Defendi v Szigligeti - [2019] WASCA 115

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   DEFENDI -v- SZIGLIGETI [2019] WASCA 115
CORAM:   MURPHY JA
MITCHELL JA
BEECH JA

HEARD:   25 JULY 2019
DELIVERED          :   8 AUGUST 2019
FILE NO/S:   CACV 97 of 2018
BETWEEN:   SILVANO DEFENDI
Appellant
AND
IREN SZIGLIGETI
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   GETHING DCJ
Citation: DEFENDI -v- SZIGLIGETI [2018] WADC 115
File Number             :   APP 15 of 2018

Catchwords:

Courts and magistrates - Procedural fairness - Whether magistrate obliged to permit appellant to make oral submissions in addition to written submissions

Legislation:

Magistrates Court (Civil Proceedings) Act 2004 (WA), s 15

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	No appearance
Respondent	:	No appearance

Solicitors:

Appellant	:	In person
Respondent	:	In person

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

Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38
AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 587
Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383
Defendi v Szigligeti [2018] WADC 115
Forrest & Forrest Pty Ltd v the Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
J v Lieschke [1987] HCA 4; (1987) 162 CLR 447
Kioa v West [1985] HCA 81; (1985) 159 CLR 550
Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2005) 37 WAR 149
Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180
Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326
Nobarani v Mariconte [2018] HCA 36; (2018) 359 ALR 31
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152
Woodley v Woodley [2018] WASCA 149

JUDGMENT OF THE COURT:

Introduction

The appellant, Mr Defendi, and the respondent, Ms Szigligeti, are the registered proprietors of adjoining land in Hovea. For over 10 years they have been in dispute over the boundary fence between their properties. This dispute has led to Mr Defendi commencing three cases against Ms Szigligeti in the Magistrates Court, as well as to an unsuccessful attempt by Mr Defendi to sue Ms Szigligeti for trespass.
On 24 January 2018, the most recent of the Magistrates Court cases was struck out as an abuse of process and otherwise dismissed. On 14 September 2018, the District Court dismissed Mr Defendi's appeal against the decision of the magistrate. Mr Defendi now appeals to this court on the basis that the magistrate erred in law by not allowing him to make oral submissions and thereby failed to afford him procedural fairness, and the primary judge erred in not so concluding. For the reasons that follow, in circumstances where Mr Defendi was given, and took, the opportunity to make written submissions, procedural fairness did not require the magistrate to allow Mr Defendi to also make oral submissions. Consequently, the primary judge was correct to dismiss the appeal, and so we would dismiss the appeal from his Honour's decision.

Background

The 2012 Orders

On 21 November 2011, Mr Defendi commenced proceedings (the 2011 Case) concerning the boundary fence between Mr Defendi and Ms Szigligeti's properties.
On 23 August 2012, the Magistrates Court made orders by consent in the 2011 Case in the following terms (the 2012 Orders):
1.[Ms Szigligeti] will pay $825.00 towards the cost of the survey report which [Mr Defendi] obtained from Naturaliste Land Surveys.
2.[Mr Defendi] will provide [Ms Szigligeti] with a full copy of the survey report.
3.[Ms Szigligeti] will relocate that part of her existing fence which presently falls outside the boundary of her property as identified in the survey report within twenty-eight days of the proceedings being dismissed.
4.[Ms Szigligeti] will fence the remainder of the boundary between the properties, with that fencing to fall on her side of the boundary line identified in the survey report, within twenty‑eight days of the proceedings being dismissed.
5.Neither party will be responsible for contributing to the cost of constructing and maintaining their respective fences (including those costs which have already been incurred).
6.The present Magistrates Court proceeding to be otherwise dismissed with no orders as to costs.

