Kalsbeek v The Commonwealth of Australia
[2021] WASCA 142
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: KALSBEEK -v- THE COMMONWEALTH OF AUSTRALIA [2021] WASCA 142
CORAM: BUSS P
MURPHY JA
HEARD: 30 JULY 2021
DELIVERED : 11 AUGUST 2021
FILE NO/S: CACV 34 of 2021
BETWEEN: ROBERT KALSBEEK
Appellant
AND
THE COMMONWEALTH OF AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: SHARP DCJ
Citation: KALSBEEK -v- COMMONWEALTH OF AUSTRALIA [2021] WADC 34
File Number : CIV 3841 of 2017
Catchwords:
Appeal - Practice and procedure - Failure by appellant to file and serve appellant's case that complies with Supreme Court (Court of Appeal) Rules 2005 (WA) - Issue of registrar's notice to attend to show cause why appeal should not be dismissed pursuant to r 43(2)(g)(ii) of Supreme Court (Court of Appeal) Rules - Whether extension of time to file and serve appellant's case should be granted - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 32, r 32(3)(b), r 32(4), r 32(5), r 32(6), r 32(7), r 32(8), r 32(9), r 38(3)(e), r 38(4)
Result:
Springing order made in relation to filing and serving of appellant's case
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | J L W Henderson |
Solicitors:
| Appellant | : | In person |
| Respondent | : | Minter Ellison |
Case(s) referred to in decision(s):
Avsar v Binning [2009] WASCA 219
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Kalsbeek v Commonwealth of Australia [2018] WADC 79
Kalsbeek v Commonwealth of Australia [2021] WADC 34
Kalsbeek v Max Solutions Pty Ltd [2018] WADC 183
JUDGMENT OF THE COURT:
Introduction
This matter came to a hearing on 30 July 2021 by way of a registrar's notice to attend dated 8 July 2021 for the appellant (Mr Kalsbeek) to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules). Mr Kalsbeek is self‑represented in the appeal.
The appeal is against orders made by Sharp DCJ on 16 April 2021, dismissing Mr Kalsbeek's claim in the primary proceedings. In the primary proceedings, Mr Kalsbeek sought damages against the Commonwealth for personal injury. A generally endorsed writ stated that Mr Kalsbeek was 'deliberately and wrongly assessed as Unemployed and not Disabled anymore', resulting in him being forced to attend Max Solutions for 'intensive work training'.[1]
[1] Primary decision [8].
Sharp DCJ published written reasons for dismissing Mr Kalsbeek's claim: Kalsbeek v Commonwealth of Australia.[2]
Background[3]
[2] Kalsbeek v Commonwealth of Australia [2021] WADC 34 (primary decision).
[3] For the avoidance of doubt, the following matters are taken from the primary decision and are not to be interpreted as findings of fact or law made by this court in this interlocutory matter.
Following a workplace injury in 1997, Mr Kalsbeek was a recipient of a disability support pension from 2001 ‑ 2009. In his statement of claim, he alleged that he was given a disability support pension based on a '30 points' disability rating, being 20 points for a diagnosed and permanent spinal condition, and 10 points for a diagnosed and treated post‑traumatic stress disorder (PTSD) and depression.[4]
[4] Primary decision [9].
Mr Kalsbeek's disability pension was cancelled in 2009 after he moved overseas.[5] In the period 2009 ‑ 2013, prior to his return to Australia, Mr Kalsbeek lived with his former wife in Vietnam, and travelled on short holidays to Thailand, Cambodia and Malaysia.[6]
[5] Primary decision [1] ‑ [2].
[6] Primary decision [54] - [55].
In October 2013, Mr Kalsbeek returned to live in Australia. He sought to have his disability pension benefits reinstated.[7] Ms Chin, a psychologist, was the Assessor who interviewed Mr Kalsbeek for the purposes of his claim. She also referred his claim to Ms Bliss, an occupational therapist.[8]
[7] Primary decision [3].
[8] Primary decision [61].
Ms Chin's report, as found by the judge, was as follows:[9]
A [job capacity assessment] report was subsequently prepared by Ms Chin and signed by her and Ms Bliss … The report notes that Mr Kalsbeek 'has minimal motivation to work and no work goals as he does not feel he is capable of working in any capacity'. The report recommended a deferred referral to disability management services to be actioned on 13 May 2014. The recommendation was to assist Mr Kalsbeek with gaining employment suitable to his capacity following a period of exemption whilst he pursues further diagnostic investigations and treatment of his chronic fatigue/depression.
The report allocated ratings under Table 4 of the Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Determination2011 (Impairment Tables) as current in 2013 (2011 Table 4). Impairment Table 4 sets out and describes what it is that comprises disability ratings of, respectively, 1, 5, 10, 20 and 30.
Ms Chin allocated 5 points to Mr Kalsbeek's spinal injury, but did not allocate any points to Mr Kalsbeek's chronic fatigue/depression because it was not fully diagnosed, fully treated and fully stabilised (FDTS).
[9] Primary decision [62] - [64].
Following Ms Chin's allocation of 5 points to Mr Kalsbeek, she referred him to the Disability Management Service, however, she also recommended a deferred referral after a period of exemption to give Mr Kalsbeek the chance to pursue further diagnostic investigations and treatment for his chronic fatigue/depression. It is unclear whether Mr Kalsbeek in fact pursued those investigations and treatment.[10]
[10] Primary decision [182].
Mr Kalsbeek's claim for payment of a disability pension was rejected on 19 November 2013.[11]
[11] Primary decision [65].
On 21 January 2014, Mr Kalsbeek sought a review of that decision, and, in response to that request, on 17 February 2014, a further job capacity assessment was undertaken 'on the file', rather than by a face‑to‑face assessment. The Assessors agreed with Ms Chin's report, except they allocated 10 points to Mr Kalsbeek's spinal injury and recommended that he be referred for employment service with 'DES - Disability Management Service'.[12]
[12] Primary decision [66] - [67].
On 20 June 2014, an Authorised Review Officer was appointed to conduct Mr Kalsbeek's review.[13] She referred the matter to the Health Professional Advisory Unit for an opinion. The Health Professional Advisory Unit published its report on 15 July 2014, supporting the assessment undertaken on 17 February 2014. In particular, the Health Professional Advisory Unit was of the opinion that Mr Kalsbeek did not qualify for an impairment rating for chronic fatigue/depression, and that his overall impairment was 10 points. Accordingly, on 23 July 2014, the rejection of Mr Kalsbeek's claim for a disability pension was affirmed.[14]
[13] Primary decision [68].
[14] Primary decision [70] - [71].
