Dincer v Giancristofaro
[2015] WADC 49
•7 MAY 2015
DINCER -v- GIANCRISTOFARO [2015] WADC 49
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 49 | |
| Case No: | APP:101/2014 | 11 MARCH 2015 | |
| Coram: | BOWDEN DCJ | 7/05/15 | |
| PERTH | |||
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Application for an extension of time within which to appeal refused | ||
| PDF Version |
| Parties: | TAMER DINCER FRANCESCO GIANCRISTOFARO |
Catchwords: | Appeal from Magistrates Court Application for an extension of time within which to appeal Minor case Natural justice Bias |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 |
Case References: | Bourke v Beneficial Finance Ltd (1993) 47 FCR 264 Chin v Legal Practice Board of Western Australia [2011] WASCA 110 Cohen v City of Perth (2000) WASC 306 De Alwis v The State Of Western Australia [No 2] [2015] WASCA 42 Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482 Drexel London (a firm) v Gove (Blackman ) [2009] WASCA 181 Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 Gallo v Dawson [1990] HCA 30 Garando v Garando (1997) 18 WAR 450 Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438 Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99 Kioa v West (1985) 159 CLR 550 Marsh v Baxter [2015] WASC 187; (2014) 46 WAR 377 Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507 Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 O'Conner v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 Re Burton, Ex parte Lowe [2003] WASCA 306 Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; (1979) 36 FLR 482 Rodriguez v Telstra Corporation Ltd [2002] FCA 30 Simonsen v Legge [2010] WASCA 238 Sims v Suda Ltd [2015] WASCA 65 Southern Properties (WA) Pty Ltd v Executive Director Of The Department of Conservation and Land Management [2012] WASCA 79 Sullivan v Department of Transport (1978) 20 ALR 323 Waters v Williams [2013] WADC 169 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
FRANCESCO GIANCRISTOFARO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE ATKINS
File No : PE MINOR 15551 of 2013, PE MINOR 16800 of 2013
Catchwords:
Appeal from Magistrates Court - Application for an extension of time within which to appeal - Minor case - Natural justice - Bias
Legislation:
Magistrates Court (Civil Proceedings) Act 2004
Result:
Application for an extension of time within which to appeal refused
Representation:
Counsel:
Appellant : In person
Respondent : Mr S Singh & Dr N Woollard
Solicitors:
Appellant : Not applicable
Respondent : Magister Legal
Case(s) referred to in judgment(s):
Bourke v Beneficial Finance Ltd (1993) 47 FCR 264
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
Cohen v City of Perth (2000) WASC 306
De Alwis v The State Of Western Australia [No 2] [2015] WASCA 42
Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482
Drexel London (a firm) v Gove (Blackman ) [2009] WASCA 181
Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58
Gallo v Dawson [1990] HCA 30
Garando v Garando (1997) 18 WAR 450
Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438
Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99
Kioa v West (1985) 159 CLR 550
Marsh v Baxter [2015] WASC 187; (2014) 46 WAR 377
Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
O'Conner v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Burton, Ex parte Lowe [2003] WASCA 306
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33; (1979) 36 FLR 482
Rodriguez v Telstra Corporation Ltd [2002] FCA 30
Simonsen v Legge [2010] WASCA 238
Sims v Suda Ltd [2015] WASCA 65
Southern Properties (WA) Pty Ltd v Executive Director Of The Department of Conservation and Land Management [2012] WASCA 79
Sullivan v Department of Transport (1978) 20 ALR 323
Waters v Williams [2013] WADC 169
1 BOWDEN DCJ: This is an application for an extension of time within which to appeal in relation to two actions which were heard together in the minor claim jurisdiction of the Magistrates Court.
2 In matter 15551 of 2013 the appellant sought $4,100 and was awarded $1,309 together with costs. The respondent's counterclaim for $3,047 was dismissed.
3 In matter 16800 of 2013 the appellant's claim was dismissed.
The application for leave to appeal
4 Pursuant to s 40(3) of the Magistrates Court (Civil Proceedings) Act 2004 an appeal cannot be commenced more than 21 days after the date of judgment unless the District Court gives leave to do so.
5 Judgments in this matter were delivered on 17 June 2014 and, accordingly, the appeal should have been filed on or before 8 July 2014. The appeal was filed on 20 October 2014, which is approximately 124 days after the date of judgment or 103 days out of time.
6 In support of the application for an extension of time the appellant filed an affidavit (the second affidavit) dated 20 October 2014.
7 The affidavit discloses the appellant was overseas between 20 June 2014 and 22 July 2014 and between 30 August 2014 and 14 September 2014. It also reveals that he did not apply to obtain a copy of the transcript of the decision until 27 August 2014 and received it on 6 October. The appellant deposes that he first became aware of the 21-day deadline on 6 October and lodged his appeal on 20 October.
8 The principles applicable for an extension of time within which to appeal were reviewed in Simonsen v Legge [2010] WASCA 238.
9 The granting of an extension of time, notwithstanding the court has leave to do so, is not automatic. The discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties: Simonsen v Legge; Gallo v Dawson [1990] HCA 30.
10 In order to justify an extension of time the reasons for, and the length of, the delay must be addressed and there must be some material upon which the court can exercise its discretion. The cogency of an explanation required for the delay increases as a period of extension sought increases: Simonsen v Legge; Garando v Garando (1997) 18 WAR 450.
11 There are at least four major factors to be considered, although they are not necessarily exhaustive, those being:
1. The length of the delay;
2. The reason for the delay;
3. The prospects of the appellant succeeding in the appeal; and
4. The extent of any prejudice to the respondent.
Length and reasons for the delay
12 There was a delay of approximately 103 days from the expiration of the period allowed to lodge an appeal. No satisfactory explanation has been provided other than the appellant was overseas for work and family commitments on two occasions. The appellant is quite entitled to go overseas for such commitments and is at liberty to arrange his affairs as he wishes, however he could have made arrangements to instruct solicitors to act on his behalf in his absence.
13 The importance of compliance with the rules and orders of the court cannot be overstated. The rules and orders of the court are not mere suggestions to be acted upon or not as it suits a litigant. The public interest in the effective utilisation of the public resources of the court and the interests of the other party in an expeditious and cost effective resolution of the appeal require that the rules and orders of the court be complied with, and if circumstances arise which make that impossible, that steps are taken promptly to seek an extension of time. Extensions of time are not, and cannot be, there simply for the taking: Sims v Suda Ltd [2015] WASCA 65.
14 The appellant chose to marshal his limited resource of time in a way which suited his work and family commitments. Even when he returned from overseas, over a month elapsed before he decided to obtain a copy of the transcript and then when he obtained the transcript a further two weeks elapsed before the appeal was filed. One of the reasons he seeks to appeal so far out of time is the respondent's erroneous interpretation of the orders made by the magistrate (appellant's amended submissions, 11 March 2015 (page 16)). Another party's erroneous interpretation of the orders made does not assist the appellant in explaining either the length or reason for delay. The delay is lengthy and I do not consider that there has been any satisfactory explanation for it.
