Krysiak v Housing Authority - [2019] WADC 162

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KRYSIAK -v- HOUSING AUTHORITY [2019] WADC 162
CORAM:   GETHING DCJ
HEARD:   13 NOVEMBER 2019
DELIVERED          :   22 NOVEMBER 2019
FILE NO/S:   APP 59 of 2019
BETWEEN:   EUGENIA KRYSIAK
Appellant
AND
HOUSING AUTHORITY
Respondent

Catchwords:

Magistrates Court appeal - Dividing fences - Whether the Housing Authority was an 'owner' for the purposes of the Dividing Fences Act 1961 (WA) - Whether there was a 'repair' of a dividing fence for the purposes of the Dividing Fences Act 1961 (WA) s 15 - Whether an owner partially constructed a dividing fence for the purposes of the Dividing Fences Act 1961 (WA) s 15 - Whether the Magistrate erred in the exercise of the discretion as to whether to set aside a default judgment - Whether the Magistrate acted in a manner such as to give rise to a reasonable apprehension of bias

Legislation:

District Court of Western Australia Act 1969 (WA), s 39
Dividing Fences Act 1961 (WA), s 5, s 13, s 15
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 19
Magistrates Court (Civil Proceedings) Rules 2005 (WA), r 43A, r 111
Magistrates Court Act 2004 (WA), s 31

Result:

Appeal dismissed with costs

Representation:

Counsel:

Appellant	:	In person
Respondent	:	Mr J King

Solicitors:

Appellant	:	Not applicable
Respondent	:	Legal and Legislative Services - Housing Authority

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

Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158
Basell v Meredith (Unreported, WASC, Library No 970449, 9 September 1997)
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Collett v Repatriation Commission (2009) 178 FCR 39
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Defendi v Szigligeti [2019] WASCA 115
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hall v Hall [2007] WASC 198
Halvorsen v Baumgartner [2014] WADC 129
House v The King [1936] HCA 40; (1936) 55 CLR 499
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
Jones v Darkan Hotel [2014] WASCA 133
Manonai v Burns [2011] WASCA 165
MIB v JAP [2019] WASCA 175
Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Nobarani v Mariconte [2018] HCA 36
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Palmer v Lintott [1981] WAR 157
Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] [2016] WASC 238
R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248
Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550
Rowe v Stoltze [2013] WASCA 92
Shilkin v Taylor [2011] WASCA 255
Shire of Toodyay v Merrick [2016] WASC 29
Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201
Smart v Albuquerque [2011] WASCA 231
Smart v Prisoner Review Board (WA) [2012] WASC 48
Storey v Lockhart (1915) 11 Tas LR 163
Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96
Tobin v Dodd [2004] WASCA 288
Vautier Holdings Pty Ltd v Kagioulis Trading Pty Ltd [2014] WASC 209
Velez Pty Ltd v Tudor [2011] WASCA 218
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382
Woodley v Woodley [2018] WASCA 200
Yazarloo v Assadi [2003] WASCA 326

GETHING DCJ:

Overview

Ms Krysiak, the appellant, is the registered proprietor of 47 Tasman Street, Mount Hawthorn. The Housing Authority, the respondent, is the registered proprietor of 48B Purslowe Street, Mount Hawthorn. The two properties share a common boundary at the rear separated by a dividing fence (Dividing Fence).
The Housing Authority says on or about 29 July 2016, the Dividing Fence fell down during a storm and was in need of repair. Following some communication with Ms Krysiak and, it says, with her agreement, the Housing Authority repaired the Dividing Fence at a cost of $2,055.78. It sought payment of half of this amount from Ms Krysiak. Ms Krysiak paid the Housing Authority $10, but refused to pay the balance.
Eventually, the Housing Authority lodged a general procedure claim in the Magistrates Court for the balance. After Ms Krysiak failed to comply with a procedural direction, the Housing Authority obtained default judgment against her. Ms Krysiak then sought to have the default judgment set aside, but was not successful. She has appealed that decision to the District Court.
For the reasons which follow, the appeal should be dismissed.