In August 2014, Mr Kalsbeek applied to the Queensland Social Security Appeals Tribunal (SSAT) for a review of the decision by Centrelink that Mr Kalsbeek was not entitled to be paid a disability support pension.[15] The SSAT set aside Centrelink's decision, ordering that Mr Kalsbeek was medically qualified for a disability pension and should be paid arrears of $9,874 from October 2013.[16]
[15] Primary decision [72].
[16] Primary decision [6] ‑ [7], [74].
In October 2017, Mr Kalsbeek commenced the primary proceedings. The judge said that Mr Kalsbeek's original statement of claim, filed on 20 October 2017, was ordered to be struck out on 21 August 2018; however, Deputy Registrar Hewitt gave Mr Kalsbeek leave to file an amended statement of claim, confined to a claim for psychological and physical harm caused by inappropriate physical examination and referrals in the course of reassessing his entitlement to a disability pension. The amended statement of claim was filed on 27 September 2018 and a re‑amended statement of claim was filed on 12 November 2018.[17]
[17] Primary decision [24].
The judge summarised Mr Kalsbeek's claim against the Commonwealth as involving claims to the effect that:[18]
•Ms Chin in November 2013 negligently required Mr Kalsbeek to perform physical exercises, which exacerbated his spinal injuries and caused him compensable loss.
•Ms Chin wrongly determined that Mr Kalsbeek was not entitled to a disability pension, and instead referred him to an agency for assistance with gaining employment suitable to his capacity and work training. In doing so, Mr Kalsbeek's PTSD and depression were aggravated, resulting in compensable loss.
[18] Primary decision [21].
The judge dismissed Mr Kalsbeek's claim.
The judge also noted, in effect parenthetically, that Mr Kalsbeek had been involved in other proceedings. He had issued a writ of summons in December 2017 against Max Solutions Pty Ltd, which was dismissed after trial.[19] He also issued another writ in December 2017 against the Commonwealth, which was struck out on the basis that the statement of claim was deficient and incapable of cure.[20]
[19] Primary decision [26]; see Kalsbeek v Max Solutions Pty Ltd [2018] WADC 183.
[20] Primary decision [27]; see Kalsbeek v Commonwealth of Australia [2018] WADC 79.
The primary decision
In the primary decision, the judge (amongst other things):
1.Set out what his Honour said to be the evidence of Mr Kalsbeek,[21] which included that Ms Chin psychoanalysed him, hypnotised him, and was under the influence of drugs during the interview.[22]
2.Set out what his Honour said to be the evidence of Ms Chin, a psychologist employed as an Assessor with Services Australia.[23]
3.Set out the evidence of Ms Phipps, Acting Director/Psychologist, employed by Services Australia.[24]
[21] Primary decision [78] - [81].
[22] Primary decision [80].
[23] Primary decision [82] - [139].
[24] Primary decision [140] - [159].
The judge accepted the evidence of Ms Phipps in its entirety.[25] Her evidence included evidence to the effect that in 2013, in order to be eligible for a disability support pension, a person must have (1) a permanent physical, intellectual or psychiatric condition resulting in functional impairment of at least 20 points, as measured by reference to the Impairment Tables, and (2) a Continuing Inability to Work. The requirement for the person to have an impairment rating of at least 20 points and the requirement to have a Continuing Inability to Work were of equal importance.[26]
[25] Primary decision [142].
[26] Primary decision [148] - [150].
His Honour accepted the evidence of Ms Chin, in preference to that of Mr Kalsbeek, as to what occurred at the assessment on 13 November 2013, supported, as it was, by her contemporaneous record of the outcome of the interview.[27]
[27] Primary decision [166].
Sharp DCJ found that Ms Chin acted appropriately at all times with Mr Kalsbeek during the job capacity assessment, and that the assessment was made by an appropriately qualified physical and mental health professional.[28]
[28] Primary decision [167], [176].
Sharp DCJ also found that Ms Chin conducted the job capacity assessment without any involvement of other people, and did not conduct any unauthorised examination of Mr Kalsbeek or perform any testing of his back injury or mental health issues at the assessment. There was no evidence to support the proposition that Ms Chin did anything at the assessment which could be regarded as invalid or unauthorised, or malicious or reckless.[29]
[29] Primary decision [168] - [169].
Further, his Honour found that the Commonwealth did not owe a duty of care to Mr Kalsbeek to ensure a competent physical examination;[30] rather, the statutory remedy for disappointed or rejected applicants for social security benefits was review by the SSAT.[31] His Honour said, in relation to the question of duty:[32]
Mr Kalsbeek is not assisted by what Sleight DCJ said in Upton v Centrelink [2009] WADC 116 (Upton) [50], namely '… the law is clear there is no duty of care on the part of officials to make the correct decision in the absence of misfeasance'. I respectfully agree with what his Honour said in Upton.
The elements of misfeasance in public office include an invalid or unauthorised act done maliciously or recklessly by a public officer: Northern Territory of Australia v Mengel (1995) 185 CLR 307, 370.
In Scott v Secretary, Department of Social Security [2000] FCA 1241; (2000) 65 ALD 79 (Scott), (the majority of Beaumont & French JJ with whom Finkelstein J agreed on this point) stressed that liability of a public official for misfeasance was limited to cases involving a deliberate misuse of power with an intention to cause harm. Such an intention can arise by a reckless disregard.
…
[W]here an exercise of statutory power is subject to a right of review and the decision-maker exercises the power in good faith, no common law duty of care in the exercise of that power can arise: Scott; Jones v Department of Employment [1989] QB 1; Scott v Pedler [2004] FCAFC 67; (2004) 80 ALD 283; Coffey v Secretary, Department of Social Security [1999] FCA 375; Wang v Secretary, Department of Employment and Workplace Relations [2006] FCA 898.
In Upton, Sleight DCJ accepted that the statutory review procedure was inconsistent with the existence of a common law duty of care for Centrelink in respect of a decision to refuse a social security payment. He reviewed the authorities and concluded that '[t]o impose such a duty of care would enable claimants to side step the appeal procedures of the statutory scheme and remove finality': Upton [50].
For disappointed or rejected applicants for social security benefits, there is a statutory remedy provided in pt IV of the SSA Act, namely review by the SSAT.
[30] Primary decision [175].
[31] Primary decision [174].
[32] Primary decision [163] - [165], [172] - [174].
Sharp DCJ also found that there was nothing to support a finding of a breach of duty, even if a duty of care existed.[33] Despite the review of the SSAT, there was no evidence that the earlier assessors did not act in good faith or comply with relevant procedures and standards in respect of their assessment of Mr Kalsbeek.[34]
[33] Primary decision [177].
