Defendi v Szigligeti - [2018] WADC 115

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   DEFENDI -v- SZIGLIGETI [2018] WADC 115
CORAM:   GETHING DCJ
HEARD:   23 JULY 2018
DELIVERED          :   14 SEPTEMBER 2018
FILE NO/S:   APP 15 of 2018
BETWEEN:   SILVANO DEFENDI
Appellant
AND
IREN SZIGLIGETI
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE MALLEY
File Number             :   FRE/GEN/1502 of 2017

Catchwords:

Magistrates Court appeal - New case seeking to enforce existing order - Abuse of process

Legislation:

Nil

Result:

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
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bennett v Carruthers [2010] WASCA 131
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
Jones v Darkan Hotel [2014] WASCA 133
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Manonai v Burns [2011] WASCA 165
Mirrabooka Nollamara Car Transport v Rintoul [2016] WADC 56; [2016] WADC 58
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Shilkin v Taylor [2011] WASCA 255
Silvano Defendi as Trustee for the Defendi Family Trust v Szigligeti [2018] WADC 99
Smart v Prisoner Review Board (WA) [2012] WASC 48
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Velez Pty Ltd v Tudor [2011] WASCA 218
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Woolworths Ltd v Commissioner of Police [2013] WASC 413

GETHING DCJ:

The appellant, Mr Defendi and the respondent, Ms Szigligeti, are the registered proprietors of adjoining land in Hovea. For a period in excess of 10 years they have been in dispute over the boundary fence between their properties. This dispute has led to at least three cases in the Magistrates Court. It has also included an unsuccessful attempt by Mr Defendi to sue Ms Szigligeti for trespass.[1] In January this year Magistrate Malone struck out the most recent of these cases as an abuse of process and otherwise dismissed the case.
[1] Silvano Defendi as Trustee for the Defendi Family Trust v Szigligeti [2018] WADC 99.
Mr Defendi has appealed this decision to the District Court.
For the reasons which follow, the appeal should be dismissed.

