Fabbri v Atyeo
[2024] WADC 2
•19 JANUARY 2024
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: FABBRI -v- ATYEO [2024] WADC 2
CORAM: GETHING DCJ
HEARD: 23 NOVEMBER 2023
DELIVERED : 19 JANUARY 2024
FILE NO/S: APP 27 of 2023
BETWEEN: MASSIMO JAMES FABBRI
Appellant
AND
RONA ANN ATYEO
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE OWEN-CONWAY
File Number : JOO/GCLM/1652/2020
Catchwords:
Appeal - Magistrates Court - Summary judgment - Whether relationship of bailment exists
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s18
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | Mr J Carter |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Carter Dickens Lawyers |
Case(s) referred to in decision(s):
Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Ashby v Tolhurst [1937] 2 KB 242
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Avsar v Binning [2009] WASCA 219
Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd [2021] WASCA 130
Breaksea Fishing Company Pty Ltd v Pretar Pty Ltd [2023] WADC 106
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Coggs v Bernard (1703) 2 Ld Raym 909; (1703) 92 ER 107
Defendi v Szigligeti [2019] WASCA 115
Gerrard v Slamar [2004] WASCA 253
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Greenwood v The Council of the Municipality of Waverley (1928) 28 SR (NSW) 219
Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220
Jones v Darkan Hotel [2014] WASCA 133
Marks v Coles Supermarkets [2021] WASCA 176
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Neil v Nott [1994] HCA 23; (1994) 68 ALJR 509; (1994) 121 ALR 148
Nobarani v Mariconte [2018] HCA 36
Nugawela v Australian Health Practitioner Agency [2023] WASCA 37
Pisano v South Metropolitan Health Service [2023] WASCA 80
Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (2016) 331 ALR 550
Rolfe v Investec Bank (Australia) Ltd [2014] VSCA 38
Saunders v The Public Trustee [2015] WASCA 203
Shilkin v Taylor [2011] WASCA 255
Smart v Power [2019] WASCA 106
Smart v Prisoner Review Board (WA) [2012] WASC 48
Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204
Walton Stores Ltd v Sydney City Council (1968) 70 SR (NSW) 244
WD & HO Wills (Aust) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Williams v Sadeghpour [2021] WADC 111
Woodley v Woodley [2018] WASCA 149
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
GETHING DCJ:
Introduction
In around 2016, Mr Fabbri, the appellant, arranged for a sea container to be placed on a property owned by Ms Atyeo, the respondent. There is a dispute as to whether Mr Fabbri agreed to pay Ms Atyeo a nominal annual fee for allowing this to occur. In around July 2020 Ms Atyeo was considering selling her property. She contacted Mr Fabbri to make arrangements for him to pay the annual fees and remove the sea container. Mr Fabbri asserted that he did not have to pay the annual fee, and a dispute arose.
On 21 October 2020, Mr Fabbri commenced proceedings in the Magistrates Court (Claim). The Magistrates Court file is before this court by way of an electronic matter book.[1] The Claim was for damages in the amount of $67,663.05 for the value of the shipping container and its contents.[2] The legal basis of the Claim was ultimately set out in a Form 19 - Statement of General Procedure Claim filed on 30 September 2022 (Statement of Claim),[3] which I will return to later in these reasons.
[1] The pages of which I will refer to as 'MB##'.
[2] MB 675 - MB 676.
[3] MB 464 - MB 466.
Ms Atyeo defended the Claim on the basis that at no time did she deny Mr Fabbri access to his sea container and its contents, and on multiple occasions he has been approached to remove the sea container. She counterclaimed asserting that Mr Fabbri had agreed to pay her $400 per year for allowing the sea container to be stored on her property.[4]
[4] MB 576; MB 448 - MB 451.
On 13 December 2022, by consent, the parties agreed to an order requiring Mr Fabbri to remove the sea container.[5] This occurred.[6]
[5] MB 416. I will refer to this as the 'February Affidavit'.
[6] MB 411; MB 728.
On 21 February 2023, Mr Fabbri swore and lodged an affidavit setting out the amount of his claim in light of the sea container being collected. He identified both missing items and damaged items, for which he claimed the amount of $53,320. He made no claim for any damage to the sea container.[7]
[7] MB 409 - MB 410.
On 21 March 2023, Ms Atyeo filed an application for summary judgment (Application),[8] together with an affidavit (sworn 20 March 2023)[9] and submissions[10] in support.
[8] MB 384.
[9] MB385 - MB 405.
[10] MB 346 - MB 362.
On 24 April 2023, Mr Fabbri swore and lodged an affidavit in opposition to the Application.[11]
[11] MB 174 - MB 176. I will refer to this as the 'April Affidavit'.
At a hearing on 17 May 2023, the Application was listed for hearing on 24 May 2023.[12]
[12] MB 171.
On 23 May 2023, Mr Fabbri swore and lodged a further affidavit providing more details as to the basis of the amount which he claimed and setting out further evidence which he proposed to rely on at the hearing of the Application.[13]
[13] MB 113 - MB 170. I will refer to this as the 'May Affidavit'.
The Application was heard on 24 May 2023 before Magistrate Owen‑Conway (Magistrate). The transcript of this hearing is the materials before this court.[14] The Magistrate reserved her decision.
[14] MB 683 - MB 718.
The Magistrate handed down her decision on 16 June 2023, publishing written reasons (Reasons), which I will address in Part 4.[15] The Magistrate made an order for summary judgment against Mr Fabbri, and dismissed the Claim (Decision). Costs were reserved.[16]
[15] MB 77 - MB 103. The transcript of the hearing is at MB 720 - MB 726.
[16] MB 171.
By Notice of Appeal filed 7 July 2023, Mr Fabbri appealed from the Decision (Appeal). I heard the Appeal on 23 November 2023, and reserved my decision.
For the reasons which follow, Mr Fabbri has not shown that the Magistrate erred in granting summary judgment, and the appeal should be dismissed.
Mr Fabbri's position and evidence
In the Statement of Claim, Mr Fabbri relevantly asserted that:[17]
(a)in the conversations with Ms Atyeo which led to the sea container being placed on her property, no 'monies, fees or contracts were discussed';
(b)rather there was an offer to pay Ms Atyeo $400 'as a thank you for her help' by way of a gift, which was declined by Ms Atyeo;
(c)after the sea container had been placed on the property, Ms Atyeo had put in a swimming pool which meant that the sea container could not be moved in the same manner in which it was delivered;
(d)the sea container could only be moved by using a crane to lift it over the swimming pool and on to a truck which will cost in the vicinity of $2,000;
(e)Ms Atyeo refused to pay for the cost of the crane; and
(f)Ms Atyeo refused to allow him to remove the container unless he paid her $2,000.
[17] MB 464.
The legal basis of the Claim is:[18]
1.Breach of contract by asking for money.
2.Nor was there a contract.
3.Detinue - the crime of wrongful detention of goods or personal possessions.
4.Conversion - financial compensation for whats missing as compared to what was placed in the container.
5.Trespass to property - physical damages to items to be assessed and missing items also to be assessed and a monetary value added to the claim.
6.Negligence - failure to look after property in your care.
[18] MB 465.
As to the remedy or relief claimed:[19]
Rona Atyeo, the defendant, be ordered by this court to pay Mr Massimo James Fabbri all costs associated with this case. Re: JOO/GCLM/1652/2020 including previous trial default by defendant of $4000.00.
Defendant to pay for extraction of Sea Container from present location to the back of a flat bed truck, supplied and paid for by the claimant Massimo Fabbri as to our first intentions.
Note : The claimant will not be held responsible for any damage to property, flora and fauna, and the container and its contents due to extraction supplied by the defendant.
Before removal of Sea Container, claimant to inspect the container for damage and the real possibility of missing contents and damage. Post inspection items missing or damaged to have a monetary value applied and added to the costs.
Any legal requirement for the claimant to facilitate the inspection and removal of this Sea Container shall be absorbed by the defendant or added to the costs. Following inspection the container will be chained and locked by the claimant.
The container and all contents as originally arrived to be returned to Mr Fabbri within fourteen days at her expense.
In the event that I am ordered to collect my goods, this will be at Rona's expense.
Defendant to pay punitive damages to the claimant, in the amount of $10,000.00.
[19] MB 465.
As I have said, the sea container has now been collected. The only residual issue in the Claim is whether Mr Fabbri is entitled to compensation for the items which he says were missing from the sea container and the damage which he says some of the items which were returned had sustained. As mentioned ([5]), he particularises these damages in the amount of $53,320.[20]
[20] MB 409 - MB 410.
As to the evidence he relied on in opposition to the Application, the April Affidavit is in succinct terms, so I will quote it in full (though there is no need to quote the annexure):[21]
[21] MB 174 - MB 176.
I am the Claimant in this case.
2.My response to form 23, dated 3rd April, 2023.
3.The defendant is going to extraordinary lengths to not have this matter heard by trial.
4.The original claim is still relevant as to whether a contract was made or ever existed. Evidence to be examined and cross examined at trial.
5.The defendants refusal to allow the claimant to visit the container and inspect its contents. Evidence to be examined and cross examined at trial.
6.The defendant was holding the container and its contents fraudulently and for ransom. Evidence to be examined and cross examined at trial.
7.The container, now returned by court orders has revealed items missing from within and items damaged. This is very disturbing as no one was given authority by myself, the rightful owner, to enter my container. The sea container has a water tight seal and requires considerable force to break the seal. We now have breaking and entering and trespassing to commit a crime. Evidence to be examined and cross examined at trial.
8.The defendant defaulted on previous court orders in 2020, resulting in that proceeding being awarded against her. The claimant has expended approximately $4000.00 in costs to enforce those court findings.
9.Witnesses in this matter, for or against, are required to give evidence and be cross examined as per the legal process.
10.The defendant, following a court hearing on the 13th of December 2022, made threats and tried to intimidate a witness. A copy of my letter in regards to her character and abusive nature has been submitted to the defendant's lawyer and to the Courts. Please see attached annex - Rona 1.
The bulk of the May Affidavit goes to providing more particulars as to the items which Mr Fabbri says were missing or damaged when the sea container was returned. This evidence is not relevant to the present appeal, so I do not need to summarise it. What is relevant is the material which Mr Fabbri provides as to the evidence of three witnesses he proposes to call if the Claim goes to trial.
