THE FEDERATION OF WESTERN AUSTRALIA POLICE AND COMMUNITY YOUTH CENTRES INC

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : REID -v- SOUTH WEST REGIONAL COLLEGE OF TAFE WA [2014] WADC 134

Practice and procedure - Application for an extension of time to file an appellant's case and comply with springing order - Turns on own facts

Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479

Reid v South West Regional College of TAFE WA [2014] WADC 134

1 This matter came before the court pursuant to a registrar's notice to attend dated 22 July 2015 to consider the appellant's application dated 15 July 2015 for an extension of time to file and serve an appellant's case.

2 The application was made in relation to an appeal to this court against a decision of O'Neal DCJ made on 3 October 2014. O'Neal DCJ had dismissed the appellant's claim in negligence for damages for personal injury against the respondents: Reid v South West Regional College of TAFE WA.[1]

3 At the time that the appellant made the application for an extension of time, the appeal had been dismissed in consequence of the appellant's failure to comply with an amended springing order.

4 At the hearing on 24 August 2015 the following orders were made:

1. The respondents file and serve within 14 days written submissions with respect to:

(a) the application for an extension of time within which to file the appellant's case;

(b) the merits of the appellant's case.

1. The appellant within 14 days of the respondent's submissions file and serve any written submissions in response.
2. The application for an extension of receipt of time within which to file the appellant's case be determined on the papers.
3. Costs of today be reserved.

5 The respondents filed and served submissions on 7 September 2015. The respondents contend, in effect, that there has been serious delay which has not been adequately explained and in any event, there is no merit in the appellant's proposed grounds of appeal. The appellant filed submissions in response on 21 September 2015.

6 For the reasons which follow, the appellant's application should be dismissed.

7 In 2006, the appellant, then aged 48, was a student attending the first respondent's TAFE college in Bunbury. The TAFE program the appellant took part in was called 'New Opportunities for Woman' (NOW). As part of the NOW program students could take part in recreational activities at the Mornington Adventure Camp (MAC) operated by the second respondent. While taking part in a low ropes recreational activity, described as the 'tyre activity', the appellant fell and hurt herself.

8 The appellant alleged that her fall was caused by the respondents failing to take reasonable care for her safety. She alleged that the accident left her unable to work, study or enjoy the ordinary pleasurable activities of life. She also claimed $547,000 for lost earning capacity.

The appellant's particulars of negligence**[2]**

9 The particulars of negligence alleged against the respondents included alleged failures to:

• properly instruct or demonstrate to the appellant the correct manner of performing the task;
• provide the appellant with any safety equipment such as gloves, safety harness or helmet;
• warn the appellant of the risk of spinning rope and/or falling off the course;
• ensure that the distance of the tyre to the ground was reasonable;
• provide soft landing surface;
• heed the appellant's warning that she felt unwell and could not do strenuous exercises;
• provide a proper and safe system of carrying out the exercise and/or proper coaching and supervision;
• keep a proper lookout for the safety of the appellant during the said exercise;
• provide assistant to hold apparatus to prevent spinning rope;
• provide assistant to attend the appellant during the said exercise in order to catch her and/or support her so as to prevent her from falling to the ground.

The appellant's alleged injuries [3]

10 The appellant alleged that she suffered extensive injuries as a result of her fall on 24 October 2006, including injuries to the head, left shoulder, back, left hip, left knee, left middle finger. She also allegedly suffered shock, an aggravation of a neck injury, and aggravation of anxiety and depression.

11 At the time of trial, as set out in written submissions filed by the appellant, her complaints were predominantly the following:

• loss of the sense of smell in left nostril;
• left vocal cord paralysis;
• stridor attacks;
• incompetent voice box;
• numbness on the left side of skull;
• numbness left side of face;
• numbness to the left side of neck;
• lack of breath;
• dryness of mouth;
• swallowing difficulties;
• tiredness from not being able to breathe correctly, described as 'like breathing through a straw' being caused by some injury to her throat;
• she was required to go into hospital every 7 to 10 years to have the stimulator implant battery replaced; and
• constant head pain.