The extent of any prejudice to the respondent
15 The respondent has a vested right to retain his judgment and a vested interest in the judgment once it is delivered: Gallo v Dawson. Ultimately the prejudice suffered by the respondent is having to 'live with the litigation' and associated stress and uncertainty after the period for appeals has expired. A successful respondent ought to be able to get on with their life and business without the fear that an unsuccessful appellant is going to lodge an appeal well after the deadline has expired.
The prospects of the appellant succeeding
16 The mere fact that the appellant demonstrates an arguable case or a strongly arguable case, even in the absence of significant prejudice shown by the respondent, does not mean necessarily that an extension of time should be granted.
17 An extension of time will not be granted unless there is some prospect of success but that does not mean time must be extended if the appeal has any prospect of success: Simonsen v Legge.
18 There are also other factors to consider including the need for finality in litigation.
19 However, for now, I turn to examine the merits of the appeal.
The merits of the appeal
The legislation
20 Section 32(1) of the Magistrates Court (Civil Proceedings) Act states:
Except as provided by the section, no appeal lies against –
(a) an order made by the court in the course of proceedings in a minor case, or
(b) the judgment of the court in a minor case.
…
21 Section 32(3)(b) provides:
Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds –
…
(b) that in dealing with the minor case there was a denial of natural justice.
22 The appellant must therefore establish that there has been a breach of natural justice for his appeal to succeed.
Natural justice
23 What is appropriate in terms of natural justice depends on the circumstances of the case and that includes, inter alia, the nature of the enquiry, the subject matters and rules under which the decision-maker is acting: Kioa v West (1985) 159 CLR 550, 584 – 585 (Mason J).
24 Natural justice requires that a party be given a reasonable opportunity to present their case (the hearing rule) and that the decision-maker is unbiased (the bias rule). It is sometimes suggested that there is a further requirement that the decision be based upon logically probative evidence (the no evidence rule), although this third rule is not universally acknowledged as part of the general law of natural justice: Re Burton, Ex parte Lowe [2003] WASCA 306 (Barker J); Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148.
25 The requirements of natural justice are to be viewed in the context of the minor case procedure of the Magistrates Court and in the context of the case: Rankilor v Circuit Travel Pty Ltd [55] – [60] (Newnes JA). A court is not required to undertake the 'impossible task' of ensuring the appellant took the best advantage of the opportunity he had to present his case: Sullivan v Department of Transport (1978) 20 ALR 323, 343; Rankilor v Circuit Travel Pty Ltd.
26 Determining whether there is a breach of natural justice requires consideration of the context of the case, and it is necessary to examine the claims of the appellant.
Minor claim 15551 of 2013
27 The description of the claim filed by the appellant is:
Breach of the agreement signed before the start of the construction involving removal of the boundary wall, excavation and entering our land.
The claim is to rectify the changes and damage
Missing 4 m section of the boundary wall
Distinctively different material/colour boundary wall sections
Construction defect/damages on the boundary wall
Missing border along the front verge
Damages to soil, plants and reticulation
Clean-up of construction debris
28 The appellant, in his evidence, adopted as true his summary of facts relevant to the claim found in the statement of minor case claim which included, inter alia, that the respondent purchased the neighbouring property which had a half demolished structure on it with a wall and supporting structures standing at the boundary. The respondent then approached the appellant for an agreement to facilitate the building approval process and to carry out demolition and construction works at the boundary.
29 An agreement dated August 2011 was signed (exhibit 3) which permitted the respondent to enter upon a portion of the appellant's land to erect temporary fencing and to build a parapet wall. The agreement provided that upon completion, all was to be reinstated as previous and all costs of damages, if any, associated with the works would be borne by the respondent and if any part of the fence needed to be removed, it would be re-constructed in brickwork.
30 The cause of action pleaded is the breach of the agreement of August 2011 (exhibit 3) for which damages was claimed.
Minor claim 16800 of 2013
31 The description of the claim filed by the appellant is:
Entering into a signed agreement to use my land for a 'conventional excavation' without mention of the sheet piling process
Obtaining consent deceitfully to facilitate 'earlier' council approval process by hiding the detrimental effects of the sheet piling process and potential damage to property
Starting the sheet piling process without prior knowledge and consent of the applicant by any means
The claim is for the lost working time and lost income for three days of consulting work at home office and also for extreme stress
32 The appellant, in his evidence, adopted as true his summary of facts relevant to the claim found in the statement of minor case claim which included the matters mentioned in relation to his other claim and stated that he had facilitated the approval process by attending meetings at the City of South Perth, discussing the excavation at the boundary, and entering into the agreement of August 2011 and permitting the use of his land during construction.
33 He said there was no mention of any other process or potential damage to his home or disruption to his family or work life in any discussions with the respondent or at any meetings or indicated in the agreement. He said he first became aware the sheet piling process was to be used a few metres from his home when workers attended the residence on 10 August 2011 with a tractor-type excavator and rang his door bell early in the morning and asked if he was aware why they were there and the work they would be performing.
34 The appellant says that soon afterwards the sheet piling process commenced and continued for two days causing heavy or extreme vibration and noise between 7.00 am and 4.00 pm on the first two days and on the last day from 7.00 am to 2.00 pm during which time it was not possible to work and there was a risk to his computer and equipment and structurally to the house. After the sheet piling was complete he had to catch up with his work and spent significant time trying to resolve the issue through the City of South Perth.
35 It seems from the filed description of claim, summary of facts relevant to the claim and evidence called by the appellant at the hearing that the cause of action he sought to rely upon where:
36 (a) A cause of action based on some form of deceptive conduct or misrepresentation constituted by the respondent's silence in failing to mention the sheet piling process which caused the appellant to enter into a signed agreement to use his land for 'conventional excavation'.
37 Realistically, it was never the appellant's position that the signed agreement referred to 'conventional excavation'. He accepted the agreement referred only to excavation. There was no agreement relating to 'conventional excavation', any claim based on a cause of action presupposing there was such an agreement was bound to fail.
38 (b) A cause of action based on some form of deceptive conduct or misrepresentation (fraudulent or innocent) constituted by the respondent's silence in failing to mention the sheet piling process and potential damage to the appellant's property which led the appellant to enter the August agreement (exhibit 3, the only consent obtained to facilitate 'earlier' council approval process).
39 To prove misrepresentation or deceptive conduct by silence the appellant needed to establish some silence on behalf of the respondent which distorted a positive representation made to the effect that there would be normal excavation or that there would not be sheet piling excavation or that the contract was such that it required the utmost good faith or that there was a fiduciary relationship between the parties.
