Defendi v SZIGLIGETI - [2021] WADC 7

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DEFENDI -v- SZIGLIGETI [2021] WADC 7
CORAM:   RUSSELL DCJ
HEARD:   4 DECEMBER 2020
DELIVERED          :   27 JANUARY 2021
FILE NO/S:   APP 41 of 2020
BETWEEN:   SILVANO DEFENDI
Appellant
AND
IREN SZIGLIGETI
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE SHARRATT
File Number            :   MID/GEN/2112 of 2011

Catchwords:

Magistrates Court appeal - Litigant in person - Whether denial of natural justice - Procedural fairness - Application for leave to adduce further evidence in appeal - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), s 12, s 13(1)(a), s 13(2)(a), s 13(2)(b), s 99(2), s 99(5), s 99(6)
District Court Rules 2005 (WA), r 50(1), r 50(2)
Magistrates Court (Civil Proceedings) Act 2005 (WA), s 13, s 15, s 16, s 40(3), s 40(4)(a), s 40(4)(b), s 40(5)

Result:

Appeal and application in the appeal dismissed

Representation:

Counsel:

Appellant	:	In person
Respondent	:	No Appearance

Solicitors:

Appellant	:	Not applicable
Respondent	:	Not applicable

Case(s) referred to in decision(s):

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Buttarelli v Perpetual Ltd [2013] WASCA 254
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
J v Lieschke (1987) 162 CLR 447
Jones v Darkan Hotel [2014] WASCA 133
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
MTI v SUL [No 2] [2010] WASCA 58
Nobarani v Mariconte [2018] HCA 36; (2018) 269 CLR 236
Rowe v Stoltze [2013] WASCA 92
Shilkin v Taylor [2011] WASCA 255
Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301
Silvano Defendi v Szigligeti [2018] WADC 115
Silvano Defendi v Szigligeti [2019] WASCA 115
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

RUSSELL DCJ:

Introduction

The appellant, Mr Silvano Defendi, and the respondent, Ms Iren Szigligeti, are the registered proprietors of adjoining land, being Lot 28, 965 Brooking Road, Hovea and Lot 27, 935 Brooking Road, Hovea, Western Australia. They have been in dispute over the boundary fence between their respective properties for in excess of 12 years.
The dispute between the parties has led to at least three cases brought by Mr Defendi against Ms Szigligeti in the Magistrates Court concerning the boundary fence, a previous appeal of a Magistrates Court decision concerning the boundary fence to the District Court[1] and an appeal from that decision to the Court of Appeal.[2]
[1] Silvano Defendi v Szigligeti [2018] WADC 115.
[2] Silvano Defendi v Szigligeti [2019] WASCA 115.
The 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.
This is an appeal from a decision of his Honour Magistrate Sharratt and orders made on 17 June 2020 dismissing the following applications made by Mr Defendi in the 2011 Case:
(1)On 3 February 2020, Mr Defendi made an application seeking an order under the Civil Judgments Enforcement 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'.
(2)On 23 April 2020, Mr Defendi made a further application seeking an order 'to access the boundary line from inside lot 27 at 935 Brooking Road, Hovea by a surveyor engaged by Mr Defendi to measure, stake and verify the correct boundary line and fencing between lots 27 and 28, 935 Brooking Road',

(2020 Applications).

Mr Defendi has 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.
Mr Defendi has also made an application in the appeal to 'submit grounds and documentary evidence' relating to his application dated 3 February 2020. This includes documentary evidence that postdates the time of the hearing of the 2020 Applications before the magistrate.
For the reasons that follow, the appeal and the application in the appeal should be dismissed.

Background

The context in which the 2020 Applications were considered by the magistrate includes the long history of claims made by Mr Defendi against Ms Szigligeti in relation to the boundary fence between their respective properties.
Following service of Mr Defendi's application dated 3 February 2020 to enforce the 2012 Orders, Ms Szigligeti sent a letter to the court dated 19 February 2020 stating that, in her view, the orders sought by Mr Defendi were frivolous and defective, outlining Mr Defendi's previous claims and requesting the dismissal of his application.
Orders were made by the magistrate adjourning the hearing of the application to 29 April 2020 'for a decision on the Dismissal Application by the Defendant'.[3]
[3] Order dated 4 March 2020 in 2011 Case.
Mr Defendi sought an adjournment of that hearing due to his vulnerability to COVID-19 and his doctor's advice to self‑isolate for three months to avoid exposure and the possibility of infection.[4] The hearing proceeded on 29 April 2020 by telephone, but no interpreter had been arranged. Orders were made adjourning the hearing to 27 May 2020, for an Italian interpreter to be present, items to be sent to Mr Defendi and for Mr Defendi to make further submissions in respect of the 2020 Applications at the adjourned hearing.
[4] Email from Mr Defendi to the Midland Magistrates Court dated 22 March 2020.
The adjourned hearing of 27 May 2020 proceeded by telephone but there were problems with the sound quality and the hearing was adjourned to 17 June 2020.
Given the history of the dispute between the parties and the matters referred to by the magistrate in dismissing the 2020 Applications, I set out below a summary of the previous cases brought by Mr Defendi against Ms Szigligeti.