12 The primary judge found that the fall itself was an incident that 'scarcely warranted notice by other participants at the time'.[4]

13 His Honour found that the tyre activity was, in effect, a somewhat elaborate version of a backyard child's swing.[5] His Honour said:[6]

Both [respondents] recognised that there was a foreseeable risk of injury from the activity, albeit a risk of relatively minor injury. In my view the low ropes activities were correctly regarded by the staff operating the MAC as having a low risk of injury. That is not to say that falls were not possible or that grazes, bumps and bruises could not occur. On the evidence at trial however they occurred rarely. There was no evidence of any serious injury involving the low ropes activities, or indeed any activity at the MAC.

I am satisfied that the explanation as to how the activity was supposed to be carried out, transferring from tyre to tyre, would have by its very nature raised the prospect of a fall to the ground beneath. The [appellant] has said that she was the third person in line to take part in this activity. Others performed the activity before her, and in front of her. The risk of a fall and consequent minor injury would have been obvious to any reasonable person in the position of the [appellant]. Accordingly there was no duty on the part of either [respondent] to warn the [appellant] of such a risk: Civil Liability Act 2002 s 5O.

• the appellant was warned of the risk of injury in using the facilities of the low rope activities including the tyre activity and that despite the warning the appellant voluntarily took part in the recreational activity;
• the appellant was neither compelled nor required to take part;
• in the circumstances, neither respondent owed a duty of care to the appellant to take care in respect of the risk of injury associated with the low ropes activities: Civil Liability Act s 5I;
• there was proper instruction and demonstration for each of the activities including the tyre activity; and that provision was made for soft landing surfaces of wood chips underneath the low ropes activities;
• gloves, a helmet, or safety harness would have in all probability made the tyre activity more difficult to carry out, and safety equipment of that kind was out of all proportion to the low level of risk;
• the low ropes course operated by the MAC was a healthy, moderate activity with social utility; all of the participants were adults; and the minor risks of injury were obvious;
• to the extent that the activities presented any risk of injury, in all the circumstances reasonable care was taken for the safety of participants in the activities;
• even if either respondent had owed a duty of care to the appellant, there was no breach of a duty to take reasonable care for the safety of the appellant in using the facilities at the MAC, including the tyre activity, having regard to the provisions of s 5(2) of the Occupiers' Liability Act 1985 (WA) and s 5B of the Civil Liability Act 2002 (WA).

15 Accordingly, his Honour found that the appellant's fall on 24 October 2006 was not caused by any negligence on the part of the respondents.

16 Further, his Honour found that the appellant suffered no significant injury as a result of her fall from the tyre activity. Any injury she suffered amounted to no more than transient discomfort, capable of treatment by an ice pack and a short course of aspirin or Panadol. His Honour said that had he been satisfied that any negligent act had caused the appellant's fall, general damages in the amount of $200 would have been an adequate award for pain and suffering and loss of amenities of life.

17 In reaching his findings, the judge made a number of adverse comments as to the appellant's credibility. His Honour said:[8]

There is no doubt that the [appellant] fell from the tyre activity at the Mornington Adventure Camp on 24 October 2006. Apart from that there is little else that is alleged by the [appellant] that is established by evidence beyond what is asserted by the [appellant]. It is no exaggeration to say that virtually everything else alleged by the [appellant] is either not supported or is contradicted by credible evidence.

18 His Honour also found that the appellant's behaviour was characteristic of Somatic Symptom and Histrionic Personality disorders as described by a medical witness at the trial, Dr Edwards-Smith.[9] The former is a disorder in individuals who present with multiple current somatic (ie, physical) symptoms that are distressing and would result in significant destruction of daily life, where the individuals tend to have a very high level of worry about illness and appraise bodily symptoms as unduly threatening or harmful, even when there is evidence to the contrary. A Histrionic Personality disorder is characterised by excessively emotionality and extensive attention-seeking behaviour.

19 The judge observed, in relation to Dr Edwards-Smith's evidence:[10]

In her written submissions to me, the [appellant] criticised Dr Edwards-Smith's conclusions on the basis that in cross-examination the doctor said that people with Histrionic Personality Disorder 'would in fact mention any famous people with whom they were related ...'. The [appellant] went on to make the point, 'I had not mentioned any of my well known relations to any doctor'.

