Sarkis & ors v Workcover Authority of New South Wales

Judgment 1HIS HONOUR : On 21 May 2010 his Honour Magistrate Buscombe determined proceedings in the Local Court identified as 596 of 2008. He gave judgment in favour of the present defendant against the first and third plaintiffs in the sum of $48,528.80. In addition he ordered that the first and third plaintiffs pay the defendant's costs. 2The matter arises from an injury occasioned to a worker employed by a company of which the plaintiffs were directors on 9 February 2000. Apparently the company was not insured for employment contracts arising in New South Wales. 3The injured worker made application to the Workers' Compensation Commission. On 20 December 2004 an arbitrator made a determination on behalf of the Commission. That determination resulted in a payment being made by WorkCover to the injured worker in the sum of $48,528.80. 4The Workers Compensation Act 1987 makes certain provisions in respect of the recovery of an amount so paid from either the employer company or, in certain circumstances, culpable directors of that company: see s 145 and 145A. 5The employer company was Global Cape York Timber Pty Limited. That company was deregistered on 26 November 2006. As a result, the defendant took proceedings in the Local Court to recover from the directors. The proceedings were heard by Magistrate Buscombe on 4 and 11 December 2009 and 28 April 2010 and, as I have said, he gave judgment on 21 May 2010. 6The main issue for the Local Court was whether the statutory scheme in the Workers Compensation Act had been complied with and whether the directors of the company were appropriately to be regarded as "culpable directors". It would seem that in addition there was also an issue as to whether the third plaintiff was a director at the relevant time. Both issues were determined adversely to the plaintiffs. 7The second plaintiff took no active part in the proceedings in the Local Court and default judgment was entered against that party on some date preceding the determination of the Magistrate. 8Nevertheless, all three plaintiffs sought to appeal to the District Court against the Magistrate's decision. Notwithstanding the plaintiffs being advised by the defendant by letter of 24 June 2010 that the District Court had no jurisdiction to deal with such an appeal, the plaintiffs continued to pursue it. Ultimately, however, the summons seeking to appeal in that jurisdiction was dismissed on 6 September 2010. Such dismissal followed a re-listing of the matter before the Judicial Registrar after a judge of that court had previously purported to strike out the summons. 9On 2 September 2010 a summons was filed in this Court seeking leave to appeal from the whole of the judgment of the Local Court. 10The matter came before me for hearing today. Mr Wilson, solicitor, appeared for the defendant. The plaintiffs were not represented. Mr Sarkis spoke on their behalf. 11There are certain provisions of the Local Court Act 2007 and Uniform Civil Procedure Rules 2005 which should be noted at this point. 12Section 39(1) Local Court Act 2007 (NSW) states as follows: A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court may appeal to the Supreme Court, but only on a question of law. 13Section 40(1) Local Court Act 2007 (NSW) states as follows: A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court. 14Rule 50.12 Uniform Civil Procedure Rules 2005 states as follows: (1)A summons seeking leave to appeal must be filed: (a)within 28 days of the material date, or (b)... (c)within such further time as the higher court may allow. (2)An application for an extension of time under sub-rule (1) (c) must form part of the summons seeking leave to appeal. (3)The summons must be in the approved form and must contain a statement as to: (a) whether the appeal relates to the whole or part only, and what part, of the decision of the court below, and (b) what decision the plaintiff seeks in place of the decision of the court below. (4)The summons must also contain a statement of: (a) the nature of the case, and (b) the reasons why leave should be given, and (c) if applicable, the reasons why time to apply for leave should be extended, setting out briefly but specifically the grounds relied on in support of the appeal including, in particular, any grounds on which it is contended that there is an error of law in the decision of the court below. 15Rule 50.14 Uniform Civil Procedure Rules 2005 states as follows: (1) Unless the Court otherwise orders, the plaintiff must prepare, file and serve on each defendant, not later than 3 days before the date fixed for hearing of the summons, an affidavit to be relied on at the appeal or application for leave to appeal that annexes or exhibits: (a) a copy of the reasons for the decision of the court below, unless the court below has not given, and does not intend to give, written reasons, and (b) a copy of the transcript of the proceedings in the court below, unless a transcript cannot be obtained in respect of the proceedings of that type, and (c) a copy of any exhibit, affidavit or other document from the proceedings in the court below that the plaintiff wishes to be considered at the hearing of the appeal or proposed appeal. (2) ... (3) The higher court may make further directions for the filing and service of an affidavit under subrule (1) or (2) and for the lodging and service of any exhibits to such an affidavit. 16There has been a significant number of failures to comply with those requirements. They include: