Valder v Fabrizi

[2014] NSWCA 152

Court of Appeal

New South Wales

Case Title:

Valder v Fabrizi

Medium Neutral Citation:

[2014] NSWCA 152

Hearing Date(s):

9 May 2014

Decision Date:

16 May 2014

Before:

Basten JA at [1];
Macfarlan JA at [50];
Emmett JA at [51]

Decision:

(1) Refuse the application for an extension of time.

(2) Order the applicant to pay the respondent's costs in this Court.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - liability - injury resulting from fracas in backyard - applicant alleged assault and battery - evidence not accepted - finding not inconsistent with objective facts - evidence relevant to liability properly before trial judge - Fox v Percy [2003] HCA 22; 214 CLR 118 applied

PRACTICE AND PROCEDURE - appeal - out of time - prospects of success if extension granted - finding turned on evidence of witnesses - applicant's account not acccepted - no reasonable prospect of success

Legislation Cited:

District Court Act 1973 (NSW), s 127
Uniform Civil Procedure Rules 2005 (NSW), rr 51.8, 51.10, 51.16, 51.18, 51.22

Cases Cited:

Fox v Percy [2003] HCA 22; 214 CLR 118
Tame v New South Wales [2002] HCA 35; 211 CLR 317

Category:

Principal judgment

Parties:

Valdemar Ian Valder (Applicant)
Maurice (Maurizio) Fabrizi (Respondent)

Representation

- Counsel:

Counsel:
Applicant self-represented
Mr G Niven (Respondent)

- Solicitors:

Solicitors:
Applicant self-represented
Benchmark Lawyers (Respondent)

File Number(s):

2013/54567

Decision Under Appeal

- Court / Tribunal:

District Court

- Before:

Robison DCJ

- Date of Decision: 

04 December 2012

- Court File Number(s):

2011/305160

JUDGMENT

1. BASTEN JA: The applicant, Valdemar Ian Valder, brought proceedings in the District Court in tort based on an alleged assault by Maurice (Maurizio) Fabrizi, the respondent in this Court and the defendant in the District Court. The assault was said to have taken place at a gathering of the Fabrizi family on the evening of 27 September 2008. There was undoubtedly a fracas involving both men, but the trial judge, Robison DCJ, was not satisfied that the applicant was assaulted in the manner alleged. He therefore dismissed the proceedings and ordered that the applicant pay the respondent's costs of the trial. In accordance with standard practice, he nevertheless proceeded to assess damages in an amount of approximately $80,000. Accordingly, unless there was a challenge to the assessment of loss, leave would be required pursuant to s 127(2)(c)(ii) of the District Court Act 1973 (NSW).

2. The applicant faced a further procedural difficulty in this Court. Judgment in the District Court was delivered on 4 December 2012; the orders were entered the same day. In accordance with the Uniform Civil Procedure Rules 2005 (NSW) ("the UCPR") the applicant was required to file a notice of intention to appeal, an application for leave to appeal or a notice of appeal (if permissible without leave) within 28 days of the entry of the orders: r 51.8, 51.10(1)(b) and 51.16(1)(c). The applicant did not file a notice of intention to appeal. Well out of time, on 21 February 2013, he filed what purported to be a "Notice of Appeal". It contained no grounds, because the judgment of the District Court was not available. Although the judgment of the court later became available, no grounds of appeal were filed at any stage.

3. The purpose of a notice of intention to appeal is to give the prospective respondent notice that there may be a challenge to the orders made in the trial court. The provision for a notice of intention allows for the possibility that a judgment delivered orally may not be available for consideration within 28 days of the orders being made, or that that period will be insufficient to allow a prospective appellant to obtain considered legal advice. The fact that the written judgment was not available was not a reason for not filing a notice of intention to appeal, rather the contrary. The result is, on any view, that the applicant requires an extension of time within which to appeal (or seek leave to appeal).