The 2011 Case

On 21 November 2011, Mr Defendi commenced the 2011 Case seeking orders under the Dividing Fences Act 1961 (WA) for the removal and repositioning of fences on the boundary between the parties' respective properties.
On 23 August 2012, the Magistrates Court made the 2012 Orders.

The 2016 Case

On 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).
The 2016 Case is summarised in the Court of Appeal's decision in Defendi v Szigligeti.[5]
[5] Defendi v Szigligeti [2019] WASCA 115 [5] - [8].
The 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
(FN 1: 2016 Case ts 6, ts 8, ts 11)
(FN 2: 2016 Case ts 11, ts 14, ts 15 - ts 16)
(FN 3: 2016 Case ts 7, ts 8, ts 11, ts 14, ts 15)
(FN 4: 2016 Case ts 15 - ts 16, ts 18)
(FN 5: 2016 Case ts 17)
(FN 6: 2016 Case ts 14, ts 17)
(FN 7: 2016 Case ts 12)
(FN 8: 2016 Case ts 2 - ts 3)
The 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

[6] 2016 Case, 27 September 2017, ts 15 - ts 16.

On 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).
The 2017 Case is also summarised in the Court of Appeal's decision in Defendi v Szigligeti.[7]
[7] Defendi v Szigligeti [2019] WASCA 115 [9] - [28].
His 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.
Mr 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]
[8] Defendi v Szigligeti [2018] WADC 115.
Mr Defendi appealed that decision to the Court of Appeal. That appeal was dismissed on 8 August 2019.[9]
[9] Defendi v Szigligeti [2019] WASCA 115.

The magistrate's decision of 17 June 2020 the subject of this appeal

The formal orders made on 17 June 2020 were that the application dated 23 April 2020 be dismissed. The orders are silent as to the application made under the CJE Act on 3 February 2020, though it is apparent from the Magistrates Court file and the transcript of the hearing on 17 June 2020 that the magistrate dealt with and dismissed both of the 2020 Applications at the hearing on 17 June 2020.
Orders were made on 29 April 2020 that the 2020 Applications were adjourned to 27 May 2020 and that Mr Defendi was to make further submissions in respect of each of the 2020 Applications at that hearing. Orders were made on 27 May 2020 adjourning the hearing of the 2020 Applications to 17 June 2020.
At the hearing on 17 June 2020, the magistrate stated that all of Mr Defendi's applications were dismissed.[10]
[10] 2011 Case, 17 June 2020, ts 5.
Mr Defendi and an interpreter attended the hearing on 17 June 2020 by telephone. There was no appearance by Ms Szigligeti. The magistrate confirmed that he could hear Mr Defendi and the interpreter clearly and that Mr Defendi had been supplied with items sent to the court by Ms Szigligeti in support of her application for dismissal of Mr Defendi's application in respect of the 2012 Orders. The magistrate confirmed that he had on the court file Mr Defendi's affidavit sworn on 26 May 2020 in support of the 2020 Applications.[11]
[11] 2011 Case, 17 June 2020, ts 2 - ts 3.
The magistrate went on to outline the history of the proceedings and stated that seven and a half years after the 2012 Orders had been made, Mr Defendi seeks an order that Ms Szigligeti carry out orders 3 and 4 of those orders.[12]
[12] 2011 Case, 17 June 2020, ts 3.
The magistrate referred to Ms Szigligeti's letter to the court dated 19 February 2020, which had been disclosed to Mr Defendi and in which she argued that his application was frivolous and vexatious and that the orders sought corresponded with two previous cases which had been dismissed. The remainder of the hearing proceeded as follows:[13]
[13] 2011 Case, 17 June 2020, ts 3 - ts 4.
HIS HONOUR:       … This claim today concerns a complaint that [Ms Szigligeti] failed to comply with the same order that was the subject matter of those two proceedings. The claim, 934 of 2006 [2016], the Fremantle claim, relates to an 18 metre section of boundary fence in order 4.
At the trial of that matter, Mr Malone, the presiding magistrate, said the order that was in place obligated [Ms Szigligeti] to build a fence along that line, but it didn't entitle Mr Defendi to build his own fence. It didn't entitle him to build it. Mr Defendi wasn't entitled to take the matter in his own hands and simply build the fence and say, 'I want half'. Mr Defendi was invited to make submissions as to why asking for compliance with the 2012 order now was not an abuse of process.
Mr Defendi says it was a mistake as to procedure only that he commenced those proceedings, but Mr Malone made it clear that in building that 18 metre section of the fence, Mr Defendi lost his entitlement to claim. At page 17 of the transcript of 27 September 2017, his Honour Mr Malone says Mr Defendi did not appeal that decision. Mr Defendi cannot relitigate that same point in this court and his attempt to do so under the guise of seeking compliance with order 4 is an abuse of process. [Ms Szigligeti] also says that the case of Fremantle 1502 of 2017 refers to the order 3 that Mr Defendi seeks to enforce.
…
… Mr Defendi's case statement in that case was as follows: following the order delivered by Midland court, the proceeding 2011 dated 23 August 2012, [Ms Szigligeti] did not make the fencing instruction according to the order which should be inside her own property but built it trespassing partially into lot 28 of [Mr Defendi], and partially on the borderline, putting [Mr Defendi] in the position of not being able to build his own fence and having to overlap the two fences if built on the border and not as determined inside their own properties.
On 24 January 2018, his Honour Mr Malone dismissed that claim as being an abuse of process because he concluded the application was effectively a reworking of what were the original issues. Mr Defendi appealed against that decision to the District Court, which was appeal number 15 of 2018, and his appeal was dismissed. He then further appealed that decision to the Supreme Court, which was appeal 97 of 2018, and that appeal was dismissed. Mr Defendi seeks to ventilate the same issues that he attempted unsuccessfully in those cases and in the District and Supreme Court and seeks that the court makes an order that the defendant carry out orders already made. Mr Defendi's case applications in those matters were dismissed not on procedural grounds but on substantive ones.
INTERPRETER:    I'm sorry. What particular grounds? I didn't understand.
HIS HONOUR:     Substantive.
INTERPRETER:    Substantive.
HIS HONOUR:      Yes. I dismiss - - -
DEFENDI, MR:     Excuse me. Excuse me (indistinct)
HIS HONOUR:      I don't want to hear from Mr Defendi. This is a judgment. I dismiss Mr Defendi's application to carry out order 3 and I also dismiss, for that reason, his application that there be another survey. All of his applications are dismissed.
DEFENDI, MR:      Excuse me, your Honour (indistinct)
HIS HONOUR:      Thank you, Madam Interpreter. Thank you, Madam Interpreter. I don't want to hear any more from Mr Defendi. We've got a busy court to get on with. His applications are dismissed. All right. Thank you.