Proceedings in the Magistrates Court

The Housing Authority lodged its general procedure claim on 31 January 2018 (Claim). The description of the claim was in the following terms:
The Claimant's claim is for the sum of $1,027.89, being half of the cost incurred by the Claimant in repairing the dividing fence between the Claimant's property at 48 Purslowe Street, Mount Hawthorn WA and the Defendant's property at 47 Tasman Street, Mount Hawthorn WA, less $10 already paid by the Defendant, which is due and owing by the Defendant pursuant to the Dividing Fences Act 1961 (WA) and, in the alternative, at general law.
On 14 June 2018 the Housing Authority filed a Statement of General Procedural Claim which provides a convenient summary of the background and dealings between the parties:
1.At all times material to this proceeding:
(a)the claimant, formerly known as the State Housing Commission, was a body corporate constituted pursuant to the Housing Act 1980 (WA);
(b)the claimant was the registered proprietor of Lot 106 on Plan 6064, more commonly known as 48B Purslowe Street, Mount Hawthorn WA 6016 (Claimant's Property);
(c)the defendant was the registered proprietor of Lot 116 on Plan 6064, more commonly known as 47 Tasman Street, Mount Hawthorn WA 6016 (Defendant's Property); and
(d)the defendant resided at the Defendant's Property.
2.The Claimant's Property and the Defendant's Property share a common boundary and were separated by a dividing fence comprised of hardifence cement sheeting (Dividing Fence).
3.On or about 29 July 2016, the Dividing Fence fell down during a storm and was in need of repair.
4.On 21 September 2016, the claimant sent the defendant a letter by registered post to the Defendant's Property:
(a)stating that the claimant was prepared to repair the Dividing Fence by removing the existing fence and replacing it with a new 1800mm high Colorbond sheet metal dividing fence in line with and along the entire length of the common boundary; and
(b)requesting that the defendant agree to pay half the costs incurred by the claimant in repairing the fence, being $1,027.89, pursuant to the Dividing Fences Act 1961 (WA) (Act).
5.On 19 October 2016, the claimant received a response in writing from the defendant stating that the defendant:
(a)consented to the claimant repairing the Dividing Fence in accordance with the proposal set out in the claimant's letter; and
(b)agreed to pay whatever was 'lawfully owed' by the defendant for those repairs.
6.In reliance on the defendant's response referred to in paragraph 5, the claimant instructed its contractor to repair the Dividing Fence.
7.In about late October 2016, the claimant's contractor repaired the Dividing Fence in accordance with the proposal referred to in paragraph 4 above.
8.The total cost incurred by the claimant to repair the Dividing Fence was $2,055.78.
9.As a result of the facts set out in paragraphs 1 – 8 above, the defendant owed the claimant a debt of $1,027.89, being half the cost incurred by the claimant in repairing the Dividing Fence.
10.On about 1 December 2016, the claimant sent an invoice to the defendant requesting payment of the amount owed.
11.On about 9 May 2017, the defendant paid the claimant the sum of $10.
12.Despite repeated demands, the defendant has failed to repay to the claimant the remaining balance of the debt of $1,027.89 (Debt).
On 11 July 2019 Ms Krysiak filed a Statement of Defence to General Procedure Claim, setting out detailed arguments in opposition to the Claim.
On 19 October 2018 the parties attended a pre-trial conference in the Magistrates Court. The Claim did not settle. The registrar made orders, including an order that each party was to 'lodge a Form 32 Listing Conference Memorandum by 18 January 2019'. As to the purpose of this form, Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR) provides in r 43A(3):
The listing conference memorandum must be in the approved form and must -
(a)include a concise statement of the issues of fact and law that the party contends will need to be determined at the trial; and
(b)state how each allegation of fact will be proved; and
(c)state the name, address, occupation and qualification of each witness the party will call to give oral evidence at the trial; and
(d)unless the registrar or the Court orders otherwise, annex a statement in the approved form of the intended evidence of each witness who is not an expert witness.
On 6 November 2018 the Magistrates Court granted Ms Krysiak's son, Tad Krysiak, leave to represent her in the claim. The application had been made on the basis of Ms Krysiak's age and limited ability in English.[1]
[1] As to which see [37] below.
On 17 January 2019 the Housing Authority filed its Listing Conference Memorandum.
Ms Krysiak did not file a Listing Conference Memorandum by 18 January 2019.
On 22 January 2019 the Housing Authority filed an application for default judgment due to the failure of Ms Krysiak to file her Listing Conference Memorandum. This application was granted by a registrar on 24 January 2019, with judgment being entered for $1,543.27, comprising the claim amount of $1,071.89, costs of $394.70 and interest of $131.17 (Default Judgment).
On 13 February 2019 Ms Krysiak filed an application to strike out or stay the Claim on the grounds that it did not disclose a valid cause of action and was an abuse of process (Strike Out Application). Ms Krysiak filed an affidavit sworn 13 February 2019 in support of the Strike Out Application. She also filed a supplementary affidavit sworn 19 February 2019.
On 12 March 2019 Ms Krysiak filed an application to set aside the Default Judgment (Default Judgment Application). She filed an affidavit in support of the Default Judgment Application sworn 12 March 2019. In it she deposes, among other things, that she did not become aware that the Housing Authority had obtained a default judgment until receiving a letter from the Housing Authority on 27 February 2019, and, as at the date of swearing the affidavit, had not received a copy of the Default Judgment.
The Default Judgment Application and the Strike Out Application were heard by Magistrate Ward (Magistrate) on 14 June 2019. Both parties had filed written submissions on the applications prior to the hearing. Her Honour reserved and then delivered oral reasons on 21 June 2019.[2]
[2] The transcript of which I will refer to as 'Decision p#'.
The first issue addressed by the Magistrate was whether Ms Krysiak should be given leave to commence the Default Judgment Application out of time. The Default Judgment Application was required to have been commenced within 21 days of the date of the Default Judgment, but was not commenced until 47 days after.[3] The Magistrate extended the time within which the Default Judgement Application could be brought until the date on which it was commenced, 12 March 2019.[4] The Housing Authority does not challenge this conclusion in the appeal.
[3] Decision p 11.
[4] Decision p 11.
In terms of the merits of the Default Judgment Application, the Magistrate referred to the well-settled law governing the exercise of the discretion to set aside a default judgment.[5] In particular, her Honour quoted the following passage from the decision of the Court of Appeal in Shilkin v Taylor:[6]
The discretion of the court to set aside a default judgment under s 19(3) must be exercised judicially but it is otherwise unfettered. It is self‑evident, however, that ordinarily no purpose would be served in setting aside a default judgment if the defendant is unable to satisfy the court that the defence has a reasonable prospect of succeeding, so that the plaintiff is entitled to judgment without trial under s 18(2). It follows that an important issue on an application to set aside a default judgment under s 19(3) will be whether the defendant can satisfy the court that the defence has a reasonable prospect of succeeding.
[5] Referring to: Shilkin v Taylor [2011] WASCA 255 [25] (Newnes JA, with whom Pullin and Buss JJA agreed); Permanent Custodians Ltd v Elite Grains Pty Ltd [No 2] [2016] WASC 238 [22] (Kenneth Martin J); Vautier Holdings Pty Ltd v Kagioulis Trading Pty Ltd [2014] WASC 209 [10] (Sanderson M); Hall v Hall [2007] WASC 198 [63] (Newnes J).
[6] Shilkin [25].
As to the factors going to the exercise of this discretion, the Magistrate found:[7]
(a)any prejudice to the Housing Authority by reason of a delay in payment could be alleviated by the payment of interest on any outstanding sum;
(b)the affidavit material did not disclose any other prejudice to the Housing Authority should the Default Judgment be set aside; and
(c)Ms Krysiak provided a satisfactory explanation for both the delay in lodging the Listing Conference Memorandum and the delay in commencing the Default Judgment Application.
[7] Decision p 11.
Rather, the resolution of the Default Judgment Application turned on whether Ms Krysiak's defence had any reasonable prospect of succeeding. In this regard, the Magistrate identified nine arguments made by Ms Krysiak.
The first argument was that the Default Judgment was irregular as the registrar failed to give Ms Krysiak 10 days' notice before granting it. As to this the Magistrate found that there is no requirement to this effect in the Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) or MCCPR.[8]
[8] Decision p 12. Though there had been a requirement to this effect in MCCPR r 43A which had been repealed.
The second argument was that the default which founded the Default Judgment was minor. As to this, the Magistrate found that the failure to lodge the Listing Conference Memorandum was a default for which it was open to a registrar to enter default judgment.[9]
[9] Decision p 12.
The third argument was that the Housing Authority was not an owner as defined in Dividing Fences Act 1961 (WA) (DFA) s 5. The term 'owner', in relation to land, relevantly includes every person who:[10]
(a)jointly or severally, whether at law or in equity -
(i)is entitled to land for any estate of freehold in possession …
…
but does not include any trustees or other persons in whom land is vested as a public reserve, public park or for such other public purposes as may be prescribed, or a person who has the care, control and management of a public reserve, public park or land used for such other public purposes as may be prescribed; …
[10] DFA s 5.
The Magistrate found that the Housing Authority was the registered proprietor of 48B Purslowe Street and, as such, was entitled to that land for an estate of freehold in possession. Her Honour further held that the Housing Authority did not hold the land at 48B Purslowe Street in any of the capacities identified in the exception set out in the concluding paragraph of the definition of 'owner' set out in DFA s 5. The Magistrate concluded that the Housing Authority had standing to recover the debt the subject of the Claim.[11]
[11] Decision p 12 - p 13.
The fourth argument was that the Housing Authority did not have a valid claim as the relevant notices were not sent to Ms Krysiak by registered post. It is sufficient to refer to only one of the reasons relied on by the Magistrate. This is that as the damage was caused by a storm, by DFA s 15(7)(b) it was open to the Housing Authority to repair the fence 'without notice to the other owner'.[12] By way of context, DFA s 15 provides (so far as is relevant):
[12] Decision p 13 - p 14.
15. Procedure to compel contribution to repair dividing fence
(1)The owner of land separated from adjoining land by a dividing fence may give a notice to the owner of the adjoining land requiring him to assist in repairing the fence.
(2)A notice given pursuant to subsection (1) may state that the owner giving the notice -
(a)is prepared to repair the fence at his cost and the cost of the owner to whom the notice is given, in equal shares; or
(b)is prepared to permit the owner to whom the notice is given to repair the fence at the cost of both the owners, in equal shares; or
(c)is prepared to bear half of the cost of having the fence repaired by a third party,
and shall contain a proposal for repairing the fence upon the previous or other line, specifying the kind and extent of repairs and the line upon which they are to be effected.
(3)An owner who has been given a notice pursuant to subsection (1) shall, within 14 days of the receipt by him of the notice, advise in writing the owner giving the notice that -
(a)he is prepared to join in the repairing of the fence in such one of the alternative manners set out in the notice as he specifies in the advice; or
(b)he disputes the need for repairing the fence and is not prepared to bear any portion of the cost of repairing the fence; or
(c)he objects to the kind and extent of repairs or the line upon which the repairs are to be effected.
…
(7)Where an owner, who has been given a notice pursuant to subsection (1), fails to advise the owner giving the notice as provided in subsection (3) within 14 days after the receipt by him of the notice, the owner giving the notice may repair the fence and demand and recover from the owner to whom the notice was given, one‑half of the cost of repairing the fence, but if -
(a)any dividing fence has been constructed partly by one owner and partly by another owner each shall bear the cost of repairing the part so constructed by him;
(b)any dividing fence or any portion thereof is damaged or destroyed by flood, fire, lightning, storm, tempest or accident the owner of the land on either side of the fence may immediately repair it without any notice to the other owner and is entitled to recover half of the expenses of so doing from the owner of the adjoining land;
…
(8)If an owner of land who is liable under subsection (7)(c) to repair or renew a dividing fence fails to do so, the owner of the adjoining land may repair or renew the fence and recover from the owner so liable and in default the whole of the cost of the repair or renewal.
The fifth argument was that the manner in which the Housing Authority had gone about recovering the debt, in particular its use of Baycorp, was a defence. The Magistrate held that this assertion could not form the basis of a reasonably arguable defence.[13]
[13] Decision p 14.
The sixth argument was that the Dividing Fence was not a sufficient fence before the storm in 2016, or that the Housing Authority was required to prove that the dividing fence was a sufficient fence prior to the storm, and had failed to do so. The Magistrate held that the question of whether or not the dividing fence was a sufficient fence before the storm was not relevant to the recovery of the cost of repairs to that fence pursuant to DFA s 15(7)(b).
The seventh argument was that Ms Krysiak was only responsible for repair to that part of the fence constructed by her, relying on DFA s 15(7)(a). The Magistrate found that Ms Krysiak had not established any entitlement to rely on DFA s 15(7)(a).
The eighth argument was that Ms Krysiak did not have to pay half the repair costs as she had not agreed to do so. As to this the Magistrate held that DFA s 15(7)(b) does not require an owner who repairs damage to a dividing fence arising from a storm to obtain the agreement of the other owner before doing so. In any event, her Honour found that the Housing Authority had in fact obtained Ms Krysiak's agreement in writing to repair the fence.[14] This agreement was set out in a letter dated 21 September 2016 (which Mr Krysiak confirmed in the hearing before me should be 14 October 2016)[15] that Mr Krysiak sent on behalf of Ms Krysiak, which is in the following terms (Consent Letter):
Thankyou for your letter of 21 September, in which you re-outline your proposal as to the repair of the fallen dividing fence between this property and 48B Purslowe St, a Housing Authority ('HA') property, as a result of storm conditions which occurred at about 1.30pm on 29 July 2016. Our apologies for the delay in reply, as we have had other urgent important matters to first attend. We now have had time to reconsider this matter.
In our last letter to you, we did not oppose your repair of the fence and have never indicated any opposition to that. Therefore, to clarify, we give consent for you to being repair of the dividing fence as soon as possible, as we indicated in our earlier letter (last paragraph). In light of possibly changing costs, we agree to make payment for whatever we lawfully owe, and for the sake of simplicity we consent to the HA contractor undertaking repairs.
We look forward to an expedited construction of the fence. Thankyou.
[14] Decision p 14 - p 15.
[15] District Court ts 26.