4. Recognising the temporal problem, on 21 February 2013 the applicant filed a notice of motion seeking an extension of time. That motion was stood over by the Registrar to be dealt with by the Court as constituted to hear the appeal, namely this Court. The fact that no notice or draft notice with grounds has ever been supplied militates heavily against the grant of such leave.

5. Written submissions filed by the applicant, dated 15 April 2014, did little to clarify the basis of the appeal. On being apprised of the difficulty, at the commencement of the hearing the applicant proffered 10 pages of speaking notes which he had prepared for the hearing. These provided a more coherent statement of the points he wished to raise than did his written submissions, but again without the specificity which is required with respect to a statement of grounds of appeal: UCPR, r 51.18(1)(e); Tame v New South Wales [2002] HCA 35; 211 CLR 317 at [70], McHugh J noting that prolixity may not only conceal a possible ground with merit, but may lead to a presumption that none of the identified grounds has merit. However, there are a number of points which may, perhaps, be extracted from the document. In taking this course, it is convenient to assume that, if there were reasonable grounds upon which to challenge the finding as to liability, the monetary threshold would not stand in the way of a grant of leave. On that approach, the grounds which relate to damages can be put to one side. Further, before identifying possible grounds, it is convenient to provide a brief synopsis of the case as presented at trial, and as dealt with by the trial judge in his reasons for judgment.

Factual background

1. The location of the events was a property at Doonside in which Mr Donato Fabrizi lived. He was the father of the defendant and of the applicant's partner. His wife had died approximately three weeks earlier and the intention was to have a social occasion to support him and the family in relation to their recent loss. The applicant and his partner, Ms Paula Fabrizi, arrived at approximately 7:30pm. Other members of the family present were Mr Maurizio Fabrizi and his wife Luisa Fabrizi, Mr Fabrizi's other daughter, Ms Liana Frisina and her husband Sam Frisina. Accordingly, in addition to Mr Fabrizi senior (who was inside the house at the time of the fracas which took place outside on a patio), there were three couples present. Prior to the incident, which appears to have occurred shortly after 10pm, the applicant had drunk a light beer and three or four glasses of red wine, according to his evidence. The respondent, Maurizio Fabrizi did not drink alcohol.

2. In the course of conversation, a discussion took place in relation to the euro and its economic effect across different countries. It appears that the applicant thought that the respondent was talking economic nonsense, to which he said the respondent replied: "Hey, Val, you are foaming around here" pointing at his own lips. The applicant said he responded: "And you are foaming down there" indicating below the belt. He said that the respondent then came over to where he was sitting and stood close to him, with his fists clenched and breathing heavily. The following events were described by the trial judge, summarising the applicant's evidence (p 11):

   "Then he went on to say that within a few seconds he was on the floor. He did not know what happened. He said that he could not see the punch coming, that he felt slightly uncomfortable when he 'came around', that is, coming back to a degree of consciousness. ...

   The plaintiff said that he had ended up on his back, that he hit the concrete with the back of his head and he was alongside the table. ...

   Whilst he was on the ground, he said that he grabbed the chair he was sitting on with both hands, using the arm rest, and with the legs pointing towards the defendant. He said within a second, the defendant pulled the chair out of his hands by the chair's legs ... and manoeuvred it so the legs were pointing towards the plaintiff. ...

   He said the defendant pushed the chair into his legs and two of the legs ... of the chair made contact with his body."

3. When he got to his feet, Sam Frisina was standing between them with his back to the applicant and facing the respondent.

   "He [the applicant] said the defendant extended his hands and he broke free out of Sam's grip. Then the plaintiff said, 'We threw a few punches. Our hands collided'. He said the defendant threw the first punch and it connected with his left fist. Then according to the plaintiff, the plaintiff threw a punch with a left handed movement of his body .... According to the plaintiff, there was a further interchange of punches. He estimated three or four.

