Do Carmo v Wishaw
[2022] WASCA 164
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: DO CARMO -v- WISHAW [2022] WASCA 164
CORAM: MURPHY JA
MITCHELL JA
HEARD: 8 DECEMBER 2022
DELIVERED : 8 DECEMBER 2022
PUBLISHED : 9 DECEMBER 2022
FILE NO/S: CACV 59 of 2022
BETWEEN: PETER JOSE DO CARMO
Appellant
AND
SUZANNE WISHAW
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: COMMISSIONER COLLINS
Citation: DO CARMO -v- WISHAW [2022] WADC 42
File Number : CIV 4283 of 2017
Catchwords:
Appeal - Practice and procedure - Where appeal dismissed after failure to comply with a springing order requiring the filing of an appellant's case - Whether extension of time to comply with springing order should be granted - Turns on own facts
Legislation:
Nil
Result:
Application for an extension of time dismissed
Appeal stands dismissed
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | D R Clyne |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Jackson McDonald |
Case(s) referred to in decision(s):
A v C [No 2] [2015] WASCA 199
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Neil v Nott (1994) 68 ALJR 509
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679
Sims v Suda Ltd [No 2] [2015] WASCA 105
REASONS OF THE COURT:
At the conclusion of the hearing on 8 December 2022, we ordered that:
1.The appellant's application in an appeal filed on 14 November 2022 is dismissed.
2.The appeal stands dismissed.
3.The appellant pay the respondent's costs of the application to be assessed if not agreed.
We said that we would publish reasons for making those orders later. These are our reasons for making those orders.
Background
On the afternoon of 16 February 2015, the appellant was riding his Kawasaki motorbike in the right-hand lane of Queen Victoria Street, travelling north across the Fremantle traffic bridge in Fremantle. At the same time, the respondent was driving an Audi SUV in the same direction, but in the left-hand lane of Queen Victoria Street. As the appellant was crossing the bridge, the respondent pulled out in front of him, causing him to hit her driver's door at about a 45-degree angle (Accident).[1]
[1] Primary decision [1].
In November 2017, the appellant commenced the primary proceedings seeking damages for the injuries he sustained in the Accident.[2] The respondent admitted liability in negligence for the Accident but disputed that the Accident caused the appellant any loss.[3]
[2] Primary decision [2].
[3] Primary decision [3].
The commissioner found that the appellant sustained an injury to his back (affecting his neck, thoracic and lumbar regions) at the time of the Accident. However, that injury was modest and was not so significant that it warranted immediate investigation or medical treatment. The injury progressively resolved throughout 2015 and had fully resolved by the end of 2016 at the latest.[4]
[4] Primary decision [45] - [46], [303].
The commissioner found that the symptoms that the appellant exhibited from the date of the Accident to, at the latest, the end of 2016 were caused by the Accident.[5] The commissioner also found that symptoms that the appellant exhibited after the end of 2016, to the date of trial, were not caused by the Accident.[6]
[5] Primary decision [496], [498].
[6] Primary decision [500].
The commissioner was not satisfied that the injuries caused by the Accident resulted in a diminution of the appellant's earning capacity that was productive of financial loss.[7] He therefore did not allow any damages for past or future economic loss.[8] The commissioner assessed damages for past medical treatment in the amount of $1,200 for the period from the Accident to the end of 2016 inclusive of interest.[9] He also assessed damages for past travel expenses for past medical treatment in the amount of $1,000 for the period from the Accident to the end of 2016, inclusive of interest.[10] No damages were awarded for future medical expenses or associated travel. The commissioner did not allow any damages for non-pecuniary loss, which he assessed as falling under the statutory threshold of $23,000.[11] Total damages awarded were therefore $2,200, inclusive of pre-judgment interest.[12]
[7] Primary decision [623], [625].
[8] Primary decision [641].
[9] Primary decision [662].
[10] Primary decision [683], [685].
[11] Primary decision [693], [716].
[12] Primary decision [720].