[34] Primary decision [177] - [184].
Finally, in relation to the question of damages, Sharp DCJ found that Mr Kalsbeek adduced no adequate evidence of compensable damages, despite being ordered by a court registrar and judge to file and serve particulars of damage and loss of several occasions.[35] His Honour said:[36]
[35] Primary decision [185] ‑ [189].
[36] Primary decision [189] - [193].
On 26 August 2020, Mr Kalsbeek filed what he seemingly considered to be particulars of damage. The particulars were, at best, inadequate.
During cross‑examination, Mr Kalsbeek accepted that he had provided no evidence of loss. He said this at ts 1,947:
'… and another thing, your Honour, I don't know where it is. I'm not going to bored (sic) you with it, your Honour, and this is why I've given you no damages. I'm not stupid. You know why? There is a letter from the bank in there that says ‑ and this is what all this is about. Based on Mr Kalsbeek's savings records, if he would have been paid $500 every week, he would have saved money. He would have accumulated interest. Does that make sense?'
He then said at ts 1,947:
'[counsel for the defendant]'s 100% right that there is no financial loss.'
Curiously, later in his closing submissions, Mr Kalsbeek said at ts 1,961:
'So as an atheist of one sort, your Honour, a financial settlement is forgiveness and a win in this trial is my salvation, which could only be complete if I receive your letter in the mail. Consequently, your Honour, I have not provided the sum of damages, as I didn't know, up to this point, if I could ever forgive Centrelink, your Honour, for what they did to my life.'
However, shortly afterwards, Mr Kalsbeek repeated his claim for damages. He said at ts 1,964:
'So your Honour, finally, there is a financial loss. Being the interest I lost in that $10,000 back pay. The core foundation of this claim is that I have established a financial loss in interest. And it should not make any difference is (sic) that a million cash or $5 in predicted interest, your Honour, as I have demonstrated a financial loss with the Commonwealth Bank. And they are on stand‑by to give you an estimation. It could be 100 bucks, 80 bucks, it doesn't matter, your Honour. I have established a financial loss and that is why my case is so strong, your Honour, yeah.'
His Honour also found that Mr Kalsbeek did not advance admissible evidence that he suffered from a recognised psychiatric illness, precluding the court from making an award of damages under s 5T of the Civil Liability Act 2002 (WA).[37]
[37] Primary decision [194].
Appeal - interlocutory steps
On 30 April 2021, Mr Kalsbeek filed an appeal notice.
On 17 May 2021, the Commonwealth filed a notice of intention indicating that it intends to take part in the appeal.
On 2 June 2021, Mr Kalsbeek filed an application in an appeal for, in effect, a two‑week extension to file and serve an appellant's case. On the same day, Mr Kalsbeek also filed an affidavit in support of this application.
On 3 June 2021, the registrar ordered that the time to file and serve an appellant's case be extended to 18 June 2021.
On 22 June 2021, Mr Kalsbeek filed an application in an appeal for, in effect, a two‑week extension to file and serve an appellant's case. On the same day, Mr Kalsbeek also filed an affidavit in support of this application.
On 30 June 2021, the registrar ordered that the time to file and serve an appellant's case be extended to 6 July 2021.
On 2 July 2021, Mr Kalsbeek attempted to file a document described as an 'appellant's case' in the appeal.
On 7 July 2021, the registrar sent a letter to Mr Kalsbeek informing him that his appellant's case had not been accepted for filing. The registrar informed Mr Kalsbeek that his appellant's case did not comply with r 32 of the Court of Appeal Rules, because:
•there was no identifiable document titled 'Grounds of appeal' (per r 32(4));
•there was no Practice Direction 7.4 Schedule;
•there was no identifiable document titled 'Appellant's submissions' (per r 32(5));
•there was no document titled 'Appellant's legal authorities' (per r 32(6));
•there was no document titled 'Orders wanted' (per r 32(7)); and
•there was no document titled 'Draft appeal book indexes', prepared in accordance with r 38 (per r 32(9)).
On 8 July 2021, the registrar issued the notice to attend referred to in [1] above, effectively on the basis that there had been non‑compliance with the registrar's order of 30 June 2021 for the filing and serving of an appellant's case by 6 July 2021.
At the hearing on 30 July 2021, Mr Kalsbeek submitted, in substance, that he had not failed to comply with the registrar's order of 30 June 2021 because he had presented for filing an appellant's case in accordance with r 32 of the Court of Appeal Rules, on 2 July 2021, and that the registry had wrongly rejected the document which he had sought to file.
An appellant's case and grounds of appeal
The Court of Appeal Rules
Rule 32 of the Court of Appeal Rules provides, relevantly:
(1)After an appeal notice is filed, the appellant must file the 'Appellant's case'.
…
(3)The appellant's case consists of a Form 7 to which is attached -
…
(b)… these documents -
(i)a document titled 'Appellant's grounds of appeal';
(ii)a document titled 'Appellant's submissions';
(iii)a document titled 'Appellant's legal authorities';
(iv)a document titled 'Orders wanted';
(v)a document titled 'Draft chronology';
(vi)a document titled 'Draft appeal book indexes'.
(4)The document titled 'Appellant's grounds of appeal' -
(a)must contain all of the grounds of appeal on which the appellant intends to rely at the hearing of the appeal; and
(b)must state the grounds, and concise particulars of them, succinctly in numbered paragraphs and must not merely allege -
(i)that the primary court erred in fact or in law; or
(ii)that the primary court's decision is against the evidence or the weight of evidence or is unreasonable and cannot be supported having regard to the evidence; or
(iii)that the primary court's decision is unsafe or unsatisfactory; or
(iv)in the case of an appeal against a sentence, that the sentence is excessive or inadequate;
and
(c)must state, for each ground, whether it is -
(i)an error of fact; or
(ii)an error of law; or
(iii)an error of mixed fact and law;
and
(d)must identify, by reference to the paragraph number … of the reasons for the primary court's decision, each passage where each such error is alleged to occur[.]
(5)The document titled 'Appellant's submissions' -
(a)must, for each ground of appeal, contain the appellant's written submissions (or argument) expressed so as to convey the substance of them clearly and as succinctly as possible; and
(b)must set out the submissions about the ground in numbered paragraphs; and
(c)must include references to -
(i)each page number of the primary court's transcript on which relevant material appears; and
(ii)the number of each exhibit, and a description of any other piece of documentary evidence, in the primary court that is relevant; and
(iii)each principal legal authority on which the appellant relies in support of the ground;
and
(d)must not be more than 20 pages long[.]