The ninth argument was that the acceptance by the Housing Authority of the payment of $10 by Ms Krysiak was in full and final satisfaction of the debt. As to this, the Magistrate found that there was no evidence of any agreement by the Housing Authority to compromise the amount outstanding.
The Magistrate concluded:[16]
In my view, based on the information before me and considering each of Mrs Krysiak's responses to the claim both individually and cumulatively, that is together, in my view, the proceedings are a straightforward debt recovery based on the Housing Authority repair of the fences in circumstances where section [15(7)(b)] of the Dividing Fences Act applies, and in the alternative, an agreement between the parties.
In my view, the proceedings are neither factually or legally complex. In my view, this is one of the cases where it is a clear case that based on the evidence before me in the form of the affidavits, summary determination of the matter is appropriate, that is, the orders made - I am not persuaded by Mrs Krysiak that the default judgment given in these proceedings should be set aside as I am persuaded that Mrs Krysiak has a reasonably arguable defence.
In my view, there is a high degree of certainty about what the outcome would be should the matter go to trial and, accordingly, the order I will make is that the defendant's application to set aside the default judgment lodged on 12 March 2019 is dismissed.
[16] Decision p 15 - p 16.
The Magistrate then proceeded to consider the Summary Judgment Application, 'for the sake of completeness'. Her Honour dismissed this application, concluding that Ms Krysiak had not persuaded the court that the Claim was misconceived, vexatious or an abuse of process.[17]
[17] Decision p 16.
The final orders made were that (Magistrate's Decision):
1.The Defendant's strike out Application lodged on 13 February 2019 is dismissed.
2.Time for the Defendant to lodge her Application to set aside default judgment is extended to 12 March 2019.
3.The Defendant's Application to set aside judgment lodged 12 March 2019 is dismissed.
4.No order as to costs.