The 2016 Case

On 2 June 2016, Mr Defendi commenced a second case in the Magistrates Court concerning the boundary fence between Mr Defendi and Ms Szigligeti's properties (the 2016 Case). On 27 September 2017, the 2016 Case was heard before a magistrate at the Fremantle Magistrates Court. The following matters are 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 m section of that additional fencing.[2]
(3)In or around 2014, Mr Defendi erected the 18 m 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]
[1] transcript, Defendi v Szigligeti, Fremantle Magistrates Court, 27 September 2017, 6, 8, 11 (2016 Case, ts).
[2] 2016 Case, ts 11, 14, 15 - 16.
[3] 2016 Case, ts 7, 8, 11, 14, 15.
[4] 2016 Case, ts 15 - 16, 18.
[5] 2016 Case, ts 17.
[6] 2016 Case, ts 14, 17.
[7] 2016 Case, ts 12.
[8] 2016 Case, ts 2 - 3.
The magistrate dismissed Mr Defendi's claim for $350, for reasons he expressed as follows:[9]
Well, [Mr Defendi's] relying on the Dividing Fences Act as part of his claim. You can't just go ahead and build a fence and then seek half. You have to comply with the requirements of the Dividing Fences Act. The order that was in place obligated [Ms Szigligeti] to build a fence along that line - I acknowledge that - but it didn't entitle Mr Defendi to build his own fence. It obligated her to build it. It didn't entitle him to build it.
…
If he wanted to build the fence, he would have had to have gone back to the Midland court, in particular, and said, 'The defendant hasn't complied with your order. I want a further order that I be able to build that fence if she doesn't build it within 28 days.' Something like that. That's what should have happened. If he wanted - that's the only basis because there was a court order in place that the defendant do - build a fence on her line across that area.
That's the - that was the order of the court. I acknowledge that. And Ms Szigligeti's explanation to me today, frankly, holds no water. Whether she wanted to put the (indistinct) elsewhere, or whatever, didn't matter. The court had ordered her to put it along that line, and that was her obligation. But that's a separate issue. Mr Defendi wasn't entitled to take the matter into his own hands and simply build the fence and say, 'I want half.' He had no entitlement to do that.
He had to go back to the court seeking an order for compliance with that order. In other words, you can go back to the court saying, 'Well, I would be entitled to build the fence and claim the whole lot. Well, I'm missing that step by simply going ahead and building the fence without the court's stamp of approval. Then he lost his entitlement to claim.' For that reason, Mr Defendi, I take the view that your claim must fail. If you had have gone around that at the correct way, I'm satisfied that in all probability, he would have been successful.
The obligation on [Ms Szigligeti] is clear, in my view, and I tried to explain that to her, but, as I say, he went about it the wrong way. If you go about it the wrong way, you fail. Okay. And the claim will be dismissed. (emphasis added)
[9] 2016 Case, ts 15 - 16.
The magistrate also dismissed Ms Szigligeti's counterclaim, for reasons he expressed as follows:[10]
You're disputing that and your claim for - your counter-claim for $1,200 is, frankly, (indistinct) After all this time, when - one has to be practical about it. All this time, after all these years, you suddenly put in a claim for $1,200 counter-claim, it's just to make things more complex. You're not going to be successful on that. I'm just telling you now. Because this goes back to, what is it, 2010 when all this was going on.
…
You're out of time. So let's just concentrate on the $350 - - -
…
In relation to your counter-claim, I've made the point it's a nonsense after all these years.
…
In my view, in relation to the defendant's counter-claim - in my view, it has no prospect of success after all these years to suddenly bring it up.
[10] 2016 Case, ts 2 - 3, 16, 19.
Towards the end of the hearing, Ms Szigligeti requested that the magistrate make it clear that Mr Defendi was not entitled to make any further claims in relation to the 18 m of fencing. The magistrate responded as follows:[11]
I have. I've made it clear (indistinct) that he's not entitled to make any further claims for that 18 m. He has lost that right.
…
Well, the record would show, if you - if, down the track, you seek a transcript of this proceedings, or my reasons, you will see that I have said on the transcript that there can be no further claims arising from the 18 metres. I'm just - because that's what this is about. I can't say anything else. The 18 metres is done because Mr Defendi chose to put the fence up without seeking the court's sanction. In doing so, that's - was [an] error on his part that can never be remedied.
He can't go back and say, 'Well, I'm going to give you notice,' or something like that. That would never wash. So if it ever comes to it, you can get a transcript, and you can see my reasons, and I suspect any other magistrate following would be - I'm not saying anybody is bound by my decisions, but I would say that would be strongly influenced by my determination. Okay. And, technically, there's no right of appeal from this courts because it's so small. It's in the small claims division, as I understand it.

The 2017 Case: initiating process

[11] 2016 Case, ts 18.

On 3 October 2017, Mr Defendi commenced the proceedings with which this appeal is concerned, being the third case in the Magistrates Court concerning the boundary fence between Mr Defendi and Ms Szigligeti's properties (the 2017 Case). In the box headed '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. (emphasis added)
In the box headed 'Order Required' in the initiating process for the 2017 Case, Mr Defendi describes the order sought 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. (original emphasis)
The primary judge described the context in which the 2017 Case was brought as follows:[12]
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. 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 [that] 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 [at [10] above]. 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. (footnotes omitted)
[12] Defendi v Szigligeti [2018] WADC 115 (primary reasons) [8].
Mr Defendi's sole ground of appeal in his appeal to this court contends that the magistrate in the 2017 Case denied Mr Defendi the opportunity to be heard. Consequently, it is necessary to provide a detailed outline of the course of proceedings in the 2017 Case.