(6)The document titled 'Appellant's legal authorities' -
(a)must list, and number consecutively, each principal legal authority to which the Court of Appeal is referred, under these headings in this order -
(i)'Written laws';
(ii)'Judgments';
(iii)'Legal texts';
and
(b)must mark with an asterisk any legal authority from which it is intended to read any text to the Court of Appeal at the hearing; and
(c)for each written law listed, include its short title, its jurisdiction and each relevant section or provision of it; and
…
(d)for each judgment listed, include -
(i)first, its citation in an authorised law report (if any) and any page of it on which is a relevant passage; and
(ii)second, its media neutral citation (if any).
…
(e)for each authoritative legal text listed, refer to the edition concerned and to each relevant passage.
(7)The document titled 'Orders wanted' must set out -
(a)the orders that the appellant wants the Court of Appeal to make[.]
(8)The document titled 'Draft chronology' must state succinctly in numbered paragraphs arranged in date order the date and facts of each event that is material to the appeal.
(9)The document titled 'Draft appeal book indexes' must set out for each of the 3 parts of the appeal book a draft index of the proposed contents of the part, being the documents required by rule 38 to be in the part.
Accordingly, in general terms, an 'appellant's case' for the purposes of r 32 is a document containing a number of subset documents in sequence, as follows:
1.A document titled 'Appellant's grounds of appeal'.
2.A document titled 'Appellant's submissions'.
3.A document titled 'Appellant's legal authorities'.
4.A document titled 'Orders wanted'.
5.A document titled 'Draft chronology'.
6.A document titled 'Draft appeal book indexes'.
The document titled 'Appellant's grounds of appeal' must comply with the requirements of r 32(4). The document titled 'Appellant's submissions' must comply with the requirements of r 32(5). The document titled 'Appellant's legal authorities' must comply with r 32(6). The document titled 'Orders wanted' must comply with r 32(7). The document titled 'Draft chronology' must comply with r 32(8). The document titled 'Draft appeal book indexes' must comply with r 32(9).
The effect of r 32(4) is that any ground of appeal in the document titled 'Appellant's grounds of appeal' should be stated directly and concisely; it should be stated only once and should not be repeated in terms or in substance (including under different guises) throughout that document or in other documents in the appellant's case. Similar observations apply to r 32(5). Any submission in the 'Appellant's submissions' document should be made once, with reference to the relevant ground or grounds of appeal to which it is related, and without repetition throughout that document or elsewhere in documents in the appellant's case.
The principles
In Avsar v Binning,[38] the court said:
While, by virtue of the rules, an appeal to this court is by way of rehearing, the task of the court is nonetheless to discern error. The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene. An appellant must demonstrate that there has been error of a recognised genre that falls to be corrected and which entitles the appellant to the orders or relief that she or he seeks. This explains why the grounds of appeal are a critical part of the process because they are the vehicle which guide the review process. The failure of parties properly to attend to grounds of appeal is by no means limited to self‑represented litigants. In this regard it is as well to bear in mind what Kirby J said in Gipp v R [1998] HCA 21; (1998) 194 CLR 106 [58]:
'The jurisdiction of a court of appeal ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between parties. In the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought. In the absence of a special statutory regime, a notice of appeal that does not specify a ground of appeal is invalid and the appellate court in which it is 'filed' has no authority to determine any issue affecting the parties. (authorities omitted)'
[38] Avsar v Binning [2009] WASCA 219 [37].
In Glew v Frank Jasper Pty Ltd,[39] the court said:
Due allowance must, of course, be made for the fact that [an appellant] is unrepresented. A court should always be careful to see that the rights of an unrepresented litigant have not been 'obfuscated by their own advocacy': Neil v Nott [1994] HCA 23 [5]; (1994) 121 ALR 148 at 150. It must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case. And some leniency may be required in relation to compliance with the rules. But in the end the allowances that can be made for a litigant in person are necessarily limited, both as a matter of fairness to the other party, who must be adequately informed of the case they have to meet, and because the provision of acceptable grounds of appeal is fundamental to the exercise of the appellate function by the court.
[39] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
The document sought to be filed by the appellant on 2 July 2021
The document sought to be filed as an appellant's case contained 163 numbered pages and numerous unnumbered pages. The start of the document included proforma White, Blue and Green Appeal Book indexes (with no details in them), a letter to the court dated 2 July 2021, and a document relating to litigants‑in‑person. None of these documents was within the requirements of r 32 of the Court of Appeal Rules. They should not have been included.
Page 1 ‑ 163 comprised, generally speaking, three sets of documents: (1) a 'White Book' cover page and index (pages 1 ‑ 48), (2) a 'Blue Book' cover page and index (pages 50 ‑ 51), with the primary judgment attached, and (3) a 'Green Book' cover page and index, with enclosures (pages 54 ‑ 163).
The purported White Book cover page and index part of the document did not contain any documents titled 'Appellant's grounds of appeal', 'Appellant's submissions', 'Appellant's legal authorities', 'Orders wanted', or draft appeal book indexes prepared in accordance with r 38 (for example, it did not include an index for a White Appeal Book in relation to appellant's grounds of appeal and appellant's submissions). It included a 'summary and conclusion', which contained a disparate range of allegations concerning complaints about the primary judge and Ms Chin. It was expressed neither succinctly nor clearly, and involved the use of intemperate language and expletives. For example, at pages 6 ‑ 7 the document stated:[40]
[40] Pages 6 - 7, 9.
PSYCH INJURY?
BUT the question is why would Mr Kalsbeek need a psychologist to asses [sic] his spinal injury? WELL, I WAS ENGAGED AS AN ASSESSOR AND I BELIEVED THAT YOU HAD A MENTAL HEALTH CONDITION AS WELL.
MISFEASANCE;
NOWHERE in her JCA report is there ANY mention of any then current mental health conditions?
DAMAGES?
JUDGE Sharp at 194;
"Mr Kalsbeek did not advance any admissible evidence that he currently suffers a recognisable psychological illness."
WRONG IN FACT/LAW
1, Mr Kalsbeek claimed initial damages for psych injury from 2013 to 2015.
2, that he had a "mental health condition' is now "proven" by psych Chin in October 2013.
3, hence the October 2103 [sic] medical exemption by Dr McClymont at the time in her TDR, deliberately ignored by psych Chin, hence the GP's confirmation in her 3 angry letters to psych Chin.
4, the above confirms "BEYOND ANY REASONABLE DOUBT" that this was then aggravated when he was at MAX and DES,
which is "confirmed" by both Dr Kanodia September 2014 med certs, both mentioning "depression" K10 psych test then 48 points.