40 The appellant would also need to prove the misrepresentation caused him to enter into the August agreement and that he suffered damages as a result of entering into that agreement. The appellant would need to show the sheet piling process would not have occurred if he did not enter the agreement (exhibit 3) because if sheet piling would have occurred in any event he would not be able to prove his damages resulted from the deceptive conduct or misrepresentations.
41 (c) A cause of action based on the respondent starting the sheet piling process without his prior knowledge and consent.
42 This discloses no cause in action, however the causes of action must be considered in light of the evidence given in the appellant's case which encompassed his claim of excessive noise, excessive vibration and lack of prior consultation.
43 Taking the most favourable view to the appellant, it was a claim of private nuisance and breach of statutory duty particularly in view of his reliance on the Environmental Protection (Noise) Regulations 1997.
44 Private nuisance can be established without the need to prove any fault on the respondent's part. Common law damages will be obtained where the tort of private nuisance is made out and the damage claimed can be physical or purely financial: Marsh v Baxter [2015] WASC 187; (2014) 46 WAR 377 [299] - [302] (Kenneth Martin J).
45 To establish a private nuisance involves establishing the appellant was within that class of person who was entitled to sue and that the respondent had engaged in a use of his land that has substantively and unreasonably interfered with the beneficial enjoyment of the appellant's land.
46 It is undetermined at this stage whether the Civil Liability Act 2002 applies to claims for private nuisance: Southern Properties (WA) Pty Ltd v Executive Director Of The Department of Conservation and Land Management [2012] WASCA 79 [126], McLure P's preliminary view was that it did not, Pullin JA's view was that it did ([329]), Buss JA's view was that it was unnecessary for that case to decide ([336]).
The appellant's grounds of appeal
47 The appellant's grounds of appeal are found in his appeal notice of 20 October 2014, his first affidavit of 20 October 2014, his summary of amended grounds of appeal attached to his third affidavit of 30 December 2014, his fourth affidavit of 4 February 2015, his fifth affidavit of 5 February 2015 and his amended submissions dated 9 March 2015.
48 The grounds of appeal from the notice of appeal can be summarised as follows.
Ground 1
49 The magistrate did not allow the applicant to continue questioning Mr Jenke about noise regulations and Australian Standards, when he effectively said no regulations were applicable to construction noise, leading to the conclusion that the respondent did not have any obligations. Mr Jason Jenke gave false and misleading evidence that did not make sense but the appellant was not allowed to question. Detailed review of the Environmental Protection (Noise) Regulations 1997 showed that the defendant had clear obligations to inform the affected neighbourhood and consider any special needs of the affected neighbourhood.
50 The appellant was permitted to call Mr Jenke, who was the coordinator for environmental health services for the City of South Perth, and was not prohibited from leading evidence from him and to that extent was not denied natural justice.
51 As a matter of law her Honour interpreted reg 7 and reg 13 of the Environmental Protection (Noise) Regulations 1997 (the Regulations), which incorporates Australian Standard 2436 – 2010, in a particular manner. Any opinion Mr Jenke had as to whether those Regulations had been breached was irrelevant. The question of whether those Regulations applied to the site and were breached was a matter of law for her Honour to determine. If there was an error in her Honour's interpretation of those Regulations, it is an error of law and that does not constitute a breach of natural justice.
52 The appellant also complains that he was denied natural justice as a result of her Honour intervening during Mr Jenke's evidence.
53 The intervention at ts 81 occurred when the appellant was asking Mr Jenke to give evidence as to the motives of the appellant (evidence of no probative value). The intervention at ts 83 was to clarify whether Mr Jenke was being asked whether there was a management of noise policy. Her Honour then clarified with Mr Jenke that there was no need for a noise management plan in the circumstances of the case. Her Honour did not stop the questioning but simply clarified what the witness was saying. Her Honour further clarified Mr Jenke's evidence, and at ts 84, ts 86 and ts 87 reminded the appellant of the need to ask questions of the witness rather than make statements from the bar table.
54 The intervention at ts 87 whereby her Honour said 'This is your witness, your witness is supposed to give evidence' was nothing more than her Honour quite properly reminding the appellant that he was required to ask questions of the witness and not make statements, as is made apparent from her Honour's additional comments on ts 87.
55 The intervention at ts 89 occurred when her Honour stated:
I'm going to stop you there. The question of notice to people around the area has been gone through and that is only when there is to be – or where there is an approved noise management plan. Mr Jenke has been through that.
56 This intervention occurred in circumstances where Mr Jenke had already given evidence (ts 82) that a noise management plan was only required if work was performed outside of standard hours. Her Honour then briefly summarised Mr Jenke's evidence and asked Mr Jenke if she had correctly understood what he had said. The appellant then indicated that he wished to ask questions based on a noise management plan and her Honour asked what that had to do with the case (bearing in mind Mr Jenke's evidence). When the appellant indicated that he was not sure whether such a plan was required, her Honour asked Mr Jenke if such a plan was required. Her Honour's interjection was to prevent repetition on an issue the witness had already dealt with in his evidence.
57 The appellant then (ts 90) proceeded to ask 'How can it be decided like what's reasonable and what's not'. Her Honour indicated:
That had been answered by Mr Jenke as he had previously given evidence that the reasonableness of the level of noise is assessed by the builder on the site. (ts 85)
58 The appellant argues the cumulative effect of these interjections effectively prohibited him from trying to establish that there was a requirement on the respondent to give notice that work likely to result in noise and vibration (sheet piling work) was to commence.
59 It cannot be said these interruption inhibited the appellant from leading evidence from Mr Jenke. Mr Jenke gave evidence relating to when notice was required and when a noise management plan was required and who assessed the reasonableness of the noise. In any event the answers to those questions were matters of law, not dependant on Mr Jenke's interpretation of the law. The appellant may disagree with Mr Jenke's evidence; indeed that evidence may be wrong, however Mr Jenke was not prevented from giving that evidence.
60 The appellant also complains that her Honour's insistence that he provided a yes/no answer to the question of whether one of the statements made in his minor case claim (15551 of 2013) was false shows some form of bias. There is nothing unusual in a magistrate instructing a witness to answer a question which was relatively simple in a yes/no fashion.
61 It is apparent ,however, that the real concern of the appellant was that her Honour may have interpreted his answer as meaning he was saying the wall was not damaged before the respondent commenced their work when he readily conceded in his evidence there had been damage to the wall previously (ts 41 - 43).
62 As I understand his argument, the appellant says her Honour's finding that he accepted the wall might have been damaged by the previous owner's demolition contractor implies her Honour found that he had at one stage been saying that the wall was not damaged before the respondent commenced their work. Even if this argument was accepted, and it is not, it cannot lead to a conclusion of bias or breach of natural justice on her Honour's behalf.