Hearing on 29 November 2017

On 29 November 2017, the 2017 Case came before a magistrate for a listing conference. Both Mr Defendi and Ms Szigligeti attended. At the start of the hearing, the magistrate raised a concern that the 2017 Case did not raise any new issues that had not been resolved in the earlier proceedings. The following exchange took place between the magistrate and Mr Defendi (through his interpreter):[13]
Mr Defendi brought an earlier application, which is to say in June 2016, under the Dividing Fences Act, in respect to the same property.
INTERPRETER: Yes. But that was only for a small portion of the property.
HIS HONOUR: Okay. Well, what happened was that the magistrate -because I've got the file - the magistrate decided that in respect of that 2016 claim, there was no basis for the claim and dismissed it. And - apparently, and I haven't read the transcript myself, but apparently, according to Ms Szigligeti, the magistrate advised Mr Defendi that he had no right to take any further action against her. Okay? So that's what was said, okay? But, whether that was said or not, Mr Defendi has now brought another application.
So, from the court's point of view, you can't have matters being - you apply for it, you determine it, apply again for the same sort of thing. You just can't do that. The court has a rule that once it has listened and determined a matter, that's the end of it. Yes? Now, I do want to be fair to Mr Defendi, because he says, 'No, no, no, that only determined this aspect, and this is completely new.' Then fine, I - he can - he can say that it hasn't been determined by the court, and this is effectively a new claim.
INTERPRETER: That's exactly it.
HIS HONOUR: Because - yes, because when I look at the file I, quite frankly, can't pick up anything new about it. But I may be wrong. Okay. So - - -
INTERPRETER: There is something.
HIS HONOUR: Yes, sure. So today would have been to set the matter down for a trial or a hearing, but I don't want to do that at this stage. What I am going to require Mr Defendi to do, within whatever period is reasonable, is to file a statement as to what is new about his application and why it wasn't already dealt with in the earlier proceedings. (emphasis added)
[13] transcript, Defendi v Szigligeti, Fremantle Magistrates Court, 29 November 2017, ts 2 - 3 (2017 Case, 29 November, ts).
In a later exchange with Ms Szigligeti, the magistrate stated: 'in fairness to Mr Defendi, I need to give him an opportunity to state what is new about [the application]'.[14]
[14] 2017 Case, 29 November, ts 4.
Sometime later, in responding to Ms Szigligeti's concerns as to how long the dispute has been running, the magistrate stated:[15]
The court is doing the best that it can. I'm not setting it down for a hearing, okay? I'm not. So this is about you not having to take time off work, that's not happening. And if - unless Mr Defendi bears out, in his submissions, that he has a proper claim, it will simply be dismissed without you having to come back to court.
…
HIS HONOUR: I know you sort of want to - - -
SZIGLIGETI, MS: But - - -
HIS HONOUR: - - - go back over it, but I'm just saying to Mr Defendi, 'Look, this was all dealt with in September, or whatever, by the magistrate.' Yes, 27 September. Saying, 'Look, this is what we dealt with.' He said, 'No, no, this is all new.' And I'm saying I don't think so. I don't think so. And I'm going to give him just one opportunity to state what it is that's new about his claim, otherwise it's to be dismissed. You don't have to come back to court about it unless the court is absolutely satisfied, whatever the new aspect is. Okay?
So if there is no new aspect, the claim will be dismissed. Okay? Because it does look to me like - from what I've read, it refers back to all the things that, following the order delivered by the Midland Court in 2011, dated 2012, you didn't make the fence according - all of that - all of that was part of the earlier proceedings.
SZIGLIGETI, MS: Yes.
HIS HONOUR: So I don't think there is anything new, but I'm giving Mr Defendi an opportunity - without inconveniencing you - to put in submissions to say what is new. If he doesn't convince the court that there's some new aspect to the complaint - to his claim, it will be dismissed without you needing to come back to court. (emphasis added)
[15] 2017 Case, 29 November, ts 5 - 6.