PROBLEM 1? PSYCHOANALYSIS?
Hence the "new defence" now is that psych Chin DID NOT conducted [sic] a Table 4 Spinal Function assessment?
BUT her JCA Job Capacity Assessment report only mentions Table 4 and 5 points?
HENCE at 80
Mr Kalsbeek's evidence to the 13 October 2103 [sic] interview is that there was an actual altercation between him and psych Chin, as she "PSYCHOANALYSED" me against my will, without consent, and against doctor's advice.
PROBLEMS FOR JUDGE SHARP?
1, If it was not a Table 4 Spinal Function assessment, what was the interview about?
2, and how then can she give 5 points? ON WHAT TABLE?
DUTY OF CARE.
JUDGE SHARP?
Item 93, There was and remains no obligation to consider any other medical information.
WRONG IN FACT/LAW.
As the Guidelines state that ALL available information has to be considered, the breach occurred when I made it available to her, but repeatedly she refused accept/consider it!
GENDER BIAS>
a clear female bias!
BREACH
Also, as the Commonwealth/Centrelink, this Government deliberately DID NOT provided [sic] the 1997 to 2009 previous medical evidence to its assessors/psychologists, now the fact remains that IF they, all involved had consider the above, according to the 2014 Tribunal decision and 2015 Centrelink DEED of Settlement and limited compensation,
the DSP should have been granted in October 2013 by Centrelink and NOT October 2014 by the Tribunal! (original emphasis)
…
BIAS BY SHARP J.
"it is apparent that the assessments that followed basically coincide with psych Chin's assessment."
BULLSHIT and wrong/ in FACT/LAW as
1, her own review psych Liem changes Chin's 40 minute sitting into 30 and psych Chin's 5 points to 10.
2, the ARO supports the 10 points from the review, NOT psych Chin.
3, the GP HPAU doctors disagree that there is an increased work capacity.
4, the Tribunal states that 20 and not 5 points is the correct determination.
5, The CDDA (her own employer) calls her 5 points "defective administration" and offer 3 written apologises [sic] in the DEED of Settlement.
6, we now know she never had the 1997 to 2009 previous Centrelink medical evidncce [sic]
7, and she was so "unprofessional" that after 40 minutes "talking" she did not even know that Mr Kalsbeek had a previous 2001 to 2009 DSP grant
8, and had a 2000 diagnosed Depression/suicide and PTSD treated with Prozac?
So, NOBODY except Judge Sharp believes her! Hence this appeal!
SET UP.
163, An invalid and unauthorised act done maliciously or recklessly by a public officer.
Judge Sharp
"there is no duty of care on the part of an official as to make the correct decision, even as there is an abundance of authority for the proposition that a common law duty MAY arise in the performance of a statutory function,
INCLUDING the manner in which the statutory duty is performed, except for misfeasance
being a deliberate misuse of power, with an intention to cause harm by a reckless disregard for the Legislation" as we/I have argued since 2013!
171"exercising the legislative power in good faith."
GENDER WAR?
8 females within Centrelink and 7 females in MAX Employment being 15 females IN ONE YEAR being wrong and the one "only" male victim was always right? Suffice?
CONCLUSION
Mr Kalsbeek to psych Chin in video
"YOU ARE A LIAR, and you are lying through your teeth"
while sitting down and turning away from her in disgust. Suffice. (original emphasis)
The document also contained generalised allegations about the Commonwealth and its officers, without identifying any errors alleged in the primary decision, as well as complaints about a judge other than Sharp DCJ. For example, the document included:[41]
[41] Pages 20, 25 - 27.
My name is Robert Kalsbeek and after 8 years investigating Centrelink, collecting some 5000 documents in the process, from some 17 restricted and unrestricted FOI requests, plus 4 years legal action including 2 District Court trials,
this appeal is based on the 3C approach, being corruption, conspiracy and cover‑up, as I am still left with the following statements and questions never allowed to be raised by either Judge Stevenson or Sharp.
Being how it is possible that the Commonwealth concedes that since 2001 I am 20 points Table 4 disabled, hence $550 a week DSP entitled, when Centrelink's all female assessors (even at the last trial) still insist that I am only 5 or 10 points Table 4 impaired, and therefore should be on $270 UB Unemployment Benefit and should be at work or training?
So, is this a clear case of gender discrimination, (as in 21 years all Centrelink decision makers were female/and wrong, according to the Tribunal, DEED of Settlement) or simply a case that the Centrelink assessor don't even know their own legislation, which they are supposed to implement?
…
A, CORRUPTION.
As from the time I was deliberately and wrongly referred to MAX Employment and not DES by Centrelink,
in several letters to the/this Government/Commonwealth "model litigant" now the respondent, through my many notifications, some even direct to then Department of Employment Minister Cash, then called CASH FOR MAX at times,
she and her Department were at all times aware that while MAX SOLUTIONS PTY LTD, was a licensed DES provider,the MAX EMPLOYMENT LTD Perth Innaloo sub‑contract breach was not, hence it never provided me with the psychologist as recommended by both Centrelink psychologists in their then relevant/consecutive JCA Job Capacity Assessment reports.
B, CONSPRIRACY [sic]
As from the ARO Authorised Review decision of Mrs Oxenham, on 23 July 2014 as not to provide a POS< Program of Support, psych counselling funding,the conspiracy was as to all costs keep me away from DES psychologists, who then would have known the previous 10 points Centrelink Table 5 Mental Health grant, being 10 points for a recognised Psych Dr John diagnosed Depression related to thoughts of suicide, and psych Dr Krytswurts report re a PTSD diagnose [sic] treated with Prozac at the time.
Hence this was achieved in the conspiracy by the Centrelink manager Karen and her counter part MAX manager Debbie,
knowingly and falsely accusing me of falsifying the Dr Kanodia signature on the med cert that was supposed to keep me out of MAX or DES, simply as it/this valid/legal Dr Kanodia med cert was based on the inability to work/train for more than 0 ‑ 7 hours, specifically because of the spinal injury and above mentioned psych illness, again confirmed by Dr Kanodia in her 2014 then K 10 psych test and 48 points recognised depression, mentioned in both her 2 consecutive med certs to Centrelink.
C, COVER-UP.
In 2015 the Commonwealth/respondent through its CDDA compensation scheme, produced two reports, being a reject and vary the claim one, with only this last one including the last page DEED OF SETTLEMENT,
which was compensation in the form of a $238.40 car allowance for being wrongly at MAX< and while acknowledging defective administration in the whole Centrelink DSP assessment process, there was no compensation of $240.000 as requested.
10, ERRORS IN FACT AND LAW
by Justices Stevenson and Sharp respectively.