   He said the second last punch from the defendant resulted in him discovering that his fourth finger felt like a, 'wasp bite'. ... He said the defendant threw the last punch to the second finger on the same hand."

4. On this account, the respondent initiated the fighting and it was apparently a punch thrown by him which broke the ring finger on the applicant's left hand. (There was a lesser injury to the little finger on that hand.)

5. The respondent gave an account which confirmed aspects of the applicant's evidence, but not the critical aspects. That the respondent and Sam were discussing economics was common ground, as was the fact that the applicant intervened, suggesting that he, the respondent, did not know what he was talking about. Describing the respondent's evidence, the trial judge said (pp 22-23):

   "He said the plaintiff said, 'I've got a lot of degrees, I know what I'm talking about', and the defendant apparently to everybody said 'Enough, let's not talk about it anymore' with the plaintiff saying, 'Shut up' about three times. [The plaintiff added], 'Have you ever read a book on economics?' The defendant's response was 'No, I'm like you, I google everything'. ... The defendant went on to say that the plaintiff got up and grabbed his groin (the plaintiff's) with his hand and started shaking it, and saying 'You're brain is as big as my balls, suck my dick'. According to the defendant the plaintiff was standing up at that time. The defendant ... got up and walked to the plaintiff and said to the plaintiff 'Don't do that again, have some respect for my sisters, my wife, my father's house' or words of that kind. The defendant said he was upset. He said the plaintiff was sitting when he, the defendant, approached him. ... He said that the plaintiff grabbed his shirt, that is the defendant's shirt, with his right hand. The defendant said he moved his right hand towards that hand, he is right handed, which was on his shirt. So on the evidence of the defendant there was certainly contact between the two at that time. He said the plaintiff pushed forward with his hands still on the defendant's shirt, that his hand was gripping his shirt ... the plaintiff pulled him back towards him and he was still in a seated position at that time and that the chair that he was sitting on gave way .... The plaintiff was in front of him, his hand still holding his shirt when the chair went down and ... the defendant's body, landed on top of the plaintiff in that process. ... The defendant... did lift himself up to a standing position, but the plaintiff was on the ground facing him ... [when] Sam came over and said something to him and by that time the plaintiff was standing. The defendant says he stepped back two or three steps walking backwards away from the plaintiff and Sam was standing in front him, that the plaintiff came towards him with his fist clenched, that the defendant was shocked, he kept moving backwards and his arms were down ... the plaintiff was still coming forward according to the defendant and then all of a sudden ... the plaintiff said 'You broke my finger, I'm going to sue you'."

6. The trial judge also summarised the evidence of the other witnesses to the events, including Paula Fabrizi who was at the time the applicant's de facto partner. Although her evidence was that she sought to intervene between the applicant and the respondent (which was consistent with a minor aspect of the respondent's evidence) she also said she did not see the respondent throw any punches but did see the applicant throwing punches towards the respondent. She gave evidence that the applicant was standing and holding his crotch at one stage. She also gave evidence that the applicant had said to the respondent, "Your brains are as big as my balls". She was cross-examined by the applicant as to why she did not put that in her statement to the police and replied that she was "ashamed to put that in her statement". The trial judge considered that a reasonable and credible response. He accepted her as a truthful witness.

7. The respondent's wife Luisa Fabrizi also gave evidence. Her evidence was consistent with that of the respondent, although she said, in addition, that "Sam ran round the table and endeavoured to help the defendant to get up", after he had fallen on top of the applicant. Both Paula and Luisa Fabrizi gave evidence that the applicant had thrown a chair at the respondent, although Luisa thought that the chair had missed. Her evidence, too, was broadly consistent with key aspects of the respondent's description of events. Sam Frisina gave evidence which can adequately be described as supportive of the respondent's account.

8. There were three key aspects of the evidence with respect to which the account given by the applicant was inconsistent with the account given by the respondent and largely supported by the other witnesses. First, it was a critical aspect of the applicant's case that he fell to the ground because he was punched by the respondent. The defendant denied throwing a punch and nobody else saw it.