The magistrate then stated that he would order that (1) the listing conference be adjourned to 24 January 2018, (2) Ms Szigligeti be excused from attending and (3) Mr Defendi file and serve written submissions as to what, if any, aspect of his latest claim was not finally dealt with by the 2016 Case.[16]
[16] 2017 Case, 29 November, ts 7.
After indicating that he understood the effect of these orders, Mr Defendi stated that he could demonstrate 'a completely new fact with evidence right now'.[17] The magistrate responded as follows:[18]
No, no. What Mr Defendi has to do is - that I'm adjourning the listing conference over to 24 January next year; yes? Okay. So before then, Mr Defendi has got to - with assistance or whatever - to set out in a document in a written form what it is that's new about this claim that wasn't already determined by the earlier proceedings, okay, and he has got to send a copy to Ms Szigligeti. Okay. The court will look at those submissions.
If it can see that there is a new issue to be determined, then arrangements will be made, but if - despite what Mr Defendi is saying about it being new, if it's not, then the claim will be dismissed. Now, I don't expect Mr Defendi to accept or agree with this, but Ms Szigligeti has said that this saga has been going on for 10 years. She says there has been court proceedings in Midland where it was looked at and now there has been proceedings in the Fremantle Court after that, as well as the parties doing things like erecting fences, and mesh and all sorts of things.
So she is really upset about the whole situation and can't understand why Mr Defendi has brought yet another application. And your client needs to understand that, on the face of it, there doesn't look to be anything new about it at all. I mean, when you read it, it talks about the most recent thing being February 2017 and that the hearing was dealt with in September of 2017, so seven months after the most recent thing mentioned in his latest application.
So Ms Szigligeti is very upset about it, but I'm saying, okay, look, I understand that, but I'm going to give Mr Defendi an opportunity to explain what is new, if anything, because it doesn't look new. So Ms Szigligeti won't be required to come to court on 24 January, only Mr Defendi needs to be here. And he needs to lodge at the court and send a copy to Ms Szigligeti a statement setting out very clearly what has emerged since the matter was determined in September of last year, the 27th, I think it was - what is new about this claim; why it wasn't dealt with then.
…
So I don't think there was anything new, but I'm giving - I'm probably being way too reasonable, but I am giving Mr Defendi an opportunity to say what on earth is new under the sun, okay. Okay. Because the court just can't hear repeatedly, and repeatedly and repeatedly the same thing, making decisions and then having, you know - have another look at it, make another decision, have another look at it, make - can't do it. (emphasis added)
[17] 2017 Case, 29 November, ts 7.
[18] 2017 Case, 29 November, ts 7 - 9.
Following the hearing, a written copy of the following orders was served on Mr Defendi:[19]
1.Listing Conference is adjourned to 24 January 2018 at 9:30 am before [the magistrate].
2.[Ms Szigligeti] excused from attending.
3.[Mr Defendi] to file and serve written submissions as to what if any aspect of his latest claim wasn't previously dealt with in the [2016 Case].
4.Application to be dismissed unless there are matters that need to be freshly determined.

Written submissions by Mr Defendi

[19] General Order of the Magistrates Court dated 29 November 2017.

On 16 January 2018, Mr Defendi filed detailed written submissions in accordance with the order made at the hearing on 29 November 2017. Those submissions included a number of supporting documents.
By those submissions, Mr Defendi sought to 'submit a complete summary of events that will demonstrate how the [2017 Case] that is currently filed in [the Magistrates Court], was not part of the proceedings of [the 2016 Case] nor was it ever submitted in any other Court of law at all'.[20]
[20] Mr Defendi's written submissions in the 2017 Case, filed 16 January 2018, page 1 (2017 Case, written submissions).
Mr Defendi summarised the subject matter of the 2016 Case in the following way:[21]
This Case was claiming the amount not paid by [Ms Szigligeti] for the missing 18 metre section of fence that she had refused to install at the time, although it was part of the [2012 Orders].
…
The Magistrate dismissed the Claim … and the Counter-Claim, because, as he himself stated, I should not have installed the missing section myself, but should have instead applied for the Court to order [Ms Szigligeti] to complete it herself, because it was her own duty to do so.
[21] 2017 Case, written submissions, page 1.
He outlined the subject matter of the 2017 Case as follows:[22]
This Case rose from the fact that [Ms Szigligeti], to date, has not yet fulfilled the Order [from the 2012 Orders], under which she was obliged to erect a fence along her Eastern and Northern boundaries with my property … and that these two fences should be totally contained within the boundary of her own property. (original emphasis)
[22] 2017 Case, written submissions, page 1.
He sought to explain the novelty of the 2017 Case, and its merits, in the following way:[23]
[23] 2017 Case, written submissions, page 1 - 3.
As found by the Surveyor on 15 March 2012, (and then submitted in [the 2011 Case]) the two fences in question do in fact cross over the boundary line and do in fact trespass into the property of myself, the Claimant. (Attachment 4), as shown in his Report dated 19 March 2012 (Attachment 5)
[Ms Szigligeti] at the time, explicitly requested from the Magistrate and demanded during the course of the Case, that the parties should each be ordered to install their own fencing, not on the boundary line, but completely within their own property.
As confirmed by the Surveyor on 08 February 2017, the two fences installed by [Ms Szigligeti] have NOT been installed in conformity with the Order that was issued by the Court (Attachment 6) and the Report written on 15 February 2017 (Attachment 7) also confirms that the two fences that were installed by [Ms Szigligeti] at the end of 2012, have parts that are on the boundary line itself and parts that trespass across the boundary into my property area and therefore do not conform to the Order issued by the Court.
Attachment 6 shows the trespassing position of the fence installed by [Ms Szigligeti]. …
It is clear that the Order of the Court states, and it was agreed upon between the two parties, that the fences must be totally and fully contained internally within each respective property and they are not to be on, or over, the common boundary line at all.
In constructing the fences, wooden posts of about 15 cm diameter are installed and the wires are anchored to these posts which are under considerable tension in order to keep the fence straight and taut. Therefore they need to be held in place with concrete footings, all of which obviously need to be entirely contained within the boundary line of the property.
…
The Surveyor's drawing of 08 February 2017 (Attachment 6) and Report of 15 February 2017 (Attachment 7) that are submitted for this Case [the 2017 Case], show and confirm the faults that were found to exist at that date, and that are the subject of current application in this Case [the 2017 Case].
…
Furthermore, in regard to the presence of vegetation adjacent to the boundary line, photographs 7-8-9-10 show how the vegetation from Lot 27 is causing damage to my fence, since once again, [Ms Szigligeti] has never wanted to conform to the Shire requirements to clear a corridor of 3 metres for as a fire-break for fire prevention, or even the required complete clearing of all vegetation within the width of one metre from all boundary lines (Attachment 19/20/21)
(original emphasis)
Mr Defendi concluded his written submissions as follows:[24]
I trust that with this fully outlined explanation together with the attached documents, I may have sufficiently clarified the fact that this Case was initiated because of default by [Ms Szigligeti] and her non‑conforming to the Order from [the 2012 Orders]. This application did not form any part at all of [the 2016 Case] which was to do with her reluctance to complete the remaining 18 metre section of the fence she was ordered to install.
[24] 2017 Case, written submissions, page 3.
It may be seen from this outline of Mr Defendi's written submissions that Mr Defendi sought to demonstrate that the 2017 Case was not part of the 2016 Case. Further, he explained that the 2017 Case sought to ensure compliance by Ms Szigligeti with the 2012 Orders: in February 2017, a surveyor confirmed that the fences installed by Ms Szigligeti at the end of 2012, in purported compliance with the 2012 Orders, partly encroach onto Mr Defendi's property. This, Mr Defendi submitted, was not in compliance with the 2012 Orders.