District Court appeal

A judgment of the Magistrates Court on a general procedure claim may be subject to an appeal to the District Court.[18]
[18] MCCPA s 40.
By appeal notice dated 11 July 2019, but not filed until 12 July 2019, Ms Krysiak commenced an appeal from the Magistrate's Decision (Appeal Notice).
The appeal was commenced within 21 days after the date of judgment, as required by MCCPA s 40(3).
On 2 August 2019 the Housing Authority filed a notice of respondent's intention, stating an intention to take part in the appeal and argue the Magistrate's Decision should be upheld on the same grounds relied on by the Magistrate in that decision. It did not challenge the Magistrate's Decision in so far as there was no award of costs in its favour.
On 3 September 2019, Ms Krysiak filed an affidavit sworn the preceding day, in which she deposed that she is a 92 year old pensioner of Polish origin, with limited English, such that she is not able to conduct the appeal herself, even with an interpreter. She deposes to giving consent for her son, Tad Krysiak, 'to complete my legal paperwork and to represent me in this matter in any court proceeding'. She annexes a power of attorney to this effect. At the hearing before me, counsel for the Housing Authority opposed the grant of leave. However, given what Ms Krysiak deposed in her affidavit I considered it appropriate to grant Mr Krysiak special leave to appear in the appeal on her behalf pursuant to District Court of Western Australia Act 1969 (WA) s 39(1), and did so at the hearing.
Ms Krysiak filed three sets of submissions in the appeal, being dated 27 September 2019, 1 October 2019 (amended) and 2 October 2019 (re-amended). In oral submissions, Mr Krysiak said that it was sufficient that I refer to the re-amended 2 October 2019 submissions.[19] In addition, at the hearing Mr Krysiak handed up a document entitled 'Intended Oral Outline of Submissions' dated 13 November 2019. These were the submissions Ms Krysiak was going to hand up should Mr Krysiak not be granted leave to appear on her behalf. Mr Krysiak asked to hand up these submissions which I agreed to, and accepted them for filing. I will treat them as supplementary written submissions.[20]
[19] Which I will refer to as the October Submissions.
[20] Which I will refer to as the November Submissions.
The Housing Authority filed submissions in the appeal dated 7 October 2019.[21]
[21] Which I well refer to as the Housing Authority's Submissions.
The District Court must decide the appeal on 'the material and evidence that were before the Magistrates Court' and 'any other evidence that it gives leave to be admitted'.[22] On 7 October 2019, Ms Krysiak filed an affidavit setting out material which she intended to adduce if the Claim went to trial. By application dated 6 November 2019, Ms Krysiak sought the leave of the court to adduce this further evidence in the appeal. She filed a further affidavit dated 6 November 2019 in support of this application. It is appropriate to deal with this application after having considered the appeal based on the materials before the Magistrate.
[22] MCCPA s 40(4).
The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court.[23] It is not the role of the appeal court to retry the facts or to substitute its own view of the facts for that of the magistrate.[24] Rather, the appeal is to be undertaken by way of a rehearing.[25] As a rehearing, the appellate powers of the District Court are only exercisable if Ms Krysiak, as the appellant, demonstrates that the decision made by the Magistrate the subject of the appeal was the result of some legal, factual or discretionary error.[26] The onus is on the appellant to demonstrate this error.[27]
[23] District Court Rules 2005 (WA) (DCR) r 50(1).
[24] Yazarloo v Assadi [2003] WASCA 326 [9], [35] (Scott J).
[25] Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] ‑ [10] (Bowden DCJ).
[26] Robinson Helicopter Company Incorporated v McDermott [2016] HCA 22; (2016) 331 ALR 550 [43] (judgment of the court); Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow and Hayne JJ).
[27] Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).
Ms Krysiak is a litigant in person in the appeal. As such, she is entitled to some leniency in relation to compliance with the court rules.[28] I approach the documents in which she articulates her appeal with some flexibility.[29] I need to be astute to ensure that, in a poorly expressed or unstructured document in which she sets out her case, there is no viable case which, with appropriate amendment or permissible assistance from the court, could be put into proper form.[30] At the same time, I also need to ensure that any latitude given to Ms Krysiak as a litigant in person does not deprive the Housing Authority of its rights to procedural fairness and a fair hearing.[31]
[28] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (reasons of the court).
[29] Wentworth v Rogers(No 5) (1986) 6 NSWLR 534, 536 - 537 (Kirby P), 543 (Hope JA, with whom Samuels JA agreed); Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J).
[30] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21] (Beech J); Tobin v Dodd [2004] WASCA 288 [15] (EM Heenan J, with whom Murray & Le Miere JJ agreed).
[31] Nobarani v Mariconte [2018] HCA 36[47] (Kiefel CJ, Gageler, Nettle, Gordon & Edelman JJ); Woodley v Woodley [2018] WASCA 200 [76] (judgment of the court); Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65 [51] (judgment of the court).

Issues arising for determination

The grounds of appeal set out in the Appeal Notice are detailed:
1.The learned magistrate erred in law when she failed to use the court's inherent jurisdiction to set aside the default judgment as:
1.1the Respondent did not have standing to bring its claim in the first instance as it is not an 'owner' for the purposes of the Dividing Fences Act 1961 ('the Act');
1.2the default judgment is contrary to Part 5 rule 20 of the Magistrates Court (Civil Proceedings) Rules 2005 which only deals with 'failure to defend a claim' and not failure to take a procedural step;
1.3the default judgment:
1.3.1is contrary to the precepts of natural justice,
1.3.2is contrary to principle of hearing the merits of the case,
1.3.3has allowed the Appellant's rights to be damaged,
1.3.4is contrary to the public interest.
2.The learned magistrate erred in law when she failed to strike out the Respondent's case, as she accepted and/or found that:
2.1the Respondent had standing at law to bring its claim, contrary to the Act (as outlined in Ground 1.1 above);
2.2Part III of the Act applied in this matter, contrary to Supreme Court precedent;
in the alternative to 2.2 above:
2.3Section 15(7)(a) of the Act did not apply;
2.4no agreement with the Appellant was needed for the Respondent to be successful with its claim;
2.5the matter was a debt recovery under the mechanisms of the Act and/or contract law;
2.6'public land' does not include 'fences', which includes 'dividing fences';
2.7had the matter gone to trial that the Respondent had good prospects to prove its case without expert evidence.
3.The learned magistrate erred in fact when she accepted and/or found that:
3.1a storm was the cause of the fence partially collapsing;
3.2the Appellant had agreed to the new fence being erected as a 'repair';
3.3the replacement fence was sufficient without the standard of proof required at a trial.
4.The learned magistrate erred in fact and law when she accepted and/or found that:
4.1the dividing fence which partially collapsed was a 'sufficient fence';
4.2a repair of a dividing fence includes a replacement of the fence;
4.3the Appellant had agreed to pay the Respondent the amount it claimed;
4.4the notices given by the Respondent were valid for the purposes of the Act;
4.5the amount paid together with the terms offered to the Respondent by a third party, which the Respondent accepted did not act to discharge the purported de Respondent was claiming;
…
4.6the Respondent had acted properly at all times even though the Respondent had
4.6.1attempted to claim legal costs many times, contrary to the Magistrates Court (Civil Proceedings) Act 2004 and the Schedule of Fees;
4.6.2sought to use its claim for a collateral purpose, namely obtaining money deceptively and unlawfully;
4.6.3attempted to damage the Appellant's prospects of setting aside the default judgment, by failing to send notice of the judgment to the Appellant until the statutory 'set aside' period had significantly lapsed;
4.6.4sought to mislead the Court several times.
4.7the Respondent's claim was not misconceived and/or vexatious and/or misleading and/or scandalous and/or improper and/or an abuse of the Court's process.
5.The learned magistrate erred in law when she failed to provide the rulings at/of law requested by the Appellant, those being:
5.1Government departments are in a position of fiduciary duty to the public and/or have a trustee role in relation to the public who are beneficiaries
5.2Housing is not legally defined as an owner of the land and/or property vested in it and which it manages and maintains for public purposes.
6.The learned magistrate erred in fact and law when she demonstrated an apprehension of bias by categorising the matter as a 'debt recovery' at the hearing outset and decided the matter based on that initial categorisation.
At the hearing of the appeal, Mr Krysiak informed the court that ground of appeal 2.4 was not pressed.[32]
[32] District Court ts 12.
A number of the matters set out in each ground of appeal overlap. In order to efficiently address the issues arising, it is convenient to identify 14 issues which arise for determination:
•Was the default judgment regular?
•Did the Magistrate fail to afford Ms Krysiak procedural fairness?
•Did the Magistrate err in finding that the Housing Authority had standing to bring the Claim?
•Did the Magistrate err in concluding that the Claim involved the repair of a dividing fence?
•Did the Magistrate err in finding that DFA s 15(7)(a) did not apply?
•Did the Magistrate err in finding that DFA s 15(7)(b) did apply?
•Did the Magistrate err in finding that the notices issued by the Housing Authority were valid?
•Did the Magistrate err in finding that Ms Krysiak agreed to the repair?
•Did the Magistrate err in not finding that the Housing Authority had agreed to compromise the debt?
•Did the Magistrate err in the exercise of her discretion in not setting aside the Default Judgment?
•Did the Magistrate act towards Ms Krysiak in a manner such as to give rise to a reasonable apprehension of bias?
•Did the Magistrate err in dismissing the Strike Out Application?
•Should Ms Krysiak be given leave to adduce further evidence in the Appeal?
•What final orders are appropriate?

