Gilbert v Tripodi
[2016] SADC 6
•4 February 2016
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Minor Civil Review)
GILBERT & ANOR v TRIPODI & ANOR
[2016] SADC 6
Judgment of His Honour Judge Chivell
4 February 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA
Applicants had put their house on the market – respondents were neighbours who had erected a sign warning potential purchasers of an 'unresolved property dispute' between them and the applicants. Applicants had claimed damages in the Magistrates Court under various heads for loss occasioned by erection of the sign. Claim dismissed by the magistrate.
Magistrate’s finding upheld – application for review dismissed.
Magistrates Court Act 1991 s 3, s 29, s 38; Development Act 1993 s 3, s 85, referred to.
Harradine v District Court of South Australia [2012] SASC 96; Stone Built Homes P/L v R M Hansen P/L (T/A Hansen Design and Print) [2014] SADC 191; Hollow v Maragozidis [2001] SASC 375; Robson v Leischke [2008] NSWLEC 152, considered.
GILBERT & ANOR v TRIPODI & ANOR
[2016] SADC 6
Mr and Mrs Gilbert and Ms Tripodi and Mr Smith were neighbours. In November 2014, Mr and Mrs Gilbert were in the process of selling their house. On 9 November 2014, an open inspection was to take place.
Ms Tripodi and Mr Smith erected a sign on Ms Tripodi’s property which read:
ATTENTION:
Potential purchasers of
[Gilbert Address]
please be aware that there is an unresolved property dispute between the landowners at [Gilbert address] and [Tripodi and Smith address]. Call [number] for more information.Mr and Mrs Gilbert claimed they suffered damage and loss as a result of the erection of the sign. They took action in the Magistrates Court of South Australia. The action is a ‘minor civil action’ as defined in s 3 of the Magistrates Court Act 1991.
After a lengthy pre-trial process, there was a hearing on 12 August 2015 before Magistrate S H Milazzo. His Honour delivered his judgment on 17 September 2015, dismissing the Gilberts’ claims. The Gilberts now apply for a review of the judgment pursuant to s 38 of the Act.
The principles to be applied in conducting such a review were outlined by Blue J in Harradine v District Court of South Australia:[1]
1. The review is not in the nature of an appeal stricto sensu.
2. The review is not necessarily a hearing de novo in that the Court is entitled to have regard to the evidence adduced before a magistrate and “may” rehear that evidence.
3. The review is not necessarily an appeal by way of rehearing in that it is a “review” (not an “appeal”), the Court may inform itself as it thinks fit, the Court must act according to the substantial merits of the case and the Court may rehear evidence without being confined by the “fresh evidence” rules which apply to appeals by way of rehearing.
4. The Court can tailor the nature of the hearing to the circumstances. In a case where the review will not turn on findings of fact or credibility of witnesses, the Court might simply have regard to the evidence adduced before a magistrate and a magistrate’s findings of fact. In a case which does turn on disputed issues of fact or credibility, the Court might simply proceed to hear the evidence afresh.
5. If the District Court concludes that a magistrate made an error vitiating the judgment and had not made findings of fact necessary to determine the matter, it will be necessary for the Court itself to hear the evidence relevant to those findings of fact (as it does not have power to remit the matter for rehearing).
6. To the extent that the Court does itself hear evidence, it should proceed in a similar manner to that provided by section 38(1), namely adopting the form of an inquiry by the Court rather than an adversarial contest between the parties. This is because section 38(7) provides that the Court may inform itself as it thinks fit and also because it would be incongruous if the District Court were to adopt a radically different approach to the hearing to that required to be adopted by a magistrate at first instance given that there is no power of remitter.
(See also Stone Built Homes P/L v R M Hansen P/L (T/A Hansen Design and Print)[2])
[1] [2012] SASC 96 at [53].
[2] [2014] SADC 191 per Beazley DCJ at [38].
The Parties’ Claims
The original claim by Mr and Mrs Gilbert, lodged on 10 November 2014, the day after the open inspection, was for an ‘urgent injunction’ restraining Ms Tripodi and Mr Smith from ‘displaying signs and approaching and speaking to prospective buyers … and damaging the sale process …’
These claims were supported by an email from the Gilberts’ real estate agent, Mr Ladhams, which alleged that many people entering the property commented upon the sign, and were alleging that ‘he’, presumably Mr Smith, whom he described as the ‘crazy neighbour’, was ‘bailing up the buyers as they arrive’.
