Defendi v SZIGLIGETI
[2021] WADC 102
•29 OCTOBER 2021
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: DEFENDI -v- SZIGLIGETI [2021] WADC 102
CORAM: BURROWS DCJ
HEARD: 6 OCTOBER 2021
DELIVERED : 29 OCTOBER 2021
FILE NO/S: APP 44 of 2021
BETWEEN: SILVANO DEFENDI
Appellant
AND
IREN SZIGLIGETI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MILLINGTON
File Number : MID/GEN/171/2021
Catchwords:
Magistrates Court appeal - Litigant in person - Whether denial of procedural fairness - Turns on own facts
Legislation:
Civil Judgments Enforcement Act 2004 (WA)
District Court Rules 2005 (WA), r 50(1)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Result:
Appeal allowed
Matter remitted to Magistrates Court to be heard by a different magistrate
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond [1990] HCA 33
Allesch v Maunz [2000] HCA 40
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Buttarelli v Perpetual Ltd [2013] WASCA 254
Defendi v Szigligeti [2018] WADC 115
Defendi v Szigligeti [2019] WASCA 115
Defendi v Szigligeti [2021] WADC 7
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jones v Darkan Hotel [2014] WASCA 133
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Nobarani v Mariconte [2018] HCA 36; (2018) 269 CLR 236
Silvano Defendi as Trustee for the Defendi Family Trust v Szigligeti [2018] WADC 99
Smart v Prisoner Review Board (WA) [2012] WASC 48
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woolworths Ltd v The Commissioner of Police [2013] WASC 413
BURROWS DCJ:
Introduction
The appellant, Mr Defendi, and the respondent, Ms Szigligeti are the registered proprietors of adjoining land, being lots 28 and 27 in Hovea. They have been in a dispute over the boundary fence between their respective properties for over 12 years.
The dispute between the parties has led to a number of cases brought by Mr Defendi against Ms Szigligeti in the Magistrates Court concerning the boundary fence, and two previous appeals of a Magistrates Court decision concerning the boundary fence to the District Court.[1] It has also included an unsuccessful attempt by Mr Defendi to sue Ms Szigligeti for trespass.[2] Mr Defendi unsuccessfully appealed Defendi v Szigligeti [2018] WADC 115 to the Court of Appeal.[3]
[1] Defendi v Szigligeti [2018] WADC 115; Defendi v Szigligeti [2021] WADC 7.
[2] SilvanoDefendi as Trustee for the Defendi Family Trust v Szigligeti[2018] WADC 99.
[3] Defendi v Szigligeti [2019] WASCA 115.
On 11 June 2021 Magistrate Millington struck out the most recent of these cases pursuant to s 17 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) on the basis that the case was not a fresh cause of action but a re-litigation of previously rejected claims and otherwise dismissed the case (the 2021 Case). Mr Defendi has appealed this decision to the District Court.
Mr Defendi has also made an application in the appeal to register various documents in the ePortal. All of the documents sought to be lodged by Mr Defendi were contained in the Magistrates Court file. The only documents not lodged before the status conference in the Magistrates Court on 11 June 2021 were five photographs of the fence. Those were lodged in the ePortal on 16 June 2021. These photographs are referred to as an attachment in a document[4] filed by Mr Defendi on 11 June 2021. It seems that the photographs were not before the Magistrates Court at the hearing due to technical issues Mr Defendi had experienced with lodging documents in the ePortal at the time. In those circumstances leave is required before the photographs can be relied on in the appeal. Leave will only be given in exceptional circumstances.[5] In this case I am satisfied that leave should be given. The photographs were intended to be annexed to the document filed on 11 June 2021 and to be part of the material before the magistrate. The photographs show the western boundary fence between lots 27 and 28 and are of assistance to the court in understanding the various surveyors' reports referred to in the written submissions.
[4] Magistrates Court file, page 18, document 29, Statement of events regarding reinstallations made to fence and damage caused to Endokrail PVC screen barrier applied to same encroaching fence.
[5] MCCPA s 40(5).
Since the hearing of the appeal on 6 October 2021, Mr Defendi has sent various emails to the court. No application seeking leave to rely on the contents of these emails has been filed. In those circumstances I have not taken into account any documentation that has been received from Mr Defendi by the court since the date of the hearing of the appeal.
For the reasons that follow, the appeal should be allowed and the case remitted to the Magistrates Court to be heard before a different magistrate.
Background
The learned magistrate found the case was not a new cause of action but a 'rehashing of previously rejected claims'.[6] It is therefore necessary to summarise the history of the dispute between the parties. This history has been summarised previously[7] [8] and most recently by Russell DCJ.[9]
[6] Magistrates Court ts 13, 11 June 2021.
[7] Defendi v Szigligeti [2018] WADC 115 [4] ‑ [12].
[8] Defendi v Szigligeti [2019] WASCA 115 [3] - [11].
[9] Defendi v Szigligeti [2021] WADC 7 [13] - [24].
I respectfully adopt that summary:[10]
[10] Defendi v Szigligeti [2021] WADC 7 [3].
The 2012 Case
3The first case in the Magistrates Court concerning the boundary fence between the properties of Mr Defendi and Ms Szigligeti was Midland GEN 2112 of 2011 (2011 Case). The 2011 Case was resolved by orders made by consent on 23 August 2012 in the following terms (2012 Orders):
1.[Ms Szigligeti] will pay $825.00 towards the cost of the survey report which [Mr Defendi] obtained from Naturaliste Land Surveys.
2.[Mr Defendi] will provide [Ms Szigligeti] with a full copy of the survey report.
3.[Ms Szigligeti] will relocate that part of her existing fence which presently falls outside the boundary of her property as identified in the survey report within twenty‑eight days of the proceedings being dismissed.
4.[Ms Szigligeti] will fence the remainder of the boundary between the properties, with that fencing to fall on her side of the boundary line identified in the survey report, within twenty‑eight days of the proceedings being dismissed.
5.Neither party will be responsible for contributing to the cost of constructing and maintaining their respective fences (including those costs which have already been incurred).
6.The present Magistrates Court proceeding to be otherwise dismissed with no orders as to costs.
The 2016 Case
16On 2 June 2016, Mr Defendi commenced a second case against Ms Szigligeti in the Magistrates Court concerning the boundary fence between the parties' properties, being Fremantle GEN 934 of 2016 (2016 Case).