The appeal to this court

Mr Defendi commenced this appeal from the magistrate's decision of 17 June 2020, by appeal notice dated 3 July 2020 (Appeal Notice).
The appeal was commenced within the 21 days required by Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCP Act) s 40(3).
Ms Szigligeti filed a notice of respondent's intention on 31 July 2020 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.
On 4 November 2020, Mr Defendi made an application in the appeal to 'submit grounds and documentary evidence' relating to his application dated 3 February 2020.
On 27 November, 2020, Mr Defendi filed written submissions dated 24 November 2020 in support of his appeal.
Mr Defendi's first language is Italian. He had the assistance of an experienced, accredited interpreter at the hearing of the appeal and the application in the appeal on 4 December 2020.[14]
[14] ts 4.

The application in the appeal

By his application in the appeal dated 4 November 2020, Mr Defendi sought to 'submit grounds and documentary evidence' relating to his application under the CJE Act 'because he was prevented from doing so' at the hearing on 17 June 2020. The application is supported by a statutory declaration of Mr Defendi dated 23 October 2020.
A number of documents are attached to the application dated 4 November 2020 and referred to by Mr Defendi in the statutory declaration dated 23 October 2020 and also in his submissions dated 24 November 2020. Each of the documents are identified as attachment 'X' followed by the number of the attachment.
It does not appear from the Magistrates Court file that any of the documents Mr Defendi now seeks to rely on as evidence of non‑compliance with the 2012 Orders were before the magistrate at the hearing on 17 June 2020.
Further, a number of the attachments to the application postdate the hearing on 17 June 2020, including attachments X1, X2, X3 and the following documents relating to a survey conducted, invoices and receipts issued and quotations obtained in September 2020:
1.X10 - letter dated 15 September 2020 from McGregor Surveys to Mr Defendi relating to a boundary identification survey conducted on 4 and 14 September 2020.
2.X20 - a letter from Marocchi Engineering Group to Mr Defendi dated 29 September 2020.
3.X21 (also included as Attachment a) - quotation dated 6 September 2020 from CAI Fences to Mr Defendi.
4.X23 (also included as Attachment d) - tax invoice dated 7 September 2020 from McGregor Surveys to Mr Defendi.
5.X24 (also included as Attachment e) - tax invoice dated 15 September 2020 from McGregor Surveys to Mr Defendi.
6.X25 (also included as Attachment f) - quotation dated 7 September 2020 from Atlantis Investments to Mr Defendi.
Mr Defendi also seeks to rely on document X26 (also included as Attachment g), a receipt from Pathfinder Investigations Pty Ltd dated 15 July 2020. This and the documents referred to in the preceding paragraph relate to a claim by Mr Defendi for compensation as described in the following paragraph and which was not before the magistrate.

Claim for compensation

In his statutory declaration dated 23 October 2020 and his submissions dated 24 November 2020 filed in the appeal, Mr Defendi seeks to introduce a new claim for compensation in the amount of $12,026.75 for costs he claims to have incurred and for not being able to erect his fence. This includes costs alleged to have been or to be incurred that postdate the hearing on 17 June 2020, including those referred to in the documents identified in [40] and [41] above.