Was the default judgment regular?

This issue is set out in ground of appeal 1.2:
1.2the default judgment is contrary to Part 5 rule 20 of the Magistrates Court (Civil Proceedings) Rules 2005 which only deals with 'failure to defend a claim' and not failure to take a procedural step;
The obligation which founded the Default Judgment is contained in MCCPR r 43A which provides, so far as is relevant:
43A.Listing conference memoranda, orders to lodge
…
(2)If the registrar at a pre-trial conference is of the opinion that it is unlikely that the case will be settled, the registrar must order each party to lodge a listing conference memorandum in accordance with subrule (3) by the day specified in the order.
…
(5)If a party does not comply with the order, the registrar may give default judgment against the party, and in that case Part 5, except rule 24, with any necessary modifications, applies in relation to the default judgment.
It is not in issue that:
(a)on 19 October 2018 the parties attended a pre-trial conference in the Magistrates Court;
(b)at the pre-trial conference the registrar made orders, including an order that each party 'lodge a Form 32 Listing Conference Memorandum by 18 January 2019';
(c)Ms Krysiak did not file a Listing Conference Memorandum by 18 January 2019;
(d)on 22 January 2019 the Housing Authority filed an application for default judgment due to the failure of Ms Krysiak to file her Listing Conference Memorandum; and
(e)on 24 January 2019, a registrar granted the Default Judgment.
As set out in ground of appeal 1.2, it is the case the MCCPR pt 5 applies where there is a failure to defend a claim. However, by MCCPR r 43A(5), it also applies, except for r 24 and with any necessary modifications, to a default judgment made pursuant to MCCPR r 43A(5). Accordingly, there is no merit in ground of appeal 1.2.
In oral submissions, Mr Krysiak added a further contention. This was that the Default Judgment was irregular because the Housing Authority failed to serve the application for default judgment on Ms Krysiak as required by MCCPR r 111. That rule provides:
111.Application must be served
(1)Except as provided in subrule (2), a party making a written application must serve a copy of the application and any supporting affidavit on every other party after it has been lodged and at least 10 days before the hearing of the application.
(2)Subrule (1) does not apply -
(a)in relation to an application for default judgment -
(i)for a failure to lodge a response in accordance with rule 9(1); or
(ii)for a failure to lodge a statement of defence in accordance with rule 41B; or
(iii)if these rules state that the default judgment may be given in the absence of the parties;
(b)in relation to any other application, if -
(i)these rules provide otherwise; or
(ii)the Court dealing with the application orders otherwise.
The Default Judgment was not for the failure to lodge a response or a statement of defence. So the issue is whether the MPPCR otherwise provides that a default judgment pursuant to MCCPR r 43A may be given in the absence of the parties. As I have noted, MCCPR r 43A(5) provides that pt 5 applies to a default judgment made pursuant to MCCPR r 43A(5), except for r 24 and with any necessary modifications. Rule 24 is not relevant. Rule 21, which is in pt 5, provides, so far as is relevant, that 'a registrar may, in the absence of the parties, give default judgment against the defendant for a specified amount if ... the claim … is for a liquidated amount …'. The Claim is for a liquidated amount. Rule 21 thus applies to a default judgment pursuant to r 43A, bringing it within the exception in r 111(2)(a)(iii). Accordingly, the Default Judgment is not irregular due to a failure to serve the application on Ms Krysiak pursuant to MCCPR r 111.
The Default Judgment is regular, and ground of appeal 1.2 has not been made out.

Did the Magistrate fail to afford Ms Krysiak procedural fairness?

This issue is identified in ground of appeal 1.3:
1.3the default judgment:
1.3.1is contrary to the precepts of natural justice,
1.3.2is contrary to principle of hearing the merits of the case,
1.3.3has allowed the Appellant's rights to be damaged,
1.3.4is contrary to the public interest.
The essence of ground of appeal 1.3 is that the grant of the Default Judgment was contrary to Ms Krysiak's right to procedural fairness.
The nature of the requirement to accord procedural fairness in the context of a hearing in the Magistrates Court was recently considered by the Court of Appeal in Defendi v Szigligeti where the court observed:[33]
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.
…
Section 13 of the MCCP Act provides, relevantly, that in dealing with cases, the court is to ensure that cases are dealt with justly, which includes ensuring that cases are dealt with efficiently, economically and expeditiously, and that the court's judicial and administrative resources are used as efficiently as possible.
…
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.
[33] Defendi v Szigligeti [2019] WASCA 115 [45] - [48], [50], [54] (judgment of the court) (footnotes omitted). See also: Rowe v Stoltze [2013] WASCA 92 [51] (Newnes JA, with whom Pullin & Murphy JJA agreed) (Rowe).

A somewhat analogous issue was considered by the Court of Appeal in Rowe v Stoltze. The court was considering a provision of the DCR which had the effect that if an action was placed by the court on an 'Inactive Cases List' and remained on that list for a period of six continuous months, the action would be dismissed, with no power to either extend the time before which the action would be taken to be dismissed or to set aside the dismissal. The appellant submitted that the rule was beyond the rule making power of the District Court because it denied a party a right to have their case heard and determined on the merits and thereby abrogated the rules of procedural fairness.[34] The Court of Appeal disagreed. Newnes JA (with whom the other members of the court agreed) concluded:[35]
A plaintiff who does not seek to have the case removed or, having applied, is unable to persuade the court that there is any good reason why it should be removed, cannot be said to have been deprived of a reasonable opportunity to have their case heard. A failure to have an action removed is consistent only with a failure on the part of the plaintiff to evince any real interest or will to pursue the action in an appropriate manner. In those circumstances there is no reason why in the administration of its affairs the court should devote scarce resources to keep the action afloat. The contention that [the rule] deprives a plaintiff of a reasonable opportunity to have their case heard cannot be sustained.
[34] Rowe [50].
[35] Rowe [55].
This conclusion applies with greater force in the case of a default judgment awarded pursuant to MCCPR r 43A(5). This is because, unlike the District Court rule in Rowe, there is an express power to set aside the Default Judgment. Specifically, by MCCPA s 19(2), if 'a party does not comply with this Act, rules of court, or an order or direction made by the Court, the Court may … give judgment against the party without a trial'. The court then has the discretionary power in MCCPA s 19(3) to set aside such a judgment 'and may do so on conditions as to the payment of costs or as to other matters'. As the Magistrate observed,[36] that power is to be exercised 'so as to do justice between the parties, having regard to the circumstances of the case'.[37]
[36] Decision p 10.
[37] Hall [63]; Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 [9] (Gething AM).
The mere fact that default judgment was granted against Ms Krysiak does not mean that she was denied procedural fairness. She took advantage of her right to apply to have the Default Judgment set aside. Aside from the issue of bias which I will consider below, the grounds of appeal do not contain a contention that the manner in which Default Judgment Application was heard and determined denied Ms Krysiak procedural fairness. Nor is there any basis for such a contention in the materials before this court.
Ground of appeal 1.3 has not been made out.