The first witness is a Paul Clarke. In this regard, Mr Fabbri states:[22]
The defendant and I had a mutual friend by the name of Paul Clarke. Paul and I had a good friendship for years. Paul, on possibly four occasions helped me move the Sea Container and its contents, both had been stored at his place in Currambine previously.
So Paul would have a good idea of what was stored in the container.
Paul - 32A.
In and around late 2020 and early 2021, Paul Clarke contacted me by phone and told me that, they, Rona and Andrew (Weener) have taken your contents out of the container and it's scattered out the front of your container. Paul said, 'I think they are planning on selling your stuff.'
[22] MB 116.
Mr Fabbri then refers to the Form 32A Statement of Intended Evidence of Mr Clarke, which he signed on 8 November 2022, and which Ms Atyeo filed (as she intended to call him to give evidence at trial).[23] He annexes this document to the May Affidavit. The portions relied on by Mr Fabbri are as follows (the references to 'Julie' being to Julianne Rushton, Mr Fabbri's ex-wife, and 'Ronald' being to Ms Atyeo's ex-husband):
[23] MB 427 - MB 430.
…
16.I am aware that in around 2016, Julie and the Defendant entered into an agreement regarding the storage of the shipping container at the Defendant's property. I know this because I have heard it from both the Claimant and the Defendant. I am not aware of the particulars of the agreement as I was not present nor was I a party to it.
17.In around 2016, I organised the transportation of the shipping container from Ronald's property to the Defendant's property at 82 Hilltop Rise, Woodridge. Transportation was facilitated by hiring a flatbed tilt truck from a local company. The Claimant was not present when the transportation took place as he was working fly‑in‑fly‑out at the time.
18.I volunteered to arrange the transportation of the shipping container as I knew the Claimant did not have the equipment to do so. Given I had previously stored the container at my property, I felt responsibility since I was ordered to remove it by the council.
19.When the shipping container was transported from Ronald's property to the Defendant's property, it was empty.
20.I cannot recall anybody else being present when the shipping container was first delivered to the Defendant's property.
21.When the Claimant returned from work, he contacted me to assist him in moving his chattels to the shipping container at the Defendant's property.
22.The Claimant and I drove a vehicle and trailer each and both were loaded with various chattels. I did not witness the Claimant lock the shipping container on this occasion. The door of the shipping container is in quite bad condition. The Claimant has informed me that when it was stored at their shop in Wangara, it was broken into on a few occasions and as such, has suffered damage.
23.I did not witness the Claimant provide the Defendant with any list of the chattels we deposited into the shipping container on this occasion.
ACCESS TO THE SHIPPING CONTAINER
24.On one occasion after the shipping container had been delivered, we were socialising on the boat in Guilderton. After we had finished, I towed the boat back to the Defendant's property. The Claimant came with me as he wanted to retrieve his chainsaw from the shipping container. We drove to the Defendant's house and accessed the shipping container.
25.When the shipping container was opened, there were a few pool toys towards the front of the container which were not the Claimant's. He did not seem to take issue with this. The rest of the contents of the shipping container appeared to be the Claimant's. I know this because I assisted him in depositing the contents inside.
26.I began climbing over items in the shipping container trying to locate the Claimant's chainsaw to no avail. I told the Claimant not to worry and that I had a chainsaw he could use. We closed the shipping container and left. I cannot recall whether the Claimant took anything else from the shipping container on this occasion.
27.The Defendant was present when this took place. Pleasantries were exchanged and the Defendant offered the Claimant and I a cup of tea.
…
The second witness referred to is one Cindy Henderson. Mr Fabbri states:[24]
Cindy Henderson and I had a friendship and towards the middle of 2020, we, Cindy and I went to Rona's house in Woodridge to retrieve my father's chain saw. I contacted Paul so we could access the property. Cindy and I opened the sea container and started searching for the chain saw. We had to move pool equipment out of the way to get in. The pool equipment consisted of chemicals and kids play stuff. Cindy had a love of race cars and took an interest in the equipment in the container. As we looked for the chain saw and looked in boxes, we came across Electrical equipment. I explained what they were and their function. I showed her both cars and extra motors. We came across the spare RG 500 Motor and I explained that my intentions were to have a fresh motor available at all times. Cindy pretty much came across everything in the container.
Mr Fabbri then annexes to this affidavit a Form 32A Statement of Intended Evidence of Ms Henderson, filed on 30 September 2022. This document is not signed, though there is a note to the effect that Ms Henderson was away on holidays and unable to sign.[25]
[24] MB 116 - MB 117.
[25] MB 124 - MB 125.
The third witness is Ms Rushton. Mr Fabbri annexes a statutory declaration by Ms Rushton dated 27 September 2022, which in turn was an annexure to an affidavit sworn by Mr Fabbri on 27 September 2022, which in turn he purported to file as a Form 32A Statement of Intended Evidence of Ms Rushton.[26] In the statutory declaration, Ms Rushton deposes:
In 2016 I made contact with Rona Atyeo with the view of storing Massimo's Sea Container on her property. Rona had no hesitation and agreed. A week or so later Massimo contacted me from his Fifo employment, up north, and made an offer to give Rona a gift of $400.00 as a thank you for the gesture. This gift was a one off offer, nothing else.
Please be advised that the Sea Container and its contents belong to Massimo Fabbri. The container and its contents formed part of the legal property settlement and divorce of our marriage.
I for my part cannot negotiate with property which is not mine.
Four years later Rona made contact with me, via a phone call, to advise me of the dispute. At this time a request by Rona to me, asked me to put in an email, information regarding a payment of $400.00 per year for storage costs. At this time Massimo and I had engaged in very nasty bitter dialogue in relation to our marriage. The email by myself and its contents are incorrect and designed to be mischievous and an act of revenge.
Rona was contacted by myself by phone to advise her not to use any correspondence as legal evidence. I said to her our correspondence was private and personal. She agreed.
[26] MB 126 - MB 128.
Mr Fabbri annexes two further documents. The first contains two texts from Mr Fabbri to Ms Atyeo, sent at 1.49 pm on 1 August 2020. They read:[27]
Hi rona my one of offer of $400 has now been withdrawn as it was made in good faith by myself in you housing my container at your property in Woodridge.
The distasteful stance made by yourself an your little partner just so u can take advantage of my good nature an extort money's from me that was never in our negotiations.
This will now go before a legal
…
By the way I will be seeking legal costs at your expense.
Enjoy your day
[27] MB 129.
The second is a text from Ms Atyeo's then partner, someone by the name of Anthony, to Mr Fabbri, sent at 4.40 pm on 1 August 2020. It reads:[28]
Hi Mas, it's Anthony here Rona's partner. Due to you taking legal action I am informing you to stay off the property of Rona's in woodridge as per phone conversation until court proceedings have concluded, please don't text her anymore. Any and all dealing are to be done with me only! Your supposed offer is un true and the courts will decide this when we bring in your ex wife to verify as she has stated she will! The deal was as spoken today and verified by your ex wife $400 per year. Please do not enter the property or contact Rona anymore. If you wish to solve …
[28] MB 130.
Ms Atyeo's position and evidence
Ms Atyeo's position is set out in a Form 21 - Statement of Defence to General Procedure Claim (Defence) lodged on 21 October 2022.[29] Her position is that:
[29] MB 448 - MB 450.
(a)in 2016, she entered into an agreement with Mr Fabbri's 'estranged wife', Ms Rushton, to store a shipping container which contained various chattels owned by Mr Fabbri and Ms Rushton;
(b)the agreement was for her to store the shipping container on her property situated at 82 Hilltop Rise, Woodridge (the Woodridge property) and for Mr Fabbri and Ms Rushton to jointly pay her an annual sum of $400 by way of rent to deposit the shipping container on their property;
(c)shortly after the agreement was entered, the shipping container was delivered to the Woodridge property;
(d)no bailment existed for any item of property other than the shipping container itself;
(e)on several occasions after it was delivered, Mr Fabbri accessed the shipping container whilst it was situated at the Woodridge property, and, such times, he would add and remove various chattels from the shipping container;
(f)she was not made aware of which items were being added or removed;
(g)in July 2020, she wrote to Mr Fabbri requesting that he make arrangements to remove the shipping container as she had planned on listing the Woodridge property for sale;
(h)on 1 August 2020, she received a text message from Mr Fabbri stating that his one-off offer of $400 had been withdrawn;
(i)there were further communications between her and Ms Rushton and Mr Fabbri relating to the removal of the sea container (which are set out in the Defence and which I do not need to summarise);
(j)Mr Fabbri remains in full control of the shipping container and its contents stored at the Woodridge property; and
(k)Mr Fabbri is at liberty to engage the services of a third-party removalist to remove the shipping container from the Woodridge property and deliver it to such location he chooses.
As to the legal basis of the defence, Ms Atyeo says:[30]
In his Form 19 - Statement of General Procedure Claim, the Claimant lists 6 different causes of action as the legal basis for his claim.
The Claimant has failed to establish any reasonable grounds for his claim. Pursuant to an agreement which was entered into with the Claimant's former wife, the Defendant agreed to store a shipping container on her property. The Defendant is not unlawfully withholding the Claimant's property in any way. The Claimant is at liberty to arrange the collection of his shipping container and chattels from the Defendant's property at any time. In fact, despite the attempts of the Defendant to organise the removal of the shipping container, the Claimant has refused and has not been cooperative.
The Defendant has requested that the Claimant do not personally attend her property anymore, given the animosity that has arisen as a result of these proceedings. Despite this, the Defendant has not refused the Claimant access to his chattels. The Defendant has simply requested that a third party attend the Woodridge property and remove them. The Claimant may be mistaking this for unlawful withholding of his property.
The Claimant's claim is frivolous and is an attempt to extort money from the Defendant for a non-existent loss on his behalf, noting that the Defendant has not disposed of any of the Claimant's property, and he is at liberty to arrange its collection.
…
The Claimant purports that the Defendant is liable to him for in excess of $67,000, being the alleged value of the shipping container and its contents. The Claimant has failed to identify the grounds upon which he alleges this liability given the shipping container and its contents are still situated at the Woodridge property with the Defendant's only request being that the Claimant organise the services of a third party to collect it.
[30] MB 449 - MB 450.
