Valder v Fabrizi [2014] NSWCA 152

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Valder v Fabrizi [2014] NSWCA 152 Hearing dates: 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: Applicant self-represented Mr G Niven (Respondent) Solicitors: Applicant self-represented Benchmark Lawyers (Respondent) File Number(s): 2013/54567 Decision under appeal Jurisdiction: 9101 Date of Decision: 2012-12-04 00:00:00 Before: Robison DCJ File Number(s): 2011/305160