63 The core of the appellant's complaint, in reality, is that the witness' evidence did not establish what he thought it would, as evidenced by his submissions (ts 271, closing submissions at trial), 'My witnesses didn't help my case' and 'the witness is not cooperating … Magistrate is allowing the witness not to cooperate' (ts 140, submissions on appeal). This does not establish any breach of natural justice.
64 The appellant also complains that Mr Jenke's evidence does not accord with the legislation. If her Honour erred in relying on that evidence or in her view of the legislation it is either an error of law or fact but not a denial of natural justice. This ground of appeal has no merit.
Ground 2
65 The magistrate did not allow the appellant to question Mr Rajib Kapur, who disclaimed himself but handled the review request of the appellant at the City of South Perth, he was well aware of all the constructions matters and would provide evidence for the obligations of the defendant on sheet piling and boundary wall demolition/construction matters.
66 The appellant complains that her Honour effectively prohibited him from leading evidence from Mr Kapur and therefore denied him the ability to obtain evidence about the (building) approval process and 'discussions' occurring at meetings attended by the parties and the city's representatives before the agreement was signed. He says he was so exhausted after her Honour's interventions that he gave up.
67 Mr Kapur gave evidence relating to complaints made by the appellant after the sheet piling process commenced. He was also questioned over the city's concern about potential damage to the appellant's house in the construction process and what occurred in the approval process. He answered that he was aware the appellant met with Mr Stone (one of the city's employees) and others at the site but effectively said he was not aware of the contents of those meetings (ts 93).
68 Mr Kapur was also asked if the city requested an agreement between the two neighbours and replied that he was aware there was a disagreement between the new neighbours and that Mr Randella and Mr Stone (both employees of the city) came to an agreement with the parties during the meeting but he did not know the terms of the agreement (ts 94) and those questions should be addressed to Mr Stone who was at the meeting (ts 94).
69 Mr Kapur also told the court that when the appellant rang the city's office and Mr Randella and Mr Stone were absent, he would advise the appellant that he would take his message and they would get back to him in a timely fashion.
70 Her Honour then intervened and told the appellant his questions should be directed to persons other than Mr Kapur and indicated that there was not much point asking questions of a witness who could not answer them. The appellant then asked for a few minutes to collect his thoughts and declined to ask any further questions.
71 There is no evidence suggesting Mr Kapur was present at any of the meetings attended by the parties and the city's employees.
72 The appellant was entitled to call evidence of what occurred at those meetings, however that evidence needed to be from witnesses who had some personal knowledge of the meetings or he could have, perhaps, tried to introduce minutes of those meetings as business records under the Evidence Act 1906. However, this was not what he did. He called the wrong person. Her Honour was correct to intervene. The witness could provide no relevant evidence over this issue.
73 Section 29(4) of the Magistrates Court (Civil Proceeding) Act 2004 provides:
When dealing with a minor case the court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit.
74 This does not mean the rules of evidence are to be ignored. It does not justify decisions made without bases in evidence having probative force. Rodriguez v Telstra Corporation Ltd [2002] FCA 30 [25] (Kiefel J) referring to Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 [41]; (1979) 36 FLR 482, where Brennan J found that a tribunal which is not bound by the rules of evidence is entitled to have regard to evidence which is logically probative whether legally admissible or not.
75 Mr Kapur's evidence could not be logically probative of any issue because he was not involved in any relevant discussion and referred all enquiries from the appellant to other city employees. Prior to the hearing commencing he told the appellant who was the appropriate person to call to give the relevant evidence.
76 In those circumstances her Honour cannot be said to have denied natural justice; the witness just could not give relevant probative evidence. Her Honour was correct in ruling the witness' evidence irrelevant and inadmissible under the general rules of evidence. There was no denial of natural justice.
77 This ground of appeal has no merit.
Ground 3
78 Starting with the pre-trial conference the court somehow assumed that the appellant was unreasonable in making claims. The appellant was constantly stopped in his questioning while the respondent was allowed to continue with personal attacks and derogatory accusations. The appellant gave up the questioning as the respondent was allowed to continue not cooperating but volunteered incorrect evidence to suit his purpose.
79 This is an allegation of bias. The onus of establishing the facts from which an allegation of a reasonable apprehension of bias is made lies on the party making it.
80 Actual bias occurs when the tribunal has prejudged the case against a party, or acted with such partisanship or hostility that it shows the tribunal had its mind made up against that party and was not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507, 532 [36], [72];Waters v Williams [2013] WADC 169 (Davis DCJ).
81 To establish actual bias the appellant needed to establish her Honour's mind was already made up and was incapable of alteration, whatever evidence or arguments were presented: Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA); Waters v Williams.
82 Apparent bias involved a lower threshold. It was recently discussed in De Alwis v The State of Western Australia [No 2] [2015] WASCA 42, where the court stated [67] – [71]:
It appears the appellant's claim is of actual and apprehended bias. In the case of apprehended bias, the test is whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 [64].
The apprehension of bias principle involves two steps. First, it requires the identification of what it is said might lead a judge or juror to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [8].
...
In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judge's conduct in the context of the trial as a whole: Galea v Galea (1990) 19 NSWLR 263. Kirby A-CJ said in Galea:
'A judgment of the loss of impartiality and neutrality would not be made from a short and emotional exchange taken out of context and then weighed in isolation. Judges, like witnesses, are human. Despite their professional training they are, in varying degrees, likely to show the range of emotions to which humanity is heir. While patience is a judicial virtue, so also is a concern about justice, the efficient conduct of proceedings and the avoidance of unnecessary delay, including to other litigants awaiting their hearing (279).'
It will often be necessary with a self-represented litigant for a trial judge to intervene in order to stop irrelevant matters being raised and to prevent unnecessary delays or disruptions: Michael v The State of Western Australia [2007] WASCA 100 [65]; De Alwis v De Alwis (Unreported, WASC, Library No 930439, 12 August 1993).
83 An objective assessment of the connection between the facts and the circumstances said to give rise to the apprehension of bias and the asserted conclusion that a judge might not bring an impartial mind to bear upon the issues that are to be decided is required: Michael Wilson & Partners Ltd v Nicholls [2011] HCA 48; (2011) 244 CLR 427 [67].
84 The appellant claims that, alone or in combination, the following matters indicated her Honour was prejudiced against him compared to the respondent:
(i) Since the pre-trial conference, he had been made to feel guilty for just asking a court application and seeking justice in the court system;
(ii) The combined weight of his appeal grounds including that her Honour restricted his opportunities to present his case and intervened in the presentation of his case;
(iii) Her Honour's reason for judgment lacked a reasonable connection with 'reliable' or 'logically probative evidence' presented in the hearing and was uncertain on critical issues.