In her affidavit sworn 20 March 2023, Ms Atyeo begins by setting out her background relationship with Mr Fabbri, Ms Rushton and Mr Clarke. As to the circumstances in which the sea container came to be stored on her property, she deposes:[31]
[31] MB 363 - MB 364.
11.In around 2013, Julie and I began playing an online game called 'Words with Friends'.
12.In 2016, whilst playing a game of Words with Friends, Julie asked me whether I would be able to store a shipping container on my property.
13.I was informed that prior to this, the shipping container was stored on Paul's property and later on Ronald's property. I am aware of this because of discussions with them both.
14.Julie informed me that the shipping container was to house various chattels owned by her and the Claimant as matrimonial property, until such time as they could dispose of it.
15.I agreed to Julie's request on the condition that I be paid $400 per year for storing the shipping container on my property.
16.The Claimant was not present when these discussions took place.
17.The conversations held in Words with Friends are erased at the completion of the game. However, when these proceedings arose, I emailed Julie asking for confirmation of our agreement. On 25 August 2020, Julie responded confirming the terms of the agreement as deposed above.
…
18.The agreement was to allow a shipping container to be placed on my property. I agreed to accept the shipping container on my property.
19.At no time was there any discussion or agreement about the particulars of what items would be stored within the shipping container.
20.At no time was there any discussion about whether it was my responsibility to ensure the shipping container was locked, or otherwise maintained. I was informed it was likely to be a short‑term arrangement.
She goes on to depose as to the delivery of the shipping container and what happened after it was delivered:[32]
[32] MB 364 - MB 365.
21.Shortly after I agreed to store the Claimant and Julie's shipping container, it was delivered to my property by Paul, who used a flatbed truck to facilitate the transportation.
22.The Claimant was not present at the time as he was working on a fly-in-fly-out basis.
23.Shortly after the container was delivered to my property, the Claimant began making arrangements to store his personal chattels inside.
24.At no time did the Claimant inform me of the items he was placing inside the shipping container.
25.I was not provided with any documentation from the Claimant or Julie detailing the contents of the shipping container.
26.There was no discussion between the Claimant and/or Julie and I about the specific contents of the shipping container.
27.I was not requested to inspect the contents of the shipping container as they were being stored by Paul and the Claimant.
28.After the Claimant's possessions were stored in the shipping container, the Claimant did not attempt any means of locking the shipping container.
29.At no time after the Claimant stored his chattels in the shipping container did he request that I attempt any means of locking the shipping container.
30.The Claimant has not at any time requested that I maintain the shipping container by arranging to have it painted, or rust issues addressed, or any other forms of maintenance or repair. I did, however, frequently mow the lawn around the shipping container and ensure it was kept neat and tidy on the exterior.
31.Based on my discussions with Julie, it was my understanding that I was storing the shipping container as a storage locker for the Claimant and Julie to access from time to time, on the basis that they simply had nowhere else to store it.
32.On several occasions after it was delivered, the Claimant accessed the shipping container whilst it was on my property. On a couple of occasions, I witnessed him add and remove various chattels from the shipping container. The Claimant did not inform me of any chattels he was adding or removing from the container.
33.During the times that the Claimant added or removed items from the shipping container, he did not provide me with any form or written or verbal update with respect to the contents of the shipping container.
34.I maintain that my obligation under the agreement was to store a shipping container for the Claimant to access freely. At no time did I agree to take responsibility for any of the contents within the shipping container. This includes both security and maintenance of the shipping container.
The balance of the affidavit deals with her requests to remove the shipping container, the trial listing for 13 December 2022, the removal of the shipping container, Mr Fabbri's updated claim, her claim for costs and her counterclaim for the yearly storage fees. The salient parts of the affidavit for purposes of the Appeal is her evidence that:[33]
(a)at no point did she dispose of the shipping container or its contents (par 53);
(b)at no point did she cause damage to the shipping container or any of its contents (par 54);
(c)at the time of her agreement with Ms Rushton, she was not made aware of what was to be placed inside the shipping container (par 73);
(d)to her knowledge, the shipping container was unlocked at all times when it was on her property (par 73);
(e)when Mr Fabbri would, to her knowledge, attend her property to access the shipping container, if he removed or added any items, she was not aware (par 74); and
(f)at no time did she have a conversation with either Mr Fabbri or Ms Rushton in which they particularised the items in the shipping container or made her aware that she was responsible for them (par 75).
[33] MB 367 - MB 369.
At the hearing of the Appeal, Mr Fabbri relied on a letter of demand which Ms Atyeo sent him dated 20 November 2020. It reads:[34]
[34] MB 380 - MB 381.
I am writing regarding a Sea Container owned by yourself that has been generously housed on my property 82 Hilltop Rise Woodridge for the past 4 years without contact from yourself or payment.
In October 2016 I was contacted by Julie Fabbri (Rushton) on your behalf asking if I could house a Sea Container and it's contents for $400 per year on the … above property to which I agreed.
No contact was ever made by yourself to me until August 1st 2020 after I made contact with a mutual friend (Paul Clark) asking him for you to contact me regarding removal of your Sea Container and it's contents.
That conversation and nasty texts to follow from yourself ended with you disputing the deal that was made on your behalf by Julie Fabbri.
At NO time during your conversation with me did I threaten to withhold your property.
My intitation of you contacting me was to request REMOVAL of your property.
The mutual friend on that day August 1st after our phone call offered to collect all contents and container for you to which you declined! Your ex-wife Julie Fabbri offered to collect Sea Container and contents at her expense on November 20th once again you declined!
You Mr Fabbri are no longer welcome or permitted on my property due to your distasteful behaviour and nasty indirect threats to me.
This is my final request for your Sea Container and it's contents to be removed from my property within 30 days of receiving this letter by someone other than yourself.
If you do not comply I will commence legal proceedings to have your Sea Container and contents removed and disposed of at your expense.
Rona Atyeo
(signature)
As to the counterclaim, after the Claim was summarily dismissed, Ms Atyeo discontinued her counterclaim as the relief sought was insufficient to warrant the legal costs of pursuing solely the counterclaim to trial.[35]
[35] Respondent's Supplementary Outline of Submissions filed 29 November 2023.
Magistrates' reasons for decision
4.1 Rule/legislative framework
The power to summarily dismiss a claim brought in the Magistrates Court is found in Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 18, in the following terms:
18.Summary judgment, Court may give
(1)The Court may give judgment against a claim without a trial if the party making the claim does not satisfy the Court that the claim has a reasonable prospect of succeeding.
(2)The Court may give judgment in favour of a claim without a trial if the party defending the claim does not satisfy the Court that the defence has a reasonable prospect of succeeding.
(3)In order to determine whether a claim or a defence has a reasonable prospect of succeeding, the Court may determine any necessary question of fact or law.
(4)If under subsection (3) the Court determines one or more questions of law and there is no question of fact or mixed fact and law in issue between the parties, the determination of the question of law is final for the purposes of proceedings in the Court in relation to the case concerned.
(5)The powers in subsections (1), (2) and (3) may be exercised -
(a)in relation to all or a part of a claim or a defence; and
(b)regardless of which party, or of whether any party, has made an application to the Court for their exercise.
(6)The Court may set aside a judgment given under this section and may do so on conditions as to the payment of costs or as to other matters.
(7)No appeal lies against the Court's decision to refuse to give judgment under subsection (1) or (2).
4.2 Procedural matters
The Magistrate dealt with three procedural issues subsidiary to the Decision. The first was the lateness of the Application. Unlike the position in the Supreme Court and District Court,[36] there is no time limit within which an application for summary judgment may be brought in the Magistrates Court. Rather, the issue of lateness is best viewed as going to the exercise of the decision to grant summary judgment. If the application is brought after a claim has been in progress for some time, fairness and practical utility may dictate that the appropriate course is simply to allow the claim to progress to trial. In any event, in this case, the Magistrate observed that the Application had 'been brought swiftly following the dramatic change in the course of the Claim after 13 December 2022 and the consent order made on that day'. Her Honour concluded that 'even though the Application could have been brought earlier, once the re framed Claim was advanced, albeit poorly, the Application was made reasonably quickly'.[37]
[36] Rules of the Supreme Court 1971 (WA) O 14 r 1(1) and O 16 r 1(1) (RSC).
[37] MB 79 - MB 80.
The second was a concern expressed by Mr Fabbri that he had not been duly served with the Application. The Magistrate found that he had.[38]
[38] MB 80 - MB 81.
The third was, in effect, whether Mr Fabbri had been given an adequate opportunity to adduce all the evidence he wanted to because of ill health. The Magistrate found that he had.[39]
[39] MB 101 - MB 102.
Only the third of these findings is challenged in the grounds of Appeal.
4.3 Evidential issues
The Magistrate made two specific evidential rulings in relation to the material in Mr Fabbri's May Affidavit. The first concerned the proposed evidence from Ms Henderson (see [22] above). The Magistrate determined that the contents of Ms Henderson's proposed Form 32A statement were inadmissible, observing that there was no evidence that Ms Henderson even existed. The Magistrate commented that Mr Fabbri had many months in which to procure Ms Henderson's signature on the unsigned Form 32A Statement, but had not done so.[40]
[40] MB 92.
The second is in relation to the statements attributed to Mr Clarke which are set out in the May Affidavit (quoted at [20]). The Magistrate ruled that these statements were hearsay, and not admissible.[41]
4.4 Determination
[41] MB 93.
The Magistrate referred to the six bases which Mr Fabbri relied on in the Statement of Claim (which I have quoted at [15]).
In relation to the claim for breach of contract, the Magistrate said that this is relevant only to Ms Atyeo's counterclaim and that Mr Fabbri's position has consistently been that there was no contractual relationship between the two of them.[42]
[42] MB 81 - MB 82.
In relation to the claims for detinue, conversion and trespass to property, the Magistrate concluded that the affidavit evidence did not support Mr Fabbri's 'central contention' that Ms Atyeo had refused or effectively refused to give him access to or remove the sea container or its contents. Further, once the sea container has been removed from Ms Atyeo's land, the claim in detinue ceased to have a basis. The Magistrate also observed that Mr Fabbri had not claimed any loss and damage for being kept out of access to the sea container and the contents at any time before they were retrieved from the Defendant's land between 13 December 2022 and 31 January 2023. The Magistrate also found that Mr Fabbri had 'not specifically or even implicitly alleged facts that [Ms Atyeo] has wrongfully detained any of the alleged sea container contents that are now alleged to be 'missing' or that she damaged the same, to support the Claim in detinue, conversion or trespass'.[43] Her Honour concluded that 'there was no plea or evidence that the Defendant had detained, converted or damaged the sea container or its contents'.[44]
[43] MB 82 - MB 83.