17The 2016 Case is summarised in the Court of Appeal's decision in Defendi v Szigligeti.5
(FN5: Defendi v Szigligeti [2019] WASCA 115 [5] - [8])
18The 2016 Case was heard before a magistrate at the Fremantle Magistrates Court on 27 September 2017. The Court of Appeal noted in Defendi v Szigligeti that the following matters were apparent from the transcript of that hearing:
(1)Orders 3 and 4 of the 2012 Orders required Ms Szigligeti to relocate such of the existing fence as fell outside her property and to erect additional fencing to fence the remainder of the boundary.1
(2)In or around 2014, Ms Szigligeti had still not erected an 18 metre section of that additional fencing.2
(3)In or around 2014, Mr Defendi erected the 18 metres of fencing himself.3 This was not sanctioned by the court.4
(4)The fencing cost Mr Defendi $700 to erect.5
(5)Ms Szigligeti paid Mr Defendi $350 towards the cost of this fencing.6
(6)Mr Defendi commenced the 2016 Case in order to claim the balance of the cost of this fencing, being $350.7
(7)Ms Szigligeti counterclaimed for a sum of $1200.8
(FN1: 2016 Case ts 6, ts 8, ts 11)
(FN2: 2016 Case ts 11, ts 14, ts 15 - ts 16)
(FN3: 2016 Case ts 7, ts 8, ts 11, ts 14, ts 15)
(FN4: 2016 Case ts 15 - ts 16, ts 18)
(FN5: 2016 Case ts 17)
(FN6: 2016 Case ts 14, ts 17)
(FN7: 2016 Case ts 12)
(FN8: 2016 Case ts 2 - ts 3)
19The magistrate dismissed both the claim and the counterclaim and stated, in effect, that if Mr Defendi was complaining that Ms Szigligeti failed to comply with the terms of the 2012 Orders then his remedy was to go to the Midland Magistrates Court and seek orders enforcing the 2012 Orders.6
The 2017 Case
20On 3 October 2017, Mr Defendi commenced a further case in the Magistrates Court against Ms Szigligeti concerning the boundary fence between their properties, being Fremantle GEN 1502 of 2017 (2017 Case).
21The 2017 Case is also summarised in the Court of Appeal's decision in Defendi v Szigligeti.7
22His Honour Magistrate Malley made orders on 24 January 2018 that the 2017 Case be struck out as an abuse of process and that the claim otherwise be dismissed. This was on the basis that the 2017 Case did not raise any new issues but sought to address the issues the subject of the 2011 Case and 2012 Orders, and which Mr Defendi had also sought to address in the 2016 Case, which had been dismissed.
23Mr Defendi appealed the decision of Magistrate Malley in the 2017 Case to the District Court. That appeal was dismissed by Gething DCJ on 14 September 2018.8
24Mr Defendi appealed that decision to the Court of Appeal. That appeal was dismissed on 8 August 2019.9
(FN6: 2016 Case, 27 September 2017, ts 15 - ts 16)
(FN7: Defendi v Szigligeti [2019] WASCA 115 [9] - [28])
(FN8: Defendi v Szigligeti [2018] WADC 115)
(FN9: Defendi v Szigligeti [2019] WASCA 115).
The 2020 case
On 3 February 2020 Mr Defendi made an application seeking an order under the Civil Judgments Enforcements Act 2004 (WA) (CJE Act) in respect of the 2012 orders that Ms Szigligeti 'carry out the orders made by the court on 23 August 2012 namely orders 3 and 4'. That application was dismissed by his Honour Magistrate Sharratt on 17 June 2020 (the 2020 Case). Mr Defendi appealed that decision to the District Court on the basis that he was not given an opportunity to be heard and was denied natural justice. Russell DCJ found that Mr Defendi was denied procedural fairness by the learned magistrate by not being allowed to make further oral submissions at the adjourned hearing on 17 June 2020. However, her Honour did not consider that it would have made any difference to the outcome of the hearing if Mr Defendi had been permitted to make oral submissions and dismissed the appeal.[11] Her Honour said this:[12]
[11] Defendi v Szigligeti [2021] WADC 7 [69] ‑ [84].
[12] Defendi v Szigligeti [2021] WADC 7 [92].
I consider that, even if Mr Defendi was allowed to make oral submissions at the hearing on 17 June 2020, his application dated 3 February 2020 to enforce the 2012 Orders would still have been dismissed. Nor would admitting the further documents Mr Defendi seeks to rely on result in a different outcome. This is because:
1.First, he is not entitled to the relief sought in that application.
2.Second, he requires leave of the court to seek appropriate enforcement orders, which he has not sought or obtained.
3.Third, to obtain such leave and any subsequent enforcement orders, he must demonstrate that he is entitled to the orders. That is, that Ms Szigligeti has failed to comply with orders 3 and 4 of the 2012 Orders.
4.Fourth, there was no evidence before the magistrate, nor is there evidence in the further documents Mr Defendi seeks to rely on in the appeal, to satisfy the court that Ms Szigligeti has failed to comply with the 2012 Orders so that:
(a)any application for leave to enforce should be granted; and
(b)appropriate enforcement orders should be made.
Her Honour went on to outline the relief available for non‑compliance under the CJE Act and the reason Mr Defendi had failed to establish such non‑compliance at [95] - [107].[13]
[13] Defendi v Szigligeti [2021] WADC 7 [95] - [107].
This is not the first time the court has detailed the appropriate remedy available to Mr Defendi if he is seeking to enforce the terms of the 2012 orders. Gething DCJ explained the remedy available under the CJE Act.[14]
[14] Defendi v Szigligeti [2018] WADC 115 [26].
The court of appeal reiterated that Mr Defendi cannot seek to enforce the 2012 orders by instituting any new proceedings. Any attempt to enforce the 2012 orders could only be made through an application pursuant to the CJE Act.[15]
[15] Defendi v Szigligeti [2019] WASCA 115 [60].
The 2021 case
On 9 March 2021 Mr Defendi commenced the proceedings with which this appeal is concerned.
In the box headed 'reason for application' Mr Defendi states as follows:
In mid March 2020, the owner of Lot 27, [ADDRESS], took down the dividing fence existing at the time between her property and my own in Lot 28, [ADDRESS], and erected a new one.
When she installed the new one she positioned it over the boundary line in various sections, thereby illegally trespassing by encroachment into the property of Lot 28.
In the box headed 'order required' Mr Defendi describes the order sought as:
Order requested for the Defendant to remove the fence from the current position and to reinstall it totally within her own property in compliance with Order deliberated by the Court in case MID/GEN/2112/2011 of 23 August 2012 in paragraphs 3 and 4.
The amount of the claim stated was the sum of $3,591.30. The amount claimed in a document filed on 6 June 2021 increased the claim to $41,241.02.[16]
[16] Magistrates Court file, page 11, document 27, List of damages claimed to 06 June 2021.
The matter was set down for a status conference on 7 April 2021. By email dated 14 March 2021 Mr Defendi requested the assistance of an Italian interpreter in court. He also made an application for change of venue which was listed on 7 April 2021.
The matter came on for hearing before Magistrate Tavener on 7 April 2021 with an interpreter present. Ms Szigligeti appeared in person. Mr Defendi, through the interpreter, advised the court that a fence had been rebuilt in March 2020 which encroached on his land. Ms Szigligeti denied building a new fence saying that the wiring had been replaced on the existing fence from the standard ring lock into smaller mesh so that animals could not cross through the fence. Mr Defendi said he had a surveyor's report which would confirm his position. He was ordered to file and serve the surveyor's report by 21 April 2021. The change of venue application and status conference were adjourned to Wednesday, 5 May 2021 at 9.30 am.[17]
[17] Magistrates Court file, page 122, General Order, 7 April 2021.
On 12 April 2021 Mr Defendi lodged a report of McGregor Surveys Pty Ltd dated 15 September 2020[18] (the McGregor survey report) and a letter addressed to Mr Defendi from Marocchi Engineering Group dated 29 September 2020.[19]
[18] Magistrates Court file, pages 12 - 16, 95, 98 - 101.
[19] Magistrates Court file, pages 106 - 109.
The McGregor survey report noted minor encroachments on the western boundary into Mr Defendi's property of the wooden posts and concrete foundations of 0.03 m and 0.05 m at wooden post 'B' which increased up to 0.18 m for the wooden post at 'F' and 0.36 m for the concrete foundation. The steel posts that cross the creek at the north end of the property encroached into lot 28 by an average of 0.10 m. The report also noted an encroachment of the concrete foundation by 0.07 m at the wooden post on the south-east corner boundary point.