A, IN FACT.
Both Justices assumed that because the respondent had provided a DEED OF SETTLEMENT< they "unprofessionally neglected" to check if the document they accepted was actually signed by me which I deliberately had not.
IN LAW 1.
As required by Contract LawI never signed, therefore never accepted, just rejected the offer/Deed.
IN LAW 2.
deliberately as to also establish a "recognised debt for damages" in this case/appeal.
B, PERVERSION OF JUSTICE, contempt and/or perjury for request for re‑trial.
DOCUMENTS
The "model litigant" now respondent deliberately withheld from this court The DEED on which I wrote "stick it up your arse" which was never disclosed, hence deliberately withheld from this court/case,
And even the "beyond reasonable doubt" fact that I have been unable till now as to find a copy of this/my hand writing on the DEED, the fact that the respondent can't or still refuse to provide a signed copy confirms, supports/collaborates the above.
C, FOI. Freedom of Information
At this point I refer to the problems in Judge Sharp's document administration, simply by referring to the FOI release LEX 32301 being that
"Unfortunately the FOI team cannot comment on possible reasons as to why the documents below have not been located during the research and retrieval process for LEX 32301."
In reply to the 16/11/2017 e‑mail from the defendant/respondent
"NO, I am simply asking you why there are no X-rays, psych and police reports that I gave to Centrelink assessors in the documents that you have released under LEX 32301?
And this is relevant as the JCA report which refers to the Dr Psych John report related to the Depression and suicide, and the psych Dr Krytswytz report related to PTSD, used in the 3 GP HPAU Health Professional Advisory Unit, which refers to this previous PTSD and 10 points Centrelink psych disability rating, which was deliberately not mentioned in both JCA's and ARO Authorised Senior Review?
And where is the police report I sent you, to be considered in the Centrelink's CDDA compensation decision? Robbie.
Reply 16/11
"Could you please confirm that you are requesting a IR Internal Review?
AND
"we agree with the initial decision maker" 18 months 1½ year later!!! (original emphasis)
The 'Blue Book' cover page and index part of the document, whilst referring to 'relevant pleadings', did not contain a draft index which included the pleadings in the court below, contrary to r 32(9) and r 38(3)(e) of the Court of Appeal Rules.[42]
[42] Rule 38(3) of the Court of Appeal Rules relevantly provides:
(3) The Blue Appeal Book must contain these documents in this order -
…
(e)if the appeal is against a primary court's decision in civil proceedings at first instance - the relevant pleadings in the primary court in their final form[.]
The 'Green Book' cover page and index part of the document did not set out the contents of a draft Green Appeal Book in accordance with r 32(9) and r 38(4) of the Court of Appeal Rules.[43]
[43] Rules 38(4)(a) ‑ (d) and 4A of the Court of Appeal Rules provide, relevantly:
(4) The Green Appeal Book must contain these documents in this order -
(a)a cover page;
(b)an index, with page numbers, of the book's contents;
(c)… those parts of the primary court’s transcript required by subrule (4A);
(d)a copy of those documentary exhibits in the primary court required by subrule (4A) arranged in accordance with subrule (5)[.]
(4A)In the Green Appeal Book, the documents referred to in subrule (4)(c) and (d) must be only those, or those parts of those, that are referred to specifically in -
(a)the appellant's case[,]
…
unless a registrar orders otherwise.
What is described as 'PART 1 of 3' (pages 54 ‑ 99) in the 'Green Book' cover page and index part of the document included pages which had certain headings. It was 'Part 1' of the document, together with 'Part 2' and 'Part 3' of the 'Green Book' cover page and index, at pages 100 ‑ 163, upon which Mr Kalsbeek principally focused in his submissions on 30 July 2021. Mr Kalsbeek submitted, in effect, that, for the purposes of r 32 of the Court of Appeal Rules, Parts 1 and 2 of the 'Green Book' part of the document (at pages 54 ‑ 139) constituted the document titled 'Appellant's grounds of appeal' in an 'Appellant's case', that Part 3 (at pages 140 ‑ 157) constituted the document titled 'Appellant's submissions', and that pages 158 ‑ 159 and 160 ‑ 161 constituted, respectively, the documents titled 'Appellant's legal authorities' and 'Orders wanted'.
The 'Green Book' cover page and index part of the document included pages with the following headings:
•'1, APPEAL being the transcript' (page 57).
•'2, APPEAL being Judge Sharp' (page 61).
•'3, APPEAL being standard of proof' (page 67).
•'4, APPEAL of Max Employment' (page 69).
•'5, APPEAL perversion of justice, witness tampering, timetables and subpoena's [sic]' (page 71).
•'6, APPEAL being Dr Kanodia' (page 73).
•'7, APPEAL being Mrs Oxenham and her psych Chin interview/investigation' (page 75).
•'8, APPEAL being duty of care' (page 96).
•'9, APPEAL of misfeasance' (page 99).
•'10, APPEAL of missing documents' (page 102).
•'11, APPEAL related to WORKCOVER' (page 105).
•'12 APPEAL related to MAX REFERRAL' (page 106).
•'13, APPEAL being DES REFERRAL' (page 122).
•'14, APPEAL the claim' (page 135).
•'15, APPEAL the interview' (page 137).
•'16, APPEAL damages' (page 138).
•'17, FINALLY the order again' (page 139).
Neither singularly nor collectively do pages 54 ‑ 139 constitute or contain a document entitled 'Appellant's grounds of appeal' within the meaning of r 32 of the Court of Appeal Rules, including r 32(4). That is for at least two reasons. First, there was no single document titled 'Appellant's grounds of appeal'. Secondly, this part of the document sought to be filed by Mr Kalsbeek purportedly addressed the contents of a Green Appeal Book index, when the purpose of a Green Appeal Book index, generally speaking, is to identify the relevant transcript pages and exhibits which are said to be relevant to the grounds of appeal and submissions. Neither the Green Appeal Book nor its index is to contain the grounds of appeal and submissions.
Whilst pages described as 'Green Book Part 3 of 3' contained headings using the word 'submission' corresponding to the headings referred to in [49] above, this part of the document was not a document entitled 'Appellant's submissions' within the meaning of r 32(3)(b) and r 32(5) of the Court of Appeal Rules. Again, a Green Appeal Book index is not the place for submissions. Nor should a Green Appeal Book index include 'legal authorities' and 'orders wanted'.[44] Further, the document sought to be filed by Mr Kalsbeek on 2 July 2021 did not comply with Practice Direction 7.4.[45]
[44] See r 38(4) and (5) of the Court of Appeal Rules.