9. Secondly, on the applicant's account, his fingers were injured as a result of one or possibly two punches thrown by the respondent after he got up, when they were both standing. The respondent denied punching the applicant at any point and no other witness saw the respondent punch the applicant.

10. Thirdly, there was the question whether the respondent picked up the chair and used it as a weapon against the applicant. The applicant said he did, although it was not suggested that he was significantly injured in the process. However, such an act, if it occurred, may have supported the applicant's claim that the respondent was the aggressor. The respondent denied using the chair in that way and Sam, who helped the respondent to his feet and came between him and the applicant whilst the applicant was still on the ground, and who might have been in the best position to see such an act, did not see it. The only use of the chair as a weapon noted by the respondent and his witnesses was when the applicant threw it at the respondent.

Assessing the evidence

1. As is to be expected in such circumstances, there were aspects of the evidence which were inconsistent with other aspects, particularly as to the timing of events and precise words used. On the other hand, taking the whole of the evidence at face value, the conclusion that the applicant had not proved his case on the balance of probabilities was an almost inevitable conclusion.

2. The trial judge was required to make an assessment of the credibility and reliability of each of the witnesses. One factor potentially limited the reliability of all the accounts, namely that there had been the passage of over four years between the fracas in September 2008 and the trial in December 2012. As against the possible loss of memory over that period, those present made statements to the police within two or three days following the events.

3. With respect to the evidence of the respondent and his witnesses, there was undoubtedly both opportunity and incentive to collaborate in preparation of their evidence, to protect the respondent. Again, the reasonably contemporaneous statements to the police demonstrate that although the statements were not supportive of the applicant's claims, there were discrepancies and variations as between them which tended to diminish any concern as to confabulation.

4. To the extent that there was to be a suggestion of concoction, it had to be put to the witnesses in cross-examination: that did not occur - Judgment p 37. It followed that, in the absence of objective evidence demonstrating that findings as to credibility and reliability were erroneous, the applicant faced a significant, if not insuperable hurdle in inviting this Court to set aside the ultimate conclusion reached by the trial judge: see Fox v Percy [2003] HCA 22; 214 CLR 118 at [23], [28]-[29].

5. The closest that the applicant came to reliance upon the objective evidence was the suggestion that the injuries to his left hand could not plausibly be explained on the respondent's case. Rather, such injuries were more consistent with his account, which involved one or more punches thrown by the respondent whilst both men were standing.

6. There was no medical or other expert evidence to support such a conclusion and it is by no means self-evidently correct. Indeed, if the Court is entitled to rely upon its own lay assessment, the comminuted fracture of the ring finger (the most serious of the injuries) appears more likely to have been caused (as the trial judge considered to be the case at p 38) in the course of the fall backwards onto the ground than by a punch against an open palm (unless, perhaps, the fingers of the palm were pointing horizontally towards the aggressor). However, this is a matter of speculation and far from the kind of incontrovertible evidence referred to in Fox v Percy. Accordingly, unless the applicant is entitled to succeed on some procedural basis, demonstrating a substantial miscarriage of justice in the trial, the prospects of success on appeal are remote, if not fanciful.

Challenge to admission of evidence

1. The applicant filed a notice of motion dated 10 April 2014, by which he sought to rely upon four additional documents for the purposes of the appeal, namely:

   (1) a transcript of the respondent's police interview of 30 September 2008;
   (2) an affidavit of the applicant dated 10 April 2014;
   (3) an affidavit of Peter Pozoglou dated 24 April 2012, and
   (4) an affidavit of Maurice Fabrizi dated 26 April 2012.

   Some reference should be made to these documents in the order listed, but in the course of argument the applicant accepted that only the first was critical to his arguments.