Hearing on 24 January 2018

On 24 January 2018, the 2017 Case came back before the magistrate. Once again, Mr Defendi had an interpreter at the hearing.
At the start of the hearing, the magistrate stated: 'I won't need Mr Defendi to talk'.[25] The remainder of the hearing proceeded as follows:[26]
[25] transcript, Defendi v Szigligeti, Fremantle Magistrates Court, 24 January 2018, 2 (2017 Case, 24 January, ts).
[26] 2017 Case, 24 January, ts 2 - 6.
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 re-working 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 an 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.
INTERPRETER: I'm afraid - I apologise, but I would like to speak please.
HIS HONOUR: I understand that, but quite frankly, as much as it's important for me to make sure there is natural justice, all that realistically will happen is that Mr Defendi will just keep telling me that I've got it sadly wrong and that he is right and I've already gone through the process. I mean, Mrs Szigligeti is not here and that's fine, but she was anxious to say, look, he just keeps taking me to court about the same thing and even last time, it all got dismissed and thrown out and now, I'm here again.
And I said, look, yes, okay, but I will get Mr Defendi to file his documents explaining what the difference is, and he has done it and he hasn't come up with anything new, except in his own mind.
INTERPRETER: So if you let me explain, because otherwise I have to go to appeal and then I have to spend money and why should I, you know, waste my money on that.
HIS HONOUR: Look, time will tell. I understand what Mr Defendi is saying. Time will tell whether he's, in fact, successful, because I'm saying clearly on the transcript, and Mr Defendi can appeal, if that's what he wants. To say that there is no merit in this claim and I'm confident the Appeal Court will agree. Now, if I'm wrong and Mr Defendi is upheld, well, great, that's the appeal process.
INTERPRETER: I'm asking for a personal courtesy just to explain to you that I'm sorry to say that you are wrong. Please let me speak.
HIS HONOUR: Look, it would be fine if I had a lot of time, but I've actually got plenty of other work to do in trial and all I expect Mr Defendi to do is to go on and on and on about why I'm wrong and then tell me, as though that will make me change my mind, if I don't change my mind he's going to appeal against my decision. Now, I respect that and I'm saying to him very clearly and on the transcript in open court. There is no merit. This is an abuse of process. Your claim is being dismissed. Okay.
I gave him the opportunity to put in submissions. They're there on the record. If I do anything wrong, the appeal process [is] there and I respect that very much, but I feel as though I've done all that I can and just having Mr Defendi tell me in his words that I'm wrong isn't going to help.
DEFENDI, MR: Just two minutes. Excuse me, your Honour - - -
HIS HONOUR: Yes. No, no. Okay. So the case statement is struck out as an abuse of process, just so Mr Defendi knows that, and his claim is otherwise dismissed. Okay. I've accorded natural justice. I gave Mr Defendi an opportunity to put in submissions. He did. I've considered them. I've done all that I can. Okay.
INTERPRETER: You haven't understood them.
HIS HONOUR: Yes, apparently. Yes.
INTERPRETER: I'm sorry to say that you're presumptuous.
HIS HONOUR: I'm what, sorry? Yes. You don't need to interpret.
INTERPRETER: You're supposed to know what is wrong and right, but you don't give me the opportunity to explain where there is a mistake ‑ ‑ ‑
HIS HONOUR: Yes, yes. We've done all this. Yes.
INTERPRETER: - - - and I don't like it. I resent it.
HIS HONOUR: This is the second time he has turned up and I gave him the opportunity to put all the submissions in, which I've read and which are on file, so all he's doing is just wanting to be rude to me for the sake of it because he hasn't been successful. Okay. Thank you, Mr Defendi. Thank you very much.
The formal orders made by the magistrate on 24 January 2018 were that the 2017 Case be struck out as an abuse of process and that the claim be otherwise dismissed.[27]

The District Court appeal

[27] General Order of Magistrates Court dated 24 January 2018.