Background facts

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 on 23 August 2012 in the following terms (2012 0.Orders):
1.The defendant will pay $825.00 towards the cost of the survey report which the claimant obtained from Naturaliste Land Surveys.
2.The claimant will provide the defendant with a full copy of the survey report.
3.The defendant 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.The defendant 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 second most recent case was commenced in June 2016, being Fremantle GEN 934/16 (2016 Case). In the 2016 Case, Ms Szigligeti claimed $350 from Mr Defendi being the balance of the cost of fencing an 18 m section of the common property. The total cost of the fence was $700 and Mr Defendi had paid $350 prior to the 2016 Case being commenced. Mr Defendi counterclaimed, asserting that Ms Szigligeti did not comply with the terms of the 2012 Orders. The 2016 Case was heard on 27 September 2017 before Magistrate Malley. It is apparent from the transcript of this hearing that the central issue was the extent to which the parties had complied with the 2012 Orders. Magistrate Malley dismissed both the claim and the counterclaim. The Magistrate made the point to Mr Defendi that if he 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.[2]
[2] Transcript FR GEN 934 of 2016, 27 September 2017, 15, 16.
On 3 October 2017, Mr Defendi commenced the most recent case in the Magistrates Court against Ms Szigligeti, being Fremantle GEN 1502/17 (2017 Case). In the box headed the 'Reason for Application' in the initiating process for the 2017 Case, Mr Defendi states as follows:
Following the order delivered by Midland Court for proceedings n. 2112/2011 dated 23/08/2012, the Defendant did not make the fencing construction according to the order, which should be inside her own property, but built it trespassing partially into Lot 28 of the Claimant, and part on the border line, putting the Claimant in the position of not being able to build his own fence, and having to overlap/cross the two fences, if built on the border, and not as determined, inside their own properties.
The order required is described in the originating process in some detail:
Total correction by the Defendant of her own two fences south north and west east, bordering Lot 28. Those have to be built totally inside her own property, leaving a space of at least 20 cm from the border line, to allow the Claimant to build an internal fence of Lot 28.
Referring to the boundary line as traced by report Naturaliste Land Surveys of 15/02/2017.
The Defendant must also pay the whole of the Invoice of Naturaliste Land Surveys n. 3237 dated 12/02/2017 for the amount of $1,100, plus interest of 6% up to the time of complete payment, various expenses of the Claimant's case included.
All the above within 28 days from the order's date and simultaneously provide totally at her own expenses to the Claimant within 7 days from the date when the fence has been moved, a detailed planimetry of the two amended fences, prepared by a qualified surveyor of the new realization, with the following characteristics:
1)Measurement of the border line of each picket and post, placed in Lot 27, if positioned correctly at a distance of 20 cm. with a maximum tolerance of 15 mm.
2)Both the planimetry and its report will need to be sworn and certified by a Notary.
The complete cleaning and maintenance of the two corridors bordering a strip of a metre of any form of vegetation there present, as specified in existing law of Shire of Mundaring Town Planning, are outlined as follows:
"Reference is made to local government because according to the Town Planning Scheme n. 3, a three metre a firebreak required by a Regulation or by‑law; to be cleared of all vegetation along the fence line, a one metre wide corridor for the purpose of erecting and maintaining a fence."
Therefore, in view of the above, I trust my application is now properly outlined and sufficient to be accepted by the Court, and I consider that if my application be denied, I may have grounds for disputing that refusal.
Payment of a sum of $2,500 for the portion of land which could not be used, due to the trespass and the difference in cost in building the fence by the Claimant, from 20/09/2012 until today, cause the inability of realizing it because of the Defendant' trespass in the land of the Claimant, overlapping the border line.
In the hearing before me, Mr Defendi explained that he was not aware until he received a surveyor's report in February 2017 that a section of the fence constructed by Ms Szigligeti was between 9 cm and 12 cm inside the boundary of his property.[3] By way of context, the boundary between Mr Defendi's property and Ms Szigligeti's property is about 325 m. Mr Defendi says that about 50 m is inside his property. He also says that the surveyor's report also showed that other sections of the fence, whilst being inside Ms Szigligeti's property, were less than 20 cm from the boundary line, meaning the Mr Defendi was not able to construct a fence on his side adjacent to the boundary line. The surveyor's report is the report of Naturaliste Land Surveys referred to in the preceding paragraph. Mr Defendi went on to tell me that, had he been aware of these issues when he commenced the 2016 Case, he would have included them in the 2016 Case.
[3] Appeal ts 8.
The 2017 Case was before Magistrate Malone on 29 November 2017. Ms Szigligeti was present in court on that occasion. Magistrate Malone raised the concern that the 2017 Case did not raise any new issues that had not been resolved in the 2012 Orders or the 2016 Case. His Honour invited Mr Defendi to file written submissions setting out why the 2017 Case raised effectively a new claim, and adjourned the hearing to 24 January 2018. He advised Ms Szigligeti that she did not need to attend the hearing on 24 January 2018. His Honour said that, unless Mr Defendi's submissions established that he had a proper claim, the 2017 Case would be dismissed without Ms Szigligeti having to come back to court.
Mr Defendi then filed detailed written submissions dated 16 January 2018 (2018 Submissions). Those submissions included a number of supporting documents.