2. The transcript of the respondent's police interview is a convenient form of the audio recording which was relied on at trial. The tape of the interview was admitted at trial as Ex 9; the judge said in his reasons that he had listened to it on three occasions. Parts (at least) of the tape were played in the course of the respondent's evidence. To the extent that no transcription was prepared before the trial had ended, this Court can have reference to the transcript (the accuracy of which is not challenged), because the content of the tape was already in evidence. It was marked as Ex A1 on the appeal.

3. The second document was a recent affidavit of the applicant in support of the motion. It can be read on the motion but its contents were largely inadmissible. Paragraphs 2 and 3 alleged that the allegations of fact in documents (3) and (4) "are untrue", either in whole or in part. Those are statements of belief on the part of the applicant and are inadmissible. Otherwise, there are beliefs expressed as to why the respondent did not arrange for the transcription of his interview; this and other statements of procedural history are of no consequence.

1. The third document was an affidavit of Mr Pozoglou, who arranged for a lease of an apartment in his mother's house to the applicant in mid-December 2008. The contents of the affidavit are largely irrelevant and reflect poorly on the applicant. The only passage of relevance was one in which the deponent recorded an admission by the applicant to the effect that he was suing Mr Fabrizi on a false claim. As the Court explained in the course of argument, the attempt by the applicant to bring this material before the Court was misconceived, because it did not assist him. The applicant wanted to say that the affidavit was "a perjury." The applicant apparently provided evidence contradicting Mr Pozoglou's affidavit, prior to trial, and the respondent did not seek to read the affidavit at trial. Although it is not recorded in the transcript (according to the applicant, who claims that part of the transcript has been deleted) the applicant says that he tendered the affidavit and his evidence and it was not accepted. The only possible basis upon which such a course would now assist the applicant would be in support of a contention that the respondent had sought to manufacture a false defence. It would have been necessary to put such an allegation to the respondent. That did not happen. Accordingly, the material was properly rejected at trial and should not be admitted now. Its tender was, in any event, abandoned.

2. The fourth document sought to be tendered on the appeal was an affidavit of the respondent dated 26 April 2012. That affidavit was not read at trial, but the applicant sought to have it admitted on the basis that it demonstrated "perjury" on the part of the respondent. Although its tender was not pressed, the applicant did refer to it in the course of argument. Its content should therefore be noted.

3. At the end of the respondent's interview by police, the officer referred to the fact that the respondent had been served with a provisional apprehended domestic violence order, by which he was prohibited from approaching premises where Mr Valder lived, or contacting him. The respondent said he understood that. Apparently as an explanation of the injustice of the situation, he made the following statement:

   "You know I'd like to say also one other thing. ... Before Mum passed away I managed through my colleagues because I work in the travel industry and I managed through different colleagues to get a ticket for her to go to Italy for holidays.

   And she actually said to me, 'Oh, Maurice, you reckon you could also give one for Valdemar?' Anyway, I pulled some strings through people that I know and I even gave him a free ticket for him so he could go and visit his mother that he hasn't seen for so many years."

4. The affidavit was sworn some three and a half years later in April 2012; most of it recounted harassment of the respondent by the applicant. Although the affidavit was not accompanied by the annexures (bar one), it is clear that they demonstrated a litany of statements and action by the applicant directed against the respondent. In his affidavit in support of the motion to tender the respondent's affidavit, the applicant expressed the view that pars 20, 21 and Annexure I were untrue. These paragraphs read as follows:

   "20 In October 2008 I was made aware by my employer that the Plaintiff had made allegations against me in relation to providing free airline tickets for family members. Annexed hereto and marked with the letters 'F', 'G' and 'H' are true copies of letters from the Plaintiff addressed to my employer dated 4 October 2008, an undated letter, and a letter dated 14 October 2008.

   21 I understand that my employer investigated the Plaintiff's allegations against me and the allegations were unsubstantiated. Annexed hereto and marked with the letters 'I' and 'J' are true copies of emails from my employer ... in relation to the Plaintiff's allegations against me concerning the airline tickets."