The application was later withdrawn after another magistrate intimated that she had doubts about her jurisdiction to grant the relief sought.
On 18 December 2014, after obtaining an engineer’s report, Mr and Mrs Gilbert made another application. It contained allegations that:
·the claims in signs erected by Ms Tripodi and Mr Smith that water was escaping from the Gilberts’ land were unfounded;
·the actions of Ms Tripodi and Mr Smith in excavating for a swimming pool caused movement in a retaining wall on the Gilberts’ property.
The claim was for the cost of the engineer’s report ($1,232.00) and ‘advertising and marketing costs expended so far’ and for an order that the signs be removed. This application was dismissed on 23 December 2014.
On 27 February 2015, Mr and Mrs Gilbert filed a further application, the language of which suggests a lawyer’s drafting. This time, there were allegations that:
·the works for the swimming pool were unlawful, contrary to statute, negligent and a potential nuisance;
·the ‘many’ placards were defamatory;
·the placards were also false and misleading because they claimed there was a property dispute;
·Mr Smith ‘bailed up’ potential purchasers at an open inspection, and his behaviour was negative and off-putting. He ambushed and confronted them, deceived them and behaved anti-socially;
·Mr Tripodi and Ms Smith ‘conspired using unlawful means’ to coerce the plaintiffs by the above conduct.
The application sought relief in these terms:
35. The plaintiffs seek the following relief:
35.1 A declaration that any building work undertaken by the defendants must be strictly in accordance with the Development Act 1993 and its Regulations, and any relevant permit or consent lawfully granted;
35.2 Orders the defendants [at their expense] provide the plaintiffs with copies of all relevant approvals including documentation pertaining to engineering and building design for, and certification of, the excavation works and structures recently introduced onto their land; and
35.3 Orders for the defendants to carry-out the following rectification works;
35.3.1install a pump or an effective drainage system to remove ground water build-up.
36.Orders (if not already granted by injunction) for the defendants to;
36.1remove all placards from [Ms Tripodi and Mr Smith’s address];
36.2be restrained from further placing such placards on Ms Tripodi’s land;
36.3 be restrained from approaching potential purchasers attending open inspections at [Mr and Mrs Gilberts’ address] and from any other contact with those purchasers; and
36.4 provide a written retraction and apology to the plaintiffs.
37.Further Orders for the defendants to;
37.1pay damages;
37.2pay costs; and
37.3any other Orders the Court may determine.
These inflammatory allegations were repeated in a further application dated 4 March 2015, bearing the same action number, specifically seeking orders in the nature of injunctions. Annexed to the affidavit supporting the application was a copy of the above ‘Particulars’.
This type of argumentative and aggressive pleading is to be deprecated, especially in the context of a minor civil action. It clearly did nothing to assist in the resolution of this dispute – to the contrary, it added fuel to the fire by using words such as ‘conspiracy’ and ‘ambush’ and ‘deceit’. It thereby made the Magistrate’s task more difficult.
An example of the parties being argumentative, Mrs Gilbert submitted to the Magistrate that the sign (there was no mention of multiple signs at the trial) was false and defamatory because it referred to a ‘property dispute’ and not a ‘water dispute’. This specious argument was correctly dismissed by the Magistrate.
Ms Tripodi and Mr Smith brought a cross claim against Mr and Mrs Gilbert seeking:
·an order that Mr and Mrs Gilbert plug drainage points (called ‘weep holes’ by Mr Robinson, the court-appointed expert);
·compensation for repair of salt damp in their house;
·an order that Mr and Mrs Gilbert pay for a ‘surface water catchment system in their rear garden’;
·other consequential orders.
At the trial, these claims were not pressed after Ms Tripodi and Mr Smith acknowledged to the Magistrate that there was no evidence that any actions by Mr and Mrs Gilbert caused salt damp to their house.[3]
[3] T 52 – Magistrates Court transcript 12/8/15.