The letter from Marocchi Engineering Group refers to the terms of the 2012 orders and the McGregor survey report. It concludes that the concrete foundations to the fence posts encroach onto Mr Defendi's property by 50 mm - 360 mm. The wooden posts encroach onto his property by 10 mm - 180 mm. Neither the McGregor survey report nor the Marocchi letter refer to when the fence was installed.
On 5 May 2021 the matter came on for hearing before Magistrate Tavener.[20] No interpreter was present at that hearing. Ms Szigligeti was present. She had not received a copy of the McGregor survey report. His Honour indicated that if the matter proceeded to hearing it would be heard by a magistrate from Perth who dealt with civil matters. His Honour adjourned the matter to a status conference on 2 June 2021, refused the application to change the venue, made orders that the respondent be provided with a copy of the McGregor survey report and that an Italian interpreter attend the next hearing.
[20] Magistrates Court ts 1 - ts 4, 5 May 2021.
On 28 May 2021 Ms Szigligeti lodged three documents including a surveyor's report from Jurovich Surveying (the Jurovich report).[21] At the hearing of the appeal Mr Defendi indicated that he had not received the Jurovich report until he had requested that document in September 2021 from the Midland Magistrates Court. Mr Defendi said Ms Szigligeti had delivered a copy of the survey drawing annexed to the report and not the report itself to his letterbox.[22] I cannot accept that assertion. A copy of Mr Defendi's email dated 10 June 2021 addressed to the surveyor, Mr Robertson, was filed as part of Mr Defendi's bundle of documents in the Magistrates Court.[23] I am satisfied that Mr Defendi was in receipt of the Jurovich report prior to the hearing on 11 June 2021 and that he had read that report. I make that finding based on Mr Defendi's email to Mr Robertson in which he refers to Jurovich report dated 30 April 2021 and quotes the final paragraph of the report in full.
[21] Magistrates Court file, pages 74 - 81, letter dated 26 May 2021 entitled 'Submission re: Silvano Defendi v Iren Szigligeti', a report from Jurovich Surveying dated 30 April 2021 and a document setting out legal proceedings initiated by Mr Defendi against the respondent since 2009.
[22] District Court ts 13.
[23] Magistrates Court file, pages 17 - 19, documents 29 - 30, filed 11 June 2021 (documents are filed back to front).
The Jurovich survey was carried out on 29 March 2021. The report does not refer to when the fence was installed.
The Jurovich report indicates the eastern truncation bend on the western boundary between lots 27 and 28 shows the steel and wire mesh fence strainer post is located 150 mm inside of lot 27 but the path of the fence crosses into lot 28 then crosses back into lot 27 at the western truncation bend. The strainer post for this fence sits approximately 150 mm inside lot 27 at the western truncation. The strainer post for the steel and cyclone fence is located 130 mm inside lot 28 at the eastern truncation bed and follows a similar route as the steel and wire mesh fence crossing into lot 27. The strainer post for the fence is in lot 27 by approximately 80 mm. The report finds the path of the fence crosses into lot 28 by approximately 90 mm at the northern boundary line of lot 28.
2 June 2021 hearing
On 2 June 2021 the matter came on for hearing before Magistrate Millington. At the commencement of the hearing no interpreter was present.
The following exchange occurred between the magistrate and Ms Szigligeti:[24]
[24] Magistrates Court ts 2 - ts 4, 2 June 2021.
COURT ORDERLY: Calling file 171 of 2021, Defendi v Szigligeti.
HIS HONOUR: All right. Silvano Defendi?
DEFENDI, MR: (response not in English)
HIS HONOUR: I take it your name is Silvano Defendi?
DEFENDI, MR: (response not in English) interpreter?
HIS HONOUR: Yes. Iren Szigligeti?
SZIGLIGETI, MS: Yes, I am.
HIS HONOUR: Take a seat. Mr Defendi, we're trying to get hold of an interpreter for you. So the reason why I've called this on is that - to let you know that we're still waiting on the interpreter. Do you understand that?
DEFENDI, MR: No, (response not in English).
HIS HONOUR: Yes. Look, Ms Szigligeti, you understand me?
SZIGLIGETI, MS: Yes, I do.
HIS HONOUR: And I - look, Mr Defendi, how did you respond to me if you didn't understand what I said? Now you're not going to respond; that's fine. We will wait for the interpreter. I'm under no illusions, Mr Defendi, that you understand English, okay. I've heard you talking to staff in English. So if you don't want to speak now, that's fine, we will wait for the interpreter. Ms Szigligeti, do you want to say anything?
SZIGLIGETI, MS: I made my submission. I don't know, your Honour, if you - - -
HIS HONOUR: We can't really - I can't go ahead and do anything - - -
SZIGLIGETI, MS: Yes, yes, I - - -
HIS HONOUR: - - - until there is an interpreter here. Mr Defendi is now, after responding to my answers - my questions in English in Italian, he is now not answering me. So that's where we're caught, where we're left at. This is a matter that needs to be sorted out. May I ask you this - and I will ask Mr Defendi the same question when the interpreter is available. This is the same issue that has been ongoing for a significant period of time - - -
SZIGLIGETI, MS: Yes.
HIS HONOUR: - - - and has been the subject of a number of applications by Mr Defendi; is that correct?---
SZIGLIGETI, MS: Yes.
HIS HONOUR: Can I ask you this question: when was the fence erected?
SZIGLIGETI, MS: Originally in 2010.
HIS HONOUR: Right.
SZIGLIGETI, MS: Then that court came - case came - - -
HIS HONOUR: There was a court order in 2012.
SZIGLIGETI, MS: '12. We adjusted then. Then ever since it's there.
HIS HONOUR: So there has been no change?
SZIGLIGETI, MS: No.
HIS HONOUR: Since then.
SZIGLIGETI, MS: Except recently we replaced the mesh on (indistinct) like, a 100 metre section.
HIS HONOUR: Yes. Have you read the report of the surveyor?
SZIGLIGETI, MS: I have.
HIS HONOUR: Yes, okay. All right. So that's - - -
SZIGLIGETI, MS: And - - -
HIS HONOUR: Have you had one done yourself?
SZIGLIGETI, MS: Yes, yes, and I submitted a copy of it.
HIS HONOUR: All right. All right. So what we will do, Ms Szigligeti, we've just got to wait for the interpreter.
SZIGLIGETI, MS: Yes.
HIS HONOUR: So we're still waiting.
SZIGLIGETI, MS: How long - - -
HIS HONOUR: The reason I brough [sic] it in was to see whether we could proceed without one, but clearly we can't. But we will let you know as soon as possible. If you want to leave your phone number, if you want to go get a coffee or do whatever you would like to do, and the same for Mr Defendi, if he can understand what I'm saying, he can leave his number and come back. But this needs to be sorted out today.
SZIGLIGETI, MS: I would really appreciate - - -
HIS HONOUR: No, it will be. We're just waiting on the interpreter, because - - -
SZIGLIGETI, MS: I rather wait around and - yes.
HIS HONOUR: All right. So we will see you back a bit later on.
SZIGLIGETI, MS: Yes.
HIS HONOUR: If you want to leave your number with the orderly. Mr Defendi, if you can understand me you can leave your number with the orderly. And we will let you know when the interpreter is going to be ready. Thank you.