On 17 May 2022, the commissioner made orders giving judgment for the appellant in the sum of $2,200, requiring the respondent to pay the appellant's costs of the primary proceedings to 6 August 2020 and requiring the appellant to pay the respondent's costs of the primary proceedings thereafter.
The appeal to this court
On 3 June 2022, the appellant filed an appeal notice in this court appealing against the orders noted at [8] above. An order was made by consent extending the time for the appellant to file an appellant's case to 2 September 2022. At this time the appellant was represented in the appeal by solicitors.
On 2 September 2022, the appellant filed a notice of self‑representation in the appeal. On 5 September 2022, the appellant applied for a further extension of time to file an appellant's case to 14 October 2022.
On 7 October 2022, Murphy JA made orders extending the time for the filing and service of an appellant's case to 7 November 2022. His Honour also made a springing order to the effect that the appeal was dismissed, and the appellant was to pay the respondent's costs, if an appellant's case was not filed and served by 7 November 2022.
No appellant's case was filed by 7 November 2022. On 8 November 2022, the court of appeal registrar issued a certificate of conclusion of a civil appeal. The registrar certified that, the appellant having failed to comply with Murphy JA's order of 7 October 2022, the appeal stands dismissed.
Application for an extension of time to comply with the springing order
By application in an appeal filed on 14 November 2022, the appellant seeks an extension of time to comply with the springing order to 25 November 2022.
The application is supported by the appellant's affidavit sworn 11 November 2022. The appellant in effect deposes that an appellant's case was prepared to be electronically lodged on 7 November 2022. He says that he failed to recognise that he had to have the documents verified by an affidavit. The appellant says that he visited a justice of the peace on the morning of 8 November 2022 and 'acquired the verification'. He says that, on 8 November 2022, he served the appellant's case on the respondent's solicitors and placed it in the lodgement box at the court of appeal office.
A document, which the appellant sought to file as the appellant's case, is attached to the appellant's affidavit. It contains 13 proposed grounds of appeal.
General principles
Principles concerning an application to extend time to comply with a springing order were summarised in A v C [No 2]:[13]
[13] A v C [No 2] [2015] WASCA 199 [2] ‑ [4].
It has often been pointed out that the failure by a party to comply with a springing order is an egregious breach. A springing order is intended to be the last opportunity afforded to the party to put its case in order. The proper administration of justice, and the quality of justice for the other party, generally requires that it be just that, its last opportunity. See, for instance, MTQ Holdings Pty Ltd v Lynch[2007] WASC 49 [38] ‑ [57] and the cases there cited; TP Engineering Pty Ltd v JM [2015] WASCA 181 [53].
There is, however, a discretion to extend the time for compliance with a springing order and while no hard and fast rules can be laid down as to the matters to which the Court should have regard in the exercise of that discretion, the Court will normally have regard to at least the following matters:
(1)the circumstances in which the springing order came to be made;
(2)the reason for non-compliance with the springing order;
(3)the prejudice to the defaulting party if the time were not extended; and
(4)the prejudice to the other party if the time were extended.
It will also normally be a relevant consideration whether or not the defaulting party has a reasonably arguable case on the merits, there being no point in resuscitating a case that is devoid of merit. However, the fact that a party has an apparently meritorious case cannot be permitted effectively to insulate it from the consequences of a failure to comply with a peremptory order of the Court: MTQ Holdings; TP Engineering.
Disposition
There are a number of factors which count in favour of an order extending time for the appellant to comply with the springing order. The appellant did make a genuine attempt to lodge the document he prepared as an appellant's case by the time required by the springing order. He did not simply ignore the requirement. The failure to lodge the document by 7 November 2022 appears to be a result of a misapprehension by a self-represented litigant that the appellant's case needed to be verified by affidavit. That misapprehension appears to have arisen only shortly before the appellant's case was prepared for filing on 7 November 2022. The respondent does not point to any specific prejudice that would be caused by the grant of an extension of time. Obviously, the dismissal of the appeal means that the appellant cannot challenge the assessment of damages in which his claim substantively failed. These factors would have led us to grant an extension of time if the appellant was in a position to promptly file an appellant's case which complied with the Supreme Court (Court of Appeal) Rules 2005 (WA) and identified grounds which had reasonable prospects of succeeding.