5. In what sense the contents of par 20 could be considered untrue was not explained. In any event, the letters not being included with the tender, the paragraph would not have been admitted. So far as par 21 was concerned, annexure I, which was attached and recorded the results of an investigation within the respondent's employer, stated that the accusations "are totally unfounded." That conclusion appears to be have been reached by the respondent's employer independently of an interview with the respondent. With respect to the question of free tickets, the author of the document noted that they were "won at a staff party by a travel agent and passed on to Maurizio's sister".

6. The applicant's suggestion that this part of the affidavit was a "perjury" was self-evidently false. First, the affidavit (which was the only statement on oath relied upon) recorded the findings of others. Secondly, the submission (repeated after the tender was not pressed) assumed that there was inconsistency between those findings and what the respondent said to the police. As explained below, there was no such inconsistency.

Errors on part of trial judge

1. The applicant's submissions placed much weight upon the respondent's interview with police. At one point the written submissions set out a number of parts of sentences taken from the interview which, it was insinuated, were adverse to the respondent and explained "why the defendant's lawyers did not prepare the transcript of the police interview." The challenge is obscure: there is no explanation as to why the respondent's lawyers had any obligation to prepare a transcript of the audio recording taken by the police. Further, the only passage which could constitute an admission by the respondent was a quotation, "I punch him over here". The reference given for that passage was the transcript of the police interview, page 3, para 6; Red p 65. (The reference to Red 65 was obscure.) In fact the words occur in the police interview only at p 9 of 13, in the second full paragraph on the page. That passage occurred after the respondent had denied on a number of occasions that he punched the applicant. In the passage in which the words occurred he was still denying punching the applicant. It is clear from the interview that the officer was taking him through a statement made by the applicant. The whole of the paragraph in which the words appear reads as follows:

   "Now it must have happened when he actually fell, I don't know, when he grabbed the chair. I do not know. I only know one thing, I did not touch him. I did not punch him as he said I punched him in the hand. I mean you got to have huge force to punch someone in the open hand palm because if he's standing like that, punched liked that, I punch him over here, I mean, I don't think - plus I'm not the type. I don't do that, okay?"

2. To read that paragraph as an admission, by extracting five words, is manipulative and unacceptable. The submission must be rejected.

3. Secondly, the applicant submitted that significance should be accorded to the respondent's statement in his police interview that there was an injury to his "right hand": Ex A1, p 10. The respondent said that the injury occurred when the applicant "threw the garden chair at me." However, in his evidence, the respondent stated that he could not remember which of his hands suffered a "minor injury" but he recalled the police taking a photo of it: Tcpt, p 270(3)-(10). (See also Tcpt, p 256(45)-(50).) The applicant suggested that the failure of the defendant to remember which hand had been cut, in circumstances where he had identified it in the police interview, the audio recording of which had been played shortly before the cross-examination, demonstrated an unwillingness to concede that the injury was to his right hand, because such an injury was likely to have been caused by him punching the applicant's left hand.

4. This submission did not obviously carry significant weight, but, in any event, what weight it did carry was a matter for the trial judge. It did not render the respondent's evidence inherently implausible in any respect.

5. Thirdly, and relevantly to the allegation of lying with respect to obtaining free tickets, which were passed on to Mr Valder through Ms Paula Fabrizi, the allegation of untruthfulness was not put to the respondent in cross-examination. It was suggested to him that he said in his interview that he had "pulled some strings and got the tickets", and he stood by that statement: Tcpt, p 259(25)-(40). It was not suggested to him that there was any inconsistency between that statement and the suggestion in the document annexed to the affidavit that the tickets had been "won at a staff party" by another travel agent, from whom he had obtained them and passed them on to his sister for the applicant.

Inadmissible evidence

1. The applicant raised a complaint about the admission of two medical reports, one from Dr Hyde Page, a consultant orthopaedic surgeon, and another from a psychiatrist, Dr Ben Teoh.

