Raczka v Department of Housing and Works
[2008] WASCA 76
•20 MARCH 2008 (published 3 March 2008)
RACZKA -v- DEPARTMENT OF HOUSING AND WORKS [2008] WASCA 76
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2008] WASCA 76 | |
| THE COURT OF APPEAL (WA) | 03/04/2008 | ||
| Case No: | CACV:154/2007 | 20 MARCH 2008 | |
| Coram: | PULLIN JA NEWNES AJA | 19/03/08 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time refused Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | JAN RACZKA DEPARTMENT OF HOUSING AND WORKS |
Catchwords: | Appeal against amount awarded for damages for personal injury Application for extension of time Turns on own facts |
Legislation: | Nil |
Case References: | Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : RACZKA -v- DEPARTMENT OF HOUSING AND WORKS [2008] WASCA 76 CORAM : PULLIN JA
- NEWNES AJA
- Appellant
AND
DEPARTMENT OF HOUSING AND WORKS
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : GOETZE DCJ
Citation : RACZKA -v- DEPARTMENT OF HOUSING AND WORKS [2007] WADC 190
File No : CIV 883 of 2005
(Page 2)
Catchwords:
Appeal against amount awarded for damages for personal injury - Application for extension of time - Turns on own facts
Legislation:
Nil
Result:
Application for extension of time refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr T R D Mason
Solicitors:
Appellant : In person
Respondent : Jackson McDonald
Case(s) referred to in judgment(s):
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
(Page 3)
1 PULLIN JA: This is an appeal against the judgment of Judge Goetze in the District Court dated 31 October 2007. The appellant's action was for damages for personal injury. Liability was admitted.
2 The appellant, who was the plaintiff, was not represented by solicitors on the assessment of damages, nor is he represented by solicitors on this appeal. Judge Goetze spoke of the difficulties this created in his decision. :
The plaintiff may consider that he has been denied justice in that he has not been awarded a sum to meet his expectations which he set forth in his correspondence to the defendant's solicitors and which he provided to me in the amended Papers for the Judge as being $1.4 million. However, the plaintiff must expect that if he engages in litigation in person and does not prove his case to the standard required, then the defendant will not prove his case for him. The Court cannot step in and prove the case for him or simply accept what he is seeking.
The presentation of all relevant evidence in a trial to prove a case is a difficult exercise. The plaintiff, sadly, was not skilled enough to do this. The plaintiff declined my suggestion of an adjournment so that he could obtain further evidence. Even if the trial had been adjourned and the plaintiff brought all relevant evidence as I have outlined above and assuming that all such evidence was favourable to the plaintiff, then he might still feel that he has been denied justice given his unrealistic expectations [194] - [195].
- His Honour assessed damages at $22,050.
3 The appellant wished to appeal and filed an appeal notice at this court on 29 November 2007. Under Supreme Court (Court of Appeal) Rules 2005 (WA), r 26, the right of appeal expired 21 days after judgment. The appellant is therefore a few days out of time. He now seeks an extension of time in which to appeal.
4 The considerations which are usually relevant when considering an application to extend time to appeal are, the length of the delay, the reasons for the delay, whether the appellant has an arguable case and any prejudice that might be suffered by the respondent. It must also be borne in mind as a consideration that the respondent has a vested right to retain the judgment of the court. See Girando v Girando (1997) 18 WAR 450 and Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196.
5 In this case, there has been only a slight delay. There is no detailed explanation for the delay, although it may be accepted that the appellant, being a litigant in person, was not aware of the importance of the
(Page 4)
- requirement for appealing within time and has explained that he was looking for lawyers to represent him up until the time he filed the notice of appeal. There is no suggestion that the respondent will suffer any prejudice.
6 The real question, however, is whether there is any merit revealed in the grounds of appeal and that being the only issue, the matter should be approached on the basis of an inquiry about whether there was any reasonable prospect of success as explained in Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473.
7 Grounds 1, 2 and 5 of the grounds of appeal reveal no allegation about any error by the trial judge. Ground 6 is a general assertion which could not succeed unless supported by particulars. The appellant asked that the matters referred to under the heading 'Errors of Fact' in his submissions accompanying the appellant's case, should be treated as the particulars supporting ground 6. During the hearing of this application the appellant was asked to identify the essence of his complaint. His submission was that the trial judge appeared to be biased against him and this is the subject of grounds 3 and 4 and when pressed, he said that this was the real point to be extracted from the particulars to ground 6. When pressed to show where the trial judge made the comments referred to in ground 3 of the grounds of appeal, the appellant conceded that he could not find any such comment in the transcript and, when he listened to the tapes of the trial, he was not able to locate any point at which the judge made the comments the appellant alleges that his Honour made and which are referred to in ground 3.
8 As to ground 4 in the grounds of appeal, it appears that the judge was merely making an observation about the appellant's appearance and gave him the opportunity of commenting on what he observed. In doing so, the judge was merely being fair to the appellant so that the appellant would be able to make submissions about what the judge had seen while the appellant was in court.
9 The grounds of appeal therefore, have no reasonable prospect of succeeding and, as a result, the application for an extension of time is refused and the appeal is dismissed.
10 NEWNES AJA: I agree.
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