Magistrate's decision

The 2017 Case came back before Magistrate Malone on 24 January 2018. As there is a challenge in the appeal on the basis of both procedural fairness and adequacy of reasons, it is appropriate that I quote the transcript. In the appearance on 24 January 2018 (as he did on 29 November 2017) Mr Defendi presented his case with the assistance of an interpreter. The transcript is only of the proceedings in English:
Now, the situation is that, as Mr Defendi knows, there has been quite some history between the parties and again, as he has said in both the application and his material, there was actually proceedings a long time ago in the Midland Court. Now, there was an application that proceeded in the Fremantle Court and with the new application, I was concerned that all it was just a repeat of an earlier claim, just in a different way.
INTERPRETER: Yes
HIS HONOUR: Mr Defendi, and I'm not criticising him. Mr Defendi said, 'NO, no, no. It is a different claim', and so as he's aware, I adjourned the listing conference to today, on the basis that he file and serve submissions explaining why it was different. Now, I have received, and I'm grateful that Mr Defendi has filed, the submissions sworn 16 January and, of course, in his submissions he has set out what he sees as being the difference between the latest application and what has gone on before.
INTERPRETER: Yes. Exactly.
HIS HONOUR: Now, far from being convinced that this is a new and novel application, Mr Defendi, and again, I'm not being critical of him. I just have to state these things. Mr Defendi has just made it crystal clear that there is nothing new. And I expect Mr Defendi to disagree with me. Of course, he does, but that doesn't matter. I've got to make decisions. So Mr Defendi has put it all on record as to what is the difference and I have considered it and come very much, very strongly, to the conclusion that this is just effectively a reworking of what were the original issues.
And without going through everything, essentially what Mr Defendi is saying is that there was a default in respect of the original Midland order and he has just taken a different perspective on it with the earlier Fremantle application and now, this application. So in my judgment, and I expect Mr Defendi to be unhappy about it, but I have to make decisions, this latest application is what is described in law as a abuse of process.
INTERPRETER: Abuse of process.
His Honour: Abuse of process. Yes. It has no new merit and it is appropriately dismissed on that basis.
The formal orders made on 24 January 2018 were that the 2017 Case be struck out as an abuse of process and that the claim otherwise be dismissed (Magistrate's Decision).

District Court Appeal

By appeal notice dated 12 February 2018 (Appeal Notice) Mr Defendi commenced an appeal from the Magistrate's Decision. The appeal was commenced within the 21 days required by Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 40(3).
Mr Defendi filed a certificate pursuant to District Court Rules 2005 (WA) (DCR) r 51(7) confirming that he had served the Appeal Notice and a pro forma Form 8 (Notice of respondent's intention) on Ms Szigligeti. Ms Szigligeti did not file a Form 8 Notice of respondent's intention. She did not appear at either the directions hearing on 17 April 2018 or the substantive appeal hearing on 23 July 2018. I am satisfied that she has had a sufficient opportunity to participate in the appeal.
The District Court's appeal jurisdiction is found in MCCPA pt 7. The District Court must decide the appeal on the material and evidence that were before the Magistrates Court.[4] Mr Defendi did not seek leave to admit any other evidence.[5]
[4] MCCPA s 40(4)(a).
[5] MCCPA s 40(4)(b), s 40(5).
The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court.[6] This is to be undertaken by way of a rehearing.[7] 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.[8] A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law.[9] The onus is on the appellant to demonstrate this error.[10]
[6] District Court Rules 2005 (WA) (DCR) r 50(1).
[7] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).
[8] Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow and Hayne JJ).
[9] Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 – 367 (Deane J).
[10] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).
Mr Defendi had the assistance of an interpreter at the hearing before me on 23 July 2018.

Issues arising for determination

The Appeal Notice sets out five grounds of appeal:
1.In the Hearing of 24 January 2018, the Magistrate did not allow myself, the Claimant, to present my case nor to say anything at all in regard to my submission.
2.The Magistrate in the General Order of 24 January 2018 did not state any reason whatsoever for basing his deliberation on an 'abuse of process' and for dismissing the Case.
3.There is no abuse of process since what is being applied for in Claim 2112/2011 is none other than for the Defendant to conform to the Order of the Court of Midland issued on 23/08/2012.
4.The Defendant did not install her two fences, subject of the Case, in accordance with the Order given by the Magistrate, but she positioned them instead on the boundary line and in sections, over the boundary line and on my own property area.
5.For these reasons there is no abuse of process and the Case should not have been dismissed.
Grounds 3, 4 and 5 are essentially part of the same assertion, so it is convenient to deal with them together. Four issues arise for determination:
•Did the Magistrate err in finding that the 2017 Case was an abuse of process?
•Did the Magistrate fail to afford Mr Defendi an adequate opportunity to present his case?
•Did the Magistrate fail to provide adequate reasons for the Magistrates Decision?
•What final orders are appropriate?
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.[11] I approach the documents in which he articulates his appeal with some flexibility.[12] I need to be astute 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.[13] 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.[14]
[11] Glew v Frank Jasper Pty Ltd [2010] WASCA 87, [10] (reasons of the court).
[12] 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).
[13] 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).
[14] 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 [10].