The matter was adjourned and arrangements made for the parties to leave their contact details with the orderly so that the matter could be recalled once an interpreter was engaged. A short time later the matter was recalled. Ms Szigligeti was present but Mr Defendi had left the building and gone home. He was contacted by telephone using the on‑call interpreter. Mr Defendi said that he left court because his foot was causing him pain and he could not walk. He said the magistrate had not allowed him to talk at the hearing and requested the matter be heard before another magistrate. His Honour adjourned this application and the matter to the following day and ordered an Italian interpreter be present.[25] His Honour said this:[26]
HIS HONOUR: Okay. Thank you, Madam Interpreter. Ms Szigligeti, if you would like to attend, you can. If you want to appear by phone, you've got leave to appear by phone. It's up to you. Mr Defendi has - Mr - given Mr Defendi's attitude towards the court and how he misinterprets and tells people what is said and been going on in court, he does not have leave to appear by audio link. He must attend in person.
[25] Magistrates Court ts 7 - 10, 2 June 2021.
[26] Magistrates Court ts 10, 2 June 2021.
On 2 June 2021 Mr Defendi wrote to Magistrate Millington.[27] In that email Mr Defendi asserted that in four cases with four defendants, including Ms Szigligeti, the magistrate had demonstrated a failure to afford him natural justice. He asserted the magistrate displayed an overbearing attitude, had denied him a hearing with an interpreter, and had wrongly stated that Mr Defendi was competent in English and able to understand within the context of an entire discussion. He asserted the magistrate unfairly allowed defendants to present 'their long drawn‑out discussions which the interpreter (when present) cannot possibly fully retain and therefore only summarise in part for me, to my constant detriment and disadvantage'. He alleged the magistrate crossed over into new subject matters before Mr Defendi had an opportunity to complete his own submissions in response and by denying him the opportunity to understand everything being discussed. Mr Defendi then said he was submitting an application for a change of venue to another court. No application for a change of venue accompanied the email.
[27] Magistrates Court file, page 66.
3 June 2021 hearing
On 3 June 2021 the matter again came on for hearing before Magistrate Millington. Mr Defendi had sent a medical certificate to the court at 8.40 am that morning certifying him unfit to attend court. Ms Szigligeti was present.
His Honour indicated his intention to adjourn the matter to the following week. He stated he was conscious that Mr Defendi be afforded natural justice and needed to be present at the hearing of the application.[28] The magistrate assured Ms Szigligeti that the matter would be dealt with on the next occasion. The following exchange took place:[29]
[28] Magistrates Court ts 2, 3 June 2021.
[29] Magistrates Court ts 2 - ts 5, 3 June 2021.
COURT ORDERLY: For the matter of GEN171 of 2021. Defendi v Szigligeti.
HIS HONOUR: Thank you, Ms Szigligeti. Take a seat. Ms Szigligeti, if you don't already know, as of about 8.40 odd this morning, Mr Defendi has sent a medical certificate signed by a doctor saying he's unfit to attend court. For the purpose of the transcript, I don't have any concerns about the legitimacy of the medical certificate, but about the issues of whether he's unfit to attend court is an issue for me considering he was here yesterday, considering over the phone that he said that he was - had a sore foot, the fact that he came here in a wheelchair, and I made that comment to him yesterday.
I have two options. I can accept that and adjourn it, or, secondly, deal with the matter in his absence. What really needs to be considered is that he's afforded natural justice. But I'm also mindful to the fact that you are here, and you continue to be here and what all these actions are doing to you and putting you through.
After careful consideration - and that's why we tried to make a phone call to you when I had received the medical certificate to prevent you from coming - careful consideration, what I'm going to do is the application is going to be adjourned to a day next week. I'm going to work that out in a moment. But I stress to you that if you don't want to come you don't need to be here. We can phone you, and you can be on audio link. What I don't want is for you attending again and the same thing occur. I'm going to adjourn it to a day next week. I'm going to make some orders that Mr Defendi provide the court with some particulars about as to why he could not be here, is unfit to attend. And I am assuring you that this application will be dealt with on the next occasion. Do you want to say anything?
SZIGLIGETI, MS: Yes. I understand what you're saying, and I appreciate your words. But I don't know what else can we do in terms of stopping him, because I feel I'm trapped. I can't enjoy my property. I'm considering to put it on the market, but I can't. As long as unfinished business, legal cases pending over my property, I can't even sell. So - - -
HIS HONOUR: Is this the only one?
SZIGLIGETI, MS: How do you mean?
HIS HONOUR: Is this the only outstanding one?
SZIGLIGETI, MS: Yes. There is one more. A restraining order against me by him.
HIS HONOUR: Where is that?
SZIGLIGETI, MS: Perth. And that is - I just received a summons for 18 June.
HIS HONOUR: And what's that to do with?
SZIGLIGETI, MS: Me - I don't know - taking photos.
HIS HONOUR: Is it a restraining order?
SZIGLIGETI, MS: Restraining order, yes. Actually, that's the second one. The first one was dismissed. I have a restraining order against him which expired this March. So - and - but he put that in - no. Last - I don't know. It's just too much. Too many things to remember like that, but, yes, there is hanging that restraining order. But he hasn't - - -
HIS HONOUR: There's no issue with me saying this in my view, Ms Szigligeti. I am aware of how many actions there has been, not only for yourself, but other people.
SZIGLIGETI, MS: I don't know why the court cannot declare him as vexatious litigant.
HIS HONOUR: That's not a matter - I can't do that.
SZIGLIGETI, MS: That's what the Perth magistrate told me too, but you can, can't you, initiate it? Or - it just can't go any further. It's - he starts something. He seek - he won't attend. He's not coming. But he actually - he achieves what he wants, because he just wants to interfere my life. He probably doesn't even care about the outcome. He just - he knows that he's causing me so much stress, so much grief. It's just - that's what he's - he's doing it intentionally. He told me, like, eight years ago he's never going to stop. And - - -
HIS HONOUR: Ms Szigligeti, what you're telling me - it's no consolation for you, but it is not lost on me what you are saying.
SZIGLIGETI, MS: I need to finish this case. I need to go on with my life. I don't know what kind of justice is when the system lets people like me put through just because some people like to sue people, and that's his sort of - he never try to solve issues. Just goes to the court, submits a new case and that's it. And it's so nonsense. He comes up with - first of all, he's duplicating his previous claims. The other issue is he has got double standard. He - for example, he dug into the base of my pole, and his fence, the base, the concrete foundation, the same ways goes over. It's necessary because at least, like, the concrete base has got, like - - -
HIS HONOUR: I've seen the photos.
SZIGLIGETI, MS: You haven't seen one from what I just took recently to show his exactly the same hanging over. So it's - and we have two and a half acres each, and the setback is like 60 metres. You can't do anything near the boundary. But I have eight - seven other neighbours. You never, ever check the boundary. No one cares. It's ridiculous what he's - and then the most ridiculous is that the section is on his side. That was made by him. So he forgets things.
HIS HONOUR: Can I ask you - I know I asked you this question yesterday.
SZIGLIGETI, MS: It's just - - -
HIS HONOUR: When was the fence last varied or put in place?
SZIGLIGETI, MS: 2012.
HIS HONOUR: This application says that it was moved last year. So that's totally incorrect.
SZIGLIGETI, MS: It's a lie. That's a lie. We never moved the fence.
