Akhras v Watts Publishing Australia and New Zealand Pty Ltd

[2014] NSWCA 195

Court of Appeal

New South Wales

Case Title:

Akhras v Watts Publishing Australia and New Zealand Pty Ltd

Medium Neutral Citation:

[2014] NSWCA 195

Hearing Date(s):

18 June 2014

Decision Date:

18 June 2014

Before:

McColl JA at [1];
Basten JA at [2]

Decision:

(1) Dismiss the application for an extension of time within which either to appeal or to seek leave to appeal.

(2) To the extent necessary to dispose of the proceedings, dismiss the summons and the notice of appeal.

(3) No order as to costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

PRACTICE AND PROCEDURE - appeal - application to extend time - decision of Administrative Decisions Tribunal - notice of intention to appeal filed out of time - summons seeking leave to appeal filed shortly out of time - notice of appeal not served until a month after filing - no explanation of delay - whether prejudice to respondent from delay - whether applicant has a fairly arguable case - Uniform Civil Procedure Rules 2005, r 51.9

Cases Cited:

Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516
Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61

Category:

Principal judgment

Parties:

Edward Hanna Akhras (Applicant)
Watts Publishing Australia and New Zealand Pty Ltd (First Respondent)
Allianz Australia Insurance Ltd (Second Respondent)

Representation

- Counsel:

Counsel:
Applicant self-represented
Mr D Hanna (Respondents)

- Solicitors:

Solicitors:
Applicant self-represented
Gillis Delaney Lawyers (Respondents)

File Number(s):

CA 2013/382730

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Walmsley DCJ

- Date of Decision: 

06 December 2005

- Court File Number(s):

DC 2004/188434

JUDGMENT

1. McCOLL JA: I agree with Basten JA's reasons and with his Honour's proposed orders. The orders of the Court are therefore as Basten JA proposed.

2. BASTEN JA: The applicant seeks an extension of time within which to appeal from a judgment delivered in the District Court on 6 December 2005. A summons seeking leave to appeal was filed on 20 December 2013. A document entitled "Notice of Appeal" was also filed on that date. (Whether leave was required is not addressed in either document.)

3. On 22 January 2001, the applicant, a pedestrian, was struck by a motor vehicle owned by the first respondent as he stepped off the pavement into the path of the defendant's vehicle. The plaintiff succeeded on liability, subject to a finding of 60% contributory negligence. In a careful and detailed judgment Walmsley DCJ addressed the medical evidence and the applicant's evidence as to his injuries. He concluded that many of the applicant's complaints predated the accident, noting that he had a "well documented pre-accident history which suggests a very long period of invalidity and treatment": at [55]. Damages were assessed at $6,000 which, when reduced for contributory negligence, resulted in judgment being entered for $2,400. This award is sought to be challenged as inadequate.

4. The grounds of the proposed appeal appear to be twofold: first, there is reference (in the summons) to two named medical experts who were not called at the trial, but had treated the applicant. The second ground appears to be a complaint that the applicant did not attend on one or more days of the trial, but the trial proceeded in his absence. He was not legally represented. (The current legal representatives for the respondents, being the defendant at trial and its insurer, did not represent those parties at the trial.)

5. Absent a transcript, the circumstances of the trial are largely unknown. Whether the trial in fact proceeded in the absence of the applicant must be assessed from the judgment. The trial judge stated at [2]:

   "The defendant was represented at trial by Mr Ringrose. Mr Akhrass acted for himself throughout, issuing the statement of claim, amending it, filing particulars, and appearing for himself throughout the hearing. The case was set down as a four day trial. It began on 21 November. Mr Akhrass did not come to Court on 22 November as he was sick. The matter then proceeded on 23 November, 29 and 30 November and 1 December. I adjourned it until yesterday for delivery of judgment. Mr Akhrass did not arrive yesterday so I adjourned it until today."

6. These statements indicate that the trial did not proceed in the absence of the applicant; the rest of the judgment gives no hint that it did at any stage. The premise underlying the second ground has not been established.

7. Of the two medical specialists identified in the summons as not having been called, one was a psychiatrist; when he saw the applicant is not known. The other was an orthopaedic surgeon, Dr Medhat Guirgis. In this Court the applicant produced copies of reports from Dr Guirgis dated before the trial and, much later, 9 May 2014. The trial judge was aware that the applicant had seen Dr Guirgis in mid-2001, but noted that no report was tendered: at [58]. (Other medical reports were tendered at trial by the applicant.)

8. The principles governing an extension of time are not in doubt. They were authoritatively stated by the High Court in Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 at [4] (Brennan CJ and McHugh J). They were further discussed by this Court in Tomko v Palasty (No 2) [2007] NSWCA 369; 71 NSWLR 61. They require consideration of (1) the length of the delay; (2) the reason for the delay; (3) whether the applicant has a fairly arguable case and (4) the extent of any prejudice suffered by the respondent to the application.

9. So far as the applicant seeks to challenge the proceedings at trial, the delay is a period of some eight years. That alone would, absent some extraordinary explanation, render the application hopeless. There was, for example, no medical evidence of incapacity before the Court.

10. Although the applicant filed an affidavit described as an "affidavit of delay", the affidavit in fact set out details relevant to an assessment of damages. It provided no explanation for the delay. It might be inferred, however, that the application is intended to re-open the assessment of damages on the basis of fresh evidence as to a deterioration in the health of the applicant, as a result of circumstances unforeseen at the date of trial. That could explain the attempt to tender recent medical reports. If that is the true reason, it is misconceived. Damages in tort are assessed on a once and for all basis, with no opportunity to re-open an award in circumstances where the injured plaintiff's condition later deteriorates (or improves). Thus, the material relied upon provides neither a reason for the delay nor does it demonstrate that the applicant has a fairly arguable case. No adequate explanation was given for not tendering those available at trial.

11. It may be accepted that significant prejudice would be caused to the respondents, were the matter allowed to proceed. It is not necessary, however, to explore that factor: the application for an extension of time within which either to appeal or to seek leave to appeal must be refused. To the extent necessary to dispose of the proceedings, the summons and the notice of appeal should be dismissed. The respondents did not seek costs: no order should be made as to the costs in this Court.

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