Valder v Fabrizi

[2012] NSWCA 392

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Valder v Fabrizi [2012] NSWCA 392

Hearing dates:

21 November 2012

Decision date:

21 November 2012

Before:

Ward JA at [18]
Sackville AJA at [1]

Decision:

Application for leave to appeal is dismissed with costs.

[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:

PROCEDURE - application for leave to appeal against interlocutory decisions of District Court - application dismissed.

Legislation Cited:

Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Social Security (Administration) Act 1999 (Cth)

Cases Cited:

Squire v Rogers (1979) 27 ALR 330

Category:

Interlocutory applications

Parties:

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

Representation:

Counsel:
In person (Applicant)
G Niven (Respondent)
Solicitors:
In person (Applicant)
Mills Oakley Lawyers (Respondent)

File Number(s):

2012/348614

 Decision under appeal 

Date of Decision:

2012-10-23 00:00:00

Before:

Truss DCJ

File Number(s):

2011/305160

Judgment

1. SACKVILLE AJA: In this matter the applicant seeks leave to appeal from interlocutory decisions made by a Judge of the District Court (Truss DCJ). The decisions were made on motions brought by the applicant in connection with proceedings instituted by him in the District Court.

1. In these proceedings, which are currently set down for three hearing days commencing on 26 November 2012, the applicant seeks damages against the respondent arising out of an alleged assault said to have been committed by the respondent on 27 September 2008. The assault is said to have occurred at a family dinner held at the home of the father of the applicant's partner.

1. The decisions of which the applicant complains were made by the primary Judge on 23 October 2012. Her Honour made the following orders:

(i) the applicant's motion to adjourn the hearing be dismissed;

(ii) the applicant be refused leave to issue a subpoena to Centrelink in order to obtain the full name and date of birth of a person whose first name is said to be "Rebecca"; and

(iii) the applicant be refused leave to administer interrogatories in the form of Annexure E to the affidavit of the applicant affirmed on 15 October 2012.

1. The applicant sought an adjournment for the purpose of investigating what were said to be symptoms of a neurological nature in his left leg. Apparently he wished to investigate whether there is a connection between the injuries allegedly sustained to his left arm in the assault (leading to ulna nerve entrapment) and the symptoms experienced in his leg. He described the proposed investigation as a conductivity study.

1. The primary Judge pointed out that the applicant did not complain of symptoms in his leg until four years after the alleged assault. Her Honour considered that it would be futile to grant the adjournment in the absence of any evidence connecting the leg symptoms with the injuries allegedly caused by the assault.

1. The applicant's application for leave to issue a subpoena to ascertain "Rebecca's" identity was supported by his claim that "Rebecca" could give relevant evidence. He submitted that "Rebecca" could refute a claim made in an affidavit sworn by a Mr Pozoglou which was filed on behalf of the respondent. In that affidavit, Mr Pozoglou states that on his understanding there was a certain issue between the applicant and "Rebecca", another tenant in the premises where the applicant apparently lived.

1. The primary Judge rejected the application for leave to issue a subpoena to Centrelink on the ground that there was nothing to indicate that "Rebecca" would be able to give evidence relevant to any issue in the proceedings.

1. The third matter concerned the draft interrogatories. The draft interrogatories the applicant wished to administer ask a series of questions about the respondent's relationship with a police officer and about what are alleged to be "free airline tickets" arranged by the respondent. The primary Judge refused leave to administer the interrogatories on the ground that the applicant had not established "special reasons" justifying the grant of leave, as required by Uniform Civil Procedure Rules 2005, r 22.1(3)(a) and that, in any event, the interrogatories were not "necessary" as required by r 22.1(4). Her Honour considered that the interrogatories, at best, related to peripheral issues that could only go to the credibility of the respondent.

1. Each of the decisions of which the applicant now complains relates to a matter of practice and procedure in respect of which an appellate court is reluctant to intervene. The applicant has not shown that any of the three decisions is attended by sufficient doubt to warrant a grant of leave. Nor has he shown that leave to appeal should be granted in the interests of justice.

1. Section 66 of the Civil Procedure Act 2005 provides that:

"(1) Subject to rules of court, the court may at any time and from time to time, by order, adjourn to a specified day any proceedings before it or any aspect of any such proceedings."

An applicant for leave to appeal against a refusal to grant an adjournment must show that the exercise of the court's discretion miscarried: Squire v Rogers (1979) 27 ALR 330, at 337, per Deane J (with whom Forster and Brennan JJ agreed).

1. On the material before the primary Judge, the application for adjournment was based on speculation as to the possible relationship between certain symptoms experienced by the applicant that emerged four years after the assault and the assault itself. The claimed symptoms related to a different area of the body than the injuries alleged in the statement of claim. The applicant has not pointed to any error in the reasoning of the primary Judge that would justify the grant of leave to challenge her Honour's discretionary decision to refuse an adjournment.

1. The second issue concerns the subpoena. The applicant requires leave to issue a subpoena as he is not represented by a solicitor: UCPR, r 7.3. It is not alleged that "Rebecca", the person whose identity the applicant wishes to ascertain, was present at the time of the alleged assault. She seems to have become involved in the proceedings because her name is mentioned in one paragraph of an affidavit filed on behalf of the respondent in anticipation of the hearing. That paragraph, however, is clearly irrelevant to any issue and, as was accepted by Mr Niven, would be inadmissible at the hearing. It follows that "Rebecca" cannot give relevant evidence on any issue in the proceedings and that the primary Judge was right so to conclude.

1. A further point should be noted. The application is for leave to issue a subpoena to Centrelink. Section 207 of the Social Security (Administration) Act 1999 (Cth) precludes the requirement for production (except for certain stated purposes of which this is not one) to a court or other authority of documents in the possession of an officer. It also prohibits the disclosure of any matters or things of which the officer had notice because of the performance of his or her duties, functions or powers under the relevant legislation. Quite independently of the matters to which I have already referred, s 207 constitutes another obstacle to the grant of leave to the applicant to issue a subpoena to Centrelink.

1. The third question concerns the interrogatories the applicant seeks to administer. The central issues in the proceedings are whether the applicant was assaulted in the manner he alleges in his amended statement of claim and, if so, what injuries and other damage or loss he sustained in consequence of the assault.

1. The applicant in his oral submissions in the Court indicated that the interrogatories went to the quality of the police investigation into the alleged assault. The nature of the police investigation, as the primary Judge held, is at best peripheral to the central issues in the proceedings which concern whether the alleged assault on the applicant occurred and, if so, the consequences of that assault. Her Honour was clearly right to conclude that the applicant had not demonstrated either that the proposed interrogatories were "necessary" or were justified by "special circumstances" as the Uniform Civil Procedure Rules required.

1. In any event, if the applicant fails at the trial and he has genuine grounds of complaint about the decision reached against him, he will of course at that point have appeal rights available to him.

1. In my view the application for leave to appeal should be dismissed, with costs.

1. WARD JA: I agree with the reasons of Justice Sackville. The order of this Court will be that the application for leave to appeal is dismissed with costs.

**********

Decision last updated: 29 November 2012