HIS HONOUR: Okay. So that's my understanding from looking at the history. Right.
SZIGLIGETI, MS: And then he clearly misrepresents his statements. That's not true.
HIS HONOUR: Well, he misrepresented yesterday when we had the interpreter. He misrepresented what happened in court yesterday morning, because he said that I never gave him the chance to speak, which is totally incorrect. You were here.
(emphasis added)
SZIGLIGETI, MS: Yes. Yes.
HIS HONOUR: All right.
SZIGLIGETI, MS: So I don't know.
HIS HONOUR: I'm going to ask - so, going back to what I told you a few minutes ago, I will deal with this application next week. Do you want to attend or not? Or do you want to appear on phone?
His Honour made general orders that the status conference be adjourned to 11 June 2021 at 9.00 am. He gave Ms Szigligeti leave to appear by audiolink. He ordered Mr Defendi to provide the court with particulars regarding his unfitness to attend court on 3 June 2021 by the close of business on 9 June 2021.[30] A medical certificate was subsequently filed with the court dated 7 June 2021 which said Mr Defendi was being treated for Achilles tendonitis. It certified he had experienced pain and swelling of the feet on the morning of 3 June 2021.
[30] Magistrates Court file, page 62, General Order, 3 June 2021.
On 10 June 2021 Mr Defendi filed two documents with the court, these appear in the Magistrates Court file.[31] Further documents,[32] were lodged on 11 June 2021.
[31] Magistrates Court file, pages 25 - 57.
[32] Magistrates Court file, pages 11 - 24.
11 June 2021 hearing
On 11 June 2021 Mr Defendi was present assisted by an on-call Italian interpreter. Ms Szigligeti appeared in person. The hearing was a status conference, the purpose of which was to determine whether the matter was to proceed to a hearing. Neither party was sworn or affirmed. His Honour did not refer to his discussion with Ms Szigligeti in Mr Defendi's absence on 3 June 2021.
His Honour commenced by asking Mr Defendi when the fence was last erected between the properties. For some reason, and it may have been because the interpreter was on the telephone, his Honour asked the interpreter to convey his questions to Mr Defendi. He did not speak to Mr Defendi directly as is the best practice when an interpreter is engaged.[33] Mr Defendi replied that 'it should have been around 2013'. The interpreter then said:[34]
No. There's a bit of confusion. So he's - so the fence has got nothing to do with the actual wall or - yes.
Mr Defendi then clarified that in mid-March 2020 the dividing fence was taken down and a new fence erected. He said that new poles were positioned and panels were replaced on different poles.[35]
[33] Consolidated Practice Directions & Circulars to Practitioners, CP Annexure 2: Protocol for the Use of Interpreters (CP 6) at 2.7 and 2.8.
[34] Magistrates Court ts 3, 11 June 2021.
[35] Magistrates Court ts 3 - ts 4, 11 June 2021.
Ms Szigligeti denied having erected a new fence stating she had replaced the mesh in a 100 m long section. She asserted that the fence had remained where it was since 2012.[36]
[36] Magistrates Court ts 3, 11 June 2021.
The main point of contention between the parties was clearly whether the fence had been taken down and re-erected in March 2020 or not.
His Honour then indicated that he was considering striking out Mr Defendi's application pursuant to s 17 of the MCCPA. He asked whether Mr Defendi wished to make any submissions. His Honour said he was considering doing that on the basis that the application was frivolous, vexatious and scandalous and an abuse of the court's processes.[37]
[37] MCCPA s 17.
At that point Mr Defendi indicated that he would appeal. He said he felt that the magistrate had not read the documents that had been provided to him and asserted that the fence was encroaching on his property. His Honour indicated that he had read all of the documents lodged. The following exchange then occurred:[38]
[38] Magistrates Court ts 5 - ts 13, 11 June 2021.
INTERPRETER: One minute, please. So the object of the - the subject of this appeal has got - this application is not an abuse of the court. The lady in the year 2020, mid March, she continued - so - yes. So in mid-March 2020 the lady demolished - completely demolished the existing fence and erected a new one and new posts were put up in order to fix this to - to set up the fence, as you can see in this - in the surveyor's diagram.
So the fence was actually taken away and repositioned. The new - so the new poles that were inserted in reerecting the fence were placed on my part of the property, inside my property. So as - so basically this new set up of the fence is not in conformity with the court's decision made on 23 August 2012. So to a degree it's on my land and also because this fence was supposed to be integrally and totally set up on the inside part of Mrs Szigligeti's property as requested - as was requested and instructed.
HIS HONOUR: Okay. Thank you. Ms Szigligeti, how many - from your point of view - claims or actions have been in relation to this fence?
SZIGLIGETI, MS: Eight. This is the eighth since 2016 if I am correct.
HIS HONOUR: Sorry.
SZIGLIGETI, MS: It is about eight.
HIS HONOUR: All right.
SZIGLIGETI, MS: Eight.
HIS HONOUR: Well, just before we go any further I will make sure that everything is being interpreted to Mr Defendi. So, Madam Interpreter, just - the question I've - just explain to Mr Defendi that Ms Szigligeti has said that this is the eighth action in relation to this fence. I'm not asking Mr Defendi to answer anything at the moment, Madam Interpreter, because I've given him his opportunity. Now I'm speaking to Ms Szigligeti. And did you want to say anything else?
SZIGLIGETI, MS: Yes. I do. I would like to maintain my position that we haven't moved the fence line. We only changed - replaced a section of the chain, what got damaged.
HIS HONOUR: I will just make sure that gets interpreted, please.
SZIGLIGETI, MS: Yes. We just - - -
HIS HONOUR: We will just do it bit by bit.
INTERPRETER: I'm sorry. Could you please repeat, because I can barely hear.
HIS HONOUR: Yes. Ms Szigligeti said that she's maintaining her position that the poles - the fence - the poles were not moved. It was the mesh of the fence that was moved; is that right, Ms Szigligeti?
INTERPRETER: Okay.
SZIGLIGETI, MS: Yes.
HIS HONOUR: Yes.
SZIGLIGETI, MS: So this fence - - -
HIS HONOUR: Just let her interpret that, please.
SZIGLIGETI, MS: The position of the fence hasn't been changed since 2012, and after we had - when we adjusted it as per the court order - the referred court order. And - - -
INTERPRETER: Sorry. I'm sorry. I really didn't - - -
HIS HONOUR: Ms Szigligeti said they adjusted it as per the court order, and you're talking about 2012?
SZIGLIGETI, MS: Yes.
HIS HONOUR: From 23 August 2012, and it has not been shifted since then. Ms Szigligeti, can I ask you, from your point of view, has this issue - as in the position of the poles or the fence - been determined by the court before?
SZIGLIGETI, MS: It has. It has. Actually, it has, and even Silvano Defendi took it to the High Court - Supreme Court.
HIS HONOUR: All right. All right. So, Mr - Madam Interpreter, just let Mr Defendi - please interpret to him that Ms Szigligeti is indicating that this matter has been ventilated before the court on previous occasions.
SZIGLIGETI, MS: This case he has submitted in Fremantle and the case number was 1502/2017, and that was removal and realignment of the fence that was the claim and it was dismissed, then Silvano Defendi applied - - -
HIS HONOUR: Well, just wait then. So - - -
SZIGLIGETI, MS: Yes.
