Reed v Jandakot Pastoral Pty Ltd
[2003] WASC 241
REED -v- JANDAKOT PASTORAL PTY LTD [2003] WASC 241
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 241 | |
| Case No: | CIV:2217/2003 | 26 NOVEMBER 2003 | |
| Coram: | MASTER NEWNES | 12/12/03 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time dismissed | ||
| B | |||
| PDF Version |
| Parties: | LEON ERNEST REED JANDAKOT PASTORAL PTY LTD |
Catchwords: | Practice and procedure Application for extension of time to appeal No prospects of success of appeal Turns on own facts |
Legislation: | Rules of the Supreme Court, O 62 r 10(1) Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D |
Case References: | Australian Electronics Foundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1997) 19 WAR 145 Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 Gallo v Dawson (No 2) (1992) 109 ALR 319 Girando v Girando (1997) 18 WAR 450 Greater Wollongong City Council v Cowan (1955) 93 CLR 435 Orr v Holmes (1948) 76 CLR 632 Gallo v Dawson (1990) 92 ALR 479 Ratnam v Cumarasamy [1964] 3 All ER 933 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant
AND
JANDAKOT PASTORAL PTY LTD
Respondent
Catchwords:
Practice and procedure - Application for extension of time to appeal - No prospects of success of appeal - Turns on own facts
Legislation:
Rules of the Supreme Court, O 62 r 10(1)
Workers' Compensation and Rehabilitation Act 1981 (WA), s 93D
Result:
Application for extension of time dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr S W Williams
Solicitors:
Appellant : In person
Respondent : Pynt & Partners
Case(s) referred to in judgment(s):
Australian Electronics Foundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1997) 19 WAR 145
Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196
Gallo v Dawson (No 2) (1992) 109 ALR 319
Girando v Girando (1997) 18 WAR 450
Greater Wollongong City Council v Cowan (1955) 93 CLR 435
Orr v Holmes (1948) 76 CLR 632
Case(s) also cited:
Gallo v Dawson (1990) 92 ALR 479
Ratnam v Cumarasamy [1964] 3 All ER 933
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1 MASTER NEWNES: This is an application by the appellant for an extension of time in which to lodge a notice of appeal.
2 The appellant wishes to appeal against a judgment of the District Court dismissing his claim for damages for personal injury. That claim was made by the appellant by proceedings issued in 1999 and was heard by Yeats DCJ, over five days in February 2003. Her Honour delivered reasons for decision on 9 May 2003, although it appears that final orders were not made until 17 June 2003. On that basis, any notice of appeal was required to be lodged by 8 July 2003, being 21 days after the orders were made.
3 In fact, the appellant, who acted in person in the District Court and is acting in person in this application, attempted to file a notice of appeal on 28 May 2003. He did not, however, realise that a filing fee was payable and he was unable to pay that fee. The notice of appeal was rejected. The appellant then lodged an application for an extension of time in which to file a notice of appeal and sought a waiver of the fees payable on that application.
4 Ultimately, that application was granted and the application for an extension of time, together with the proposed notice of appeal of 28 May 2003, was then accepted for filing.
5 In the application, the appellant seeks an extension of time because, he says, he is having problems obtaining legal representation for the appeal. When the matter first came before me on 20 October 2003, I adjourned it to 17 November 2003, to allow the appellant additional time to obtain legal representation for this application. The appellant had not managed to obtain legal representation when the matter came back on again on 17 November 2003. There appeared no realistic prospect that he would be able to do so. Accordingly, the application for an extension of time was adjourned to 26 November 2003 for hearing.
6 At that hearing, the appellant appeared in person. He told me from the bar table that he had been unable to obtain legal representation.
7 The application for an extension of time was opposed by the respondent, on the grounds, first, that no satisfactory explanation had been provided for the delay in filing the notice of appeal, and, secondly, that the appeal had no prospect of success.
8 The principles to be applied on an application of this sort are well established. In determining whether time should be extended, it is necessary to have regard to the length of the delay, the reasons for the
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- delay, whether there is an arguable case on appeal and the extent of any prejudice to the respondent: Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196 at 198, Girando v Girando (1997) 18 WAR 450.