Did the Magistrate err in finding that the Housing Authority had standing to bring the Claim?

This issue is set out in ground of appeal 1.1:
1.1the Respondent did not have standing to bring its claim in the first instance as it is not an 'owner' for the purposes of the Dividing Fences Act 1961 ('the Act');
It is also apparent in ground of appeal 2.1 and 2.6:
2.1the Respondent had standing at law to bring its claim, contrary to the Act (as outlined in Ground 1.1 above);
…
'public land' does not include 'fences', which includes 'dividing fences';
And ground 5.2:
5.2Housing is not legally defined as an owner of the land and/or property vested in it and which it manages and maintains for public purposes.
Ms Krysiak's positon, as explained by Mr Krysiak in the hearing before me, is that the cost of fences dividing residential properties owned by the Housing Authority from private individuals should be borne by the Housing Authority, and in effect paid for by the community as a whole through general taxes.[38]
[38] District Court ts 34.
The Housing Authority is a body corporate created pursuant to Housing Act 1980 (WA) (HA) s 7(1)(a). It is capable in law in its corporate name of suing and being sued.[39]
[39] HA s 7(1)(b).
Ms Krysiak sought to rely on DFA s 4 which provides that the DFA does not bind the Crown. It is not necessary for me to determine whether the Housing Authority is 'the Crown' for the purposes of the DFA. This is because DFA s 4 is not to the effect that the Housing Authority does not have the benefit of the DFA, which is what it is seeking to assert in the Claim. The reference in the November Submissions to Dividing Fences Act 1991 (NSW) s 25, dealing with the application of that act to the Crown, is of no relevance to the construction of the DFA.
The definition of 'owner' in the DFA is quoted above [22]. The Certificate of Title for the land comprising 48B Purslowe Street was in the materials before the Magistrate. The Registered Proprietor is the State Housing Commission. Pursuant to HA s 6, the State Housing Commission was renamed as the Housing Authority. Any reference to the State Housing Commission can be construed as reference to the Housing Authority as it currently operates.[40] The title is for an estate in fee simple. It is also apparent from the materials before the Magistrate that 48B Purslowe Street is a residential property.
[40] HA s 79.
This issue then becomes whether the exception at the conclusion of the definition of 'owner' in DFA s 5 applies. There is nothing in the materials before the Magistrate suggesting that the land at 48B Purslowe Street is vested in the Housing Authority as a public reserve or public park.
There remains the construction of the phrase in the exception 'trustees or other person in whom land is vested … for such other public purposes as may be prescribed'. The argument set out in the October Submissions is that the Housing Authority does not own the real estate at 48B Purslowe Street for its own use and benefit as a private person, but it holds the property for the use and benefit of the public pursuant to the HA.
However, in my view, properly interpreted, the phrase 'trustees or other person in whom land is vested … for such other public purposes as may be prescribed' requires the particular land to be prescribed for some public purpose, akin to a public reserve or public park. This is consistent with the well-established syntactical presumptions of statutory interpretation that the meaning of the phrase is derived from its context and that the general phrase - 'such other public purposes' - is limited by the specific reference to 'public reserve or park' which precedes it.[41] This gives a common sense outcome. Where the adjoining land is a public reserve, park or similar, there is no obligation on the State to contribute the cost of a dividing fence. Where the adjoining land is residential land, including land owned by the State, the general rule applies and both owners are required to contribute equally to the cost of the dividing fence. This interpretation would promote the purpose or object underlying the DFA, an outcome required by Interpretation Act 1984 (WA) s 18.
[41] Being the maxims of statutory construction noscitur a sociis and ejusdem generis. Pearce D, Statutory Interpretation in Australia (9th ed, LexisNexisButterworths, Australia, 2019) [4.33] - [4.42]. See for example: Collett v Repatriation Commission (2009) 178 FCR 39 [29] (Logan J); Shire of Toodyay v Merrick [2016] WASC 29[147] (Gething AM).
There was nothing in the materials before the Magistrate to the effect that the land comprising 48B Purslowe Street was vested in the Housing Authority as a 'public reserve, public park or for such other public purposes as may be prescribed'.
As the Magistrate correctly identified, the test to be applied is whether Ms Krysiak had a defence to the Claim which had a reasonable prospect of succeeding.[42] For the reasons which I have outlined, in my view, the Magistrate did not err in concluding that the contention that the Housing Authority was not the owner of the land for the purposes of the DFA had no reasonable prospect of success.
[42] Decision p 9; see [17] above.
Grounds of appeal 1.1, 2.1, 2.6 and 5.2 have not been made out.

Did the Magistrate err in concluding that the Claim involved the repair of a dividing fence?