HIS HONOUR: - - - just please interpret. Ms Szigligeti is saying that there was a claim in the Fremantle Magistrates Court for the removal of the fence that was dismissed in 2017.
SZIGLIGETI, MS: Silvano Defendi after that applied to the Magistrates Court, application number 15/2017.
HIS HONOUR: In Perth?
SZIGLIGETI, MS: Yes, that is the Magistrates Court, and took it further to the Supreme Court. It's CACV97/2018 and all - - -
HIS HONOUR: All right. Anything else?
SZIGLIGETI, MS: - - - this has been dismissed. And this fence is exactly the same fence, what he used to put his screening material on and was, like, about three cases about it because he was suing me, damaging his screening material, what he put it on.
HIS HONOUR: All right. And Ms Szigligeti, Madam Interpreter, was just saying there was also three cases regarding damage to screening on the fence that Mr Defendi had put on.
SZIGLIGETI, MS: And - - -
HIS HONOUR: Anything else?
SZIGLIGETI, MS: - - - at this time he hadn't had any issue. The location of the fence, he - it was good enough to use it for himself, for his purposes, but, yes, anyway, that was, like, eight, because he already also put cases, like, reopening the consent order in 2012, that I'm not complying with it.
HIS HONOUR: Yes. Right. So from your point of your view, there has been a number of matters.
SZIGLIGETI, MS: I believe so, and this exactly - the issue of him bringing this up, it has - and the location of the fence, it has been dealt with by the court, and why would I replace my fence - - -
HIS HONOUR: All right. Let - - -
SZIGLIGETI, MS: - - - like, five centimetres into his - it's just - - -
HIS HONOUR: Yes. Well, we're not having a trial of the matter now.
SZIGLIGETI, MS: Yes. I know. But it's nonsense.
HIS HONOUR: All right. So what - please interpret to Mr Defendi that Ms Szigligeti says that she hasn't moved the fence. This matter has been ventilated by the court and it shouldn't be going any further is basically what you're saying; is that right, Ms Szigligeti?
SZIGLIGETI, MS: It is. It is.
HIS HONOUR: All right.
SZIGLIGETI, MS: And I would like to finish. I mean, I don't know how can we stop - I can't deal with any more cases. I thought he exhausted all sorts of reasons why he could sue me but it looks like he's just bringing back the same thing again and again. And this cannot go any further. I need to stop and finish this forever.
HIS HONOUR: All right. So, Madam Interpreter, can you please interpret to Mr Defendi that what Ms Szigligeti has said is that this matter can't keep going on and on and cases keep coming back and back because of the effect that it's having on her.
INTERPRETER: Yes.
DEFENDI, MR: Stop. Stop.
INTERPRETER: Yes. It's true, it is having a negative effect but on me because the lady is not complying by what she was asked to do.
HIS HONOUR: All right. Thank you. Would Mr Defendi like to say anything else before I give a decision?
INTERPRETER: Yes. Well, what I already made - so basically what I already mentioned and that is that I'm going to appeal to have this case reviewed by another magistrate because I feel as though there has been discrimination and that a decision had already been made starting from the very first hearing.
HIS HONOUR: Thank you. Madam Interpreter, can you please interpret the following to Mr Defendi. I will take it bit by bit.
INTERPRETER: Yes.
HIS HONOUR: This is an application made by Silvano Defendi. Madam Interpreter, Mr Defendi doesn't need to speak because I've asked him for his submissions and I don't need him to interrupt any more. Mr Defendi is seeking orders that Ms Szigligeti remove the fence from the current position and reinstall it, he says, pursuant to the order made by the court on 23 August 2012. The matter is listed for a status conference today and was initially - sorry.
It was initially listed for a status conference last week. Last week it was called on early to query whether the parties - with the parties if we could proceed without an interpreter, because there was not an interpreter available at that time.
INTERPRETER: Sorry. I can't - I'm sorry. It was a little bit blacked out. I didn't hear anything at all.
HIS HONOUR: Yes. There was no interpreter available at the time. Mr Defendi at the time was responding to my - in Italian to my queries, but when queried on that point he refused to answer anything else. The matter was stood down so the interpreter could appear via audio link and Mr Defendi returned home. We used an interpreter to call him later in the day and during that call he made comments that I had not allowed him to speak during the original appearance.
That was completely false and an example of the type of behaviour that Mr Defendi displays in this courtroom on a regular basis and the reason why I refused for him to appear by audio link later last week and the matter was adjourned through - that was 3 June 2021. On 3 June 2021 Mr Defendi provided the court with a medical certificate and the matter was adjourned through till today with an Italian interpreter booked for today's appearance.
There was also an order made that Mr Defendi provide the court with particulars as to why he could not attend court and he did that. There was a further order to request to appear by audio link today; however, given the issues raised by Mr Defendi in his correspondence with the court and the difficulty in using an interpreter over audio link, that application was refused.
In the correspondence that Mr Defendi has sent to the court in the past week he has indicated that there was some other applications that he wanted to make. One of those was a change of venue from the Midland Magistrates Court to another Magistrates Court. There has been no formal application lodged with the court. Section 22 of the Magistrates Court (Civil Proceedings) Act indicates that a matter can be transferred if it would be more convenient and fair to the parties.
Although there has not been a formal application, there are a number of reasons - there are two reasons why that application should be dismissed. Firstly, Mr Defendi made an application to change venues on 12 March 2021. It was dismissed on 5 May 2021. That decision cannot be appealed. Therefore, it is probably an abuse of process to make a further application. In any event, both parties live in the Midland area and the property is within the Midland jurisdiction - properties. Sorry.
INTERPRETER: Properties?
HIS HONOUR: Yes. There is also a hint or some comment made by Mr Defendi that there has been - that he wants another magistrate to consider this application. There has been no formal application asking me to recuse myself.
Therefore, I will determine the application today. The prior - at the start of today's hearing, I indicated to Mr Defendi that I was considering striking out his application under section 17.
He was given the opportunity to provide me with submissions in relation to that and Ms Szigligeti has also provided submissions to the court. The background to these proceedings instituted by Mr Defendi - - -
INTERPRETER: I'm sorry. That wouldn't make sense. I'm sorry.
HIS HONOUR: Yes. Okay. The application made by Mr Defendi is that Ms Szigligeti remove the fence from the current position and position and reinstall it as per the court order on 23 August 2012. Proceedings regarding this fence and these two properties have been ongoing for a number of years and there has been volumes of applications before the courts with limited success. This is not in - just in relation to Ms Szigligeti, but other people as well. The majority of his claims has been against Ms Szigligeti, who is his neighbour.
INTERPRETER: Sorry. Against?
HIS HONOUR: Ms Szigligeti, who is his neighbour.
INTERPRETER: Yes. No. Sorry. The word was "against". Yes.
HIS HONOUR: Yes, yes. Against. Sorry.
INTERPRETER: Yes. Sorry. That's okay.
HIS HONOUR: And from her appearances in court and what she has said to the court, it's quite clear that it's having a major effect on her. Not only that, but also the use of the court resources.
INTERPRETER: I'm so sorry. The audio is bad and you dropped out.
HIS HONOUR: Yes. Not only the effect on Ms Szigligeti, but also the use of the court resources, which includes the use of interpreters. In relation to this fence and the proceedings of the fence, Ms Szigligeti has said today that there was up to eight actions against her regarding this fence and she has indicated that these issues have been ventilated in different courts and dismissed on a number of occasions, and they consist of a painful history of repeated claims essentially over the same issues.