[44] MB 84.
As to the claim in negligence, her Honour found that there was no plea nor evidence to support the existence of this duty. Rather, Mr Fabbri relied solely on the fact that the sea container was placed on Ms Atyeo's land with her agreement. Consequently, the Magistrate identified Mr Fabbri's claim as being one based on bailment, the central issue being whether Ms Atyeo was a bailee of the contents of the sea container so as to be responsible for any loss of, or damage to, those items.
The Magistrate observed that:[45]
The essence of bailment is that the person who has possession of a chattel transfers to another person actual or imputed/constructive possession of that chattel but retains the right to immediate possession. That is, as between bailee and bailor, the bailor always retains the best right to immediate possession of the chattel.
[45] MB 85, citing the decision in Rolfe v Investec Bank (Australia) Ltd [2014] VSCA 38 [56] (judgment of the court) (Rolfe).
The Magistrate referred to the decision in Coggs v Bernard as being authority for the following categories or circumstances in which bailment may arise:[46]
•The deposit of goods for gratuitous safekeeping by the bailee;
•The delivery of goods to a bailee for work to be done on the goods for the benefit of the bailor without reward;
•The delivery of goods by way of gratuitous loan for use by the bailee;
•The deposit of goods for safekeeping for reward;
•The delivery of goods to have something done to them for reward;
•The delivery of goods for use by the bailee for reward; and
•The delivery of chattels to hold as security for a loan.
[46] MB 85 - MB 86; Coggs v Bernard (1703) 2 Ld Raym 909; (1703) 92 ER 107 (Coggs).
Her Honour set out the relevant principles in the following terms:[47]
17.There must be a parting with of some form of dominion or control of the chattel by the alleged bailor to the alleged bailee. There must be evidence of the delivery of actual or imputed/constructive possession of the chattel from the bailor to the bailee, whether gratuitous or for reward or at least evidence from which the Court can infer that the alleged bailee assumed some form of responsibility for and control of the chattel (Ashby v Tolhurst [1037] 2 KB 242 at 255-6; Greenwood v The Council of the Municipality of Waverley (1928) 28 SR(NSW) 219). In practical terms, there must be evidence of the purpose for which the chattel was left with the alleged bailee before it can be inferred and found that actual or imputed/constructive possession has been delivered to that person. Hence, the Coggs v Bernard reference to a purpose - for safe keeping of the chattel; performing work to the chattel; lending the chattel for another's use; taking the chattel as security. Where there is no benefit to the alleged bailee or any evidence of undertaking by that person to take some control of the chattel, a Court will unlikely draw an inference that the possession of the chattel was delivered to the alleged bailee and in such cases the relationship is more consistent with a licence being granted to accommodate the chattel (Rolfe at [61]).
18Where the alleged bailee takes charge of or purports to exercise some control of the chattel, an inference might arise that that person assumed some liability for the chattel and a bailment of the chattel to the alleged bailee may be found on the facts. The evidence might take the form of the alleged bailee providing some degree of vigilance and supervision of the chattel - evidence that was lacking in Greenwood. Greenwood involved the hire of a lockable locker for personal items, which locker was not under supervision by the operator of the lockers and the key for which was available upon production of a disc. No bailment relationship was held to arise on the facts and circumstances because the production of the disc was merely a means of obtaining production of a key to a locker and there was no evidence of any assumption of care of the goods in the locker as would be suggested, had there been evidence that lockers were constantly supervised to detect tampering with the lockers. The evidence in that matter was to the contrary and accordingly in those circumstances it was held that there was no assumption of care or control of the chattel; no delivery of possession of the chattel by the alleged bailor to the alleged bailee had taken place in law and therefore no bailment of the chattels placed in the locker and no duty to take any care of the same to avoid loss or damage to the person who placed the chattels in the locker. Similarly in Ashby vTolhurst parking a car on bare ground (as opposed to a facility dedicated by its design and construction to park cars) and providing an instruction that the owner must produce a ticket and pay a fee before leaving with the car, amounted to a mere licence to park the car on the alleged bailee's land and not a delivery of possession of the parked car to the car park operator. Hence, when the car was stolen, the Court held there was no duty to take care of the parked car to avoid loss to the person who owned the car or anyone claiming under him, when the car was stolen.
19Alternatively, where the alleged bailee purports to impose some degree of control or dominion over the chattel such as in the case where the alleged bailee imposes a condition on the redelivery of possession of the chattel to the bailor, that imposition may be sufficient for the Court for conclude a relationship of bailment, such as the issue of a ticket with instructions to the ticket holder that redelivery of the chattel is conditional on the ticket holder tendering the ticket to the operator (Sydney Corporation v West (1965) 114 CLR 481; Walton Stores v Sydney City Council (1968) 70 SR(NSW) 244).
[47] MB 86 - MB 89.
Receptacle and contents
20.Where contents of a receptacle that has been left on the land of the alleged bailee are concerned, there must be 'some degree of actual or imputable knowledge of the existence of the contents before a bailment of the contents can arise' (Palmer on Bailment 3 Ed [4-026] cited with approval in Rolfe at [60]). As explained in Coopers & Lybrand v Stirling Circuits Inc and Sun Life Assurance Co of Canada (1988) 47 DLR (4th) 614 [12-13] (cited with approval in Rolfe at [62]):
The justification for shifting the onus of proof of negligence to the bailee is that exclusive possession by him puts him in the position of being the only person who knows what happened to the chattel…
21.In that case, the circumstances of the chattels left on the alleged bailee's land did not amount to custody or control of the chattels giving rise to bailment of those chattels but rather the facts established:
…in reality the granting of a right or licence to allow the …goods to remain on the premises for a time.
22.Even where the alleged bailee is found to be a bailee of the receptacle, the Court must find that the alleged bailee was also appraised of the nature and value of the chattels or that the chattels contained in the receptacle are of a specific character, value or quantity likely to be found in such a receptacle (Rolfe at [62]-[63] and authorities and cases cited therein). For example, if the alleged bailee, a budget tour operator, transported a passenger's luggage in the boot of the bus, then the Court is unlikely to infer that the bus operate knew or should be taken to have known that the passenger's luggage contained highly valuable works of art (WD & HO Wills (Aust) Ltd v State Rail Authority (NSW) (1998) 43 NSWLR 338 at 353; Rolfe at [62]). The cases demonstrate the myriad of factual circumstances that may combine to give rise to an inference that possession of the chattel has been delivered to the alleged bailee, but merely being permitted to leave something on someone's land is not of itself enough to infer that delivery of possession and a bailment of the chattel, whether it be a receptacle or the contents thereof.
After reviewing the evidence, her Honour concluded:[48]
31.There is no contemporaneous objective evidence of what was ever placed in the sea container by the Claimant or any person. There are no contemporaneously created photographs or written inventory. There is no evidence that the Claimant or anyone on his behalf informed the Defendant of its contents. In a mark of desperation at the hearing of the Application, the Claimant asserted from the bar table that Mr Clark, who he says helped him initially place the contents in the sea container, was the Defendant's agent and, as Mr Clark knew what was in the sea container, the Defendant had imputed knowledge of the same. There is no evidence to support any such submission and the Claimant's own evidence is that Mr Clark assisted him in placing the contents in the sea container (see paragraph 27 Claimant's second response affidavit). Further the submission was made for the first time from the bar table and without any allegation having been articulated to that effect by the Claimant.
32.There is evidence that the Claimant had unhindered access to the sea container at all material times which he exercised and in the course of his access he admits he added and removed contents from the sea container. There is no evidence that he ever gave the Defendant any written inventory or communicated to the Defendant any specific changed contents of the sea container; requested her to keep the sea container or the contents safe, requested she ensure the sea container was locked and/or maintained and there is no evidence that he communicated the nature or condition of any type of contents in the container to the Defendant.
33.The Defendant's affidavit evidence positively swears to the fact that she was given no information about the contents of the sea container save that they were the belongings of the Claimant and Ms Rushton; she was not asked to inspect the contents; take any care of them or keep them safe; lock the contents in the sea container or do anything at all about the sea container or the contents.
34.There is no evidence from which it can be inferred that the Claimant delivered to the Defendant possession of the sea container or the contents such as to give rise to a relationship of bailment. Further, there is no evidence of any conduct by the Defendant that is consistent with or by which it can be objectively inferred that the Defendant assumed control or dominion of the sea container or its contents or that she ever knew of those contents in order to give rise to a bailment of them.
35.In my judgment, the Claimant has failed to establish any triable issue to establish a relationship between himself and the Defendant as bailor and bailee. In my judgment, the Claimant has succeeded in establishing a relationship of licensee and licensor, entitling the Claimant to position his sea container and its contents on the Defendant's land and have unhindered access thereto until that licence was withdrawn by the Defendant. That was never in dispute. That relationship does not give rise to any duty of the licensor, the Defendant, to take care of the sea container or its contents and similarly to the situation in Rolfe, I conclude that the duty of care of a bailee does not arise on the facts of the Claimant's claim and the Claimant has never given any evidence of any facts that would give rise to that relationship of bailment.
36.There are no triable issues on the Claim and the Claim is not one that has any prospects of success, as a duty to take care of the sea container and/or its contents does not arise as a matter of law from a relationship involving a mere licence to accommodate the sea container and contents on the Defendant's land.
[48] MB 93 - 95.
The Magistrate then set out the principles governing summary determination in orthodox terms.[49] This included the principle that an application for summary judgment should be determined on the material before the Court, not based on the prospect that, given the opportunity, the respondent might be able to remedy a deficiency.[50] Her Honour concluded:[51]
42.In my judgment, the Claimant has not articulated any allegations of fact or given any evidence of any facts as he is required to do when responding to the Application, that establishes a basis in fact and law that the Defendant owed him any duty to take care of the sea container and the contents when positioned on her land or that she intentionally detained, converted or damaged the same. The Claimant made submissions that he would bring more information at the trial of the action. … [T]hat is not a basis deny a grant of summary judgment where on the evidence it should grant the summary judgment. Further, the Claimant's submission that evidence will materialise at a future trial is not credible in any event - bearing in mind that this matter has been listed for trial at least 3 times and the parties had lodged their statements and documents in readiness for that trial in September 2022.