This issue is reflected in ground of appeal 2.2, which is a contention that the Magistrate erred in law in accepting that 'Part III of the Act applied in this matter, contrary to Supreme Court precedent'. Part III of the DFA deals with 'Repair of Dividing Fences'. It is also reflected in ground of appeal 4.2 being that the Magistrate erred when she accepted or found that 'a repair of a dividing fence includes a replacement of the fence'.
Ms Krysiak contends that the Claim relates to the construction of a new dividing fence, which falls within DFA pt II.
Part II of the DFA commences with the general principle in s 7 that, subject to the DFA, 'the owners of adjoining lands not divided by a sufficient fence are liable to join in or contribute in equal proportions to the construction of a dividing fence between those lands'. Section 8 provides that an owner of land desiring to compel the owner of adjoining land to join in or contribute to the construction of a dividing fence under the DFA may give the other owner a notice setting out a proposal for the fencing of the boundary. If the other owner does not agree, DFA s 9 empowers the court to determine whether there is a need to construct a dividing fence and, if so, the kind of fence to be constructed. By DFA s 10, where there is an agreement or order which is not carried out, an owner may construct the fence as agreed or ordered and recover half the cost from the other owner.
Section 13(1) then provides that when 'an owner of land has constructed a dividing fence that separates his land from adjoining land if the fence is a sufficient fence, the owner of the adjoining land is liable to pay in accordance with the provisions of … section [13] half of the amount of the value of the fence'.
There is a similar general principle at the commencement of DFA pt III in s 14, being that when 'a dividing fence is in need of repair the owners of land on either side of the fence are liable, subject to the provisions of section 15, to join in or contribute in equal proportions to the repair of the fence'. The term 'repair' includes 're‑erect and re‑align and inflexions of the word repair include corresponding meanings'.[43] Its ordinary meaning includes to 'restore to good condition, renovate, mend, by placing or re‑fixing parts or compensation loss of exhaustion'.[44] Again, there is a regime set out for that to occur which is contained in DFA s 15, which I have quoted above [24].
[43] DFA s 1.
[44] Palmer v Lintott [1981] WAR 157, 158 (Wallace J).
The Supreme Court precedent relied on by Ms Krysiak is the decision in Basell v Meredith.[45] In that case, the wooden picket fence between the appellant and the respondent was in a dilapidated condition. After an exchange of correspondence which did not produce an agreement, the appellants constructed a new fence in the form of a brick wall resting on a concrete footing with piers at regular spaces. The appellants then sought half the cost of the fence from the respondents. They issued notices pursuant to DFA s 13.
[45] Basell v Meredith (Unreported, WASC, Library No 970449, 9 September 1997).
The magistrate at first instance held that what occurred was a repair for the purposes of DFA s 15, and did not constitute the construction of a dividing fence for the purposes of DFA s 13. Accordingly, the respondents were not entitled to rely on DFA s 13, and failed in their claim.
The appeal to the Supreme Court was dismissed. Like the magistrate, Heenan J found that what occurred did not constitute the construction of a dividing fence for the purposes of DFA s 13. His Honour referred to the decision in Palmer v Lintott where Wallace J held that the replacement of the pre-existing fence with an entirely new fence may be a 'repair' within the terms of the DFA.[46] Heenan J then held that, by contrast, 'the erection of a new fence of a different character to the old is not a repair or renewal of the old fence…it is the erection of a new structure'.[47] His Honour concluded:
The report in Palmer v Lintott does not show whether the character of a new fence in that case was the same or different from the character of the fence it replaced. But in this case there was a great difference: the wooden picket fence was replaced by a brick wall.
In my opinion, this is not a case of 'repair'. S15 and the other provisions of Pt III of the Act have no application. But that does not mean that s13 applies. In my opinion, when correctly interpreted the provisions of s13 apply in one circumstance only - that is, when a fence is constructed by one owner before the owner of the adjoining land has completed a substantial building or occupies or permits the occupation of a building on that land. It is a circumstance quite different from that in this case. Here, it seems, there was a fence which was not a sufficient fence and which was in need of repair. If the appellants desired to compel the respondents to join in or contribute to the construction of a fence of a different character from the existing fence they might have obtained an order under s9 and recovered payment under s10. If they desired to repair the existing fence they might have obtained an order under s15(5) and recovered payment for half the cost as an ordinary debt under s15(7). They took neither of those courses.
[46] Palmer (158).
[47] Following the decision in Storey v Lockhart (1915) 11 Tas LR 163.
In response, the Housing Authority relied on the decision in this court in Halvorsen v Baumgartner.[48] In that case, the dividing fence between the appellant and the respondent, an older style 'super 6' or 'fibro' fence, partially fell down during a storm, and then fully fell down during a second storm some two months later. The respondents erected a temporary fence then obtained quotes for the repair or replacement of the fence. The respondents emailed the quotes to the appellant. The appellant said he refused to pay. The respondents authorised the work, which involved the erection of a more modern Colorbond fence. The appellant maintained his refusal to pay, so the respondents commenced proceedings in the Magistrate Court seeking 50% of the price paid under the lower quotation of which they had been supplied. At trial, one argument raised by the appellant was that all that was needed was a repair of the pre-existing 'super 6' fence. The Magistrate found in favour of the respondents, holding that the fence was damaged by a storm, the respondents were entitled to repair the fence, because of the extent of the damage it was necessary to replace the fence and that under DFA s 14 the appellant was liable to contribute one half of the cost of the repair.
[48] Halvorsen v Baumgartner [2014] WADC 129.
On appeal, the appellants argued, among other points, that the magistrate failed to follow the decision in Basell. Braddock DCJ disagreed, holding that the decision in Basell is 'authority for the proposition that s 13 applies only when a new fence is constructed by one owner before the adjoining land is built upon or occupied substantially'.[49] The appeal was dismissed, with the effect that the appellant remained liable to pay for one half of the cost of repairing the fence.
[49] Halvorsen [26].
I accept the interpretation of the decision in Basell adopted in Halvorsen. As the decisions in both Palmer and Halvorsen illustrate, in order to repair a fence, it may on occasion be necessary to entirely replace it. The issue in each case is whether the new fence is in substance a repair, in which case DFA s 15 applies, or the erection of a new fence of an entirely different character, in which case s 8 to s 10 apply.
In the present case, there was a necessity to repair the Dividing Fence as a result of the storm damage. The photographs of the damaged fence in the materials in the Magistrates Court make it patently clear that the Dividing Fence had to be replaced. The replacement Colourbond fence could readily be characterised as a standard Perth suburban fence. In my view, the contention that the replacement of the Dividing Fence was not a repair, but was rather the erection of a new fence of an entirely different character, does not give rise to a defence which has a reasonable prospect of succeeding.
For the reasons which I have outlined, in my view, the Magistrate did not err in concluding that the Claim related to the repair of a dividing fence for the purposes of DFA pt III.
The contention in ground of appeal 4.1 is also addressed in this issue. That contention is that the Magistrate erred in accepting or finding that the dividing fence which partially collapsed was a 'sufficient fence' for the purposes of DFA s 7. However, once the Claim is properly characterised as being for the repair of an existing fence within DFA s 15, the issue of whether or not the fence it replaced was 'sufficient' for the purposes of DFA s 7 is not relevant.
Ground of appeal 4.1 has not been made out.
Likewise with ground of appeal 3.3, which is to the effect that the Magistrate erred in accepting or finding that the 'replacement fence was sufficient without the standard of proof required at trial'. Whether or not the replacement fence was 'sufficient' for the purposes of DFA s 7 is not relevant. Rather, the issue for the purposes of DFA s 14 and s 15 is whether the dividing fence was in need of repair and was in fact repaired.

Did the Magistrate err in concluding that DFA s 15(7)(a) did not apply?

The issue raised in ground of appeal 2.3 is that the Magistrate 'erred in law when she failed to strike out the Respondent's case, as she accepted and/or found that … Section 15(7)(a) of the Act did not apply'. Section 15(7)(a) deals with the repair of a dividing fence that 'has been constructed partly by one owner and partly by another owner', in which case 'each shall bear the cost of repairing the part so constructed by him'.
The Magistrate in effect concluded that a defence to the Claim based on the fact that the Dividing Fence had been partially constructed by Ms Krysiak had no reasonable prospect of succeeding. This in turn depends on the evidence on this point in the Magistrates Court. In an affidavit sworn 19 February 2019 Ms Krysiak deposes that the contents of the Statement of Defence dated 11 July 2018 are true and correct. In the Statement of Defence she sets out this history of the construction of the Dividing Fence. There is a contention that the Dividing Fence was not constructed properly. The only contribution by Ms Krysiak to the construction of the Dividing Fence set out in the Statement of Defence was that her husband, on completion of the Dividing Fence, immediately secured the ends of the fence to the existing side dividing fences.[50] This is the $10 straps referred to by Ms Krysiak in par 54 of her written submissions in the Magistrates Court referred to by the Magistrate, something which Ms Krysiak estimated to be 0.5% of the cost of the Dividing Fence.[51] In my view, the Magistrate did not err in concluding that there was no reasonable prospect that this minuscule contribution could amount to 'partial construction' of the Dividing Fence for the purposes of DFA s 15(7)(a).
[50] Statement of Defence page 3.
[51] Decision p 14.
Ground of appeal 2.3 has not been made out.

Did the Magistrate err in find that DFA s 15(7)(b) did apply?

This issue is reflected in ground of appeal 3.1 which is that the Magistrate 'erred in fact when she accepted and/or found that … a storm was the cause of the fence partially collapsing'.

