Krysiak v Housing Authority - [2020] WASCA 119

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   KRYSIAK -v- HOUSING AUTHORITY [2020] WASCA 119
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   24 JULY 2020
DELIVERED          :   24 JULY 2020
PUBLISHED           :   27 JULY 2020
FILE NO/S:   CACV 156 of 2019
BETWEEN:   EUGENIA KRYSIAK
Appellant
AND
HOUSING AUTHORITY
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
Citation: KRYSIAK -v- HOUSING AUTHORITY [2019] WADC 162
File Number            :   APP 59 of 2019

Catchwords:

Practice and procedure - Application for unqualified person to represent appellant - Principles to be applied - Appeal dismissed upon non‑compliance with springing order - Application for extension of time to comply with springing order - Relevant principles - No proper basis to extend time to comply with springing order

Legislation:

Nil

Result:

Application for appellant's son to represent appellant dismissed
Application for leave to extend time to comply with springing order dismissed

Category: B

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	No appearance

Case(s) referred to in decision(s):

A v C [No 2] [2015] WASCA 199
Clark v Marine Fire & Security Pty Ltd [2005] WASCA 188; (2005) 146 IR 84
Damjanovic v Maley [2002] NSWCA 230; (2002) 55 NSWLR 149
Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458
Krysiak v Carruthers [2013] WASCA 210
Krysiak v Hodgson [2009] WASCA 114
Krysiak v McDonagh [2013] WASCA 100
Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146
Schagen v The Queen (1993) 8 WAR 410
Scotts Head Developments Pty Ltd v Pallisar Pty Ltd (Unreported, NSWCA, 6 September 1994)
Simonsen v Legge [2010] WASCA 238

REASONS OF THE COURT:

This matter came to hearing on 24 July 2020 to consider the appellant's application filed 18 June 2020 to extend the time to file an appellant's case following the operation of a springing order dismissing the appeal, and for other orders.
The appellant's application filed 18 June 2020 sought, relevantly, the following:
1.an order to extend the springing order made by Justice Murphy to allow the [a]ppellant to amend her appellant's case to comply with the Supreme Court (Court of Appeal) Rules 2005 [(WA)];
2.leave to complete the appellant's submissions to allow for an average of three pages per ground limit for thirteen grounds;
3.leave to include an appendix to [the] appellant's submissions which is critical to understanding grounds 10 and 11 and aids clarity as the amount of submission footnotes is lessened[.]
On 22 July 2020, the appellant filed a further application, the effect of which was to seek to amend the application filed 18 June 2020 to include a further proposed order (order 4) in the following terms:
An order that Appellant be given leave to have her son, Tad Krysiak, act as her agent, with respect to the Appeal, as in the Courts below, based on the same principle.
The appellant's…

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.

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Details

Case: [2020] WASCA 119
Decision Date: 27 JULY 2020

CaseChat Overview and Summary

The case of Krysiak v Housing Authority involved an appeal by the appellant, Krysiak, against a decision made by the magistrate in the Magistrates Court of Victoria. The central issue was whether the magistrate had properly dismissed Krysiak's appeal and whether she was entitled to an extension of time to file her appeal notice. The matter reached the Supreme Court of Victoria, where the appeal was ultimately dismissed.

The primary legal issues before the court were whether the magistrate had provided sufficient reasons for dismissing the appeal and whether there was a valid basis for extending the time to file the appeal notice. The court had to determine if the magistrate's reasons met the requirements under Section 31 of the Magistrates Court Act and whether the appellant had provided a sufficient explanation for the delay in filing her appeal notice. The court also needed to consider the principles applicable to granting an extension of time under the Act.

The Supreme Court held that the magistrate's reasons were adequate as they identified the facts accepted and the law applied, and there was no requirement to canvass all evidence and arguments. The court found no basis to set aside the magistrate's decision to dismiss the strike out application. Regarding the extension of time, the court concluded that the appellant had not provided a proper basis for the delay in filing her appeal notice. The son's affidavit, while detailing his commitments, did not sufficiently explain why he could not assist his mother earlier or why the appellant could not manage without his assistance. Therefore, the appeal was dismissed.

The court dismissed the appellant's appeal and denied her application for an extension of time to file the appeal notice. The primary decision of the magistrate was upheld, and the appeal was dismissed with no orders for costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Section 31 of the Magistrates Court Act relevantly provides:31.Judgments, content of(1)The Court's reasons for a judgment in a case - (a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and(c)need not canvass all the evidence given in the case; and(d)need not canvass all the factual and legal arguments or issues arising in the case.(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal. His Honour concluded that the magistrate had complied with the requirements of s 31(1)(a) and (b) of the Magistrates Court Act. More generally, the reasons were more than adequate for the appellant to ascertain the basis for the decision and whether she had any grounds of appeal, and for his Honour to determine the appeal. Further, to the extent that the magistrate did not canvass all of the evidence, nor all the factual and legal arguments arising, in the case, that was permissible under s 31(1)(c) and (d) of the Magistrates Court Act.[71] Ground 4.7 challenged the magistrate's decision to dismiss the strike out application.[72][72] Primary decision [144]. His Honour said that the findings he had made meant that there was no basis to set aside the magistrate's decision to dismiss the default judgment application. Further, the issue of whether the magistrate erred in not granting the strike out application did not arise. Nevertheless, his Honour said that the reasons he had set out in his judgment were also to the effect that there was no basis to strike out the claim.[73] [73] Primary decision [145]. On 23 December 2019, the appellant filed an appeal notice. The appeal notice was out of time. The appellant filed an affidavit on 23 December 2019 in support of an extension of time to file an appeal notice. The affidavit annexed a copy of an affidavit from her son also dated 23 December 2019. The appellant's explanation for the delay in commencing the appeal was to the effect that she received a copy of the primary decision by ordinary mail on 2 December 2019, and she was 'reliant' on her son to 'help [her] complete documents'.[74] The annexed affidavit from her son was to the effect that he had been busy, having 'obligated [himself] to help' close Polish family friends in relation to a 'dividing fence matter', and that this 'involved having discussions with … friends, attending the site on several occasions, writing letters to the other party …, compiling evidence, and letting them know of potential outcomes'. He said that he had to research issues in relation to adverse possession for his 'friends' claim'. He also said that once he had received the primary decision, he 'had to assist [the appellant] on deciding whether there was merit in appealing it or whether there was merit in proceeding to judicial review, and if so, which path would be undertaken'.[75][74] Affidavit of E Krysiak dated 23 December 2019, pars 2 - 3.[75] Affidavit of T Krysiak dated 23 December 2019, pars 3 - 7.

Ratio Decidendi

Legal Principle Established

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