43The Claim is, in my judgment, bound to fail and the Claimant has had ample opportunity to articulate the simple case of alleged bailment and adduce evidence to support it in response to the Application. He has failed to do so and there is an almost irresistible conclusion to be drawn from his failure to allege or adduce evidence of a reasonably arguable case in bailment, that he cannot allege or adduce any evidence of facts that support the Claim because the necessary facts did not occur.
44 In my judgment, the Application should be granted, and the Claim should be summarily dismissed.
[49] MB 95 - MB 96.
[50] Citing Mary v Schon [2015] WADC 92 [44] (Deputy Registrar Harman).
[51] MB 96 - MB 97.
The Magistrate then made some preliminary findings in relation to costs, before stating that she would hear further from the parties.[52] The final position as regards costs is not in the materials in the District Court.
[52] MB 97 - MB 101.
In the formal order made on 16 June 2023, the Application was granted and the Claim dismissed. Programming orders were made with respect to costs, which was to be determined on the papers.[53]
[53] MB 72.
Appeal
The Appeal Notice by which the Appeal was commenced was filed within the requisite 21 days of the Decision.[54]
[54] MCCPA s 40(3).
On 11 July 2023, Ms Atyeo filed a Notice of Respondent's Intention in which she informed the court that she intended to take part in the appeal, and would argue that the Decision should be upheld on the grounds relied on by the Magistrate. She also foreshadowed seeking an order that Mr Fabbri's Notice of Appeal be struck out pursuant to District Court Rules 2005 (WA) r 57(2)(b). This application was not pressed before me.
Mr Fabbri filed submissions in support of the Appeal on 19 October 2023.[55] Ms Atyeo filed submissions in opposition on 25 October 2023.[56] Both parties filed short supplementary submissions addressing outstanding points from the hearing on 23 November 2023.
[55] Which I will refer to as the 'Appellant's submissions'.
[56] Which I will refer to as the 'Respondent's submissions'.
The District Court must decide the Appeal on the material and evidence that was before the Magistrate.[57] The court can give leave to admit other evidence, but only in exceptional circumstances.[58] Ms Atyeo did not seek leave to adduce further evidence. Mr Fabbri did. This is in relation to a letter of demand dated 22 June 2021 which Mr Fabbri sought to rely on at the hearing of the Appeal.[59] I sighted the document during the hearing of the appeal when attempting to find it in the court documents, but gave it back to Mr Fabbri. In the end, at the hearing neither I nor the parties were able to find a copy of this document in the materials filed before the Magistrate or in the District Court. I gave Mr Fabbri the opportunity to file supplementary written submissions identifying where this document was in the materials before the court. He filed supplementary submissions dated 6 December 2023, but was not able to identify where the 22 June 2021 letter was submitted. I likewise have not been able to find this letter on my review of the materials provided by the Magistrates Court.
[57] MCCPA s 40(4)(a).
[58] MCCPA s 40(4)(b), s 40(5).
[59] See generally: Transcript of proceedings dated 23 November 2023, pages 2 - 9.
In his supplementary submissions, Mr Fabbri then, in effect, sought leave to adduce the letter in the Appeal. He stated that he believed that the onus was on Ms Atyeo to provide verification of the letter of demand that she wanted to use as evidence. This misstates the position as Ms Atyeo did not seek to either adduce or rely on this letter (she did not refer to it in her affidavit filed in support of the Application).[60] Mr Fabbri has not annexed the 22 June 2021 letter to any affidavit filed in the appeal. I am not persuaded that there are exceptional circumstances justifying the reception of this letter in the Appeal. There is no reason why Mr Fabbri could not have relied on this letter in the evidence filed in opposition to the Application. In the appeal, he is not entitled to a second opportunity to file evidence in opposition to the Application. I disregard his oral submissions in relation to the 22 June 2021 letter.
[60] See MB 305 for her evidence as to the relevant events of 2021.
The Appeal is by way of a 'reconsideration of the evidence' that was before the Magistrate.[61] The court does not hear afresh all of the evidence.[62] Rather, the appeal is to be undertaken by way of a rehearing.[63]
[61] District Court Rules 2005 (WA) (DCR) r 50(1).
[62] Smart v Power [2019] WASCA 106 [100] (judgment of the court) (Smart).
[63] Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47 [13]; (2000) 203 CLR 194, 203 [13] (Gleeson CJ, Gaudron & Hayne JJ) (Coal and Allied).
The fact that a litigant may be disappointed with the result does not mean that the appeal court is able to intervene.[64] In an appeal by way of rehearing, ordinarily, and absent further evidence or a relevant change in the law, the court can exercise its appellate powers only if satisfied that there was an error on the part of the primary court; the power is to be exercised for correction of error.[65] There must be a material error of law, fact, discretion or other miscarriage of justice.[66] In doing so, the appeal court must conduct a 'real review' of the evidence given at first instance and of the primary decision maker's reasons for decision to determine whether there has been an appellable error.[67]
[64] Nugawela v Australian Health Practitioner Agency [2023] WASCA 37 [11] (judgment of the court); Avsar v Binning [2009] WASCA 219 [37] (Owen JA, Miller JA & Newnes JA agreed]).
[65] Coal and Allied [14]; Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ) (Allesch); Saunders v The Public Trustee [2015] WASCA 203 [84] (Mitchell J, Buss JA & Beech J agreed).
[66] Allesch [23]; Marks v Coles Supermarkets [2021] WASCA 176 [124] (judgment of the court) (Marks); Binningup Nominees Pty Ltd v Mirvac (WA) Pty Ltd[2021] WASCA 130 [460] (judgment of the court).
[67] Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 (2016) 331 ALR 550, 558 [43] (judgment of the court); Australian Securities and Investments Commission v Kobelt [2019] HCA 18 [47] (Kiefel CJ & Bell J); Marks [127]; Smart [101].
The onus is on Mr Fabbri as the appellant to demonstrate the existence of an appellable error.[68] It is not sufficient for him to satisfy the court that a decision other than that made by the Magistrate was correct and preferable.[69]
[68] Smart [100]; Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).
[69] Marks [124].
In dealing with the appeal, I am conscious that Mr Fabbri is a litigant in person. As a litigant in person, he is entitled to some leniency in relation to compliance with the court rules.[70] The court is required to approach the documents in which he articulates his appeal with some flexibility.[71] The court needs to be astute to ensure that, in a poorly expressed or unstructured document in which he sets out his appeal, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[72] A 'frequent consequence of self‑representation is that the court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy'.[73] The same principles apply to Ms Atyeo in relation to the documents she filed as a litigant in person.
[70] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[71] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 ‑ 537 (Kirby P with whom Hope & Samuels JJA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[72] Sethi v Bhavsar [2020] WASCA 52 [27] (reasons of the court) (Sethi).
[73] Neil v Nott [1994] HCA 23 [5]; (1994) 68 ALJR 509, 510; (1994) 121 ALR 148, 150 (judgment of the court); Sethi [27].
At the same time, the court needs to ensure that any latitude given to one party as a litigant in person does not deprive the other of their right to procedural fairness and a fair hearing.[74] The balance is ordinarily struck by limiting the assistance given to a litigant in person to that which is necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a litigant in person faces by reason of not being legally trained.[75]
[74] Nobarani v Mariconte [2018] HCA 36[47] (judgment of the court); Woodley v Woodley [2018] WASCA 149 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).
[75] Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] - [75] (judgment of the court).
The grounds of appeal are detailed, but in essence raise two issues for determination. The first, in grounds 1 and 2, is whether the Magistrate erred in granting Ms Atyeo summary judgment. The second, in ground 3, is whether the Magistrate denied Mr Fabbri procedural fairness at the hearing on 24 May 2023.
Did the Magistrate err in granting Ms Atyeo summary judgment?
6.1 Grounds of appeal
Grounds of appeal 1 and 2 are in the following terms:
1.It is clear that Magistrate Owen‑Conway during the hearing date 24th May 2023 at the Joondalup Courthouse, has made an error in judgment in her decision to allow the application of Court Form 23: Application of summary Judgement. There is clear evidence of a bailment arrangement between Massimo Fabbri (bailor) and Rona Atyeo (bailee). An agreement of mutual benefit existed between the two parties. Massimo Fabbri would have a place to store his container and chattels with the knowledge that they would be safe and looked after. Rona agreed to receive and look after the property for $400.00.
A)The agent of Rona Atyeo, Paul Clarke gives evidence under oath, that he helped Massimo Fabbri deliver his chattels to the container at the defendant's house, where the container had been placed by Paul Clarke. Paul Clarke had the authority to act on her behalf. Evidence has been submitted to say Rona Atyeo entered the container and had a very good knowledge of the chattels.
B)Rona Atyeo was given an itemised list of chattels contained in the container. Each item was assigned a value to ascertain the total net worth of the claim. She has had this knowledge since October 2020.
C)The defendant has not given any evidence that the bailment agreement did not exist.
2.The fact that witnesses have not been called to give testament under oath and cross examined in relation to these matters, and to verify the chattels and their condition.
A)Never at any stage did I, Massimo Fabbri (the claimant), give permission to Rona Atyeo (defendant) to use or enter my container for any purpose. Nor was the defendant given permission to remove the chattels from the container or display outside the container for the purposes of selling or discarding.
B)This indicates a clear breach of the contract which the defendant repeatedly claimed existed under oath.
C)Breach of responsibilities and negligence of the claimant's property in Rona Atyeo's care, has led to items being damaged due to exposure to the weather and pool chemicals that were housed inside the container as well as items that are now missing.
6.2 Mr Fabbri's submissions
In written submissions, Mr Fabbri commenced with the point that no party had referred to the concept of a licence in any 'wording throughout these proceedings'.
He submits that there was evidence that Ms Atyeo had knowledge of the contents of the sea container. She was there when he and 'her agent' Mr Clarke filled it. Also, Ms Henderson had knowledge of the contents of the sea container. He says that the statements provided by Ms Atyeo, Mr Clarke and Ms Henderson 'are all required to be tested and cross‑examined under oath in a trial' and that this is 'the only way to get to the truth'.