Did the Magistrate err in finding that the 2017 Case was an abuse of process?

Grounds 3, 4 and 5 of the Appeal Notice raise the issue of whether the Magistrate erred in finding that the 2017 Case was an abuse of process.
A convenient summary of the principles as to when a case will be an abuse of process is found in the decision of Mitchell J in Frigger v Lean, who in turn had relied on the observations of Buss JA in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd:[15]
[15] Frigger v Lean [2015] WASC 125 [29] – [31] (Mitchell J); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 [4] – [11] (Buss JA).
29In Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 [4] - [11], Buss JA summarised the law concerning the power of this court to prevent its procedures being abused, in terms with which I agree. As Buss JA noted at [5], what constitutes an abuse of process is incapable of being described exhaustively.
30However, as Buss JA also noted at [6], the High Court has stated that at least one of three characteristics will be apparent in many cases of abuse of process, namely:
1.the court's processes being invoked for an illegitimate or collateral purpose;
2.the use of the court's procedures being unjustifiably oppressive to a party; or
3.the use of a court's procedures bringing the administration of justice into disrepute.
31Buss JA identified a number of propositions in Sheraz [8] - [20] concerning the nature of abuse of process, namely:
1.Inherent or implied power exists to prevent misuse of its procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation or would bring the administration of justice into disrepute among right-thinking people.
2.Abuse of process extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustifiable trouble and harassment.
3.Categories of abuse are not closed and the court may exercise its power as and when administration of justice demands.
4.An abuse of process may arise where there are successive proceedings which cause or are likely to cause improper vexation or oppression.
5.It would be a scandal to the administration of justice if a litigant were to be permitted by changing the form of the proceedings to set up the same case again in circumstances where the same question had previously been disposed of.
6.A court may invoke principles of an abuse of process to prevent attempts to litigate an issue which should have been litigated in earlier proceedings, as well as to prevent attempts to re-litigate an issue which has, in substance, been litigated and determined in earlier proceedings.
7.The focus in applying the principles of abuse of process is on matters of substance and not form.

Both the terms of the application in the 2017 Case (quoted at [6] and [7]) and the 2018 Submissions make it clear that the relief being sought by Mr Defendi was for Ms Szigligeti to comply with the 2012 Orders by constructing the dividing fence between the two properties inside her property. At the appeal hearing before me, Mr Defendi confirmed that his concern was as to whether Ms Szigligeti complied with the 2012 Orders.[16] He was seeking an order that Ms Szigligeti comply with the 2012 Orders.[17]
[16] Appeal ts 5 -11.
[17] Appeal ts 11.
To request relief in new proceedings the effect of which was to compel Ms Szigligeti to comply with the 2012 Orders was a clear abuse of process. As Buss JA observed in Sheraz, the principles of abuse of process may be invoked to 'prevent attempts to re-litigate an issue which has, in substance, been litigated and determined in earlier proceedings'.[18]
[18] Sheraz [11].
The power to summarily terminate proceedings for an abuse of process must be exercised with caution.[19] Even exercising this caution, the present case is a clear instance of an abuse of process.
[19] Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24] (French and Gummow JJ); Shilkin v Taylor [2011] WASCA 255 [40] (Newnes JA, with whom Pullin and Buss JJA agreed).
That is not to say that Mr Defendi had no ability to enforce the terms of the 2012 Orders. His remedy was to make an application pursuant to Civil Judgments Enforcements Act 2004 (WA) (CJEA) s 98 asserting that Ms Szigligeti was in contempt of court by disobeying a judgment of the Magistrates Court, namely the 2012 Orders (this being a judgment 'which requires or has the effect of requiring a person to … do an act … other than … to pay money … or … to give possession of any real or personal property to another person'). As the 2012 Orders were made more than six years ago, he would now need the leave of the court to commence an application of this kind.[20]
[20] CJEA s 13(1)(a).
Mr Defendi has not established that the Magistrate made any error of law, fact or discretion in determining that the 2017 Case was an abuse of process. So Mr Defendi has not made out the third, fourth and fifth grounds of appeal.