2. The report of Dr Hyde Page was dated 26 October 2012, but according to the applicant should have been filed, in accordance with an interlocutory direction, by 16 October 2012. It is unnecessary to review the circumstances in which the report came to be admitted by the trial judge.

3. It is true that in the course of the report Dr Hyde Page expressed a view as to how the injury could have been caused to the applicant's left hand. He stated (pp 9-10):

   "Based on all the available evidence, including the history I took Mr Valder, it is possible that the injury to his left hand could have been caused by a direct blow. Interestingly, Mr Valder states that he had a clenched left fist and was attempting to throw a punch when the injuries to the left hand occurred. ... It is indeed possible that if he threw punches with his left hand, hitting a solid object, that could have caused the fracture to his left fourth finger and knuckle joint. ...

   There are other possible mechanisms of injury, such as someone falling onto the ground and putting out [their] left hand to break the fall, particularly if their hand is in a loose fist position then this type of fracture could occur.

   There are other possible mechanisms of injury such as a crush injury, when the hand is not in a fist position but with the fingers extended and this could include the ring or fourth finger being twisted or severely forced in any direction, with some rotation to the finger. I cannot be definite about the mechanism of injury to Mr Valder's left hand ...."

4. This was the only passage potentially relevant to liability. It was inconclusive. It was not relied upon by the trial judge in coming to his conclusion as to whether the applicant's account of the fracas should be accepted. For present purposes, the challenge to the admission of the report of Dr Hyde Page is immaterial.

5. The applicant objected to the tender of Dr Teoh's report on a number of grounds, some relevant to the criteria to be satisfied by an expert report, some of a highly technical nature. The primary basis of objection appears to have been alleged factual errors in recording the applicant's history. Ultimately the report was admitted without objection: Tcpt, p 370(4). Whether it was properly admitted or not, and there was no obvious reason not to admit it, it was relevant only to whether the applicant's mental state was the result of the alleged assault. Again, the challenge to the admission of the report is immaterial for present purposes.

Challenge to transcript

1. For reasons which were not clearly articulated, the applicant contended that the transcript of the evidence was "worthless". The applicant submitted that the transcript had been "doctored or improperly interfered with" to further the trial judge's objective "to keep the amount of damages under the $100,000 threshold for the appeal." The submission was not merely illogical, it was incoherent. First, while the trial judge assessed damages in an amount below the threshold for an appeal as of right, that fact is not determinative of the issue. Such an assessment is open to challenge: if there are material facts which can be relied on to show that the amount in issue was properly valued at $100,000 or more, so that the restriction does not apply, the rules provide for the facts to be identified in an affidavit: UCPR, r 51.22. Secondly, the alleged omissions from the transcript were irrelevant to the assessment of damages. Quite apart from those reasons, the suggestion that a trial judge would behave in this way is bizarre. Despite all these factors, it is desirable to note that the factual premises on which the submission was based were without foundation.

2. The applicant tendered four "proofs" in support of the inference he sought to rely upon. The first concerned a "report" from a person claiming expertise in judo, as to the relative strengths of the applicant and the respondent. Its tender was rejected, but it was marked "MFI 1". The applicant stated that there was no reference to MFI 1 in the transcript. However, that submission was specious. The tender of the report appeared at p 158(10). Submissions as to its admissibility continued to p 161(45) where the trial judge said, "I'm going to give a short judgment on this", followed by the usual statement, "For judgment see separate transcript". The separate transcript was in the appeal papers prepared by the applicant. The judgment rejected the tender of the report and concluded with the statement, "I will have those documents marked for identification shortly". This was the first document so treated, it became, as is common ground, MFI 1.