Mr Fabbri places emphasis on the parts of Ms Atyeo's evidence where she says that a contract exists, viewing this as support for there being a bailment relationship.
Mr Fabbri's oral submissions were focussed on the evidence which he says the Magistrate did not consider, and which he says shows that the contract between him and Ms Atyeo should have been characterised as a bailment, importing a duty of care over the property the subject of the bailment. He did this by reference to six documents, which I will consider in chronological order.
There was a letter of demand sent by Ms Atyeo to him dated 20 November 2020, which I have quoted at [31]. The part which Mr Fabbri placed emphasis on was on the final two paragraphs, which I repeat for ease of reference:[76]
…
This is my final request for your Sea Container and its contents to be removed from my property within 30 days of receiving this letter by someone other than yourself.
If you do not comply I will commence legal proceedings to have your Sea Container and contents removed and disposed of at your expense.
Rona Atyeo
[signature]
[76] MB 381.
The second in time was a letter of demand dated 22 June 2021, which I have dealt with at [54] and [55].
The third in time is an affidavit of Ms Atyeo sworn and filed on 21 May 2021.[77] This affidavit was filed in relation to an earlier interlocutory application in the appeal. The relevant portions are:
…
3.My conduct is not a 'ransom and extortion' nature as alleged by the Judgment Creditor. Julie Rushton, who was married to the Judgment Creditor at the time, offered me $400 a year to store the Property my land, to which I accept … The Property is owned by both the Judgement Creditor and Julie, for their business. The business was a Partnership between the Judgement Creditor and Julie … This was the basis of the contract formed between myself and Julie, who acted on behalf of the Partnership ('Contract').
4.Their Property has been stored on my land since 2016. I have not received any payment to date.
…
There are other references in this document to the 'Contract'.
[77] MB 609 - MB 622.
The fourth was the initial Statement of Defence to General Procedure Claim and Counterclaim filed by Ms Atyeo on 25 August 2021.[78] The particular portion relied on is:
At no time have I ever denied Mr Fabbri access to his container and property. His Sea Container and contents is stored on my property for an agreed $400 per year to which I have never received a cent. Upon my tracking down Mr Fabbri after 4 years asking for payment and removal of his container and contents he became aggressive and threatening as he disputed the agreement made on his behalf by his then ex wife to which he had full knowledge about.
He has been approached on 4 occasions to remove his property. Twice by other parties at no expense to him.
Mr Fabbri again highlighted that this document contained a clear statement that there was a contract between him and Ms Atyeo.
[78] MB 574 - MB 575.
The fifth document was the statement of intended evidence of Mr Clarke.[79] I have set out relevant portions of this statement at [21]. From this material, Ms Fabbri asserted that Ms Atyeo must have been aware of the contents of the sea container and must have accessed it to put the pool toys in it.
[79] MB 427 - MB 430.
The sixth was a text sent by Ms Atyeo's then partner, which I have quoted at [25]. Aside from again confirming the arrangement by which Mr Fabbri was to pay $400 a year to store the container on Ms Atyeo's property, the use Mr Fabbri was seeking to make of this document was not clear.
6.3 Ms Atyeo's submissions
The submissions by counsel for Ms Atyeo were to the effect that the Magistrate correctly defined and applied the law. Counsel referred to two passages from the decision in Rolfe v Investec Bank (Australia) Ltd.[80] The first is:[81]
… even where a defendant has actual knowledge of a plaintiff leaving some of the plaintiff's chattels on the defendant's land, and assents to the chattels remaining there pro tem, the relationship thus constituted between the plaintiff and defendant may not necessarily amount to more than one of licence without obligation on the part of the defendant to take care of the chattels.
[80] Rolfe v Investec Bank (Australia) Ltd [2014] VSCA 38 (Rolfe).
[81] Rolfe [61].
And the second:[82]
… even in cases where permission to leave chattels on land for the time being amounts to bailment, the better view is that a gratuitous bailee of goods sealed in a container is not liable for the goods as opposed to the container unless the bailee is apprised of the nature and value of the goods or unless the goods are of a character, value and quantity likely to be found in a normal situation of the kind in question.
[82] Rolfe [62].
Counsel for Ms Atyeo submitted that the Magistrate's finding that the facts of the case amount to a licence, rather than a bailment, was correct for the following reasons:
(a)Ms Atyeo was not informed by Mr Fabbri of the contents of the shipping container after the shipping container had been delivered to her land, or at any time;
(b)Ms Atyeo was not provided with any documentation (such as a list, photographs or written inventory) identifying the contents of the shipping container;
(c)Ms Atyeo was not requested by Mr Fabbri to inspect the contents of the shipping container;
(d)Mr Fabbri did not attempt to lock the shipping container the entire time it was situated on Ms Atyeo's land until it was collected in January 2023 by consent order; and
(e)Mr Fabbri had access to the shipping container and removed contents from time to time without informing Ms Atyeo, causing her to have no means of tracking the contents in the container at any given time.
Otherwise, counsel for Ms Atyeo generally reiterated the findings made by the Magistrate.
6.4 Determination
There was no challenge in the Appeal to the Magistrate's finding to the effect that the only cause of action which had any prospect of succeeding was that in bailment. Nor, in my view, could there be. In the Claim as it remains after the sea container was returned, Mr Fabbri makes no claim in respect of any damage to the sea container. So the only residual issue is whether there was a relationship of bailment in relation to the contents of the sea container.
It is the case that where party A has deposited a chattel which it has the right to possess on the land of party B in circumstances amounting to a bailment, party A can make a claim against party B for any damages sustained to the chattel or in respect of the loss of the chattel.[83] However, in order to claim, party A must first establish that the relationship between it and party B is one of bailment. A bailment comes into existence where party A delivers goods into the possession of party B, 'upon a promise, express or implied, that they will be re‑delivered to the bailor or dealt with in a stipulated way'.[84] More specifically, the law in relation to bailment where party A has deposited a chattel which it has a right to possess on the land of party B may be summarised as follows:[85]
(a)for a bailment to arise, party A must part with possession of the chattel and party B must obtain possession of the chattel;
(b)in order for party B to obtain possession of the chattel so as to give rise to a bailment, party B must first have actual or constructive knowledge of the existence of the chattel;
(c)the mere fact that party A has deposited a chattel which it has a right to possess on the land of party B to the knowledge of party B is insufficient to give rise to a relationship of bailment - party B may have merely granted party A a right or licence to allow the chattel of party A to be stored on its property;
(d)where the chattel is in a sealed container which party B has knowledge of, party B will not have sufficient responsibility for and control of the chattel to give rise to a bailment unless party B knows the nature and value of the chattel (or unless the chattel is of a character, value and quantity likely to be found in a normal situation of the kind in question, in which case knowledge might be presumed);
(e)in order for party B to obtain possession of the chattel so as to give rise to a bailment, in addition to knowledge, party B must also be given, or have assumed, sufficient responsibility for and control of the chattel to give rise to a bailment;
(f)where the chattel has been deposited with party B for a specific purpose that required party B to have possession of it (for example, to use it, repair it or transport it), the court will more readily infer that party B was given, or should be taken to have assumed, sufficient responsibility for, and control of, the chattel to give rise to a bailment; and
(g)conversely, where the chattel has not been deposited with party B for a specific purpose that required party B to have possession of it, it will be more difficult to conclude that party B was given, or should be taken to have assumed, sufficient responsibility for and control of the chattel to give rise to a bailment - rather, this is more consistent with there being a mere licence.
[83] See for example: Gerrard v Slamar [2004] WASCA 253 [18] - [19] (EM Heenan J, with whom Steytler & Le Miere JJ agreed).
[84] Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220, 237 - 238 (Windeyer J) (Hobbs).
[85] See generally: Rolfe [59] - [63]; Hobbs (237) - (238); Roman Catholic Archbishop of Perth v Bishop (Unreported, WASCA, Library No 950470, 7 September 1995) 8 (Malcom CJ, with whom Kennedy & Pidgeon JJ agreed) (Bishop); WD & HO Wills (Aust) Ltd v State Rail Authority of New South Wales (1998) 43 NSWLR 338, 353 - 354 (Mason P, with whom Priestly & Beazley JJA agreed); Walton Stores Ltd v Sydney City Council (1968) 70 SR (NSW) 244, 250 - 251 (Asprey JA, with whom Walsh & Holmes JJA agreed) (Walton Stores); Ashby v Tolhurst [1937] 2 KB 242, 255 - 256 (Romer LJ) (Ashby); Greenwood v The Council of the Municipality of Waverley (1928) 28 SR (NSW) 219, 221 - 222 (Decision of the Court); Coggs v Bernard (1703) 2 Ld Raym 909; (1703) 92 ER 107, 109 (Holt CJ).
The analysis in [78] is to the effect that the Magistrate did nor err in her analysis of the relevant legal principles (see [43]).
The appropriate starting point in applying these principles is to proceed on the basis that the admissible evidence set out in the affidavits relied on by Mr Fabbri in opposition to the Application would be accepted at trial.[86] It is also ordinarily appropriate to assume that facts he alleges in the formal court documents[87] can be established at trial,[88] and I will do so in this case. I include in the scope of formal court documents the submissions filed by Mr Fabbri. Specifically, I proceed on the basis that Mr Fabbri would at any trial of the Claim give evidence in terms of any statement that he makes in submissions which could be admissible evidence (that is, statements of fact within his knowledge and not hearsay, opinions, conclusions or speculation). In this case, I also make one further concession in favour of Mr Fabbri, having regard to the fact that he is a litigant in person. This is that I proceed on the basis that both Mr Clarke and Ms Rushton would give evidence at trial in terms of their Form 32A statements (quoted at [21] and [23]), and that the facts they would give evidence about would be accepted at trial. I will refer to these materials collectively as 'all the material which Mr Fabbri proposes to rely on at trial'. If, on all the material which Mr Fabbri proposes to rely on at trial, he cannot satisfy the court that the Claim has a reasonable prospect of succeeding then summary judgment pursuant to MCCPA s 18(1) is appropriate.