9 It is the case that the appellant has not filed an affidavit explaining the delay, but, in the present circumstances, I would not regard that as fatal. It is evident from the material before me that the appellant sought to file the notice of appeal within time, indeed even before formal orders dismissing his claim had been made by the District Court. I am satisfied that the delay has come about because the appellant was unable to pay the applicable filing fee and was then waiting on the outcome of his application for a waiver of the fee. In my view, the delay has been satisfactorily explained. I might add that, when the appellant's position was more fully explained from the bar table in the course of the hearing, I understood that the respondent's counsel, quite appropriately, did not seriously press the question of delay.
10 That is not the end of the matter. Even when the delay has been explained, the application for an extension of time should be refused if the appeal would have no prospect of success: Gallo v Dawson (No 2) (1992) 109 ALR 319 at 320.
11 The essence of the appellant's case at trial was that he suffered personal injuries in the course of his employment when, at about 1 pm on 25 February 1992, he was assaulted by one or two armed assailants in the respondent's car park where he worked as a windscreen cleaner. The appellant alleged that his injuries were caused by the negligence of the respondent. Yeats DCJ found against the appellant on all but one of the grounds of negligence on which he relied. On that one ground, Her Honour found that the respondent was negligent in failing to ensure that the appellant was provided with a walkie-talkie to enable him to summon help. Her Honour found, however, that the provision of a walkie-talkie would not have prevented the attack that occurred and, accordingly, that the respondent's negligence was not the cause of the appellant's injuries.
12 Although the appellant failed on liability, Yeats DCJ made a provisional assessment of damages.
13 On the claim for pain, suffering and loss of amenity, her Honour found that any symptoms the appellant suffered had resolved by February 1994 and that any current symptoms were due to other causes, including
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- head injuries suffered by the appellant in accidents both before and after the 1992 incident.
14 In relation to the appellant's claim for loss of earning capacity, Yeats DCJ noted that the claim depended upon the appellant making good his contention that post-traumatic stress arising from the incident had caused him to commence using heroin and other drugs. Her Honour found that there was no causal link between the appellant's use of drugs after the incident and the incident itself and that, contrary to the appellant's evidence, the appellant had been a user of drugs before the incident. Her Honour found that the appellant had been capable of full-time employment since July 1992.
15 Accordingly, damages were assessed on a provisional basis at a figure of $36,650.
16 It followed that, by virtue of s 93D of the Workers' Compensation and Rehabilitation Act 1981 (WA), no award of damages could have been made to the appellant even if liability had been established, the threshold prescribed by the Act not having been reached.
17 The proposed grounds of appeal, as appears from the notice of 28 May 2003, are as follows:
"Take notice that the full court of the supreme court of Western Australia will be moved by way of appeal at the first setting of the full court appointed to be held after the expiration of 12 weeks from the institution of this appeal, or as soon as counsel can be heard for orders that:
1 The appeal be allowed.
2 The judgment at first instance be set aside.
3 Judgment be entered in favour of the appellant for damages in an amount to be assessed and that the action be remitted to the court for the assessment of damages.
4 costs
GROUNDS OF APPEAL
1. It is my intention to provide Police reports proving that other incidents of violence and assaults did in fact occur in the queens street carpark prior to the incident on 25-2-92 this fact was disputed at trial in the district court.
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- The consequence of this fact not being proven was I did not prove forseability [sic] this I will prove by providing newly available copies of Police reports obtained through the freedom of information act.
- 2. It is my intention on the point of credibility to provide transcript evidence from the criminal damages case heard 5-6-97 and a document from ms JO-ANNA RICHARDSON it is also my intention to call ms JO-ANNA RICHARDSON as well as POLICE SERVICEPERSONS involved in my life at the time of the 25-2-92 incident these whiteness [sic] will provide under oath evidence that I did not use drugs prior to 25-2-92 and also personal references
3. I will also provide by way of demonstration and exhibition the 13cm scar on my neck that supports my evidence of the intent of the attackers to cause serious harm to myself this point was used to great effect by the defendants to discredit my description of the event.
4. I will provide evidence by police reports and employee statements to prove that The respondent falsely claimed that there was security patrols and walkytalkys [sic] already in use I submit this was a deliberate attempt to mislead the insurers into not concluding this incident could have been prevented thus leaving the defendant open to prosecution for negligence. This possibility was avoided by the fabrication or misleading of the facts of the time by stating these precautions and safeguards were already in place
5. I intend to provide tax returns from 91 to 03 proving the extent of my efforts to earn a reasonable income and the extent of my financial losses.