Did the Magistrate fail to afford Mr Defendi an adequate opportunity to present his case?

The first ground of appeal raises the issue of whether Mr Defendi was denied procedural fairness by the decision of the Magistrate at the hearing of 24 January 2018 not to allow him to make any submissions.
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 person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case'.[21]
[21] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589 (Rich J).
The following observations by the Court of Appeal in Rowe v Stoltze summarise the law:[22]
… 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].
[22] Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin and Murphy JJA agreed).
From the transcript of the 24 January 2018 hearing it is readily apparent that the Magistrate did not allow Mr Defendi to make any oral submissions at that hearing. However, this was in the context of:
(a)the Magistrate making it very clear at the hearing on 29 November 2017 that the issue he would be determining at the hearing on 24 January 2018 was whether the 2017 Case raised a new claim and that, if it did not, it would be dismissed;
(b)the Magistrate having given Mr Defendi the opportunity to provide written submissions addressing the issue in (a);
(c)the Magistrate having given Mr Defendi, in my view, a reasonable amount of time in which to file those submissions, in particular having regard to Mr Defendi's English language difficulties; and
(d)Mr Defendi having filed the 2018 Submissions, being detailed written submissions addressing the issue of whether the 2017 Case raised a new claim.
Given what I have outlined in the previous paragraph, Mr Defendi has not satisfied me that he was not given a reasonable opportunity to be heard.
Even if I am wrong in this conclusion, I do not consider that the appeal should be allowed on this ground. This is because not every denial of procedural fairness will result in the grant of relief.[23] The High Court in Stead v State Government Insurance Commission expressed the principle in the following terms:[24]
[A]n appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.[25]
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
[23] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (Judgment of the Court); 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 and Buss JJA agreed).
[24] Stead (145).
[25] Stead (145).
The key question identified by the High Court is: 'Would further information possibly have made any difference?'.[26]
[26] Stead (145).
In Lourey v Legal Profession Complaints Committee Murphy JA made the following observation as to how the principles set out in Stead are to be applied:[27]
There has been a consideration in some authorities of whether the principles in Stead v State Government Insurance Commission involve the application of a 'forward looking test' or a 'backward looking test', or … As discussed in the authorities, the 'forward looking test' involves a consideration of whether relief for a breach of the rules of natural justice would be futile because a new hearing will inevitably result in the same order. The 'backward looking' test involves a consideration of whether the breach would have made any difference to the actual result at the impugned hearing.
[27] Lourey [112].
His Honour went on to apply both tests.[28]
[28] Lourey [124].
In relation to the two tests, in Woolworths Ltd v Commissioner of Police, Edelman J observed:[29]
It will usually be sufficient simply to ask whether the lack of procedural fairness could not have affected the outcome. However, in light of the subtle differences in the passages quoted above in Stead, I prefer to follow the approach of Lindgren J (with whom Jenkinson J agreed) in Giretti v Commissioner of Taxation [(1996) 70 FCR 151]. That approach is that although the application of one or the other of the two passages will generally lead to the same result, an appellate court will not order a re‑hearing if either the denial of procedural fairness would have made no difference at the previous hearing or if it would make no difference at a new hearing.
[29] Woolworths Ltd v Commissioner of Police [2013] WASC 413 [129] (Edelman J).
I therefore first need to inquire whether, had Mr Defendi been afforded the opportunity to make oral submissions at the hearing on 24 January 2018, it would have made any difference to the outcome of the hearing. At the appeal hearing I enquired of Mr Defendi what information he would have told the Magistrate had he been given the opportunity to. His response was to the effect that he only became aware of the issues which I have set out at [8] some seven months after the 2016 Case was commenced; had he been aware of these issues when he commenced the 2016 Case, he would have included them in the 2016 Case.[30] The first thing to note is that these matters were addressed in the submissions filed by Mr Defendi, so the Magistrate was aware of them. So Mr Defendi reiterating the matters in oral submissions would not have made any difference to the outcome. In any event, I am not satisfied that, had these matters been reiterated in oral submissions, it would have made any difference to the outcome. The matters just reinforce the point that what Mr Defendi was trying to do was to enforce compliance with the 2012 Orders. It was an abuse of process for him to attempt to do so in a fresh action, the 2017 Case. For the same reason, if Mr Defendi were given the opportunity to make oral submissions in a new hearing, it would make no difference to the outcome.
[30] Appeal ts 11-13.
The first ground of appeal has not been made out.