General principles relating to the appeal

The District Court's appeal jurisdiction is found in pt 7 of the MCCP Act. The District Court must decide the appeal on the material and evidence that were before the Magistrates Court[15] and any other evidence that it gives leave to be admitted.[16] Such leave may only be given in exceptional circumstances.[17]
[15] MCCP Act s 40(4)(a).
[16] MCCP Act s 40(4)(b).
[17] MCCP Act s 40(5).
Rule 50(1) and r 50(2) of the District Court Rules2005 (WA) (DCR) provides that:
(1)An appeal to the Court must be by way of reconsideration of the evidence that was before the primary court unless the parties agree otherwise;
(2)At the hearing of an appeal a party may only adduce evidence that was not adduced in the primary court with the leave of the court, such leave is not to be granted unless the court is satisfied there are special grounds for doing so.
In Shilkin v Taylor, the Court of Appeal said the following in relation to the court's discretion to give leave to admit evidence that was not before the Magistrates Court and the term 'exceptional circumstances':[18]
67A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance. Where the evidence was deliberately withheld, that will be a factor which weighs heavily against the admission of the evidence on appeal: CDJ v VAJ [1998] HCA 67; (1998) 197 CLR 172 [116]. Even where that is not the case, ordinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial (or in this case, of a full trial): see CDJ v VAJ [111].
68On an appeal of the present kind, this court may grant leave for additional evidence to be admitted only in exceptional circumstances: Magistrates Court (Civil Proceedings) Act, s 42(3)(c), s 42(4). It is not helpful to attempt to describe what would constitute 'exceptional circumstances' for the purpose of s 42(3)(c) [of the MCCP Act]. The variety of circumstances which might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose. It is sufficient to say that in this case no exceptional circumstances have been made out. The appellant has provided no explanation as to why the evidence referred to in his affidavit was not led before the magistrate …
[18] Shilkin v Taylor [2011] WASCA 255 [67] - [68].
The appeal is to be undertaken by way of a rehearing.[19]
[19] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).
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.[20] A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law.[21] The onus is on the appellant to demonstrate this error.[22]
[20] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ).
[21] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 - 367 (Deane J).
[22] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).

Grounds of appeal and issues arising for determination

The Appeal Notice enumerates three grounds of appeal, as follows:
1.The Magistrate did not allow me to say even one word or to make any clarification whatsoever regarding the documents that I had duly submitted to the Court but that he had not read. He had read the statement sent to him via email by the Defendant however, dated 19 February 2020 and on that basis proceeded to close the Case having made the decision to dismiss the Case in favour of the Defendant.
2.He forcibly refuted every attempt I made to say something and then closed off the telephone communication saying that he had a 'busy court' and had no time to listen to anything I had to say.
3.This was a denial of natural justice.
Ground 3 is stated as a conclusion that the matters stated in grounds 1 and 2 'was a denial of natural justice'. Together, grounds 1 - 3 raise the following issues for determination:
1.Was there a denial of natural justice (procedural fairness) because the magistrate:
(a)did not allow Mr Defendi to make any submissions at the hearing on 17 June 2020;
(b)did not allow Mr Defendi to make any clarifications regarding the documents he had submitted to the court and did not read those documents; and
(c)based his decision to dismiss the 2020 Applications on the statement of Ms Szigligeti dated 19 February 2020?
2.If there was any denial of natural justice, did it make any difference to the outcome of the 2020 Applications?

Litigants in person

In determining these issues, I am conscious that Mr Defendi is a litigant in person. As such, he is entitled to some leniency in relation to compliance with the court rules.[23] It is appropriate that I approach the documents in which he articulates his case with some flexibility.[24] 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.[25]
[23] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[24] 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).
[25] 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).
At the same time, I also need to ensure that any latitude given to Mr Defendi does not deprive Ms Szigligeti of her rights to procedural fairness and a fair hearing.[26]
[26] Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (Judgment of the court); MTI v SUL [No 2] [2010] WASCA 58 [42] - [43] (Newnes JA, with whom Pullin & Buss JJA agreed); Glew v Frank Jasper Pty Ltd [10].
I have considered these matters in determining this appeal and the application in the appeal.

Mr Defendi's submissions in this appeal

Mr Defendi's written submissions dated 24 November 2020 in support of his grounds of appeal and those made by him orally at the hearing of the appeal are to the following effect:
1.All hearings were heard by telephone and Mr Defendi did not attend any of them in person.
2.The magistrate failed to be impartial because he based his dismissal of the 2020 Applications on Ms Szigligeti's letter dated 19 February 2020. Mr Defendi also refers to not being served with a copy of that letter and to having made four applications to obtain a copy of it.
3.The magistrate failed to take any notice of Mr Defendi's affidavit dated 26 May 2020 in response to the observations made in Ms Szigligeti's letter dated 19 February 2020.
4.The magistrate failed to take into account that Mr Defendi's claims were not frivolous or vexatious. The legal action is still continuing for Ms Szigligeti to move her fence from where he claims it is still encroaching over the boundary line to the correct court ordered position fully contained within her property.
5.The magistrate failed to accept Mr Defendi's application of 23 April 2020 which could have allowed a surveyor engaged by him to access the fence from Ms Szigligeti's side for an independent inspection to verify measurements and assess the extent of encroachment.
6.The magistrate failed to demonstrate impartiality because he was aware that attempted hearings had been adjourned without any possibility of communication for a number of reasons, including the interpreter not being present or difficulty in audio transmission during lockdown periods. As such, Mr Defendi had not had an opportunity to submit his evidence and argue his case. In spite of this, during the hearing on 17 June 2020, the magistrate prohibited Mr Defendi from speaking and had already formulated his decision based solely on the submissions of Ms Szigligeti.
7.The magistrate dismissed the case without accepting one single word from Mr Defendi and 'negligent of the fact that the fence is still encroaching and not compliant with the 2012 Orders'.
8.The magistrate failed to accept that Mr Defendi had proof of encroachment to present to the court and did not allow Mr Defendi to present his case.
9.Had he been allowed to speak, Mr Defendi intended to inform the court that since his application to verify encroachment from the defendant's side had been denied, he would arrange for a survey to be done from his own side and would submit those details to the court instead.
10.Mr Defendi requested that this court accept a survey that he has since obtained dated 15 September 2020 (attachment X10), which he submits confirms that the fence does not comply with the 2012 Orders. This survey was obtained by Mr Defendi after he ascertained that it is possible to determine the extent of encroachment from his own side of the boundary by using laser methods.
I have considered each of these submissions in arriving at my decision in this appeal.
Whilst not a ground of appeal, for completeness given Mr Defendi has raised the issue in his submissions, I do not consider that there is any denial of natural justice or any basis to conclude that Mr Defendi was not given a reasonable opportunity to present his case merely because the hearings relating to the 2020 Applications were conducted by telephone and he did not attend them in person.
Also, as observed earlier in these reasons, the hearings were held by telephone at Mr Defendi's request to avoid exposure to COVID-19. Each of the hearings that preceded the final hearing on 17 June 2020 were adjourned because of difficulties with sound quality or because no interpreter was present. The magistrate confirmed at the commencement of the hearing on 17 June 2020 that he could hear Mr Defendi and the interpreter clearly. At the appeal hearing on 4 December 2020, Mr Defendi said that the communication at the hearing on 17 June 2020 was good.[27]
[27] ts 7.