The [appellant] sought to make a similar point in cross-examining Dr Edwards-Smith. The cross-examination was to this effect:

'And if I put it to you that my mother ... is related to a very famous prime minister, wouldn't that have been something I would've told you if I was in this histrionic personality and - and grandiose? - - - I'm not sure how to respond to that, sorry. You're saying now that you're related to a famous person?

I'm related to quite a few actually? - - - Yes. Well I would say that that particular statement would be characteristic of someone with histrionic personality disorder, yes.

Even if it was true? - - - I think to bring up an issue like that in a courtroom would be characteristic of someone with histrionic personality disorder, yes.

I'm just trying to explain and trying to understand what a person with histrionic personality disorder -wouldn't they then have said to you about family relations, about who was related within the family structure, the family tree? - - - I think from memory you did tell me that you had some relatives who are wealthy. You mentioned that several times ...

...

If I was to say that I'm related to the McCains - McCain's frozen food, is that something you think I would say to you? - - - All I can say is I think that making that sort of comment in -in a courtroom is characteristic of - of that personality style.'

Dr Edwards-Smith did say that she thought that someone with Histrionic Personality Disorder would have also mentioned matters of this kind in the course of a consultation. The fact that specific famous relations only emerged in the course of this passage of cross-examination does not in my view detract from the force of Dr Edwards-Smith's conclusions.

20 His Honour concluded that he would not accept the appellant as a reliable witness on any topic unless there was credible independent evidence to support it.[11] His Honour said that much of the appellant's evidence with respect to her medical problems was false, although not necessarily the result of deliberate untruths. His Honour said that it was entirely possible that the appellant was, in some respects, oblivious to the truth or capable of persuading herself that historical events are as she would like them to be or believed them to be, notwithstanding objective evidence to the contrary.[12] Furthermore, his Honour recounted a number of matters which led his Honour to conclude that the appellant should not be accepted as an honest witness, including events concerning previous accident claims and a conviction for fraud.[13]

21 In relation to the latter, his Honour found that on 2 September 2006, the appellant reported to police that she had been a victim of a burglary. She claimed that $40,000 worth of jewellery had been stolen from her house. The appellant made a claim on her insurer. Her claim was false. She pleaded guilty to:

(a) one offence of falsely reporting criminal offences with intent to create false belief; and

(b) one offence of with intent to defraud, by deceit or fraudulent means attempting to gain a benefit by fraud.

22 The appellant received a total effective sentence of 12 months' imprisonment suspended for 18 months.

Chronology of the appeal 24 October 2014 to 10 July 2015

23 The time limit for filing and serving the appellant's notice of appeal was 25 October 2014. On 4 December 2014 the appellant filed a notice of appeal with an application to extend time to commence the appeal.

24 The time limit for filing the appellant's case was 9 January 2015.

25 An extension of time was granted on 20 February 2015 for the appellant to file the appellant's case by 3 March 2015.

26 The appellant applied on 10 March 2015 for a further extension of time to file the appellant's case. On 31 March 2015, a further extension of time was granted to file and serve the appellant's case by 17 April 2015, failing which the appeal would be dismissed.

27 On 14 April 2015, the appellant attempted to file an appellant's case however it was not accepted for filing.

28 On 21 April 2015, a certificate of conclusion of the appeal was issued by the registrar, the appellant having failed to comply with the order made on 31 March 2015.

29 On 5 May 2015, the appellant applied for an extension of time to file the appellant's case. On 15 June 2015, an extension of time was granted in relation to the 31 March 2015 order, and the court extended the time to file and serve an appellant's case to 6 July 2015.

30 On 6 July 2015, the appellant attempted to file a document described as an appellant's case. However, it was not accepted for filing because it did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules).

31 On 10 July 2015, a certificate of conclusion of the appeal was issued by the registrar, the appellant having failed to comply with the order made on 15 June 2015.

The application for an extension of time dated 15 July 2015

32 On 15 July 2015, the appellant filed the application for an extension of time, the subject of the registrar's notice.

33 The appellant's application was supported by an affidavit sworn by the appellant on the same day. The affidavit recounts certain events which are said to have occurred on 6 July 2015.