[45] Practice Direction 7.4 provides, relevantly, that it applies to civil appeals in which the appellant challenges a finding of fact made by the primary court, and provides (by par 2):
(a)the appellant must file and serve a schedule in tabular form that contains:
(i) each finding of fact made by the primary court that is challenged (together with a reference to the paragraph number of the reasons for decision of the primary court);
(ii) a summary of each piece of the evidence before the primary court that supports the finding and the source of that evidence; and
(iii) a summary of each piece of the evidence before the primary court that is against the finding and the source of that evidence.
In light of the matters referred to in [42] ‑ [51] above, and making appropriate allowance for the fact that Mr Kalsbeek is a litigant‑in‑person, the document sought to be filed on 2 July 2021 was not an appellant's case within the meaning of the Court of Appeal Rules. It could not be regarded as an appropriate document upon which to conduct an appeal. It was properly rejected for filing.
The above conclusion is confirmed by, but not dependent upon, the following further observations.
Making due allowance in accordance with the observations in Glew referred to in [41] above, whilst Parts 1 and 2 of the 'Green Book' cover page and index part of the document used terms such as 'concise/succinctly', they did not, prima facie, state grounds with concise particulars, succinctly in numbered paragraphs, referencing each alleged ground with each paragraph of the primary decision in which error is alleged to have occurred.
For example, the judge's reasoning in relation to the absence of a duty of care has been set out in [22] above. At page 96, under the heading '8, APPEAL being duty of care', it is not clear whether Mr Kalsbeek was accepting that no duty of care was owed, but was contending that the judge erred in failing to find misfeasance in public office, or whether he might have been seeking to contend that the judge erred in law in finding that no duty was owed. The document stated:[46]
[46] Pages 96 - 98.
8, APPEAL being duty of care.
A, THIS GROUND OF APPEAL is
that Centrelink/the Commonwealth deliberately deleted the above PTSD, Prozac treatment and previous Centrelink grant of 10 Centrelink psychological disability points from the Centrelink 1997 to 2009 file, as it appears in neither one or both JCA assessment reports
B, CONSICE/SUCCINTLY [sic] we allege that
Centrelink deliberately did not gave [sic] the previous 1997 to 2013 Centrelink medical file, and previous DSP grant documents to both their assessing psychologists.
I, the decision is unsafe as
we still claim that the acknowledged "defective administration" decisions and above inconveniences were reasonably foreseeable and preventable
(simply by Centrelink's assessors staying within their relevant Legislation and Guidelines)
Ii, the decision is unsatisfactory as
"something other than just sitting still for 40 minutes" happened in that interview room as either by himself or required/and/or asked,Mr Kalsbeek did perform some kind of physical exercise/activity, called/described and physically demonstrated by Mrs Henderson's "foot‑slamming."
iii, the decision is against the weight of evidence as
determined wrongly in Mr Kalsbeek's case that he was not entitled to a DSP and instead the respondent (the Government) referred him to MAX Employment rather than Disability Management [S]ervices (DMS) for the both psychologists/JCA recommended psychological counselling and assistance with gaining employment suitable to his capacity.
Iv, the negligence of Ms Chin with respect to the physical exercises which she asked and/or encouraged him to undertake, exacerbated Mr Kalsbeek's spinal injuries and caused compensable loss
v, and the negligence of Ms Chin with respect to her erroneous determination caused an aggravation of Mr Kalsbeek's PTSD and Depression, with resulted in compensable loss with support of this conclusion as to what the relevant claim is to be found in Mr Kalsbeek's opening statement at ts 549 there he states
C, ERROR IN FACT/LAW is
that Judge Sharp did not adhere to the Register [sic] Hewitt order as the transcript states that
"the order is about two specific issues,
with the one issue being the interview by psych Chin and the second one is the deliberate wrong referral to Max Employment and DMS disability.OKAY? SO that is the order."
v, the paragraph where this error of law allegedly occurred is
the Register [sic] Hewitt order dated 21 April 2018.
D, DISPOSITION, page 26.
160, must show that defendant owed him a duty.
161, There is an abundance of authority for the proposition that a common law duty of care MAY arise in the performance of statutory functions,
including the manner in which a statutory duty is performed.
Crimmins v Stevedoring Industry Finance Committee, [1990] HCA 59; (1999) 200 CLR1.
162, Nowhere in Mr Kalsbeek's statement of claim is it articulated as to precisely what duty of care Mr Kalsbeek is alleging the defendant owed him.
I, this decision is wrong in law as
the statement of claim is/are simply whole sentences form [sic] the 2014 Tribunal ruling and 2015 Centrelink CDDA compensation (DEED of Settlement) apology and compensation offer.
E, HOWEVER I accept the defendant's analysis in it's [sic] closing submissions dated 25 November 2020 that the defendant DID NOT owed [sic] him a duty of care when the defendant decided to not award a DSP to Mr Kalsbeek
i, this decision is wrong in fact as
we allege that ARO Mrs Oxe3nahm [sic], at all times as like the tribunal, from the available medical reports knew/or should have known that at all times in 2013/14 Mr Kalsbeek was DSP entitled.
From which came the decision to refer him to Max Solutions.
Ii, this decision is relevant as
it was to cover up that Centrelink in July 2014 already had decided as NOT to provide funding to get Mr Kalsbeek to DES, as recommended by both psychologists in their respective JCA reports.
Iiii, or the defendant decided not to conduct a competent physical examination of Mr Kalsbeek as part of his application for DSP.
Iv, this decision is wrong in fact as
Mr Kalsbeek asked for a Table 4 Spinal Function assessment, not physical examination!
163,In regard to the former, Mr Kalsbeek is not assisted by what Sleight DCJ said in Upton v Centrelink [2009] WADC 116, namely that
the law is clear that there is no duty of care on the part of officials as to make the correct decision, IN THE ABSENCE OF MISFEASANCE, and I respectfully agree with his Honour said in Upton.
C, ERROR IN BOTH FACT AND LAW is
that Mr Kalsbeek asked for a Table 4 Spinal Function assessment, not anything else, whatever psych Chin/or the Commonwealth/the then Government did,even MISFEASANCE, as we allege!
V, the paragraph where the error of law allegedly occurred is
the Register [sic] Hewitt order, which refers to two specific issues while 'somehow' Judge Sharp only addresses one? (original emphasis)
Also, again by way of example, it is not clear what, if any, error was sought to be alleged in relation to the judge's findings and reasoning on damages (see [24] above), including the finding that Mr Kalsbeek did not adduce admissible evidence that he was currently suffering a recognised psychiatric illness. On one view, the document might be thought to contend that the scope of the complaint was that the judge ought to have found that he had established damages of $240, in lieu of a 'car allowance' of $238.40. At page 138, under the heading '16, APPEAL damages', the document stated:
16, APPEAL damages.
