it fell to the respondent to open her case as to the incapacity she alleged. The matter proceeded accordingly. 10. The grounds of appeal are that the learned Stipendiary Magistrate erred in law in that he allowed the respondent to adduce evidence of incapacity in circumstances where the respondent elected not to call evidence and was unsuccessful in her application for non-suit, and that he erred in law in concluding that the failed application for a non-suit did not dispose of the respondent's appeal pursuant to s111 of the Work Health Act. 11. Bearing in mind the Statement of Claim, the answer to it, the procedural orders that were made, and the conduct of the proceedings, it cannot be said that his Worship erred in the manner suggested. Though put forward in what might be regarded as an irregular way, but at least tacitly sanctioned by the Work Health Court, the respondent had two matters before the Court, an appeal against the termination of payments and an application for compensation. Orders were made as to how those two matters would progress. Clearly with both parties dux litis the proceedings upon the one "application" were to be divided into two parts. The appellant's argument, if any, lies with the procedural orders not with the learned Stipendiary Magistrate who carried them out. Looking at the basis upon which the matter was argued upon this application, and by reference to the material presently available, there is no prospect of success upon the appeal. 12. The application to extend the time to file and serve the notice of appeal is dismissed.