The Hearing
The Magistrate conducted the hearing in accordance with s 38 of the Act. All of the parties and a witness were sworn or affirmed, and the hearing proceeded without undue formality (see Hollow v Maragozidis[4]).
[4] [2001] SASC 375.
It is my impression that the Magistrate exercised considerable patience and forbearance when dealing with the parties. He assisted them to present their respective cases. He elicited evidence on the key points.
A perusal of the court file shows that the Magistrate, in compliance with s 38(2), made strenuous efforts towards achieving a negotiated settlement of the matters in dispute. He commented that Mr and Mrs Gilbert had been ‘deeply resistant’ to such a resolution.[5]
[5] At [18].
In that context, the Magistrate appointed an expert, Mr Robinson, to ‘attend site, conciliate and report to the Court’. This procedure is authorised by s 29(1) of the Act. Section 29(2) provides that Mr Robinson thereby became an officer of the Court. Mr Robinson’s report reads, in part:
Pursuant to a request of the court that a report be prepared, I attended on site at [addresses of the parties] on Tuesday 19 May 2015. The first applicant was present with his professional engineer Mr Bassam Deek and Mr Bernard Rossi who said he was representing the second applicant. The respondents were also present.
Meaningful discussions with the parties was not possible because of Mr Rossi’s conduct on site. He became an advocate for both of the applicants, upsetting the respondents and at one stage of the inspection while the parties were inspecting alleged issues from the respondents’ side, he laid hands on the second respondent while at the same time shirt-fronting him. The second respondent retaliated whereupon Mr Rossi ran from the property up the street to the applicants’ property and continued shouting while peering over the fence.
I had had enough when Mr Rossi attempted to re-enter the respondents’ property, he pushed the first respondent aside as she was ordering him not to enter and entered the property against her wishes.
I informed the parties that the inspection was at an end, that I would be noting Mr Rossi’s behaviour in my report and that there would be no further discussions once I had left the property.
My refusal to continue discussions on the roadside prompted Mr Rossi to approach me as I was entering the car. I declined to speak to him and left the site. As an officer of the court I am expected to conduct myself in a proper manner while on site. Mr Rossi tested that obligation. His attitude was, to say the least, unhelpful.
The Magistrate observed:[6]
Mr Robinson attended site on 19 May 2015 he provided his report on 21 May 2015. Because his efforts to assist the parties had been thwarted by the Gilberts’ representative, Mr Rossi, the report is of little assistance and it has not been adopted by the Court. As this is a Minor Civil neighbourhood dispute I have made reference to Mr Robinson’s report to give context to the ongoing disputation between the parties.
[6] At [17].
In their written submissions, Mr and Mrs Gilbert said that Mr Rossi was not a legal practitioner – he was merely there because Mrs Gilbert was interstate. His conduct is to be deplored. It made a sensible and helpful examination of the parties’ respective claims by Mr Robinson impossible.
The Magistrate’s key findings in his judgment were:
·he rejected the submission that the statement on the sign that there was a ‘property dispute’ was false and constituted defamation;
·the concerns of Ms Tripodi and Mr Smith that there was an escape of water from the Gilberts’ land onto their land were genuine.[7]
[7] At [24].
·although it was not pleaded, he went on to consider whether the erection of the sign constituted an ‘actionable nuisance’. He quoted from Robson v Leischke.[8]He concluded:[9]
I accept that the erection of the sign by the respondents was likely to cause some unease in the marketplace and therefore interfere with the Gilberts’ efforts to sell their land. At the same time, by means of the sign, Ms Tripodi and Mr Smith did no more than tell a simple truth. There was an unresolved dispute between them and their neighbours.
I am satisfied that at the same time they encouraged the Gilberts to engage with them so that their genuine concerns could be addressed. I am equally satisfied that the Gilberts were disinterested in their neighbours’ concerns and were unprepared to address them to any significant degree.
To this extent the Gilberts might be seen as authors of their own misfortune. But whether that is fair or not I have found no case in which the erection of a non‑defamatory sign has been actionable by a neighbour. For these reasons I would dismiss the plaintiffs’ application on this ground alone.