Was there a denial of natural justice?

As Rich J observed in Cameron v Cole, it is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a party is given a reasonable opportunity of appearing and presenting his case.[28]
[28] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J).
The Court of Appeal summarised the relevant law in Rowe v Stoltze:[29]
… It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].
[29] Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed).
As observed by the Court of Appeal in Defendi v Szigligeti,[30] 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 it.[31] The following are relevant features of the legislation and rules governing the procedures of the Magistrates Court.
[30] Defendi v Szigligeti [2019] WASCA 115 [48] - [53].
[31] J v Lieschke (1987) 162 CLR 447, 456; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [156]; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 [45]; see also AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 [23].
Section 13 of the MCCP Act requires the court 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.
Section 15 of the MCCP Act provides:
15Court 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)
By 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.
As was also observed by the Court of Appeal in Defendi v Szigligeti:[32]
It is no doubt the case that a magistrate is required to exercise the above powers in a manner which ensures that the proceedings are conducted in a fair manner, and that the parties to those proceedings have a sufficient opportunity to present their respective cases.⁴⁵However, these provisions create substantial obstacles for a contention that the Magistrates Court is required in every case to provide parties with the opportunity to be heard orally.
(FN⁴⁵: See, for example, Shrestha [47] - [50])

Was there a denial of procedural fairness because the magistrate did not allow Mr Defendi to make any oral submissions at the hearing on 17 June 2020?

[32] Defendi v Szigligeti [2019] WASCA 115 [54].

On 29 April 2020, the magistrate ordered that Mr Defendi was to make further submissions as to the 2020 Applications at the hearing on 27 May 2020. The hearing of 27 May 2020 was adjourned to 17 June 2020.
Mr Defendi filed his affidavit sworn on 26 May 2020, which the magistrate confirmed he had on the court file at the hearing on 17 June 2020. In that affidavit, Mr Defendi explained that 'not being a lawyer', he had erroneously initiated the wrong procedures in the cases referred to by Ms Szigligeti (the 2016 Case, the 2017 Case and subsequent appeals). He said, in effect, that he had now initiated the correct procedure to request compliance with the 2012 Orders.[33]
[33] Appellant's affidavit sworn 26 May 2020, par 2, pars 2.1 - 2.2.
It is readily apparent from the transcript of the hearing on 17 June 2020 that the magistrate did not allow Mr Defendi to make any oral submissions at that hearing. When Mr Defendi attempted to speak, the magistrate said that he did not want to hear from Mr Defendi. He said that 'This is a judgment'[34] and dismissed the 2020 Applications. Upon Mr Defendi seeking to speak again, the magistrate said 'I don't want to hear any more from Mr Defendi. We've got a busy court to get on with. His applications are dismissed'.[35]
[34] 2011 Case, 17 June 2020, ts 5.
[35] 2011 Case, 17 June 2020, ts 5.
As stated earlier in these reasons, what is a reasonable opportunity to be heard is to be judged not solely by reference to the interests of the parties, but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court.
Consistently with this, as outlined, s 13 of the MCCP Act requires the court to ensure that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible. Also, the court is permitted, under s 15 of that Act, to make an order of its own initiative without allowing the parties to make submissions, or hearing the parties.
However, having made orders for Mr Defendi to make further submissions as to the 2020 Applications at the adjourned hearing, the magistrate should, in my view, have allowed Mr Defendi an opportunity to do so. He was not allowed that opportunity and, as a result, was denied procedural fairness.
However, for the reasons that follow, I do not consider that it would have made any difference to the outcome if Mr Defendi had been permitted to make oral submissions at the hearing on 17 June 2020. As such, the appeal should not be allowed on this ground.

Was there a denial of procedural fairness because the magistrate did not allow Mr Defendi to make any clarifications regarding the documents he had submitted and did not read those documents?