[86] Pisano v South Metropolitan Health Service [2023] WASCA 80 [52] (Pisano)
[87] As to the distinction between 'pleadings' in the superior courts and formal court documents in the Magistrates Court, see generally the discussion in Breaksea Fishing Company Pty Ltd v Pretar Pty Ltd [2023] WADC 106 [346] - [355] (Gething DCJ) (Breaksea).
[88] Pisano [52].
Having said that, I do not consider that the Magistrate erred in determining that the unsigned statement of Ms Henderson was inadmissible. It was clearly inadmissible for the reasons given (see [38]). However, Mr Fabbri's evidence of what occurred at the visit with Ms Henderson is material which I need to consider (quoted at [22]). Ms Henderson's evidence in effect corroborates that of Mr Fabbri, so its omission is neutral to the analysis.
Nor do I consider that the Magistrate erred in determining that statements in Mr Fabbri's second affidavit attributable to Mr Clarke were inadmissible hearsay. They clearly were (see [39]).
Further, the application for summary judgment should be determined on the material before the Court, not based on the prospect that, given the opportunity, Mr Fabbri might be able to adduce further evidence at trial.
Assuming all the material which Mr Fabbri proposes to rely on at trial is led and accepted at trial, the following factual findings would have been made:
(a)the arrangement for a sea container containing chattels belonging to Mr Fabbri to be stored on Ms Atyeo's property was made between Ms Rushton and Ms Atyeo ([23]);
(b)in the conversations with Ms Atyeo which led to the sea container being placed on her property, no monies, fees or contracts were discussed ([14]);
(c)Mr Fabbri offered to give Ms Atyeo a gift of $400 as a thank you for the gesture, which offer Ms Rushton conveyed to Ms Atyeo ([14], [23], [24]);
(d)Ms Atyeo declined this offer ([14]);
(e)the shipping container was placed on Ms Atyeo's property through arrangements made by Mr Clarke ([21]);
(f)when the shipping container was placed on Ms Ayteo's property it was empty ([21]);
(g)Mr Clarke assisted Mr Fabbri to move his chattels into the shipping container ([21]);
(h)on one occasion, Mr Clarke assisted Mr Fabbri to retrieve a chainsaw from the shipping container ([21], [22]);
(i)Mr Fabbri says that Ms Henderson was present when he accessed the sea container to look for a chainsaw, though if it is the same occasion that Mr Clarke refers to in (h), Mr Clarke does not say that Ms Henderson was present - in any event, whether or not she was present is not material ([21], [22], [81]);
(j)when the shipping container was opened, there were a few pool toys or some pool equipment towards the front of the container which did not belong to Mr Fabbri ([21]) - Mr Fabbri does not say whether the pool equipment that he moved was inside or outside the sea container ([22]);
(k)Ms Atyeo was present when the events in (h) and (j) took place ([21]); and
(l)from around August 2020, Ms Atyeo refused Mr Fabbri access to the property on which the sea container was stored ([25]).
Significantly, on all the material which Mr Fabbri proposes to rely on at trial, there is no evidence that:
(a)there was any direct contact between Ms Atyeo and Mr Fabbri concerning the arrangement for his sea container to be stored on her property;
(b)Ms Atyeo was ever provided with any list of the chattels placed into the shipping container either when it was placed there or at any time prior to a litigation being commenced in October 2020;
(c)Ms Atyeo was present when Mr Clarke and Mr Fabbri placed his chattels into the sea container;
(d)Ms Atyeo ever had any knowledge of the contents of the sea container at any time prior to litigation being commenced in October 2020;
(e)it was Ms Atyeo who put the pool toys or pool equipment referred to in [84(j)] into the sea container, or that they belonged to her;
(f)that there were any other chattels belonging to Ms Atyeo in the sea container;
(g)that Ms Atyeo ever opened and accessed the sea container;
(h)that Ms Atyeo ever dealt with, or in any way purported to exercise any control over, the contents of the sea container; and
(i)prior to the dispute arising in August 2020, Mr Fabbri had ever been precluded from accessing the sea container.
As to the specific points raised in the grounds of appeal, ground of appeal 1(C) is that Ms Atyeo has not given any evidence that the bailment agreement did not exist. However, the onus is on Mr Fabbri to establish that a relationship of bailment existed such as to give rise to a legal responsibility in relation to the contents of the sea container. The question is whether he has a reasonable prospect of succeeding in doing so. In my view, for the reasons which follow, he has not.
In ground of appeal 1(A), Mr Fabbri asserts that Mr Clarke was in some way acting as agent for Ms Atyeo such that his knowledge of the contents of the sea container could be imputed to her. However, there is no basis in the material which Mr Fabbri proposes to rely on at trial for that conclusion. The Magistrate did not err in making this finding ([44]).
In ground of appeal 1(B), Mr Fabbri asserted that Ms Atyeo was given an itemised list of chattels contained in the container in which each item was assigned a value to ascertain the total net worth of the claim. He asserts that she has had this knowledge since October 2020. The document to which he refers is the Form 3 - General Procedure Claim which he lodged on 21 October 2020.[89] However, this is after the dispute arose in August 2020 (see for example [25]). The fact that in October 2020 Ms Atyeo was provided with a list of chattels in the sea container does not change the position set out in [85(b)] and [85(d)], that there is no evidence that Ms Atyeo was ever provided with any list of the chattels placed into the shipping container either when it was placed there or at any time prior to a litigation being commenced in October 2020.
[89] MB 675 - MB 676.
In my assessment, on all the material which Mr Fabbri proposes to rely on at trial, there is no basis for a finding, either by direct evidence or inference, that, prior to litigation being commenced, Ms Atyeo had any knowledge of the contents of the sea container. Nor is there a basis for a finding that Ms Atyeo had constructive knowledge of the contents of the sea container. This is not a case in which the contents of the sea container are of a character, value and quantity likely to be found in a normal situation of the kind in question where knowledge might be presumed.
In ground of appeal 2(A), Mr Fabbri asserts that at no stage did he ever give Ms Atyeo permission to use or enter his container for any purpose. Nor was she given permission to 'remove the chattels from the container or display outside the container for the purposes of selling or discarding'. In the April Affidavit he deposes that 'no one was given authority by myself, the rightful owner, to enter my container' ([18]). He reiterated this point in written submissions in which he states that he had never given Ms Atyeo permission to open the sea container or use the sea container for any purposes.[90] And in supplementary submissions he makes it clear that Ms Atyeo did not have his permission to 'open, enter or use the sea container for storage'.[91] As set out at [80], I proceed on the basis that Mr Fabbri would give evidence to this effect at any trial of the Claim. Mr Fabbri's statements make it clear that he did not intend to part with possession of the contents of the sea container, something essential to the existence of a bailment.[92] This is because his statements are to the effect that Ms Atyeo was not given any access to, responsibility for, or control over, the contents of the sea container.
[90] Appellant's submissions, par 20.
[91] Appellant's supplementary submissions.
[92] Bishop (7); Ashby (255); Walton Stores (250) - (251); Hobbs (237) - (238).
Further, and critically, there is no evidence that the sea container and its contents were left at Ms Atyeo's property for any specific purpose beyond storage. On all the material which Mr Fabbri proposes to rely on at trial, no monies, fees or contracts were discussed. Further, Ms Atyeo was to receive no benefit from storing the sea container and its contents, aside from the offer of a once off 'gift' of '$400, which she declined. The arrangement between Ms Atyeo and Mr Fabbri was, on all the material on which he proposes to rely on at trial, one made in a purely social context, between acquaintances. It does not take place in a commercial context, for example a commercial carpark as was the case in Walton Stores. In my view, this is a very strong factor against the relationship being one of bailment.
For these reasons, on all the material which Mr Fabbri proposes to rely on at trial if given the opportunity to do so, there is no basis for the finding that Ms Atyeo was given, or assumed, sufficient responsibility for and control of the contents of the sea container for her to be in possession of those contents so as to give rise to a bailment. Rather she simply permitted the sea container and whatever contents Mr Fabbri chose to place in it from time to time to be deposited on her land.
In summary, on all the material which Mr Fabbri proposes to rely on at trial if given the opportunity to do so, Mr Fabbri has no reasonable prospect of proving that he gave Ms Atyeo possession of the contents of the sea container so as to give rise to a relationship of bailment. Rather, the appropriate legal characterisation is that Ms Atyeo gave Mr Fabbri a mere license to place the sea container and its contents on to her property, without any obligation or responsibility on her part in relation to the contents of the sea container.
The analysis to date assumes that all the material which Mr Fabbri proposes to rely on at trial would be accepted at trial. On this evidence, he has not satisfied the court that the Claim has a reasonable prospect of succeeding.
When the evidence which Ms Atyeo would give at trial is considered, which I have set out at [28] and [29], the position becomes stronger. In particular, her evidence positively confirms that she had no knowledge of the contents of the sea container (at least prior to litigation being commenced in October 2022) and that she in fact was not given, nor did she assume, any responsibility for and control of the contents of the sea container.
There is only one real factual dispute between Mr Fabbri and Ms Atyeo which would need to be resolved at trial. This is whether there was a contract by which Mr Fabbri would pay Ms Atyeo $400 per year for allowing him to store the sea container and its contents on her property. Ms Atyeo says there was such an agreement, which was the subject of her counterclaim. On the evidence Mr Fabbri proposes to rely on at a trial, he is adamant that there was no such contract, merely an offer of a $400 'gift' (see [14] and [23]). In determining an application for summary judgment, I am to proceed on the basis that any factual dispute would be resolved in favour of Mr Fabbri.[93] The fact that payment of the $400 was a gift, supports the conclusions in [92] and [93].
[93] Pisano [52] - [54].
However, in ground of appeal 1, and submissions, invites the court that there was a contract:[94]
There is clear evidence of a bailment arrangement between Massimo Fabbri (bailor) and Rona Atyeo (bailee). An agreement of mutual benefit existed between the two parties. Massimo Fabbri would have a place to store his container and chattels with the knowledge that they would be safe and looked after. Rona agreed to receive and look after the property for $400.00.
Mr Fabbri seems to be trying to say that the fact that there is a contract moves the legal characterisation from a mere licence to a bailment for reward. In this respect, Mr Fabbri's position is disingenuous because his adamant position in materials he otherwise relies on is that the $400 was a 'gift' and not payment pursuant to a contract (see [14] and [23]). So I place no weight on this submission.