34 The appellant's affidavit stated, in effect, that she was shopping in a store in Barrack Street, Perth, on 6 July 2015 between 9.00 am and 9.30 am; a man attempted to take her brief case out of the store; he placed several children's bags on top of her brief case, 'trying to camouflage [her] case'; the appellant grabbed the handle of her case with all her strength, and the man then threw her case at the appellant and apologised and ran out of the store, leaving his two accomplices in the store; the manager and the appellant spoke with the accomplices, who profusely apologised and the appellant 'accepted the woman's outstretched hand'; the appellant then sat down and was much shaken; she paid for the shopping and left it behind the counter on the basis that she would retrieve it later; after she left the store she went to the State Library to finish her amended form 7, and placed the pages onto a USB with other files; she then stopped for lunch; after lunch she went to the Supreme Court, but on the way saw a police car; she stopped the police car and explained what had happened during the course of the morning at the store; the police asked if she would go to Northbridge police station, but she said that she needed to go to the Supreme Court to file documents by 4.00 pm; the police officer told her that it would take one to two hours to make a complaint, and that she should go to the Supreme Court and then go to the police station; she 'tried desperately and at great length to retrieve the files, but to no avail', and only five pages on her computer were able to be printed; the five pages were filed and served 'just in time'; she then left the Supreme Court at approximately 4.15 pm; the 'rain had [by then] truly settled in'; she went to the store, collected her shopping and proceeded to the visitor's lounge at the Perth train station, where she felt exhausted and in shock. She said she felt very depressed and just wanted to be home with her family and did not have the energy to go to the police station in Northbridge.

35 The appellant's affidavit annexed an 'incident report' apparently filled out by an employee of the store. It was to the following effect:

A lady customer complained to me that a man was trying to take her document bag she put near her while she was looking at the Manchester. She managed to take it back from that man before he fled. She seemed traumatised by this incident but was able to continue her shopping. Later in the afternoon she came back to me and told me she had talked to the court where she worked and [to] expect a call from the police to tell them [about] the incident. I told her I did not see the man who took her bag. I can only tell the police what she told me. I told her this kind of incident happens very commonly in the city ... I cannot lodge police report. But will help to tell the truth.

The minute of proposed appellant's case dated 24 August 2015

36 On 24 August 2015, the appellant filed and served a minute of proposed appellant's case.

37 The document titled 'grounds of appeal', in the minute of proposed appellant's case dated 24 August 2015, is divided into sections by numbered headings. Each heading refers to a particular page of O'Neal DCJ's reasons for decision, and each section identifies the paragraphs on each of the identified pages in which the appellant alleges an error of fact or law has been made. The appellant's grounds of appeal, with the exception of the complaints contained in headings 6 and 8, appear, in substance, to allege errors in relation to certain findings of fact.

38 A number of the appellant's grounds allege, in effect, that the underlying evidence was incorrect, rather than that his Honour's findings of fact did not reflect the evidence.

39 Under the sixth heading, the appellant, in substance, complains that she was not accorded fair process during cross-examination. She complains the respondent's counsel 'tried in desperation; to totally confuse me with these documents' and that she does 'not think this practice is in keeping with the law'.

40 Under the eighth heading (it is not numbered) the appellant, in effect, complains that she was not accorded procedural fairness because relevant documents were 'not subpoenaed, nor listed in the discovery documents, but then placed by the [second] respondent into exhibits'.