85 The learned magistrate was not involved in the pre-trial conference. The whole idea of the minor claims jurisdiction is to try and encourage parties to settle. Her Honour made the appropriate inquiries at the commencement of the trial to see whether the parties would be able to settle and when it was obvious they were not she proceeded to hear the trial.
86 The subjective feelings of the appellant 'that he has been made to feel guilty' are not relevant to the question of bias.
87 The appellant said he was made to feel guilty about not preparing his cross-examination. This results from the exchange at ts 174 where her Honour reminded him that he was cross-examining the respondent on an issue that the appellant had not raised in his evidence after he had been told he needed to put everything he was relying on before the court when he gave evidence. This type of exchange frequently occurs whether a person is represented or not.
88 The real complaint is that her Honour's ultimate conclusions were adverse to the appellant and that she did not accept all his evidence and submissions. Clearly her Honour made a decision not to the appellant's liking. That is the nature of litigation.
89 Unhappy with the result the appellant has tried to dress up his complaints as allegations of bias, actual or apparent, so as to be able to argue a denial of natural justice. There is no basis to find either actual or apprehended bias.
90 This ground of appeal has no merit.
Ground 4
91 Unjustifiably in leading to the decision, the magistrate put the entire burden of satisfying the court onto the appellant based on the balance of probabilities also claiming that the court was not bound by the rule of evidence, despite that:
(a) the respondent bought the land in half-demolished state and was in control of his plans and execution of the construction methods and timing of the works;
(b) the respondent had liability as per the attached agreement that:
(i) all was to be reinstated as previous;
(ii) supporting pictures would be taken as evidence; and
(iii) all cost of damage if any associated with the work should be borne by F and T Giancristofaro in an ordinaryexcavation (not sheet piling) was marked in the attached plan.
(c) the appellant was not in a position to control, had no benefit from the works and did not have any obligation or time to monitor who owned the adjacent land and when the timing and nature of works at the boundary and the resultant efforts on the wall; and
(d) there is no evidence of any other agreement or consultation that the appellant could disprove which is also not probable verbally considering the very early animosity between the parties and the emails as the only means of communication.
92 The law provides that the burden of satisfying the court on the balance of probabilities in each claim rested on the appellant. The burden of proving the counterclaim lodged by the respondent was on the respondent. Her Honour correctly stated where the legal burden of proof lay. Her Honour was not bound by the rules of evidence: s 29(4) of the Magistrates Court (Civil Proceeding) Act.
93 The real complaint is that her Honour did not accept all the appellant's evidence and submissions. These are matters going to the merits of the decision and not grounds of appeal permitted by the Act. There was no denial of natural justice. This ground of appeal has no merit.
Ground 5
94 The magistrate's decision that the appellant had a duty of mitigation to work at night cannot be justified considering that:
(a) the appellant's consultant work was time dependent, he earned more if he worked more day or night;
(b) it cannot be expected that someone can mitigate the day's work at night after being exposed to sheet piling all day without any notice; and
(c) it is not possible to recover (or return) the lost time and the lifetime is limited.
95 Her Honour said 'the claimant ... has a duty to mitigate his loss'. That is a correct statement of the law relating to damages. The learned magistrate also said ''The loss was mitigated by work carried out after the sheet piling was finished each day'. That correctly states what the appellant told her Honour in his submissions.
96 The suggestion that those remarks establish a denial of natural justice is meritless. The appellant called evidence as to his lost income. If there was an error in her Honour not accepting that evidence or in miscalculating the effect of that evidence it was an error of fact/law and does not constitute a denial of natural justice.
97 This ground of appeal has no merit.
Ground 6
98 The magistrate was unjustifiably concerned in the decision that the appellant would be enriched if the respondent ordered to pay more than half of the costs of the construction of missing wall and zero compensation for all other claims. A reasonable builder would not leave a boundary wall comprising (from front to rear) – 6 m rendered - 4 m missing - 8 m rendered - 2 m only upper 2/3 rendered but lower 1/3 not rendered – 2 m all rendered – 10 m not rendered old wall sections, with various construction defects and marks all over the wall. This was clearly not an upgrade but to minimise the cost of the respondent, which would be much lower (-$1,500 similar to the ordered compensation) at the time of construction.
99 The learned magistrate's statement that 'again the purposes is to place the claimant as close as possible in the position he should be in and not to enrich him' is a basic principle of assessment of damages. The aim of damages is not to enrich but simply to compensate. The learned magistrate's statement of law was correct. If there was an error in not accepting the appellant's evidence/submissions on damages it was an error of fact/law and does not constitute a denial of natural justice.
100 This ground of appeal has no merit.
Ground 7
101 The appellant did not have any benefit or obligation to enrich the respondent and suffered due to the respondent's action without common sense and in breach of the relevant legislation.
102 This is not a proper ground of appeal. It is so vague that it is impossible to ascertain the point the appellant is trying to make.
103 It does not establish any breach of natural justice.
104 This ground of appeal has no merit.
Other grounds of appeal
105 Distilling the other grounds of appeal from the submissions made at the appeal and other documents referred to in [47] is not an easy task. I deal with what I considered to be the other grounds raised by the appellant.
Her Honour's comments in the last paragraph of her decision
106 The appellant refers to the last paragraph of her Honour's decision as showing bias.
107 In that paragraph her Honour stated:
So that brings me to the end of my decision in relation to this matter. The situation, gentlemen, is still going to be the same in relation to that front wall. You need to try to talk to each other to avoid further court proceedings. You need to try and settle this matter between yourselves. You are going to be living next door to each other for, I would believe, a considerable length of time. You really need, both, to pull your heads in and try and come to some agreement and sort this out between yourselves. You are both free to leave the court.
108 Clearly her Honour's comments were made in the context of the appellant and respondent being neighbours who presumably are going to live next door to each other for a long period of time being. Her Honour's remarks were common sense remarks pointing out that it might be just a lot easier, cheaper and more conducive to good neighbourhood relationships if they tried to resolve any remaining difficulties themselves. The remarks were addressed to both parties and do not establish a breach of natural justice. This ground of appeal has no merit.
Allegations of double standards in formality and intervention
109 The appellant also complains of double standards in formality and intervention. He says her Honour behaved differently towards him than towards the respondent both in the way she treated them and in the manner and nature of her interventions.
110 This allegation is demonstrably not correct.
111 The appellant drew my attention to interchanges occurring at ts 30, 38, 96, 124, 125, 129, 147, 159, 174, 189 and 194 (to name just a few) as examples where her Honour intervened whilst he was either giving evidence or asking questions. Reading the trial transcript as a whole, these interventions show no actual or apprehended bias. They show a magistrate trying to keep the case on track.