·as to whether the erection of the sign caused loss or damage, he rejected Mr Ladhams’ evidence that the property did not sell because of the sign.[10] He also rejected the suggestion that a particular purchaser, Chris, decided not to purchase the Gilberts’ house because of the sign. Chris did not give evidence. Chris purchased a nearby property which was ‘significantly superior’ to the Gilberts’ house;[11]
·he found that the Gilberts’ asking price ($1.1 million to $1.2 million) was over-optimistic. He observed, on the valuations before him, that it would be ‘optimistic for the Gilberts to expect as much as $1,000,000.00 for their property absent a particularly enthusiastic purchaser’.[12] I was informed on the hearing of the appeal that the property sold recently for $980,000.00;
·as to any delay in selling being causative of loss, he referred to the change in Mr Ladhams’ evidence once it became clear that the Gilberts had told the court that they did not wish to further market the property until the spring:[13] he rejected the evidence that the Gilberts suffered loss;
·he concluded:
Accordingly if I am wrong and the Gilberts have an actionable claim against their neighbours in relation to the placement of the sign they have failed to establish that they suffered any loss by reason of this.
The application will be dismissed. I will hear the parties on the question of costs.[14]
[8] [2008] NSWLEC 152.
[9] At [29]-[31].
[10] At [35].
[11] At [39].
[12] At [38].
[13] At [34].
[14] At [41]-[42].
Arguments on Review
Mr and Mrs Gilbert presented their case by way of a written case pursuant to DCSR 230. It is a very comprehensive document.
Mr and Mrs Gilbert indicated that their case falls into two areas:
1.The ‘unlawful’ excavation for a swimming pool and building of a retaining wall by Ms Tripodi and Mr Smith without proper planning and building approval.
As to this, it is alleged that Burnside Council ‘demanded’ that Ms Tripodi and Mr Smith apply for ‘retrospective’ application for such approval. They assert that the approval granted does not extend to the excavations.
This submission is misconceived. The Magistrate had no jurisdiction to hear and determine matters involving alleged breaches of the Development Act 1993. Section 3 and s 85 of that Act provide that any such matter must be referred to the Environment, Resources and Development Court.
Mr and Mrs Gilbert also allege that as a result of these unlawful activities, there has been ‘cracking and movement to structures on [their] land’. They assert that the engineers, ‘FMG’, opine that this was caused by Ms Tripodi’s and Mr Smith’s excavations.
The report of FMG Engineering dated 12 December 2014, merely asserts:
Without specific knowledge of the timing of events or the extent of cut your neighbour undertook, I am uncertain as to whether your neighbour complied with these [Development Act] requirements. From our discussions, it may be possible your neighbour undermined your northern boundary retaining wall during excavation works along that boundary.
That opinion, by itself, would not be sufficient to justify any order by the Magistrate, even if he did have jurisdiction. No evidence was led as to the cost of reparation, even if a cause of action in breach of statutory duty existed to cover compensation under this head.
2.Ms Tripodi’s and Mr Smith’s ‘deliberate interference with the sale campaign of our home using false information in a defamatory way, seemingly for the purpose of obtaining a financial advantage’.
Mr and Mrs Gilbert asserted that the actions of Ms Tripodi and Mr Smith in erecting the sign or signs was not an ‘act of good faith’. They asserted that Ms Tripodi and Mr Smith acted with malice.
The Magistrate specifically rejected this allegation. He accepted the evidence of Ms Tripodi and Mr Smith on the topic and rejected evidence to the contrary, including Mr Ladhams’ hearsay evidence that they were ‘accosting’, ‘ambushing’ or ‘bailing up’ potential purchasers.
Mr and Mrs Gilbert further argued that the failure of Ms Tripodi and Mr Smith to acknowledge any of their questionable development activities on the sign(s) is evidence of bad faith. I reject this submission. The sign merely refers to the existence of a dispute. Ms Tripodi and Mr Smith were under no obligation to go into detail – to do so would probably have inflamed matters further.
It must be remembered that the evidence shows that Ms Tripodi and Mr Smith sent an email to Mr and Mrs Gilbert prior to these events, on 5 November 2014, in the following terms:
You have now put your property on the market for sale without addressing our concerns. It would be unfair and morally reprehensible for you to pass on historical issues that you have created to the new purchaser.[15]
[15] At [7] of Magistrate’s reasons.