41 In relation to the other headings, the appellant's grounds appear to allege as follows:

1. The appellant's complaint in relation to [4] of the reasons appears to be that the judge's finding that the tyre involved in the incident at the [Mornington Adventure Camp] was suspended about 30 - 40 cm above the ground is incorrect. The appellant refers to certain steps and asks why counsel for the second respondent did not 'produce' to the court plans from the Harvey Council that would have given a 'correct understanding of the apparatus', she contends that 'health and safety law require[s] all recreation facilities to submit plans, all specifications and the building materials used in the construction'.
2. The appellant's complaint in relation to [9] of the reasons appears to be that the judge should have found she was diagnosed with depression in 1995 and not 1986.
3. The appellant's complaint in relation to [11] of the reasons is, in substance, that the judge incorrectly identified one of her sons as suffering from schizophrenia, whereas she says that it is, in fact, another son who suffers from schizophrenia.
4. Under heading 3, in relation to [16] of O'Neal DCJ's reasons, she confirms that she 'did aggravate [her] coccyx' in earlier accidents.
5. Also under heading 3, the appellant's complaint in relation to [19] of the reasons appears to be that the judge should not have had regard to the notes of her general practitioner with respect to a certain operation, because the notes were incorrect.
6. The appellant's complaint in relation to [24] of the reasons is, in substance, that O'Neal DCJ's statement that 'she was considering a spinal fusion procedure' in September 2004 is incorrect. She says that she had refused any intervention 'let alone ...spinal fusion'.
7. The appellant's second complaint in relation to [24] of the reasons is, in substance, that the statement of O'Neal DCJ that '[t]his was the same shoulder that she told Dr Hall in December 1999 had required arthroscopic surgery "approximately 17 years ago"' is incorrect. She asserts 'Dr Hall was not my practising doctor in 1999' and 'I did not have arthroscopic surgery as Dr Hall noted in his notes'.
8. The appellant's complaint in relation to [25] of the reasons is, in substance, that a medical report of Dr Stephen Dennis contained certain incorrect information.
9. The appellant's complaint in relation to [26] of the reasons is also to the effect that the report of Dr Dennis contained incorrect information.
10. The appellant's complaint in relation to [31] of the reasons appears to be that she was not shown a Deed of Settlement that related to a settlement with the Department of Housing and Works during the trial, but rather a deed of settlement that related to a car accident in which she was involved. This complaint is made in the context of O'Neal DCJ's finding that '[o]n 21 December 2005 the [appellant] settled her claim against the Department of Housing and Works for a total of $20,000 plus $9,000 for legal costs. Despite being shown the Deed of Settlement bearing her name, the appellant maintained that she had no recollection of the settlement. For some time she denied any knowledge of the litigation, until part way through the trial when she said that she had found a letter from her solicitors.'
11. The appellant's complaint in relation to [36] of the reasons appears to be, in substance, that the judge incorrectly characterised the appellant's condition in 2005. The implication appears to be that it was not until June 2006 that she was feeling 'good both mentally and physically'. In this context, the appellant also complains that she did not play pennant tennis in 2005 three times a week, as stated by O'Neal DCJ in [36], but rather she 'attended the gym for physio exercise 3 times a week in 2005'. There are also some comments about when the appellant began TAFE, but their significance is not apparent.
12. The appellant's complaint in relation to [38] of the reasons appears to be, in substance, that either O'Neal DCJ has incorrectly summarised her medical complaints, or that her GP's consultation notes are incorrect, in relation to the period between 2000 and 2005. The appellant also appears to be implicitly challenging the finding of O'Neal DCJ that she was suffering some symptoms of stridor before the tyre incident. In that regard, she states that 'hay fever causes ... hoarseness ... [t]his is not to be confused with stridor'.
13. The appellant's complaint in relation to [39] of the reasons is, in substance, that the judge was incorrect in finding that she had been involved in two settlements. Her contention appears to be that she was only party to the settlement in relation to the car accident in 2004 and that she was never party to a settlement with the Department of Housing and Works.
14. The appellant's complaint in relation to [40] of the reasons is, in substance, that the judge should not have placed any weight on the notes of her doctor which recorded 'Patient does actually feel pretty good at present - has two men in her live [sic] at the moment...' The appellant claims that she was simply being facetious in making this comment.
15. The appellant's complaint in relation to [44] of the reasons is, in substance, that the notes of Dr Rigby which are quoted in O'Neal DCJ's judgment do not accurately reflect what she said to Dr Rigby as she would never use the word 'bitter'.
16. The appellant's complaint in relation to [46] of the reasons appears to be that in light of her consultation with Dr Rigby on 20 October 2006 where she 'raised the extent of the stress in her life', O'Neal DCJ should not have found at [106] that the appellant 'was capable of making rational decisions on 24 October 2006'.
17. The appellant's complaint in relation to [49] of the reasons is, in substance, that O'Neal DCJ mischaracterised the appellant's situation concerning her relationships in December 2006 and January 2007. She states in her grounds 'I could not continue the relationship with [a particular] partner, as I was constantly exhausted; I ended the relationship soon after returning from Rottnest Island. It 'was his friends and family not mine he was insisting on us visiting. I would have to rest and not engage in some of the social activity on several occasions.'
18. In relation to [59] of the reasons, the appellant contends in general terms that 'medical evidence proves [the judge's findings] to be incorrect'.
19. The appellant's complaint in relation to (31) (presumably [150]) of the reasons is, in substance, that O'Neal DCJ incorrectly stated her date of return to TAFE as 11 November 2006 in [150], when in fact she says this was a Saturday.
20. The point of appellant's complaint in relation to [209] of the reasons is unclear. O'Neal DCJ found that 'Dr Rajan was obviously labouring under a belief created by the [appellant] that prior to October 2006 she had none of the symptoms that the doctor observed'. The complaint is that counsel for the first respondent put certain questions to Dr Rajan because he 'purely wanted to unsettle Professor Rajan'.