However, the document annexed to the appellant's affidavit does not comply with the Rules. It would not have appropriately been accepted for filing as the appellant's case if it had been lodged within the time required by the springing order. The document does not comply with the requirement in r 32(4)(b) that the document titled 'Appellant's grounds of appeal' state the grounds, and concise particulars of them, succinctly in numbered paragraphs. It also does not comply with the requirement in r 32(5)(a) that the document titled 'Appellant's submissions' must for each ground of appeal, contain the appellant's written submissions (or argument) expressed so as to convey the substance of them as clearly and succinctly as possible.
The 13 grounds of appeal set out in the document annexed to the appellant's affidavit contain generalised assertions of error combined with references to many paragraphs of the commissioner's written reasons for decision. The written submissions do not relate to any particular ground of appeal, and include a table identifying many paragraphs of the commissioner's reasons, which is very difficult to follow.
Further, while the grounds of appeal generally appear to relate to credibility findings, or factual findings that were influenced by the commissioner's credibility assessments, neither the grounds nor the submissions take account of the limitations on this court's capacity to overturn credibility-based findings. As the High Court observed in Robinson Helicopter Co Inc v McDermott:[14]
A court of appeal conducting an appeal by way of rehearing is bound to conduct a 'real review' of the evidence given at first instance and of the judge's reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge's findings of fact unless they are demonstrated to be wrong by 'incontrovertible facts or uncontested testimony', or they are 'glaringly improbable' or 'contrary to compelling inferences'. (citations omitted)
[14] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 [43].
The document attached to the appellant's affidavit does not identify specific errors in a way that fairly enables the respondent to respond to the appeal.
In the above circumstances, we were not satisfied that it was in the interests of justice to grant the appellant an extension of time to file an appellant's case in the form of the document attached to his affidavit. The document does not comply with the Rules and it would not be appropriate to accept the document for filing as the appellant's case. The history of the matter leaves us with no confidence that, if an extension of time were granted, the appellant would have the capacity, within any reasonable time, to prepare a compliant appellant's case which sets out reasonably arguable grounds of appeal. In all the circumstances, we considered it appropriate to refuse the application for an extension of time to file and serve an appellant's case.
In reaching this conclusion, we were conscious of the risk that misguided advocacy by a self-represented litigant may direct the court's attention away from material considerations.[15] However, as this court noted in Sims v Suda Ltd [No 2]:[16]
The [Rules], by r 32(4), require that an appellant's case state the grounds of appeal relied upon by the appellant, and concise particulars of them, succinctly in numbered paragraphs. The importance of compliance with those requirements cannot be overstated. The provision of proper grounds of appeal is not only necessary to enable the other party to know the case it has to meet but is critical to the court's function on an appeal. …
While it may be necessary to allow some leniency in compliance with the rules where an appellant is unrepresented, in the end the allowances that can be made are necessarily limited, both as a matter of fairness to the other party and because the provision of proper grounds of appeal is fundamental to the exercise of the appellate function by the court.
[15] Neil v Nott (1994) 68 ALJR 509, 511.
[16] Sims v Suda Ltd [No 2] [2015] WASCA 105 [18] - [19].
However, this decision should not be taken to necessarily preclude the appellant from making a second application for an extension of time to comply with the springing order, based on a more focussed appellant's case which complies with the Rules and raises a reasonably arguable ground or grounds of appeal.[17] Such an application would be assessed on its own merits, having regard to the appellant's case which the appellant then proposed to file, the time which had then passed since the springing order was made, and any material change in circumstances (such as the appellant obtaining competent legal representation).
[17] See by analogy Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198, 205.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EM
Associate to the Honourable Justice Mitchell
9 DECEMBER 2022
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