112 The transcript shows that when the respondent commenced his cross-examination he was reminded of the need to be respectful, not to snipe, or make personal comments of any type (ts 37), queried as to what the question asked was (ts 46), reminded of the need for the questioning not to descend into tit-for-tat arguments (ts 49), reminded of the need to break his questions down (ts 49 - 50), queried as to where the questions were heading (ts 52), reminded of the need to put questions that could be answered (ts 53), reminded of the need to ask questions and not make statements (ts 56,58,59,62,69,70,74), (note: the transcript is in error. It describes Mr Dincer as the cross-examiner from ts 58 to ts 79. The respondent was cross examining. I have listened to the discs. The error is in the transcribing of disc 3, 12 May 2014, from approximately 1 minute 12 seconds until the end of the disc), reminded of the need to remain calm no matter how frustrating the proceedings became (ts 60), instructed to move on when the questioning was repetitive (ts 67), prohibited from cross-examining over irrelevant matters (ts 71), reminded that the questions asked had already been answered (ts 74), prohibited from asking further questions (ts 78), instructed that it was not appropriate to apologise to a witness called by the appellant for whom he had no questions (ts 91), instructed to break a long question into several smaller ones (ts 113), queried as to why he was cross-examining a witness on an email authored by the appellant (ts 114), prohibited from giving evidence about irrelevant matters (ts 135), prohibited from giving evidence of his opinion of the appellant's cross-examination of Mr Kapur and Mr Jenke (ts 141) and prohibited from giving evidence about what he thought occurred in 90% of other cases (ts 202).
113 The respondent was also told not to tell the appellant how to ask questions (ts 149), instructed to answer questions he did not think he needed to (ts 146,164) and that he maintained he had previously answered (ts 192) or to which he objected (ts 191), reminded of the need to answer questions the way he wished to and not the way somebody else wished him to (ts 161), told to cover an area of his evidence again even though he maintained he had already done so (ts 205).
114 The respondent was reminded not to make allegations in his closing submissions when he had not given evidence to support those allegations (ts 225) and told that further information could not be brought forward in closing submissions (ts 225). He was also reminded not to make personal comments about the appellant (ts 227) and instructed to 'move on' when addressing the court in relation to his relationship with another neighbour (ts 227). He was told to be careful of the language used in court (ts 228) and that evidence of all of the events that occurred since he moved next door to the appellant were not relevant (t 230) and instructed not to address the court on irrelevant materials (ts 232).
115 On any objective reading of the transcript it cannot be said that the learned magistrate applied some form of double standard in the way she treated the appellant and respondent or interjected whilst they were giving evidence, cross-examining or making submissions to the court. The interventions show a magistrate intervening in relation to both parties and trying to keep the case on track. This ground of appeal has no merit.
The failure to show some exhibits to the appellant
116 The appellant says he was not shown exhibit 26 (ts 132) at the time it was introduced into evidence. The appellant was clearly aware of the procedure of calling for exhibits (ts 144) and demonstrated his ability to examine exhibits (ts 149) and later called for exhibit 26 and cross-examined on it (ts 188). It is regrettable that exhibit was not shown to the appellant when it was introduced into evidence however there can be no denial of natural justice as the appellant later cross-examined on it. This ground of appeal has no merit.
Failure to understand an exhibit
117 In relation to exhibit 21 the appellant claims he did not question the respondent on it because he did not understand the exhibit at the time it was introduced into evidence and complains that her Honour made no effort to ascertain whether he could understand the exhibit.
118 Her Honour told the appellant (ts 125) that he could question the respondent on that exhibit at a later stage. The appellant was not denied any opportunity to put questions to the respondent about the exhibit. He made no effort to cross-examine and ascertain its probative value. This ground of appeal has no merit.
Automatic bias - the clogged court system and the pressure of work
119 The appellant submitted that natural justice was denied because the legal system was busy due to the pressure of work and the court system was clogged and there was 'automatic' bias against him. This submission seemed to be tied to his submission (thrice made) that although he did not expect to receive 100% of his claim he expected perhaps 50% or 60% and supported by the appellant demonstrating by holding one hand around about head height, indicating the level of his claim, and holding the other hand around about waist height, indicating the amount he received.
120 The appellant is correct, magistrates are busy. The Magistrates Court is the busiest jurisdictional court. Her Honour may have shown some signs of impatience with both parties but that is not uncommon, whether parties are represented or unrepresented, however there is nothing demonstrated that would indicate the hearing rule or bias rule has been contravened.
121 Notwithstanding that the appellant now argues that he felt pressured and constrained from pursuing matters at the time her Honour made her rulings, in all instances, they were accepted quite often with a remark such as 'I'm learning' or 'I'm sorry' and the appellant then moved on to other areas. This ground of appeal has no merit.
The reasons for decision – less space to the appellant than the respondent
122 The appellant complains that there are fewer paragraphs devoted to his evidence in the reasons for decision than to the respondent's. This is nit-picking in the extreme. Her Honour stated that she was only reviewing the evidence briefly and summarised the appellant's evidence in four paragraphs, Mr Jenke's evidence in two and a half paragraphs, Mr Kapur's evidence in half a paragraph, Mrs Dincer's evidence in one paragraph and the respondent's evidence in six paragraphs. In fact her Honour summarised the evidence called by the appellant in more detail than the evidence called by the respondent. There is nothing to be gleamed from the summary of the evidence which shows either bias or denial of natural justice.
123 The appellant's submission that her Honour took all the respondent's comments and put them into her decision is incorrect. The magistrate fairly summarised the evidence of the respondent. This ground of appeal has no merit.
Her Honour's implied findings
124 The appellant says her Honour's finding that she 'accepted the defendant had to remove the wall, part of the wall for construction purposes' implies that her Honour thought he was saying the wall was so badly damaged that the wall had to be replaced and as this was not his position, it showed bias against him.
125 The appellant made a similar submission in relation to her Honour's finding that the 'claimant accepted the boundary wall might have been damaged by the previous owner's demolition contractor' saying this implied he was saying the damage had all been caused by the respondent, pointing out that this had never been his position.
126 With respect to the appellant, he is taking straightforward findings by her Honour and ascribing a different meaning to them, then trying to demonstrate that the meaning he ascribed to them is incorrect and therefore her Honour was wrong. The whole process is flawed.
127 These passages are findings by her Honour based on the evidence; no more, no less. The appellant did accept that the wall might have been damaged by the previous owner's demolition contractor and did accept that the wall or part of the wall had to be removed for construction purposes. Her Honour was simply summarising the evidence. No bias or breach of natural justice is shown. This ground of appeal has no merit.