The appellant's submissions in support of the proposed grounds of appeal

42 The appellant's submissions as they appear in the appellant's case are not directed to the appellant's grounds appeal. Rather, they effectively seek to address the appellant's claim in the District Court that the respondents should be liable in negligence for damages in relation to the tyre incident.

43 In her 'orders wanted', the appellant seeks the following:

RE - trial

Polygraph tests on all witnesses including self and legal team

For justice to be apparent and represented for all who suffer with mental illness and for us not to be regarded as non-existent human beings and to be treated with respect even though we may suffer an impairment and our brain is not up to scratch.

Respect for the children of sexual abuse and their innocent parent.

Respect for the adults of abuse and for the Court not to allow the respondents to further abuse the appellant, who then abused again, by respondents deliberately trying to upset the appellant, by using the horrific story of one's children, to confuse and then become annoyed with the appellant. For days on end. Shameless.

To sabotage Medicare documents given by myself in good faith, returned to me the next day, during the trial with blank pages and the ones that were not blank, not correlated correctly, in the way I had given the other party. This was annoying and very disappointing to say the least. Frustrating Judge O'Neal.

44 The following matters combine to indicate that the appellant's application should be dismissed.

45 First, the application for an extension of time to file the appellant's case falls to be considered in the context that the appeal itself was commenced out of time, and leave to extend the time for commencing the appeal has not been granted. Upon the expiry of the time for appealing, the respondents had a vested right to retain the judgment: Gallo v Dawson.[14] Secondly, the appellant has already had three extensions of time to file the appellant's case. Thirdly, the appeal had already been dismissed before she brought the present application to extend time. Fourthly, the appellant's affidavit of 15 July 2015 fails to provide an adequate explanation as to why she failed to comply with the court's order of 15 June 2015. Although the appellant says that she had difficulties in printing off a document on the afternoon of 6 July 2015, there is no explanation as to why, given the serious delays up to that point, she had left it effectively to the last minute to have her document prepared and ready for filing. None of the matters concerning the alleged incident at the store provide a reasonable explanation for her failure to comply with the orders of 15 June 2015.

46 Fifthly, the minute of proposed appellant's case filed on 24 August 2015 does not, in any event, comply with pt 5 r 32 of the Court of Appeal Rules. Amongst other things, the grounds do not state, succinctly in numbered paragraphs, particular errors of fact or law; the appellant's submissions are not directed to the appellant's grounds of appeal; and the appellant's 'chronology' does not state succinctly in numbered paragraphs each event that is material to the appeal.

47 Further, even if any of the alleged errors were established, they could not arguably affect the judge's conclusion that the appellant had not established any liability on the part of the respondents in respect of her participation in the tyre activity.

48 Finally, none of the 'orders wanted' by the appellant could be granted in the event of a successful appeal to this court.

49 While making full allowance for the fact that the appellant is not legally represented, there is nothing raised in the minute of proposed appellant's case which would indicate that the appellant has any prospect of successfully appealing the decision of O'Neal DCJ.

50 In all the circumstances, the appellant's application for leave to extend time in which to file an appellant's case should be dismissed. The result is that the appeal stands dismissed pursuant to the orders of the registrar dated 10 July 2015.

[1] Reid v South West Regional College of TAFE WA [2014] WADC 134 (primary reasons).

[10] Primary reasons [182] - [184].

[13] Primary reasons [188] - [190].

[14] Gallo v Dawson [1990] HCA 30; (1990) 93 ALR 479, 480 - 481.