By appeal notice dated 12 February 2018, Mr Defendi appealed to the District Court against those orders.[28]
[28] The right of appeal arose under s 40 of the Magistrates Court (Civil Proceedings) Act 2004 (WA).
Mr Defendi appealed on five grounds, only one of which is relevant to this appeal. Grounds 3 ‑ 5 challenged the magistrate's decision on its merits, in other words, they challenged the magistrate's conclusion that the 2017 Case was an abuse of process. Those grounds were in the following terms:
3.There is no abuse of process since what is being applied for in Claim 2112/2011 is none other than for [Ms Szigligeti] to conform to the [2012 Orders].
4.[Ms Szigligeti] 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.
The primary judge rejected those grounds. As his Honour's conclusion on those grounds is not challenged, it is not necessary to detail his reasoning in that regard. It is sufficient to note that, in substance, the primary judge held that the 2017 Case was an abuse of process in that:
(1)It sought relief requiring Ms Szigligeti to comply with the 2012 Orders.[29]
(2)The appropriate means for Mr Defendi to seek to enforce the 2012 Orders is by application pursuant to the Civil Judgments Enforcements Act 2004 (WA) (the CJE Act).[30]
(3)Attempting to enforce the 2012 Orders by commencing new proceedings was an abuse of process.[31]
[29] Primary reasons [23].
[30] Primary reasons [26].
[31] Primary reasons [24] - [25].
The ground that is relevant to this appeal was ground 1, which was in the following terms:
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.
In disposing of this ground, the primary judge accepted that the magistrate did not allow Mr Defendi to make any oral submissions at the hearing on 24 January 2018. However, his Honour noted that this was in the context of:[32]
(1)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;
(2) the magistrate having given Mr Defendi the opportunity to provide written submissions addressing the issue in (1);
(3) the magistrate having given Mr Defendi, in the primary judge's view, a reasonable amount of time in which to file those submissions, in particular having regard to Mr Defendi's English language difficulties; and
(4) Mr Defendi having filed the 2017 Case written submissions, being detailed written submissions addressing the issue of whether the 2017 Case raised a new claim.
[32] Primary reasons [31].
Given this, the primary judge was not satisfied that Mr Defendi was not given a reasonable opportunity to be heard.[33]
[33] Primary reasons [32].
The primary judge stated that even if he was wrong in this conclusion, he did not consider the ground to be made out.[34] This was because:
(1)A denial of procedural fairness will not justify a new trial if it could not possibly have led, or lead to, to a different result.[35]
(2)In his view, any further information provided by Mr Defendi would not possibly have made any difference to the Magistrate's Decision. His Honour explained this conclusion as follows:[36]
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 [set out at [11] above] 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. 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.
[34] Primary reasons [33].
[35] Primary reasons [33] - [37].
[36] Primary reasons [38].

The primary judge dismissed the ground and the appeal.

The appeal to this court

Mr Defendi appeals, pursuant to s 42 of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the MCCP Act), against the primary judge's decision to dismiss his appeal to the District Court. His sole ground of appeal is in the following terms:
[The magistrate] did not allow the Appellant to speak during the first Hearing on 24 January 2018. On 23 July 2018 [the primary judge] upheld the decision of the Magistrate not giving due consideration to the fact the Appellant wanted to be heard in the hearing on 24 January 2018.
Mr Defendi submits, in summary, as follows:[37]
(1)The magistrate did not allow Mr Defendi to speak during the hearing on 24 January 2018.
(2)Mr Defendi was thereby prevented from stating his case and from bringing, to the attention of the magistrate, the magistrate's error in considering that the case should be dismissed.
(3)The 2016 Case was concerned with a section of 18 m of fencing.
(4)By contrast, the 2017 Case was concerned with the failure of Ms Szigligeti to conform with the 2012 Order in installing the fence.
(5)Consequently, there was no abuse of process and the case was conducted in a way that denied procedural fairness to Mr Defendi.
[37] Appellant's submissions [2] - [9].