Section 17 says the court may strike out all or a part of a case statement if: (a) any claim is in - sorry - any claim is outside the court's jurisdiction - - -
INTERPRETER: Sorry. If the - sorry. Could you repeat. Sorry for that.
HIS HONOUR: If the claim - the court can strike out a case statement if the claim is outside the court's jurisdiction - - -
INTERPRETER: Yes.
HIS HONOUR: - - - or (b) it does not disclose any reasonable grounds for any claim or for any defence in it; or, (c) its purpose is to harass or annoy - - -
INTERPRETER: Sorry. I can't think of the word.
HIS HONOUR: Okay.
INTERPRETER: Sorry. This is - sorry.
HIS HONOUR: Okay. Or to cause delay or detriment or is otherwise wrongful; (d) it is an abuse of the court's process; or, (e) it is frivolous, vexatious, scandalous or improper. Subsection (2) says if the court strikes out all of the case statement the court may give judgment accordingly without a trial. The key matter for determination would be whether there is a fresh cause of action arising recently or a rehashing of previously rejected claims.
Mr Defendi says that there is a fresh cause of action because the fence has been moved. Ms Szigligeti says that this is a rehashing of previously rejected claims. On this application alone I have a number of documents that have been filed with the court by Mr Defendi and others - up to 46 documents.
DEFENDI, MR: One thing - sorry.
HIS HONOUR: As much as the latest documents that he filed yesterday or overnight which includes another sub 10 documents including the document dated 6 June 2021 which sets out an amount claimed of $41,241.
INTERPRETER: Sorry. For one - one or 1000?
HIS HONOUR: Just forty - over $41,000. So in considering section 17 of the Act, the court is armed with a number of documents and a lot of information regarding the past claims relating to this fence. Considering all the information before the court and the submissions made by both parties, I'm of a view - I am of the view that this is not a fresh cause of action and it is a rehashing of previously rejected claims and clearly falls within a number of the conditions set out in section 17. So pursuant to section 17 of the Magistrates Court (Civil Proceedings) Act 2004 - - -
INTERPRETER: 2004? Sorry.
HIS HONOUR: Yes. 2004 - the form 53 application filed by Mr Defendi - well, I should have said 'lodged' - on 9 March 2021 is struck out and dismissed. Thank you, Mr Defendi. Thank you, Ms Szigligeti. Thank you, Madam Interpreter.
The appeal
Mr Defendi commenced this appeal from the magistrate's decision of 11 June 2021 by appeal notice dated the 29 June 2021 (Appeal Notice). The appeal was commenced within time.[39]
[39] MCCPA s 40(3).
Ms Szigligeti filed a notice of respondent's intention on 16 July 2021 giving notice that she did not intend to take part in the appeal and would accept any order made by the court in the appeal other than as to costs.
Mr Defendi's first language is Italian. He had the assistance of an experienced accredited interpreter at the hearing of the appeal.
The District Court's appeal jurisdiction is found in the MCCPA pt 7. The District Court must decide the appeal on the material and evidence that was before the Magistrates Court.[40]
[40] MCCPA s 40(4)(a).
The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court.[41] This is to be undertaken by way of a rehearing.[42] As a rehearing the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal, was the result of some legal, factual or discretionary error.[43] A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law.[44] The onus is on the appellant to demonstrate this error.[45]
Grounds of appeal
[41] District Court Rules 2005 (WA) (DCR) r 50(1).
[42] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).
[43] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ).
[44] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367 (Deane J).
[45] Jones v Darkan Hotel [2014] WASCA 133 [31] (Judgment of the court).
The grounds of appeal as set out in the Appeal Notice are:
1.Denial of natural justice based upon the fact that it is a NEW Case Application based upon a NEW fence installation by the Respondent (which STILL DOES NOT COMPLY with Court Order requirements).
2.The Respondent deceptively stated that it was the same fence but I can show this is not true and that her fence was completely redone.
The Magistrate then believed her statement without allowing me any opportunity at all to dispute this untruth, as was my right, and therefore, pursuant to section 17 of the Magistrates Court (Civil Proceedings) Act 2004, there can be no reason to deny lodgement of Form 53 as stated in the Order Statement.
3.At the Hearing I was not permitted to make any deposition at all, but discourse did continue in fact with the Respondent and to her advantage only, while the absence of interpreter assistance for me was allowed to unjustly cause an unfair disadvantage to me.
4.The Magistrate showed bias against me by denying me any opportunity whatsoever of verbally presenting my Case for which I have ample proof and solid grounds and to explain and clarify things that could have been misunderstood or not understood correctly, such as the survey diagrams which are always somewhat difficult to understand, and even to respond to statements made by the Respondent which I had not been able to understand due to the absence of the interpreter.
Ground 1 is a general statement of a denial of natural justice. It is encompassed in grounds 2 and 3 which can be dealt with together. Ground 4 is framed as an allegation of bias but, in effect, is a further ground alleging a denial of procedural fairness.
The following issues arise for determination in this appeal:
1.(a) Was Mr Defendi denied procedural fairness by not being able to challenge Ms Szigligeti's assertions that the fence had not been taken down and reinstalled? (ground 2).
(b)Was Mr Defendi denied procedural fairness by the magistrate at the hearings on 2, 3 and 11 June 2021, in that he was prevented from presenting his claim at a hearing by giving and/or adducing evidence that the fence had been removed and reinstalled in March 2020? (ground 3).
2.Did the magistrate demonstrate bias towards Mr Defendi at the hearings of 2, 3 and 11 June 2021 by failing to afford him procedural fairness? (ground 4).
In dealing with these issues I take into account that Mr Defendi is a litigant in person. He is thereby entitled to some leniency in relation to compliance with the court rules.[46] I approach the documents in which he articulates his appeal with some flexibility.[47] In doing so, I need to ensure that in a poorly expressed or unstructured document in which he sets out his case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[48]
[46] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[47] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope & Samuels JJA agreeing); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).)
[48] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).)
Procedural fairness - the law
I respectfully adopt what the Court of Appeal said in Defendi v Szigligetiregarding the issue of procedural fairness in similar cases of this type dealt with in the Magistrates Court:[49]
[49] Defendi v Szigligeti [2019] WASCA 115 [45] - [53].
45It is axiomatic that a court is obliged to accord procedural fairness to a litigant.39
46However, to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. The second step is what is critical in most cases.40
47Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.41
48The requirements of procedural fairness are not fixed or immutable.42 Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances.43 The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.44
49In light of these principles, we outline the following relevant features of the legislation and rules governing the procedures of the Magistrates Court.
50Section 13 of the MCCP Act provides, relevantly, that in dealing with cases, the court is to ensure that cases are dealt with justly, which includes ensuring that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible.
51Section 15 of the MCCP Act provides as follows:
15.Court may act on its own initiative
(1)The Court may exercise its powers on the application of a party or on its own initiative unless this Act or the rules of court or another written law provides otherwise.
(2)The Court may make an order on its own initiative with or without -
(a)allowing the parties to make submissions; or
(b)hearing the parties.
(3)If the Court decides to allow the parties to make submissions before making an order on its own initiative, it must notify each party likely to be affected by the order of how and when the submissions are to be made.
(4)If the Court decides to hear the parties before making an order on its own initiative, it must notify each party likely to be affected by the order of the time and place of the hearing. (emphasis added)
52By s 16 of the MCCP Act, for the purpose of controlling and managing a case, the court has power to take any other action or make any other order for the purpose of complying with s 13.
