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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Do Carmo v Wishaw

Details

AGLC: Do Carmo v Wishaw [2022] WASCA 164
Case: [2022] WASCA 164
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the Court of Appeal heard an appeal by Peter Jose Do Carmo against Suzanne Wishaw. The appeal arose from a motor vehicle accident on 16 February 2015, where the appellant, riding his motorbike, collided with the respondent's vehicle, an Audi SUV. The primary dispute involved the extent of damages and the causation of injuries sustained by the appellant. The Commissioner found that the appellant's injuries, primarily affecting his back, were caused by the accident but had resolved by the end of 2016. The Commissioner awarded damages for past medical treatment and travel expenses but did not award damages for economic loss or non-pecuniary loss.

The appeal centered on the procedural issue of whether the appellant should be granted an extension of time to comply with a springing order, which required him to file an appellant's case by a specific date or face dismissal of his appeal. The appellant, who was representing himself, filed an application seeking an extension until 25 November 2022. The application was based on a misunderstanding about the verification of the appellant's case and an attempt to file it just before the deadline. The Court considered the principles laid out in previous cases, which emphasized the importance of strict compliance with court orders but also acknowledged the discretion to extend time under certain circumstances.

The Court of Appeal assessed the appellant's application against the general principles and found that while the appellant made a genuine attempt to comply with the order, his proposed appellant's case did not meet the required standards under the Supreme Court (Court of Appeal) Rules 2005 (WA). The document was not formatted correctly and did not clearly identify specific errors in the primary decision. Moreover, the appellant's grounds of appeal did not account for the limitations on overturning credibility-based findings. The Court concluded that granting an extension would not serve the interests of justice, as it was unlikely that the appellant could produce a compliant appellant's case within a reasonable time. The appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the application.

Orders