The hearing of this appeal

This appeal was listed for hearing on 25 July 2019.
After the close of business on 24 July 2019, the registry of the court received an email from Mr Defendi. The email stated, in substance, that:
(1)He had succumbed to an 'attack of bronchitis', being overcome with coughing, some fever and 'utter debilitation'.
(2)It would be 'completely impossible' for him to attend on 25 July 2019, for which he apologised and was extremely regretful.
(3)He requested the court to consider the matter on the basis of the papers before it.
As foreshadowed, Mr Defendi did not appear at the hearing on 25 July 2019. The court ordered that he have leave to file any further written submissions by 4 pm, 1 August 2019, and that the appeal be determined on the papers.[38]
[38] Appeal ts 2 - 3.
Further written submissions were received from Mr Defendi on 31 July 2019. They are to the same effect as his earlier submissions. The further submissions seek to explain that the 2017 Case was not a repetition of the 2016 Case, as the latter was only concerned with the 18 m section of fencing not installed by Ms Szigligeti and the two cases relate to different orders of the 2012 Orders. Whereas the 2017 Case sought to ensure that Ms Szigligeti comply with order 3 of the 2012 Orders, the 2016 Case sought to enforce compliance with order 4 of those orders.

Disposition

The primary judge found that the magistrate did not fail to afford procedural fairness to Mr Defendi. By this appeal, Mr Defendi challenges that conclusion of the primary judge. In deciding this appeal, we must decide for ourselves whether the magistrate failed to afford procedural fairness to Mr Defendi; we would uphold this appeal if, and only if, we consider that the magistrate breached the requirements of procedural fairness.
There is no doubt that the magistrate was obliged to afford procedural fairness to Mr Defendi. However, Mr Defendi has not shown that the magistrate failed to do so. To the contrary, in our respectful opinion, for the reasons that follow, the course adopted by the magistrate was consistent with the requirements of procedural fairness.
It is axiomatic that a court is obliged to accord procedural fairness to a litigant.[39]
[39] Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589; Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383, 396; J v Lieschke [1987] HCA 4; (1987) 162 CLR 447, 456; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54]; Assistant Commissioner Condon v Pompano Pty Ltd [2013] HCA 7; (2013) 252 CLR 38 [194]; Shrestha v Migration Review Tribunal [2015] FCAFC 87; (2015) 229 FCR 301 [37].
However, to say that a court is obliged to afford procedural fairness is only the first step of analysis. The second step is to identify the content of the requirements of procedural fairness. The second step is what is critical in most cases.[40]
[40] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 585.
Although sometimes expressed in terms referring to a necessity for a hearing, the fundamental requirement of procedural fairness is (relevantly for present purposes) that a party is given a reasonable opportunity to be heard, in other words, to present their case by evidence, information and submissions.[41]
[41] Cameron v Cole (589); Commissioner of Police v Tanos (395 ‑ 396); J v Lieschke (456); SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152 [32]; International Finance Trust Co Ltd [54], [141] ‑ [144]; Minister for Immigration and Border Protection v SZSSJ [2016] HCA 29; (2016) 259 CLR 180 [82]; Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 587, 591 ‑ 592, which has been cited with approval in many cases; see Forrest & Forrest Pty Ltd v The Honourable William Richard Marmion, Minister for Mines and Petroleum [2017] WASCA 153; (2017) 51 WAR 425 [100] and footnote 91 thereof; Shrestha [38].
The requirements of procedural fairness are not fixed or immutable.[42] Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances.[43] The application of the requirements of procedural fairness to a court requires analysis of the procedures of the court, and the legislation and rules which govern them.[44]
[42] Pompano [156]; Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51].
[43] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]; Pompano [156]; Rowe v Stoltze [51]; Woodley v Woodley [2018] WASCA 149 [77].
[44] J v Lieschke (456); Pompano [156]; Shrestha [45]; see also AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368 [23].
In light of these principles, we outline the following relevant features of the legislation and rules governing the procedures of the Magistrates Court.
Section 13 of the MCCP Act provides, relevantly, that in dealing with cases, the court is to ensure that cases are dealt with justly, which includes ensuring that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible.
Section 15 of the MCCP Act provides as follows:
15. Court may act on its own initiative
(1)The Court may exercise its powers on the application of a party or on its own initiative unless this Act or the rules of court or another written law provides otherwise.
(2)The Court may make an order on its own initiative with or without -
(a)allowing the parties to make submissions; or
(b)hearing the parties.
(3)If the Court decides to allow the parties to make submissions before making an order on its own initiative, it must notify each party likely to be affected by the order of how and when the submissions are to be made.
(4)If the Court decides to hear the parties before making an order on its own initiative, it must notify each party likely to be affected by the order of the time and place of the hearing. (emphasis added)
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.
By r 28B of the Magistrates Court (General) Rules 2005 (WA) (the MCG Rules), the court, on the application of a party or on its own initiative, may deal with a civil case, or an aspect of a civil case, in chambers.