53By r 28B of the Magistrates Court (General) Rules 2005 (WA) (the MCG Rules), the court, on the application of a party or on its own initiative, may deal with a civil case, or an aspect of a civil case, in chambers.
(FN39: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 456; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194]; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 [37].)
(FN40: Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.)
(FN41: Cameron v Cole (589); Commissioner of Police v Tanos (395 ‑ 396); J v Lieschke (456); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32]; International Finance Trust Co Ltd [54], [141] ‑ [144]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [82]; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 587, 591 ‑ 592, which has been cited with approval in many cases; see Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [100] and footnote 91 thereof; Shrestha [38].)
(FN42: Pompano [156]; Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51].)
(FN43: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]; Pompano [156]; Rowe v Stoltze [51]; Woodley v Woodley [2018] WASCA 149 [77].)
(FN44: J v Lieschke (456); Pompano [156]; Shrestha [45]; see also AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 [23].)
I will deal with grounds 2 and 3 together, expressed as issues 1(a) and 1(b). As ground 1 is subsumed into grounds 2 and 3, I do not propose to deal with ground 1 as a distinct ground. I propose to firstly summarise Mr Defendi's submissions in respect of grounds 2 and 3.
1(a) Was Mr Defendi denied procedural fairness by not being able to challenge Ms Szigligeti's assertions that the fence had not been taken down and reinstalled?
Mr Defendi submits that the magistrate accepted Ms Szigligeti's assertion that the fence had not been reinstalled, without allowing him any opportunity to dispute this assertion.
Mr Defendi argues that the magistrate accepted the untested assertion of Ms Szigligeti that the fence had not been reinstalled without giving him an opportunity to be properly heard and struck out the case based on that assertion.
Mr Defendi submits that by accepting the assertions of Ms Szigligeti, which were untested in cross-examination, the learned magistrate has erred in finding the case was not a new application, and as such an abuse of process.
1(b) Was Mr Defendi denied procedural fairness by the magistrate at the hearings on 2, 3 and 11 June 2021, in that he was prevented from presenting his claim at a hearing by giving and/or adducing evidence that the fence had been removed and reinstalled in March 2020?
In ground 3 Mr Defendi argues the magistrate had a discussion with Ms Szigligeti when there was no interpreter to assist Mr Defendi. This appears to be a reference to the hearings on 2 June 2021 when no interpreter was present, and the hearing of 3 June 2021 when Mr Defendi was not present. At the hearing on 11 June 2021 both Mr Defendi and the interpreter were present.
In respect of ground 3, Mr Defendi submits that he was denied natural justice because he was prevented from presenting his case to the magistrate with reference to various surveyors' reports. He submits that had he been permitted to do so he could have established that the fence was new and that he was not re-litigating previous cases that had already been dealt with by the courts.
Disposition
The hearing of 11 June 2021 must be viewed in the context of what took place at the hearings on 2 June 2021 and 3 June 2021. The learned magistrate engaged with Ms Szigligeti in the absence of Mr Defendi and made enquiries as to when the fence was last moved at the hearing on 2 June 2021. His Honour again engaged with Ms Szigligeti on 3 June 2021 when Mr Defendi was not present. The magistrate expressed the view on 3 June 2021 that Ms Szigligeti's assertion that the fence had last been moved in 2012 was correct. His Honour stated this accorded with his 'understanding from looking at the history'. These exchanges, with the greatest respect to the learned magistrate, should not have taken place without an interpreter on 2 June 2021 and in Mr Defendi's absence on 3 June 2021.
It appears from the transcript of 11 June that his Honour had reached a concluded view, that the fence had not been moved since 2012, was the correct position. If his Honour had not reached that conclusion based on the untested assertions of Ms Szigligeti, he would not have moved so quickly to consider striking out the claim under s 17 of the MCCPA as an abuse of process.
There was clearly a contested issue between the parties which could only be properly resolved at a hearing as to whether the fence was taken down and reinstalled in March 2020. Mr Defendi was not given an opportunity to present evidence in support of his claim, and to contest Ms Szigligeti's contention that the fence had not been moved. The learned magistrate accepted Ms Szigligeti's position after hearing from her in the absence of Mr Defendi and without giving him an opportunity to challenge her assertion by cross‑examination. I am satisfied that Mr Defendi was denied procedural fairness in those circumstances.
Having found there was a lack of procedural fairness, I need to consider whether that denial will result in a grant of relief. An appellate court will not order a rehearing if the denial of procedural fairness would not have made any difference at a new hearing. Such an order would only be made when the error has deprived the party of the possibility of a successful outcome.[50]
[50] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, 147 (Judgment of the Court); Nobarani v Mariconte [2018] HCA 36; (2018) 269 CLR 236 [38]; Buttarelli v Perpetual Ltd [2013] WASCA 254 [34] (Reasons of the Court); Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112] (Murphy JA, with whom Pullin & Buss JJA agreed); Woolworths Ltd v The Commissioner of Police [2013] WASC 413 [129] (Edelman J).
At the hearing of the appeal I invited Mr Defendi to point out the evidence he relied upon that was before the magistrate to establish that the fence had been re-erected in March 2020.[51] Mr Defendi referred to three surveyors' diagrams as demonstrating the fence was moved in 2020. The first was the diagram annexed to the McGregor report, exhibit A in the appeal. The second was the original surveyor's report annexed to the 2012 orders from Naturaliste Land Surveys dated 15 March 2012, exhibit B in the appeal. The third was a further diagram from Naturaliste Land Surveys dated 18 February 2017, exhibit C in the appeal. Mr Defendi submits that a comparison of exhibits A and C show the fence has been moved which involved the installation of new fence posts and he can attest to the fact that this occurred in March 2020. He submits that he was denied the opportunity of explaining this to the learned magistrate.
[51] District Court ts 6 - ts 9.
It is apparent that this issue could be readily resolved by a suitably qualified surveyor giving evidence having regard to the three survey diagrams as to whether the fence has been moved between February 2017 when the second Naturaliste survey was done, and 14 September 2020 when the McGregor survey was done. If Mr Defendi can establish the fence was taken down and reinstalled by Ms Szigligeti, then that may give rise to a new cause of action.
I am satisfied that had Mr Defendi been given the opportunity to adduce evidence to explain to the magistrate the differences between the surveyors' diagrams, then he may have established a fresh cause of action. I am satisfied that the denial of procedural fairness in this case has deprived Mr Defendi of the possibility of a successful outcome and, as such, an error of law has been established.
Because of my findings in respect of grounds 2 and 3, it is not necessary for me to determine ground 4.
In conclusion, there is only a case open to Mr Defendi if it can be established by admissible evidence that a new fence was erected in March 2020. If no new fence was installed then this would constitute a re-litigation of a dispute that has already been dealt with by the courts on numerous occasions and would amount to Mr Defendi seeking compliance with the orders made in 2012. That would be an abuse of the court's processes and, as such, any application would be doomed to fail.
Any application seeking enforcement of the 2012 orders can only be made under the CJE Act after first obtaining leave of the court.
Order
The appeal is allowed and the case remitted to the magistrates court to be heard before a different magistrate.
As Ms Szigligeti took no part in the appeal and has incurred no court costs, there is no basis for an order for costs. There should be no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
Associate to Judge Burrows
28 OCTOBER 2021
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