Her Honour's comments on the breakdown of the relationship
128 The appellant says comments by her Honour that she was aware of the breakdown of the relationship between the parties' shows bias or a breach of natural justice. Her Honour was commenting on what was obvious from the pleadings. Indeed, the first person to raise this issue was the appellant (ts 13) well before her Honour mentioned it. Her Honour's remark was made in the context of reminding both parties of the need to be respectful of each other and not to snipe (ts 37). This ground of appeal has no merit.
The lack of reasons, clarity of reasons
129 The appellant also submitted that he did not know the reasons why the court found against him, whose evidence was accepted or whether the agreement was at fault. This is an argument as to inadequacy of reasons. Inadequacy of reasons can constitute a breach of natural justice however the Magistrates Court is required to efficiently, economically and expeditiously deal with minor cases and ensure that the court's judicial and administrative resources are used as efficiently as possible: s 13 Magistrates Court (Civil Proceedings) Act2004.
130 A failure to give adequate reasons does not necessarily mean that the matters should be remitted for a new trial. The court can reach its own conclusions as to whether the orders made at first instance were justified. If the appellant could not succeed in their claims it is open to the court to conclude there is no point in sending the matter back for a new trial thus avoiding further costs for both parties and waste of further time: Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 [41]; Bourke v Beneficial Finance Ltd (1993) 47 FCR 264; Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 [29]; Instant Transportable Offices Pty Ltd v BGC Contracting Pty Ltd [2012] WADC 99.
131 Whilst her Honour's reasons principally addressed the heads of claim, as opposed to the cause of action, and could have perhaps been more clearly expressed in the context of a minor case and the magistrate's obligation to give reasons, they were sufficient.
132 In relation to minor claim 15551/2013 (breach of agreement) her Honour accepted that the agreement was entered into (this was not disputed) and it had been breached by the respondent not replacing the wall. Her Honour found the respondent had no obligation to discuss the construction process with the appellant and that there was no evidence produced to prove any hiding or detrimental effect of the sheet piling process as alleged. Her Honour was not satisfied that any damage to the appellant's house or electrical equipment was proven. She found in relation to the economic loss that such loss was mitigated by work carried out after the sheet piling was finished each day and that any loss was not proven. She found other parts of the claim were too vague or not established by the evidence.
133 Her Honour went through each head of claim and dealt with them individually. If her Honour erred in any finding it is an error in law or fact but does not represent a breach of natural justice.
134 In relation to minor claim 16800/2013 insofar as the appellant was relying on a cause of action based on misrepresentation (fraudulent or innocent) or deceptive conduct causing him to consent to 'earlier' council approval process constituted by the respondent hiding the detrimental effects of the sheet piling process and potential damage to property, it would have been preferable for her Honour to have identified the cause of action, however one can readily understand why she did not as the appellant did not address that particular cause of action in his closing submissions.
135 By finding that there was no evidence produced to prove any hiding of detrimental effect as alleged, her Honour effectively found there was no factual basis for an allegation of misrepresentation or deceptive conduct. The appellant accepted the sheet piling process was never referred to by the respondent. Accordingly, the only misrepresentation or deceptive conduct could be one constituted by silence. That required evidence of a distortion of a positive representation made by the respondent that there would be normal excavation or there would not be sheet piling excavation. There was no such evidence. The only other way the appellant could succeed was if the August agreement (exhibit 3), as a matter of law, required the upmost good faith or there was an established fiduciary relationship between the parties. There was, as a matter of law, neither.
136 Although those matters were not covered in her Honour's reasons, they were matters upon which, based on the evidence and the law, the appellant could not succeed and it cannot be said that he has been denied natural justice.
137 Insofar as his claim for excessive noise and vibration is concerned the appellant relied on Environmental Protection (Noise) Regulations 1997. The noise regulations are made pursuant to the Environmental Protection Act 1986 (WA). The breach of a regulation may create a private right of action and found an action for damages. The question of whether it does depends upon the proper construction of the statute as a whole: O'Conner v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464; Henwood v Municipal Tramways Trust (SA) (1938) 60 CLR 438; Drexel London (a firm) v Gove (Blackman ) [2009] WASCA 181.
138 Breach of statutory duty was not pleaded but was certainly alluded to by the appellant in his evidence. Again it would have been preferable for her Honour to have identified the cause of action, however one can readily understand why she did not as the appellant did not address that particular cause of action in his closing submissions.
139 In Cohen v City of Perth (2000) WASC 306, Roberts-Smith J concluded that a breach of the noise regulations being considered in that case created a right of action for damages. I, with respect, adopt his Honour's reasoning and accept that a breach of the noise regulations create a right of action for breach of statutory duty.
140 At the very highest for the appellant Environmental Protection (Noise) Regulations 1997 reg 13 would not have applied unless the respondent was able to show both that the construction work was carried out in accordance with s 4 of AS2436-2010 (the appellant referred in his evidence to AS2436-1981, which was superseded by AS2436-2010 as of August 2011) and the equipment used on the premises was the quietest reasonably available.
141 Assuming, favourably for the appellant, that the respondent was not able to do this would mean reg 7 applied.
142 The appellant was not prohibited from calling evidence to show the noise level exceeded that specified in reg 7.
143 To prove a breach of reg 7 requires, inter alia, the use of sound measuring equipment that complies with the requirements of sch 4 (reg 7(1)(b) requires tonality ,impulsiveness and modulation to be assessed under reg 9, reg 9(1) and reg 9(2) requires the use of sound measuring equipment to calculate the variation in the noise emissions) or for noise emissions to be measured at the point of reception (reg 9(3)(b)). The appellant was not prohibited from adducing evidence showing such measurements were taken, however no such evidence was produced.
144 The evidence, taken at its most favourable for the appellant, was incapable of establishing a breach of statutory duty.
145 Insofar as the appellant's evidence established a cause of action of private nuisance it was not specifically dealt with by her Honour. Again, it was not specifically pleaded or specifically addressed by the appellant in his closing submissions, but it is clear from the gist of his evidence that a substantial part of his claim related to his accusation of excessive noise and excessive vibration caused by the sheet pile process which is capable of constituting a private nuisance.
146 The appellant could not rely on any breach of the Environmental Protection (Noise) Regulations1997 because he was not able to prove a breach for the reasons outlined above.
147 Taken at its highest for the appellant, he and his wife's evidence was that the noise and vibration lasted for two and a half days involving constant shaking of the house and 'unacceptable noise' (the appellant, ts 30, Mrs Dincer ts 99 - 114). The appellant said there was potential damage to their house and he lost income as he could not use his computer equipment to carry out his work (ts 33).
148 To establish private nuisance the appellant needed to establish a 'substantial and unreasonable' interference with the beneficial enjoyment of his land.