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.[45] However, 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. By r 28B of the MCG Rules and s 15(2) of the MCCP Act, a magistrate may deal with a case in chambers, and the court may act on its own initiative without hearing from the parties. If the court decides to allow the parties to make submissions, the court can determine, and must then notify the parties of, how and when the submissions are to be made.[46] As explained below, in this case the magistrate so decided, and notified the parties as required.
[45] See, for example, Shrestha [47] - [50].
[46] MCCP Act, s 15(3).
We refer to the outline of the course of the hearing on 29 November 2017 set out at [13] ‑ [17] above. What was said by the magistrate on 29 November 2017 was to the following effect:
(1)The magistrate had a concern that the 2017 Case did not raise any new issue.
(2)To ensure fairness to Mr Defendi, the magistrate would give him an opportunity to 'file a statement as to what is new about [the 2017 Case]' (emphasis added).[47] In that respect, the magistrate said that he would give Mr Defendi 'just one opportunity to state what it is that's new about his claim, otherwise it's to be dismissed'.[48]
(3)If Mr Defendi did not convince the court that there was a new aspect to his claim, the claim would be dismissed without Ms Szigligeti needing to come back to court.[49]
(4)The magistrate reiterated that Mr Defendi was required to 'set out in a document in a written form what it is that's new about this claim' (emphasis added), following which the court would look at the submissions and, if not convinced by what Mr Defendi was saying, the claim would be dismissed.[50]
(5)Mr Defendi's submissions would need to be filed and served early enough for the court to have time to look at them before 24 January 2018.[51]
[47] 2017 Case, 29 November, ts 3; see [13] above.
[48] 2017 Case, 29 November, ts 5; see [15] above.
[49] 2017 Case, 29 November, ts 5 - 6; see [15] above.
[50] 2017 Case, 29 November, ts 7 - 8; see [17] above.
[51] 2017 Case, 29 November, ts 9.
Further, as outlined at [18] above, the orders served on Mr Defendi following the hearing on 29 November 2017 clearly stated that Mr Defendi was to file and serve written submissions as to what if any aspect of his latest claim was not previously dealt with, and the 2017 Case was to be dismissed unless there were matters to be freshly determined.
In our opinion, in acting in the manner outlined above, the magistrate afforded procedural fairness to Mr Defendi. The magistrate identified the issue of concern, articulated his preliminary view on that issue, and provided Mr Defendi with the opportunity to make written submissions to persuade him otherwise. Nothing said by the magistrate on 29 November 2017, or in the orders made that day, suggested that Mr Defendi would be given an opportunity to make oral submissions when the matter came back before the court on 24 January 2018. To the contrary, what the magistrate said on 29 November 2017, and the orders, made it clear that Mr Defendi had the opportunity to make written submissions, following which the court would determine the question of whether the claim should be dismissed as an abuse of process. In those circumstances, in the setting of the legislation and rules governing the Magistrates Court, procedural fairness did not require the magistrate to permit the making of oral submissions in addition to the written submissions.
For these reasons, we would dismiss Mr Defendi's sole ground of appeal. Further, like the primary judge, we would dismiss this ground of appeal for an additional reason.
Not every departure from the rules of procedural fairness will entitle the aggrieved party to an order for a retrial. Such an order will be made only if the error deprived the party of the possibility of a successful outcome.[52]
[52] Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145, 147; Nobarani v Mariconte [2018] HCA 36; (2018) 92 ALJR 806 [38]; Mijatovic v Legal Practitioners Complaints Committee [2008] WASCA 115; (2008) 37 WAR 149 [15], [73], [250].
The terms of grounds 3 ‑ 5 of Mr Defendi's appeal to the District Court made clear that the substance of the 2017 Case was an attempt to enforce the 2012 Orders. For the reasons given by the primary judge,[53] which are set out at [35](2) above, had Mr Defendi been given the opportunity to make oral submissions, it would not possibly have made any difference to the outcome of the hearing and, were he to be given the opportunity to make oral submissions in a new hearing, it would make no difference. In short, that is because, as the primary judge found, any oral submissions he might have made would have been to the same effect as his written submissions. In particular, any oral submissions would have been, or would be, to the effect that the 2017 Case was not encompassed by the 2016 Case and sought to enforce the 2012 Orders. The making of such submissions, which were also made in the written submissions, could not have made any difference, and would not possibly make a difference to the outcome at any rehearing, because Mr Defendi cannot seek to enforce the 2012 Orders by instituting the 2017 Case, or any new proceedings. Any attempt to enforce the 2012 Orders could only be made through an application pursuant to the CJE Act. That being so, to adopt the words of Gleeson CJ in Ex parte Lam, there was no practical injustice because the appellant 'lost no opportunity to advance his case';[54] it was not 'shown that he lost an opportunity to put any information or argument to the decision‑maker, or otherwise suffered any detriment'.[55]
[53] Primary reasons [38].
[54] Ex parte Lam [38]. See Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326 [36], [57]; SZSSJ [82].
[55] Ex parte Lam [36]. See WZARH [57]; SZSSJ [82].
For these reasons, the primary judge was correct in concluding that the magistrate did not breach the requirements of procedural fairness. The sole ground of appeal thus fails.

Conclusion

For the above reasons, we would dismiss the appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Research Associate/Orderly to the Honourable Justice Beech
8 AUGUST 2019