There is no information or evidence before the court to support the element of ground of appeal 1 that the magistrate did not read the documents that Mr Defendi had submitted to the court in respect of the 2020 Applications. The documents Mr Defendi had submitted to the Court were, relevantly, the 2020 Applications, including Mr Defendi's affidavits filed with those applications on 3 February 2020 and 23 April 2020 and Mr Defendi's affidavit sworn on 26 May 2020. Whilst in the form of an affidavit, Mr Defendi's affidavit of 26 May 2020 also includes submissions and argument relating to the 2020 Applications.
The magistrate referred to the 2020 Applications and to having Mr Defendi's affidavit sworn on 26 May 2020 which was on the court file.[36]
[36] 2011 Case, 17 June 2020, ts 2 - ts 3.
The magistrate stated that Mr Defendi was seeking to ventilate the same issues that he attempted to unsuccessfully in the 2016 Case, the 2017 Case and subsequent appeals and was seeking an order that Ms Szigligeti carry out orders already made.[37] I infer from the magistrate's statement to the effect that Mr Defendi's applications in those matters were dismissed on substantive grounds, not procedural grounds (as submitted by Mr Defendi in his affidavit sworn on 26 May 2020),[38] that the magistrate had read that affidavit.[39]
[37] 2011 Case, 17 June 2020, ts 5.
[38] Appellant's affidavit sworn 26 May 2020, par 2, pars 2.1 - 2.2.
[39] 2011 Case, 17 June 2020, ts 5.

It follows from what has already been said about the magistrate not allowing Mr Defendi to speak at the hearing that he was not allowed to make any clarifications at the hearing about the documents he had submitted. However, having regard to the matters in [58] - [63] and [67] - [68] of these reasons, I do not consider that Mr Defendi was denied natural justice by not being able to make clarifications at the hearing about the documents he had submitted.
In any event, for the reasons that follow, it would not have made any difference to the outcome if Mr Defendi had been permitted to do so. As such, the appeal should not be allowed on this ground.

Was there a denial of procedural fairness because the magistrate based his decision to dismiss the 2020 Applications on the statement of Ms Szigligeti dated 19 February 2020?

Whilst, it is evident from the transcript that the magistrate had read and had regard to Ms Szigligeti's letter dated 19 February 2020,[40] there is no information or evidence before the court to support this element of ground of appeal 1, nor Mr Defendi's submissions to the effect that the magistrate was not impartial and based his decision to dismiss the 2020 Applications solely on the statement of Ms Szigligeti. As already noted, the magistrate also had regard to Mr Defendi's affidavit sworn on 26 May 2020.
[40] 2011 Case, 17 June 2020, ts 3 - ts 4.
I am not satisfied that there was any denial of procedural fairness under this element of appeal ground 1 and the appeal should not be allowed on this ground.
For completeness, I note that Mr Defendi also referred in his submissions in this appeal to not being served with a copy of Ms Szigligeti's letter and to having made four applications to obtain a copy of it.[41] This is not relevant to and has no bearing on the appeal. It is clear from the transcript of the hearing on 17 June 2020,[42] from Mr Defendi's own submissions[43] and his affidavit of 26 May 2020, in which he states he is responding to that letter,[44] that he had been provided with a copy of Ms Szigligeti's letter to the court, had the opportunity to, and did respond to it.

If there was any denial of natural justice, did it make any difference to the outcome of the 2020 Applications?

[41] Appellant's submissions dated 24 November 2020, par 1, ts 9. See also ts 15 - ts 17.

[42] 2011 Case, 17 June 2020, ts 3.

[43] Appellant's submissions dated 24 November 2020, ts 2, ts 9.

[44] Appellant's affidavit sworn 26 May 2020, par 1.

Even where a failure to afford procedural fairness is identified, not every denial of procedural fairness will result in a grant of relief. An appellant court will not order a re‑hearing if the denial of procedural fairness would not have made any difference to the outcome of the previous hearing or would make no 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.[45]
[45] 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).
The key question identified by the High Court in Stead v State Government Insurance Commission is: 'Would further information possibly have made any difference?'[46]
[46] Stead, 145.
I therefore need to inquire whether, had Mr Defendi been afforded the opportunity to make oral submissions at the hearing on 17 June 2020, it would have made any difference to the outcome of the hearing.
At the appeal hearing, Mr Defendi referred to his affidavit sworn on 26 May 2020 in which he said he listed for the magistrate six reasons for his applications. He said that his previous cases had been presented in the wrong form as general claims and not as an enforcement of the 2012 Orders.[47]
[47] ts 9 - ts 10.
Mr Defendi explained, in effect, that if he had been able to speak at the hearing on 17 June 2020, he wanted to tell the magistrate that because he was not a lawyer he had presented his claims in the wrong form as new general claims and now he knew that he needed to present them as an enforcement, which he had been told he has 12 years to do and that he was still in time to enforce compliance with the 2012 Orders.[48]
[48] ts 14 - ts 15.
These are matters that Mr Defendi addressed in his affidavit sworn on 26 May 2020,[49] which was before the magistrate at the hearing on 17 June 2020 and, as has already been stated, I infer that the magistrate read and was aware of.