The Magistrate was correct when he dismissed Mr and Mrs Gilbert’s allegations of bad faith and malice. His finding that there was a genuine dispute was justified on the evidence.
It was argued by Mr and Mrs Gilbert that Ms Tripodi and Mr Smith conceded the correctness of their allegation of defamation, malice and harassment of prospective purchasers when Ms Tripodi agreed at the first directions hearing, on 12 March 2015, to take down the sign. I reject this submission. The Magistrate outlined the context in which Ms Tripodi agreed to take down the sign:[16]
The jurisdictional issue aside I further took the view that it would be difficult to resolve the disputation between the Gilberts and Ms Tripodi and Mr Smith so long as the sign remained on the property. Mr Smith did not attend the first hearing but Ms Tripodi did and I asked her if she was prepared to give an undertaking to remove the sign. In the spirit of compromise she indicated that she was and the sign was thereafter removed.
[16] At [15].
In [16] and [17] of his judgment, the Magistrate observed that the events subsequent to Ms Tripodi’s agreement suggested intransigence on the part of Mr and Mrs Gilbert and their advisers rather than any inference of bad faith on the part of Ms Tripodi and Mr Smith.
Mr and Mrs Gilbert made a number of other spurious and argumentative submissions in their written case which I do not find it necessary to detail. I have considered each submission. It is sufficient to say that none of them cause me to have any misgivings about the correctness of the Magistrate’s judgment.
I permitted Mr and Mrs Gilbert to tender a further document at the hearing. It specifically criticises aspects of the Magistrate’s judgment. For example, Mr and Mrs Gilbert criticise the Magistrate’s use of the word ‘pipes’ to describe the water drain under their retaining wall, rather than ‘weep holes’, which was the expression used by Mr Robinson. These openings were 9 mm in diameter. There is no difference of any significance between the two expressions.
Mr and Mrs Gilbert criticised the Magistrate’s failure to deal with the ‘development’ issues they raised. In light of the fact that he had no jurisdiction to deal with them, this criticism does not help them.
Mr and Mrs Gilbert asserted that the email I referred to at [26] above (5/11/14) was never sent and the email address was ‘false’. I have no basis upon which to make such a finding. I see no reason why Ms Tripodi and Mr Smith should deliberately send an email to a false address.
Mr and Mrs Gilbert criticised the Magistrate because he failed to take into account that Ms Tripodi and Mr Smith produced no evidence of the escape of water. Ms Tripodi and Mr Smith gave evidence of their concerns. The Magistrate accepted their evidence that their concerns were genuine. The engineer discussed water issues in terms of ephemeral water, springs and the like. This evidence presupposed that, from time to time, surface water was present on the property. Mr and Mrs Gilbert relied on that evidence in support of their claim in relation to the excavation. The Magistrate was entitled to find that the concerns of Ms Tripodi and Mr Smith about the escape of water were genuine.
Mr and Mrs Gilbert criticised the Magistrate’s dismissal of Mr Ladhams’ evidence. He heard and saw the witness. He was entitled to make conclusions about his credibility and reliability. He found that Mr Ladhams’ evidence about the value of the Gilberts’ house was exaggerated – the objective evidence supported this conclusion. Mr Ladhams’ evidence about Ms Tripodi and Mr Smith ‘bailing up’ people coming to the open inspection was hearsay and the Magistrate was entitled to reject it. It was contradicted by the sworn evidence of Ms Tripodi and Mr Smith, which he accepted.
There were numerous other criticisms of the Magistrate’s judgment, which I do not propose to deal with specifically. They were trivial, vexatious and pedantic. None of them cause me to have any misgivings about the correctness of the Magistrate’s decision.
Conclusion
In my opinion, the Magistrate’s findings that Mr and Mrs Gilbert had not proved that Ms Tripodi and Mr Smith were liable in damages to them, whether in defamation, nuisance or breach of statutory duty, were correct. Even if any cause of action had been proved, the Magistrate was also correct in finding that Mr and Mrs Gilbert had failed to prove that any action of Ms Tripodi and Mr Smith was causative of damage.
The application for review is dismissed. I will hear the parties as to costs.
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