3. The second "proof" of "doctoring" was the statement that a particular letter, shown to the applicant in the course of cross-examination, which undoubtedly became Ex 6, was not referred to as such in the transcript. The proposition is simply wrong: at p 131(48) the trial judge had asked counsel for the respondent to place a red sticker on a certain portion of the letter, which was the part relied upon. There was no objection to the tender and the trial judge stated:

   "I'll ask my Associate to mark the exhibit. It will be marked exhibit 6 and I'll have regard only to that part which is adjacent to the red flag."

4. The third "proof" identified both in his written submissions and in his speaking notes, but not developed orally, involved an allegation that the applicant had quoted two passages from a report by Dr Bodel which had been "deleted from the transcript." The applicant did not trouble the Court with the references to the point of deletion, but the record in the transcript of the addresses shows that the applicant was taking the trial judge through Dr Bodel's report in circumstances where it is clear from the exchanges that the trial judge was following the submissions in his own copy of the document. The applicant stated at Tcpt, p 393(40):

   "Further, Dr Bodel noted a physiotherapy report that stated that the grip strength was reduced on the injured left side. He also stated, and I quote the top fragment from this page 6, and I further quote the bottom fragment of that page."

5. It is not uncommon for a transcript not to set out a quotation from the body of another document where it is clear that the material quoted has been specifically identified. On the other hand, this transcript contained numerous quotations from the texts of medical reports and other documents, set out in full. On the basis of this material, the preferable inference is that the applicant did not in fact read the words aloud: no doubt an audio recording would confirm whether or not he did, but the court was not invited to listen to the recording. The point was, in any event, immaterial. If in fact he did read the passages aloud and they were not recorded, the fact that he identified them is recorded. The proposition that any person would have wasted their time removing passages or recasting this aspect of the transcript in this way, is beyond comprehension.

6. The fourth "proof" was that, in the course of cross-examination with respect to the injury caused to the respondent's hand, his wife, Ms Luisa Fabrizi, "shouted out, 'It's a lie'", a passage which does not appear in the transcript. The only exchange in the transcript on this issue were the first two questions and answers in cross-examination by the applicant which read as follows (Tcpt, p 324(25)-(30):

   "Q. Mrs Fabrizi have you seen your husband hand injury?
   A. I'm sorry could you repeat the question.

   Q. On the day of 27 September 2008 your husband has suffered a hand injury. Have you seen his hand injury?
   A. No that is incorrect."

7. The applicant stated that the words "It's a lie" could be heard on the audio recording of the evidence. The audio recording was not in evidence in this Court. At what point the words were said is not clear; nor is it known how the witness was identified as the speaker. The applicant did not say that the witness did not say the words recorded in the transcript. On either version of the answer to the second question, the witness appeared to be denying that her husband had suffered an injury to his hand on the day in question. Because it was not in doubt that he did suffer a minor injury to the hand, this evidence was of little significance. Assuming that there was an omission from the transcript in this respect, nothing turns upon it, except to say that the inference that the transcript was "doctored" is implausible and must be rejected. It is within the experience of the Court that transcription services do not always transcribe what appear to be asides or irrelevant comments. Generally if they are part of what a witness has said, they should be transcribed. The omission in the present case, if there were one, was insignificant.

8. In taking the Court to these four "proofs" of interference with the record of the proceedings, it became apparent that the applicant had listened to the whole of the audio recording. If these were the only omissions or changes encountered (and only two appear to be remotely capable of being described as such) it is a tribute to the accuracy and diligence of the transcription staff.

Conclusion

1. On the basis of the material presented by the applicant, and making due allowance for the fact that he was unrepresented, it is not possible to conclude that any appeal would have reasonable prospects of success. In the circumstances, given the failure of the applicant up to the present time to file and serve a notice of appeal with tenable grounds, the application for an extension of time should be refused. The applicant must pay the respondent's costs in this Court.

2. MACFARLAN JA: I agree with Basten JA.

3. EMMETT JA: I have had the advantage of reading in draft form the proposed reasons of Basten JA. I agree with his Honour, for the reasons given by him, that the application for an extension of time to appeal should be refused with costs.

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