The application in the appeal to adduce further evidence

[49] Appellant's affidavit sworn 26 May 2020, par 2, pars 2.1 - 2.2.

Mr Defendi also asked this court to consider the documents referred to in his submissions dated 24 November and attached to the application in the appeal dated 4 November 2020, which he said he would have presented to the magistrate if he was given the opportunity to do so.[50]
[50] ts 20, ts 23 - ts 24.
Mr Defendi was asked to confirm which documents he would have presented to the magistrate and was seeking to rely upon. He confirmed that it was all of the documents referred to in his application in the appeal, in his statutory declaration in support dated 23 October 2020 and referred to in his submissions dated 24 November 2020.[51]
[51] ts 22 - ts 24.
As already noted, not all of those documents were before the magistrate at the hearing on 17 June 2020 and, as the hearing was conducted by telephone, Mr Defendi could not have physically provided them to the court at the hearing, in any event.
In particular, Mr Defendi seeks to rely on the following documents:
1.a survey report and drawing prepared by Naturaliste Land Surveys dated 15 February 2017 (Attachments X6 and X7);
2.an undated drawing (Attachment X11);
3.a letter from Naturaliste Land Surveys dated 5 October 2015 (Attachment X12);
4.a letter from Mr Defendi to Mr J Szigligeti dated 20 April 2006 (Attachment X13); and
5.the documents dated September 2020 referred to in [40] of these reasons.
I have considered those documents and each of the documents the subject of the application in the appeal.
Other than to say he was not allowed an opportunity to speak at the hearing on 17 June 2020 and that he would have presented the documents to the magistrate if he had had the opportunity to do so, Mr Defendi has provided no explanation as to why the documents he now seeks to rely upon were not provided to the court for the hearing on 17 June 2020. In the knowledge the hearing was to be conducted by telephone, it was incumbent on Mr Defendi to ensure that any documents he wanted to refer to, and the court to have regard to, were provided to the court in advance of the hearing. He did not attach any of the documents that were available to him to his affidavit of 26 May 2020.
I cannot accept Mr Defendi's submission to the effect that he would have presented all of the documents he now seeks to rely on to the magistrate at the hearing. This cannot be the case for the documents that postdate the hearing date of 17 June 2020 as they did not exist at that time and could not have been presented to or taken into account by the magistrate.
I am not satisfied that there are any exceptional circumstances or special grounds for admitting the documents that Mr Defendi seeks to rely on that were not before the magistrate. In any event, for the reasons that follow in relation to each of the 2020 Applications I consider that, had Mr Defendi adduced the evidence he now seeks to rely on, it would not have made any difference to the outcome. As such, I do not grant the application in the appeal for leave for Mr Defendi to adduce the further documentary evidence the subject of that application.