Did the Magistrate fail to provide adequate reasons for the Magistrate's Decision?

The second ground of appeal is that the 'Magistrate in the General Order of 24 January 2018 did not state any reason whatsoever for basing his deliberation on any "abuse of process" and for dismissing the Case'. In essence, this is an assertion that the Magistrate failed to provide adequate reasons for the Magistrate's Decision.
The following observations by the Court of Appeal in Mount Lawley Pty Ltd v Western Australia Planning Commission[31] are an appropriate and instructive starting point in considering this ground of appeal (references omitted):
The starting-point, in considering these grounds, is that the giving of reasons is a normal (albeit not universal) incident of the judicial process … That is because 'the duty is a function of due process, and therefore of justice' … Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment … The requirement also furthers judicial accountability …
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
[31] Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] – [27] (judgment of the court). See also: Velez Pty Ltd v Tudor [2011] WASCA 218 [59] – [67] (Murphy JA, with whom Pullin and Newnes JJA agreed).
In relation to the adequacy of reasons, in Velez Pty Ltd v Tudor Murphy JA observed:[32]
Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised … The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose …
[32] Velez [63] (references omitted).
The common law position is subject to Magistrates Court Act 2004 (WA) (MCA) s 31:
31.Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
The definition of 'case' in MCA s 3 means that this provision applies to both civil and criminal proceedings.
In Manonai v Burns Hall J made the following observations about the duty to give adequate reasons in the MCA s 31(1): [33]
Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred …
[33] Manonai v Burns [2011] WASCA 165 [53] (Hall J, with whom Pullin and Murphy JJA agreed).
His Honour went on to make the following observation about the realities of work pressure in the Magistrates Court:[34]
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
[34] Manonai [56]; Velez [69]; Mirrabooka Nollamara Car Transport v Rintoul [2016] WADC 56; [2016] WADC 58 [107] (Schoombee DCJ).
The Magistrate made it clear that the factual basis for the decision was that Mr Defendi did not assert any new claim in the 2017 Case. Rather, the 2017 Case was 'just effectively a –reworking of what were the original issues'.[35] The law is well-established, and there was, in my view, no particular need for the Magistrate to identify the case law relied upon. The Magistrate complied with the requirements in MCA s 31(1)(a) and (b). More generally, the reasons were more than adequate for Mr Defendi to ascertain the basis for the decision and whether he had any grounds of appeal, and for me, sitting as the appeal court, to determine whether any errors of fact, law or discretion occurred.
[35] 24 January 2018 hearing, ts 3.
Even if I were of the view that the Magistrate's reasons were inadequate, it would not automatically follow that the Magistrate's Decision would be set aside. Rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice.[36] For the reasons set out above ([22] to [25]), even if I were of the view that the Magistrate's reasons were inadequate in some regard, I do not consider that there was any miscarriage of justice in relation to the Magistrate's Decision.
[36] Bennett v Carruthers [2010] WASCA 131 [39] (Mazza J, with whom McLure P and Newnes JA agreed); Mount Lawley [29] (Judgment of the Court).

What final orders are appropriate?

The appropriate final order is to dismiss the appeal.
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 certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AR
ASSOCIATE TO JUDGE GETHING
14 SEPTEMBER 2018