149 The test of whether there has been a substantial and unreasonable interference is determined according to the reasonable standards for the ordinary usage of people living in modern society. That requires taking into account the character and nature of the location, the character, nature and duration and time of the interference and the effect of the interference. The law does not indulge mere delicacies or fastidiousness but looks to plain, sober and simple notions of the ordinary comfort of human existence. Allowance must be made for reasonable give and take and in many cases it is a question of degree: Don Brass Foundry Pty Ltd v Stead (1948) 48 SR (NSW) 482; Cohen v City of Perth (157 - 158) (Roberts-Smith J).
150 While I accept that it would have been preferable for the respondent to provide notice of the sheet piling work and it showed a lack of courtesy not to have done so, the lack of notification does not establish a private nuisance.
151 On the evidence presented I would find that in the context of urban living the use of sheet piling in a residential area in the course of building works on a neighbouring block over two and half days during daylight hours, resulting in no damage to the appellant's residence, was not capable of constituting a substantial and unreasonable interference with the appellant's enjoyment of land.
152 Temporary construction or demolition work during building works is the type of work for which an allowance must be made for reasonable give and take. Such work will almost inevitably involve temporary annoyance to the neighbourhood as a result of noise or vibrations.
153 Whilst the appellant did not specifically and directly address the causes of action based on deceitful conduct and misrepresentation (fraudulent or innocent), breach of statutory duty and private nuisance in his closing submissions at the hearing or on appeal, her Honour should have dealt with them. However for the reasons I have explained, the appellant had failed to prove a breach of statutory duty, the evidence was such that I would not find that it was capable of establishing a substantial and unreasonable interference with his beneficial enjoyment of the land and her Honour made the appropriate factual findings which would result in the claim for deceptive conduct and a misrepresentation (innocent or fraudulent) being dismissed.
154 In the context of a minor case claim and the issues identified by the appellant and his witnesses in their evidence and submissions made to her Honour at the hearing the reasons otherwise provided by her Honour were adequate. In relation to the cause of action not identified by her Honour this court has reached its own conclusion that they would not succeed and the matter should not be remitted for a new trial on those issues thus avoiding further costs for both parties. This ground of appeal would therefore not succeed.
Misdescription of an exhibit, errors within the judgment
155 The appellant points out that her Honour referred to exhibit 26 as a 'sheet piling assessment' when exhibiting the document (ts 132) and says the exhibit was mis-described. The appellant is correct. The same document was later described as a 'quotation' by her Honour (ts 194) when clearly it is not.
156 Additionally in her judgment her Honour stated (page 5) 'Suretec' surveyed the site. The respondent's evidence was that 'Suretec' 'assessed the site' (ts 132), later saying they 'inspected' the site (ts 190). These are minor errors of fact but do not show a denial of natural justice. This ground of appeal has no merit.
Restricting cross-examination of the respondent
157 The appellant complains that her Honour stopped him from cross-examining the respondent (ts 189) over the Suretec report on the basis that the respondent was not an expert yet allowed the respondent to explain (ts 132 - 134) the report. Firstly, the respondent had not explained the Suretec 'report' but merely read its contents to the court and, secondly, her Honour's remarks were made in the context where the respondent had previously given evidence that he did not understand the exhibit (ts 188), was only presuming what it meant (ts 189) and was not familiar with the technical terms used (ts 189).
158 Further, the appellant complains that he was stopped when he tried to question the respondent about whether the wall had been backfilled. The respondent had already been asked those questions and provided his answers (ts 172 - 173).
159 The appellant also complains that her Honour interfered and effectively 'tipped' the respondent off that he could not give an answer to a question by saying to him that if he could not answer that question to just say so and then asked him whether he could answer that question (ts 159). Her Honour's statement that 'he can't give that measurement' has to be considered in the context of the answers given by the respondent at ts 157 where he replied 'I haven't measured it' on two occasions (ts 159).
160 The appellant now complains that these interruptions stopped him from exploring how the parties could have discussed measurements if those measurements were not known to the respondent. However the respondent had given evidence of the discussions (ts 152 - 153) in response to questions by her Honour and was cross-examined about those discussions (ts 154).
161 The appellant also claims that he was prohibited from asking questions to clarify the condition of the wall (ts 147). Her Honour actually stopped the cross-examining as to the cause of the damage of the wall. The appellant was permitted to, and did ask questions, of the respondent as to if he was aware of any construction work on the appellants property during the time the respondent was building his house and whether those works could have impacted on the stability of the wall and did cross-examine the respondent over the extent of the damage to the wall (ts 151).
162 He was not prohibited from cross-examining on the condition of the wall at all, although he was prohibited from asking the respondent to speculate as to the cause of that damage. This ground of appeal has no merit.
No logically probative evidence
163 If there is a third rule of natural justice, being the no evidence rule, the appellant claims that that rule has been breached because the decision is not based upon logically probative evidence.
164 In this regard the appellant relies on pars 4.1 – 4.11 of his amended submissions of 9 March 2015.
165 To succeed on this ground the appellant needs to establish that there was no logically probative evidence that could lead to the findings that were made. That is quite different from saying that there was logically probative evidence that could have justified a different conclusion. Whilst the appellant is unhappy that the result did not go his way, the findings were available to her Honour.
166 The conclusions her Honour made were open to her on logically probative evidence. There is no merit in this ground.
The appellant's affidavit of 30December 2014 and 5 February 2015
167 The appellant filed affidavits sworn on 30December 2014 with a schedule headed 'TD 01' and sworn on 5 February 2015 with a schedule headed 'TD 05'. He relies on those schedules as grounds of appeal.
168 The respondent applied to strike out these grounds on the basis that they are attacks on the findings and decision of the magistrate, and are an effort by the appellant to revisit the issues in respect of which judgment was delivered and they do not support or meet the criteria of proof of denial of natural justice.
169 The appellant's submissions at the appeal hearing were centred on his amended submissions dated 9 March 2015 and his original appeal notice and the oral submission made at the appeal and those matters have been dealt with in this judgment.
170 I would strike sch 'TD 01' and sch 'TD 05' out on the basis that they were not properly pleaded grounds of appeal and therefore there is no reasonable basis for them pursuant to Magistrates Court (Civil Proceedings) Act 2004, s 43(4)(a).
171 Even if they were not struck out, they establish at most that her Honour made errors of fact or law and do not establish a denial of natural justice.
Cumulative effect of all of the grounds of appeal
172 Considering the cumulative effect of all of the grounds of appeal relied upon there has been no denial of natural justice in relation to either the hearing rule, the bias rule or the no evidence rule, I would therefore find no merit in the grounds of appeal and decline to extend the time within which to appeal.
173 I make the following orders:
1. The application for leave to extend the time within which to appeal on minor claim 15551/2013 and minor claim 16800/2013 be refused.
2. The applicant pay the respondent's costs to be taxed or agreed.
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