[94] A point he makes in the supplementary submissions filed 6 December 2023.
In any event, even if there was a contract for Ms Atyeo to receive $400 for allowing the sea container to be stored on her property, whether as a one off or each year, it does not follow that the contract was one of bailment. There can be a contract for payment of money for a licence. Indeed, the relationship of bailor and bailee may exist independently of contract.[95] The critical issue is whether possession of the contents of the sea container passed to Ms Ayteo. For the reasons which I have already outlined, in my view, Mr Fabbri has no reasonable prospect of successfully proving this.
[95] Hobbs (239); Bishop (8).
On this analysis, even exercising the caution I am required to,[96] I am of the view that Mr Fabbri has not satisfied the court that his claim has a reasonable prospect of succeeding within MCCPA s18(1).[97] There is no real question to be tried.[98] Or put slightly differently, I have a high degree of certainty that, if the Claim were to go to trial in the ordinary way, the ultimate outcome would have been that it would be dismissed.[99]
[96] Shilkin v Taylor [2011] WASCA 255 [40] (Newnes JA, with whom Pullin & Buss JJA agreed) (Shilkin) [40]; Pisano [52].
[97] I note in this regard that the onus of proof is different from an application by a defendant pursuant to RSC O 16 r 1(1) where the onus is on the defendant to demonstrate that the application for summary judgment ought to succeed: Pisano [52].
[98] Pisano [52].
[99] Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552 [57] (Gaudron, McHugh, Gummow & Hayne JJ) (Agar); Pisano [52]; Shilkin [40].
The Claim is 'not fit for trial' and should be summarily dismissed.[100] The Magistrate made no error in doing so.
[100] Pisano [48].
Did the Magistrate fail to afford Mr Fabbri sufficient procedural fairness?
There is no doubt that the Magistrate was obliged to afford procedural fairness to Mr Fabbri.[101] In determining this appeal, I must decide for myself whether the Magistrate failed to do so.[102]
[101] Defendi v Szigligeti [2019] WASCA 115 [44] (judgment of the court) (Defendi).
[102] Defendi [43].
In Defendi the Court of Appeal conveniently summarised the relevant principles, also in the context of a decision of a magistrate:[103]
It is axiomatic that a court is obliged to accord procedural fairness to a litigant.
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.
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.
The requirements of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the circumstances. 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.
[103] Defendi [45] - [48] (references omitted).
The Court of Appeal went on to outline some relevant features of the legislation and rules governing the procedures of the Magistrates Court. This included MCCPA s 13 which provides:
13. Court's duties in dealing with cases and making rules
(1)In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring -
(a)that cases are dealt with efficiently, economically and expeditiously; and
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
The court observed:[104]
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.
[104] Defendi [54].
Additional considerations apply where one of the parties is a litigant in person. Specifically, the principles which I set out at [59] and [60] applied equally to the hearing before the Magistrate.[105]
[105] Williams v Sadeghpour [2021] WADC 111 [79] (Gething DCJ).
Ground of Appeal 3 raises what are appropriately characterised as procedural fairness concerns. The ground refers to 'major concerns' relating to how the Magistrate conducted the hearing on 24 May 2023. These are set out in an annexure to the Appeal Notice in the following terms:
A)Magistrate Owen‑Conway shouted me down as I tried to give a verbal response to one of her questions.
B)The Magistrate refused to accept medical evidence that I was very ill and lost three weeks during the preparation time of my defence in response to the Defendant's application of Form 23 in this matter. I was hospitalised on three separate occasions.
C)The Magistrate refused to allow me to submit evidence that I had prepared and listed in my affidavit.
D)During the hearing as I tried to explain my case, I was interrupted angrily by the magistrate as she said, 'If it was up to me, I would have dismissed your case a long time ago.' All evident in the transcript of this hearing.
E)I had no chance of receiving legal or natural justice.
Procedural fairness is also touched on in ground 2, as Mr Fabbri challenges the decision on the basis that 'witnesses have not been called to give testament under oath and cross examined' in relation to agreement between him and Ms Atyeo (that is, the matters raised in ground of appeal 1) and 'to verify the chattels and their condition'.
In oral argument, Mr Fabbri identified two main concerns going to procedural fairness. The first is that the Magistrate did not consider all the evidence.[106] This concern is more properly characterised as a challenge to the merits of the Decision, which I have dealt with in Part 6.
[106] See ts 2.
During the course of the hearing before me, Mr Fabbri asserted that there was a document in Ms Atyeo's handwriting 'basically saying that she had full knowledge of what was in the [sea] container'.[107] Counsel for Ms Atyeo was not aware of the existence of any such evidence.[108] After some discussion, Mr Fabbri appeared to be referring to the letter of demand dated 22 June 2021, which I have already addressed. As I have noted ([54]), Mr Fabbri was not able to identify that this document had ever been lodged with the Magistrates Court.[109] However, it was open for Mr Fabbri to have included this document in the affidavits he filed in opposition to the Application. He had ample opportunity to do so. I do not consider that the Magistrate denied Mr Fabbri procedural fairness in this regard.
[107] ts 3.
[108] ts 4.
[109] Appellant's supplementary submissions filed 6 December 2023.
The second is that he was not given the opportunity to call witnesses and to cross-examine the witnesses called by Ms Atyeo.
It is the case that Mr Fabbri had a right to bring the Claim. Thereafter, the process for the determination of the Claim is governed by the practices and procedures of the Magistrates Court.[110] One such procedure is a right of Ms Atyeo in MCCPA s 18 to bring an application for summary judgment. However, courts are cognisant of the fact that summary determination is an exception to the trial process. In the words of Gaudron, McHugh, Gummow and Hayne JJ in Agar:[111]
It is, of course, well accepted that a court whose jurisdiction is regularly invoked in respect of a local defendant … should not decide the issues raised in those proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways … but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.
This is the test I have adopted at [99]. Mr Fabbri was not denied procedure fairness by the Magistrate giving summary judgment against him pursuant to MCCPA s 18.
[110] Snook v Registrar of Fines Enforcement Registry [2019] WASCA 204 [39] (reasons of the court).
[111] Agar [57] (citations omitted).
Related to this is paragraph C in the annexure to the grounds of appeal, being the concern that the Magistrate refused to allow Mr Fabbri to submit evidence that he had prepared and listed in the May Affidavit. This relates to the evidence of Ms Henderson and Mr Clarke (as set out in Mr Fabbri's affidavit, and not Mr Clarke's Form 32A). For the reasons set out at [81] and [82], this material is not admissible evidence and was properly excluded.
The theme running through the remaining matters identified in the Annexure is that Mr Fabbri was not given a sufficient opportunity to prepare for and make submissions on the Application. Having read the transcript of the hearing on 24 May 2023,[112] I do not discern any issue which causes me to conclude that Mr Fabbri was not given a sufficient opportunity to prepare for and make submissions on the Application. He has not satisfied me that he was denied an appropriate level of procedural fairness.
[112] MB 683 - MB 719.
There is one further matter relied on by Mr Fabbri which is appropriately characterised as going to procedural fairness. He takes issue with the fact that the concept of a licence had not been raised in the 'pleadings' of either party.[113] I accept that this is the position. However, I observe that neither did Mr Fabbri mention bailment in his 'pleadings'. Ms Atyeo in her Defence asserts that no bailment existed for any item of property other than the shipping container itself (see [26]).
[113] Appellant's supplementary submissions filed 6 December.
The concept of a licence appears to have been first raised by the Magistrate in the course of the hearing on 24 May 2023 in the following exchange:[114]
HER HONOUR: Isn't this a question - the real issue before me, as you've identified, is whether the relationship between the claimant and the defendant is one of bailment, bailor and bailee, and the consequential duties that follow from that.
CARTER, MR: Yes, your Honour.
HER HONOUR: Or whether - and there's two things about that: the C container and/or the chattels, or alternatively, it's a mere licence to use her property to dump the C container on it.
CARTER, MR: Yes, your Honour. That would be an alternate view of it, but that would also remove any liability, also, on behalf of the defendant if it was something - - -
HER HONOUR: A mere licence carries with it no presumed duty of care.
[114] MB 686.
I make three observations in relation to this issue. The first is that the Magistrates Court is not a court of pleadings. Rather, the essential task of the Magistrate was to determine the real controversy between the parties as established on the evidence, within the broad confines of the formal court documents, whilst ensuring that each party was afforded sufficient procedural fairness.[115]
[115] See the analysis at Breaksea [346] - [355].
The second is that the Magistrate's characterisation of the real controversy between the parties is correct as a matter of law. The arrangement by which Mr Fabbri's sea container was deposited on Ms Atyeo's property was either a bailment or a mere licence.
The third is that I do not consider that Mr Fabbri was denied a fair opportunity to address the issue of whether the arrangement by which Mr Fabbri's sea container was deposited on Ms Atyeo's property was either a bailment or a mere licence. In the context of the Magistrates Court it was appropriate and sufficient for the Magistrate to advise the parties of the possible alternate characterisation of the legal issues raised and to seek submissions from them.
Even if I did identify some aspect in which Mr Fabbri was denied procedural fairness, he would not for that reason alone succeed in the Appeal. 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.[116] This requires me to consider whether, had the Magistrate given Mr Fabbri more opportunity to prepare and make submissions, there was a possibility that it would have made a difference to the outcome.
[116] Defendi [59].
Mr Fabbri did not suggest that he was not given sufficient opportunity to prepare for and make submissions at the hearing of the Appeal. On the one issue where he could not provide me with an answer during the course of the hearing, I granted him a fortnight to investigate the issue and provide written submissions, which he did.
I can test the potential impact of Mr Fabbri having more of an opportunity before the Magistrate by proceeding on the basis that the evidence and submissions that Mr Fabbri would have provided to the Magistrate had he been given more opportunity, would have been the same evidence and submissions which he provided in the Appeal. On that evidence and those submissions, as set out in Part 6, the Appeal fails. So I do not consider that he was denied the possibility of a successful outcome had he been given the opportunity to place the same evidence, and make the same submissions, as he made in the Appeal before the Magistrate.
What final orders are appropriate?
The appeal should be dismissed.
I will hear from the parties as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
LL
Associate
19 JANUARY 2024
35
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