Application dated 3 February 2020 to enforce 2012 Orders

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.
This is the case even allowing some leniency in relation to compliance with the court rules and approaching the documents in which Mr Defendi has articulated his case with some flexibility, given he is a litigant in person.
Mr Defendi is not entitled to the relief sought under the CJE Act in his application dated 3 February 2020 requiring Ms Szigligeti to 'carry out' orders 3 and 4 of the 2012 Orders.
The relief available for non‑compliance with those orders under the CJE Act is to be found in pt 5, div 2 of the CJE Act, which applies if a judgment requires or has the effect of (relevantly) requiring a person to do an act (other than to pay money or give possession of property to another person). Section 99(2) requires that:
In order to enforce such a judgment, a person who is entitled to the benefit of the judgment may apply to the court for an order addressed to -
(a)the person entitled to the benefit of the judgment; or
(b)a person appointed by the court,
that authorises that person to do the act concerned, or as much of it as is practicable, at the expense of the obligated person.
Section 99(5) of the CJE Act provides that:
When or after making such an order the court may make any necessary ancillary or consequential order including an order providing for the expenses of carrying out the order to be determined by the court.
Section 99(6) of the CJE Act provides that:
When or after making such an order, the court may make an enforcement order under Part 4 [of the CJE Act] for the purpose of enforcing the payment of the enforcement costs associated with the order and the expenses determined.
Mr Defendi has not sought relief under s 99 of the CJE Act, nor does his application seek relief in those or similar terms.
Mr Defendi submits that he has 12 years within which to enforce the 2012 Orders. However, whilst s 12 of the CJE Act provides that an order to enforce a judgment 'must not be made if 12 years have elapsed since the judgment took effect', s 13(1)(a) of the CJE Act provides that:
Leave of the court must be obtained before an order may be made to enforce a judgment if 6 years have elapsed since judgment took effect.
The court may grant leave to enforce a judgment after six years have elapsed since the judgment took effect:[52]
(a)… if it is satisfied that the person seeking to enforce the judgment is entitled to do so and that the person against whom the order is sought is liable to satisfy the judgment and
(b)may order the trial of any issue that needs to be decided in order to determine if the judgment may be enforced …
[52] CJE Act s 13(2)(a), s 13(2)(b).
Though no application for leave to enforce the 2012 Orders was made, the affidavits filed by Mr Defendi in support of his application do not provide any explanation for the delay in seeking to enforce the 2012 Orders, other than to say that further to consultation with a solicitor it was confirmed to him that the correct procedure was to apply through the CJE Act to the Midland Magistrates Court within 12 years of non‑compliance with the order.[53] He does not depose to when he received that advice. During the hearing of this appeal he said that he only came to know 'this year' that he had presented his previous general claims in the wrong form and that 'it has to be presented as an enforcement'.[54]
[53] Appellant's affidavit sworn 26 May 2020, par 2.1.
[54] ts 10.
Though Mr Defendi is not legally represented, I am not satisfied that he was not aware until 'this year' that his remedy for any non‑compliance with the 2012 Orders was by enforcement under the CJE Act. He was on notice of this earlier from statements made to this effect by the magistrate in the 2016 Case on 27 September 2017[55] and by Gething DCJ in his reasons for decision dismissing Mr Defendi's appeal to the District Court in Defendi v Szigligeti,[56] delivered on 14 September 2018, which was also referred to in in the Court of Appeal's reasons for decision delivered on 8 August 2019 in Defendi v Szigligeti.[57]
[55] See [19] of these reasons; 2016 Case, ts 16 - ts 17.
[56] Defendi v Szigligeti [2018] WADC 115 [26].
[57] Defendi v Szigligeti [2019] WASCA 115 [31(2)].
The orders Mr Defendi seeks to enforce are as follows:
1.order 3 of the 2012 Orders required Ms Szigligeti to relocate that part of her existing fence which, at the time of the 2012 Orders, fell outside the boundary of her property as identified in the survey report, within 28 days of the proceedings being dismissed; and
2.order 4 of the 2012 Orders required Ms Szigligeti to 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 28 days of the proceedings being dismissed.
The survey report is that referred to in order 1 of the 2012 Orders as having been obtained by Mr Defendi from Naturaliste Land Surveys, and which Mr Defendi was to provide to Ms Szigligeti as required by order 2 of the 2012 Orders (the 2012 Survey Report).
Whether or not Ms Szigligeti complied with orders 3 and 4 of the 2012 Orders is to be assessed by reference to whether she has:
1.relocated that part of her existing fence which, at the time of the 2012 Orders, fell outside the boundary of her property as identified in the 2012 Survey Report; and
2.fenced the remainder of the boundary between the properties, with that fencing to fall on her side of the boundary line identified in the 2012 Survey Report.
Mr Defendi did not adduce the 2012 Survey Report and has not sought leave to do so. There was no evidence before the magistrate and there is no evidence the subject of the application in the appeal to demonstrate any failure by Ms Szigligeti to comply with orders 3 and 4 of the 2012 Orders. There is no reference in any of the documents that were before the magistrate or in those the subject of the application in the appeal to the boundary identified in the 2012 Report. As such, admission of those documents would not result in a different outcome.
In the circumstances, I am not satisfied that if Mr Defendi had been given the opportunity to make submissions about the matters he has stated he wished to say to the magistrate, it would have made any difference to the outcome of the hearing on 17 June 2020. Nor was he deprived of the possibility of a successful outcome in respect of the 2020 Applications by not being allowed to do so. For the same reasons, if Mr Defendi were given the opportunity to make those submissions or rely on the documents he seeks to rely on in a new hearing, it would make no difference to the outcome.

Application dated 23 April 2020 to allow a surveyor to access Ms Szigligeti's property

The need for the orders sought in Mr Defendi's application dated 23 April 2020 to allow a surveyor to access Ms Szigligeti's property has fallen away. This is because Mr Defendi has subsequently ascertained that access to Ms Szigligeti's property is not necessary as a survey can be undertaken using laser methods. Mr Defendi has proceeded to obtain such a survey and has submitted that, had he been allowed to, he would have told the magistrate at the hearing on 17 June 2020 that he would arrange for a survey to be done from his own side of the boundary.[58]
[58] Appellant's submissions dated 24 November 2020, par 9.
Had Mr Defendi been given the opportunity to say this at the hearing before the Magistrate, this would have made no difference to the outcome of the hearing in relation to this application. The orders sought in this application would not have been made on 17 June 2020, in any event, as Mr Defendi no longer required access to Ms Szigligeti's property to undertake the survey.

Claim for compensation

Mr Defendi's application for compensation outlined in his written submissions dated 24 November 2020 did not form any part of the 2020 Applications. It was not a matter that was before the magistrate and not a matter that Mr Defendi may now raise in this appeal. As such, I do not address that claim.

Conclusion and final orders

For the above reasons, I find that though there was a failure to afford Mr Defendi procedural fairness by not allowing him to make oral submissions at the hearing on 17 June 2020 as had been ordered, that error did not make any difference to the outcome of the hearing or deprive Mr Defendi of the possibility of a successful outcome in respect of the 2020 Applications. As such, the appeal is dismissed.
As to the application in the appeal, I find that there are no exceptional circumstances or special grounds for granting leave to adduce the further documents Mr Defendi now seeks to rely on, and it would not have made any difference to the outcome had such been adduced. As such, I do not grant leave for Mr Defendi to adduce the further documentary evidence the subject of that application in the appeal. The application in the appeal is dismissed.
As Ms Szigligeti took no part in the appeal, and has incurred no court costs, there is no basis for an order for costs in her favour. There should be no order as to costs.
I therefore make the following orders:
1.The appeal and the application in the appeal are dismissed.
2.No order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AD
Associate to Judge Russell
27 JANUARY 2021