6. I will provide navel [sic] documents proving monetary losses that have and will be incurred by the loss benefits such as sea going allowance and rations and quarters these losses alone see me over the 93d threshold."
18 In the course of the hearing, the appellant handed up a further notice of appeal in somewhat different terms. In essence, those grounds, which I understood from the appellant would be additional grounds, are, first, that the learned trial Judge did not correctly calculate the appellant's future
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- economic loss in that her Honour failed to recognise the extent of the impact of the incident on the appellant, secondly, that her Honour had been misled as to whether there had been of surveillance of the appellant by the respondent after the accident, and, thirdly, that her Honour failed to admit certain evidence, which had been admitted at an earlier hearing of a claim by the appellant under the Criminal Injuries Compensation Act1985, relating to the appellant's pre-incident drug usage.
19 The first of the supplementary ground seems to go to the issue of the quantum of damages. As to the second, it is not apparent to what issue the evidence of surveillance goes. In relation to the third, I understood the complaint to be that the transcript of the evidence in the earlier proceedings was not admitted as to the truth of its contents, not that the same witnesses could not be called to give evidence in the District Court action.
20 It is evident from the proposed grounds of appeal that the principal object of the appeal is to enable the appellant to adduce evidence that was not adduced by him at the trial of the action.
21 It is clear that the Full Court has power under O 62 r 10(1) of the Rules of the Supreme Court to admit fresh evidence on an appeal. But the circumstances in which it will do so are very limited. In order to justify the admission of evidence that was not used at the trial, it must be reasonably clear that, if the evidence had been available and used at the trial, it is highly likely that it would have produced a different result, and that no reasonable diligence on the part of the unsuccessful party would have enabled them to procure that evidence: Orr v Holmes (1948) 76 CLR 632 at 640 per Dixon J, Greater Wollongong City Council v Cowan (1955) 93 CLR 435 at 444 per Dixon J, Australian Electronics Foundry & Engineering Union Western Australian Branch v Hamersley Iron Pty Ltd (1997) 19 WAR 145 at 162.
22 It is apparent from the grounds of appeal that the appellant now seeks to buttress his case in areas where findings adverse to him were made at trial. In no instance does it appear that the evidence was not available to be called at the trial. Nor does it appear that it is highly likely the outcome would have been different had the evidence referred to been adduced at trial. The appellant's case on liability failed on the issue of causation. There is nothing in the proposed evidence which suggests that that obstacle can be overcome. Nor is there anything that is likely to lead to a different outcome on the question of the disabilities suffered by the appellant as a result of the incident. In light of s 93D of the Workers'
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- Compensation and Rehabilitation Act 1981 (WA), both findings must be overturned before the appellant would be entitled to an award of damages.
23 In relation to his disabilities, the appellant seeks to call further evidence to the effect that he did not use drugs prior to 1992. As her Honour observed, the question of whether or not his subsequent illicit use of drugs was attributable to the incident was an important part of the appellant's case. The appellant contended that his subsequent drug use was caused by the incident. That evidence, however, was contradicted by a record of interview with his commanding officer in the Royal Australian Navy ("RAN") in 1994. In the course of that interview, he told his commanding officer that he had used marijuana for four to five years and had used "acid" for about 10 to 12 months prior to joining the navy. The appellant joined the navy in July 1992, some five months after the incident.
24 The appellant tried to explain the conflict between his evidence and the record of interview by claiming that he had lied to his commanding officer. No credible explanation was proffered for lying in that interview. The appellant's answers in cross-examination in respect of the inconsistencies led her Honour to say:
"Unfortunately, what was apparent to me was that the plaintiff was lying on his oath in his evidence and giving inconsistent evidence to try to explain away what was not explainable. There is no reason I could imagine for the plaintiff to have lied to his commanding officer and dobbed himself in for illicit drug use over four or five years prior to joining the RAN if that were not true."
25 It is significant for present purposes that the learned trial Judge went on to find that the appellant was not a truthful witness at trial. Her Honour observed:
"By the conclusion of the trial I had formed the view that the plaintiff's evidence was completely unreliable. He is truthful only if it serves his purposes. Otherwise he lies if he believes it is in his interests to do so."