A, THIS GROUND OF APPEAL is
that there is an amount of damages identified by the Commonwealth.
B, CONCISE/SUCCUNTLY [sic]
the amount is $238.40 as established in the 2015 DEED of SETTLEMENT.
I, the decision of the primary court is unsafe as
Judge Sharp argues at 185,For completeness I should say that Mr Kalsbeek has adduced no evidence of any compensable damages.
Ii, the ruling is unsatisfactory as
he states that "I should perhaps further add that Mr Kalsbeek did not advance any admissible evidence that he CURRENTLY suffers a recognised psychiatric illness, and hence this court is therefore precluded under s5T of the Civil Liability Act 2002 (WA) from making any award of damages for pecuniary loss for consequential mental harm."
Point one,
being that I simply ask for what in 2015 was denied me in the DEED of SETTLEMENT.
Point two,
there was acknowledgement of any and every accusation I had ever made against Centrelink, hence their written two apologies for 'defective administration'
Point three,
but instead of $240.000 for that defective administration instead they only offered me in settlement (?) a $238.40 car allowance only hence this court action.
THE ERROR IN FACT LAW is that Judge Sharp was never aware that I had NOT accepted the $238.40 compensation (?) as it was a car allowance and NOT compensation.
V, the paragraph where the alleged error of law occurred is
the Register [sic] Hewitt order, which refers to "inappropriate examinations and referrals" in re‑establishing his DSP entitlement, and the fact that for a year my legal DSP was denied, as that was the objective of this case/court action, not what Judge Sharp tried to made [sic] of it? (original emphasis)
Also, by way of example, under the heading '1, APPEAL being the transcript' (page 57), the document stated 'this ground of appeal is that the court transcript is not an accurate record of the proceedings'. Such an assertion does not prima facie disclose an identifiable error of law, fact, or mixed law and fact made by the primary judge. If Mr Kalsbeek wished to contend that the judge erred in some particular finding of fact in the primary decision in reliance on (allegedly) erroneous transcript references, the specific finding, by reference to the paragraph number in the primary decision, should have been identified, together with what he contended to be the correct finding of fact. In a document specifically entitled 'Appellant's submissions' he would have needed to identify the evidence given at trial in support of the allegation of error and which part of the transcript was (allegedly) inaccurate and how it contributed to the making of any particular alleged error. Moreover, Practice Direction 7.4 would have required Mr Kalsbeek to identify all the evidence at trial in support of the finding of fact for which any error was alleged.
Further, this part of the document included a statement to the effect that the 'primary decision is against the weight of the evidence because there was never another judge involved in the proceedings'.[47] The intended meaning of the statement is unclear, but, on its face, it disclosed no identifiable error of law by the judge.
[47] Page 57.
Again by way of example, page 61 was headed '2, APPEAL being Judge Sharp' and stated that:[48]
1, in error Sharp J made the wrong decision
2, as he by design/or circumstance wrongly interpreted the relevant instructions related to the 21 August 2018 then Register [sic] Hewitt order[.]
[48] Page 61.
This prima facie disclosed no identifiable error. Ordinarily, a judge is required to determine a matter on the pleadings. Registrar Hewitt gave leave to Mr Kalsbeek to file an amended statement of claim, but the grant of leave could not be regarded as constituting an 'instruction' from Registrar Hewitt to Sharp DCJ.
This part of the document also alleged 'gender bias' on the basis that 'with almost all witnesses in both trials plus every lawyer/counsel being female, the idea of an equal opportunity association is/seems vacated'.[49] Such observations about the participants in various capacities at the trial (even if factually correct) do not prima facie disclose error by the judge.
[49] Page 63.
This part of the document, under the heading 'Additional', also referred to a 'deed', without reference to any finding by the judge allegedly in error, and by way of, apparently, a complaint against another judge. It stated that this was not a 'contract/agreement as defined in contract law!',[50] and that 'hence they (both Justices) did not listen and/or comprehend WHY(?) Mr Kalsbeek was constantly trying to inform/tell them that there were actually two Deeds', one of which was 'not signed' and the other on which Mr Kalsbeek had written 'stick it up your arse'.[51]
[50] Page 62.
[51] Page 62, original emphasis.
Conclusion
We have concluded that the appellant was in default of the registrar's order dated 30 June 2021. We would not, however, dismiss the appeal at this stage. Despite the apparent difficulties referred to in [54] ‑ [62] above, we bear in mind that the appellant is a litigant‑in‑person and that he has made at least some attempt (albeit unsuccessful) to comply with the registrar's order. It seems to us that he should be granted a further, final, time to file an appellant's case in accordance with the Court of Appeal Rules. In all the circumstances, it seems to us that a further period of 21 days is just, having regard to the interests of both the appellant and the respondent, and that the extension should be made on the basis that if an appellant's case which complies with the Court of Appeal Rules is not filed and served by then, the appeal should be dismissed, with the appellant to pay the respondent's costs.
It should be added that at the hearing on 30 July 2021, the appellant raised some concern about the need for electronic filing of documents. Practice Direction 1.2.2 provides, relevantly:
COURT OF APPEAL OFFICE
62.Paragraphs 63 - 86 apply only to documents presented for filing in proceedings in the Court of Appeal.
Filing electronically via the ECMS
63.From 3 May 2021, all documents in civil appeals must be filed electronically using the ECMS unless the Rules or these Practice Directions provide otherwise.
…
67.An application may be made to the Court of Appeal Registrar for permission to present a document for filing otherwise than via the ECMS. The Court of Appeal Registrar, for any good reason and without a formal application or request, may permit a person to present a document otherwise than via the ECMS (O 67A r 3(3)). An application may be made in writing addressed to the Court of Appeal Registrar.
Accordingly, there is opportunity, if the appellant seeks to avail himself of it, to apply to the registrar for an order that he be permitted to file an appellant's case in a manner other than via electronic filing.
Orders
Accordingly, the court proposes to make the following orders:
1.The time for the appellant to comply with the registrar's order dated 30 June 2021 in relation to the filing and serving of an appellant's case is extended to 4.00 pm on 1 September 2021.
2.If the appellant does not file and serve an appellant's case which complies with the Supreme Court (Court of Appeal) Rules 2005 (WA) in accordance with order 1, the appeal is dismissed and the appellant is to pay the respondent's costs, to be assessed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DM
Associate to the Honourable Justice Murphy
11 AUGUST 2021
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