26 Her Honour added:
"By the end of the trial I came to accept Dr Terace's [a psychiatrist called by the defendant] opinion that the plaintiff suffers from an anti-social personality disorder associated with a history of drug abuse and a failure to accept responsibility for
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- his own behaviour. These factors all indicate that the plaintiff in presenting his case was a very troubled young man who had misguidedly decided to attribute all of his problems to an incident in 1992 where he hoped to be able to gain compensation. I have found myself unable to accept the plaintiff's evidence unless it is supported by other independent evidence."
27 The appellant passionately rejects those comments and made it very clear at the hearing of this application that he thought they were quite unjustified and that he wished to challenge them. One of the difficulties he faces, however, is that it is well established that an appellate court will not lightly interfere with findings on credibility of a trial judge who has had the advantage of seeing and hearing the witness give evidence. There is no reason to believe that an appellate court might interfere with the findings in this case.
28 The appellant also seeks to adduce further evidence regarding the extent of the physical injuries he suffered in the incident. Her Honour, however, had before her a description of the nature of the appellant's injuries from a Royal Perth Hospital report made after examination of the appellant on the day of the incident. That refers to a 15 centimetre laceration to the appellant's neck. The police report of the time refers to several scratches to the throat and bruising to the rear of the head. In any event, evidence as to the nature of those injuries was not germane to the findings that caused her Honour to dismiss the plaintiff's claim.
29 In a similar vein, further evidence as to security patrols and the use of walkie-talkies is not likely to lead to a different result. The learned trial Judge found that, in failing to provide walkie-talkies, the respondent was negligent. The appellant's case failed because her Honour found that the provision of walkie-talkies, or for that matter the installation of security cameras, would not have prevented the incident.
30 The appellant also wishes to rely on documents, obtained by him on a request made after the trial to the Police Department under the Freedom of Information Act 1992, which refer to an attack on the appellant in the car park on another occasion, prior to the incident. The appellant says that is relevant to the security measures the respondent should have taken for his safety. Apart from any other considerations, that evidence could plainly have been obtained and led at the trial.
31 The question of the appellant's ongoing disabilities resulting from post-traumatic stress disorder brought on by the incident was the subject
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- of extensive evidence at trial. The appellant called two psychologists and a psychiatrist to give evidence. Her Honour did not accept the evidence of the psychologists, and the evidence of the psychiatrist relied heavily upon the appellant's claim that he had not used illicit drugs before the 1992 assault. Her Honour noted that the psychiatrist had said in evidence that the connection he had drawn between the appellant's subsequent drug use and the incident would "fall apart" if there was evidence of drug use prior to the incident. As I have mentioned, her Honour found as a fact that the appellant had used drugs prior to the incident.
32 The trial Judge preferred the evidence of the respondent's expert witnesses that the appellant's incapacity for work had resolved by the time he joined the Royal Australian Navy on 20 July 1992. Her Honour therefore found that the appellant's loss of earning capacity was from the date of the incident, 25 February 1992, to 20 July 1992.
33 I am conscious of the very real difficulties that face the appellant in presenting his case. He has no legal training and, as he reiterated from the bar table, he left school at the end of year 10. I recognise that he may not articulate his case as well as he would wish. In those circumstances, it would be inappropriate to take a narrow or legalistic view of the grounds of appeal on which the appellant seeks to rely.
34 Nevertheless, making all reasonable allowances for those factors, I consider the appeal has no reasonable prospects of success. I am not satisfied either that the evidence the appellant now wishes to adduce could not reasonably have been obtained by him for the purpose of the trial, or that the admission of that evidence is likely to lead to a different result. There are no grounds in the notice of appeal that, on any reasonable view, have any prospects of success. To extend the time to lodge the appeal would serve no useful purpose and would expose the respondent to the prospect of incurring further substantial costs. In view of the appellant's current financial circumstances, it is most unlikely that the respondent will be able to recover the taxed costs of the trial to which it is entitled under the orders of the District Court. It is even less likely that it would recover its costs of an appeal if, as in my opinion is inevitable, the appeal failed.
35 I would accordingly refuse the application for an extension of time.
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