DFA s 15(7)(b) relevantly provides that if 'any dividing fence or any portion thereof is damaged or destroyed by … storm … the owner of the land on either side of the fence may immediately repair it without any notice to the other owner and is entitled to recover half of the expenses of so doing from the owner of the adjoining land'. This is the basis for the Claim.
The factual foundation for DFA s 15(7)(b) to apply is that the Dividing Fence was damaged or destroyed by a storm. The Housing Authority contended in its Statement of General Procedure Claim, in par 3, that on 'or about 29 July 2016 the Dividing Fence fell down during a storm and was in need of repair'. The contention in par 3 was not admitted in the Statement of Defence. Although there is material to the effect that the Dividing Fence was poorly constructed, there is no contention to the effect that the storm on or about 29 July 2016 did not in fact cause the Dividing Fence to fall down. Nor is there any factual material to this effect in the other affidavits filed by Ms Krysiak.
In the Consent Letter (quoted in full at [28]), Ms Krysiak accepts that the Dividing Fence fell 'as a result of storm conditions which occurred at about 1.30pm on 29 July 2016'.
Moreover, in the hearing before me, Mr Krysiak accepted that the fence was damaged as a result of the storm.[52]
[52] District Court ts 36.
In my view, the Magistrate did not err in finding that a defence based on DFA s 15(7)(b) not applying because the Dividing Fence was not damaged by a storm had no reasonable prospect of succeeding.
It followed that the Housing Authority did not need to give Ms Krysiak notice, or obtain her agreement, before proceeding to repair the Dividing Fence, and the Magistrate did not err in so finding.
Accordingly, ground of appeal 3.1 is not made out.

Did the Magistrate err in finding that the notices given by the Housing Authority were valid?

This issue is reflected in ground of appeal 4.4 which is that the Magistrate 'erred in fact and law when she accepted and/or found that … the notices given by the Respondent were valid for the purposes of the Act'.
As the Magistrate (correctly in my view) characterised the Claim as being for a repair pursuant to DFA s 15(7)(b), the Housing Authority was not required to issue any notices to Ms Krysiak. As with the respondents in Halvorsen, the Housing Authority went beyond what was required in terms of giving notice.[53] So even if the notices issued were not valid, this does not give rise to a defence to the Claim that had a reasonable prospect of succeeding.
[53] Halvorsen [32].
In any event, the Consent Letter makes it clear that Ms Krysiak had received the letter from the Housing Authority dated 21 September 2016 and thus knew exactly what the Housing Authority proposed to do to repair the Dividing Fence, how much this would cost and how much it proposed to claim from Ms Krysiak.
Ground of appeal 4.4 has not been made out.

Did the Magistrate err in finding that Ms Krysiak agreed to the repair?

This issue is reflected in ground of appeal 3.2 being that the Magistrate 'erred in fact when she accepted and/or found that … the Appellant had agreed to the new fence being erected as a "repair" '. It is also reflected in ground of appeal 4.3 which is that the Magistrate 'erred in fact and law when she accepted and/or found that … 4.3 the Appellant had agreed to pay the Respondent the amount it claimed'.
Again, having characterised the Claim as being for a repair pursuant to DFA s 15(7)(b), the Magistrate was correct to conclude that the Housing Authority did not require Ms Krysiak's agreement. So whether or not the Consent Letter amounts to an agreement does not give rise to a defence to the Claim that had a reasonable prospect of succeeding.
I add that the Consent Letter is, on its face, a clear consent for the Housing Authority to proceed to repair the Dividing Fence by replacing it with a Colourbond fence as proposed in its letter of 21 September 2016.
Ground of appeal 3.2 has not been made out.

Did the Magistrate err in not finding that the Housing Authority had agreed to compromise the debt?

This issue is reflected in ground of appeal 4.5 which is that the Magistrate 'erred in fact and law when she accepted and/or found that … the amount paid together with the terms offered to the Respondent by a third party, which the Respondent accepted did not act to discharge the purported debt the Respondent was claiming'.
The discharge is said to arise from the payment of $10 to the Housing Authority on or about 11 May 2017. The amount of $10 was calculated as being 0.5% of the cost of the new fence. The proportion of 0.5% is based on the contribution of Ms Krysiak to the construction of the Dividing Fence, being her husband completing the fence by securing the ends to the other fences.[54] So the contention flows on from the issue relating to the application of DFA s 15(7)(a) (above [89] to [90]).
[54] See generally the submissions filed by Ms Krysiak in the Magistrates Court on 14 June 2019, par 54.
The circumstances of the payment of the $10 are set out in an affidavit sworn by Ms Krysiak on 13 February 2019 and filed in the Magistrates Court. There is nothing in this affidavit which provides any factual basis whatsoever for the contention that the Housing Authority accepted the payment of the $10 in full and final satisfaction of the amount the subject of the Claim. The Magistrate did not err in concluding that this contention did not give rise to a defence to the Claim which had a reasonable prospect of succeeding.
Ground of appeal 4.5 has not been made out.

Did the Magistrate err in the exercise of her discretion in not setting aside the Default Judgment?

Ground of appeal 4.6 is most appropriately viewed as part of the contention that the Magistrate erred in the exercise of her discretion as to whether or not to set aside the Default Judgment:
4.The learned magistrate erred in fact and law when she accepted and/or found that:
…
4.6the Respondent had acted properly at all times even though the Respondent had
4.6.1attempted to claim legal costs many times, contrary to the Magistrates Court (Civil Proceedings) Act 2004 and the Schedule of Fees;
4.6.2sought to use its claim for a collateral purpose, namely obtaining money deceptively and unlawfully;
4.6.3attempted to damage the Appellant's prospects of setting aside the default judgment, by failing to send notice of the judgment to the Appellant until the statutory 'set aside' period had significantly lapsed;
4.6.4sought to mislead the Court several times.
As to par 4.6.1, the fact that the Housing Authority has claimed its costs pursuant to the MCCPR does not mean that it has acted improperly. It was entitled to seek its costs. Whether or not it was awarded those costs was to be determined by the Magistrate, after having given Ms Krysiak an opportunity to be heard.
As to par 4.6.2, there is nothing in the materials in the Magistrates Court or this court to the effect that the Housing Authority sought to use the Claim for any collateral purpose.
As to par 4.6.3, the Housing Authority was entitled under the MCCPR to seek default judgment when it did. The Default Judgment was regular. The issues raised in this ground were taken into account by the Magistrate in allowing Ms Krysiak leave to commence the application to set aside the Default Judgment out of time, a decision not challenged by the Housing Authority on appeal.
As to par 4.6.4, there is nothing in the materials in the Magistrates Court or this court to the effect that the Housing Authority sought to mislead the court.
Moreover, none of the paragraphs of ground of appeal 4.6 give rise to a defence to the Claim, let alone one which has a reasonable prospect of success. Nor do any of these paragraphs suggest any reason why the discretion to set aside the Default Judgment should have been exercised in favour of setting it aside.
Ground of appeal 4.6 is not made out.
Likewise with ground of appeal 5.1:
The learned magistrate erred in law when she failed to provide the rulings at/of law requested by the Appellant, those being:
5.1Government departments are in a position of fiduciary duty to the public and/or have a trustee role in relation to the public who are beneficiaries
As a matter of law, the Housing Authority does not owe any general fiduciary duty to Ms Krysiak. Nor does it have a trustee role in relation to her. Further, there is nothing in the materials before the Magistrate or before this court to the effect that in the particular circumstances of this case the Housing Authority either owes a fiduciary duty to Ms Krysiak or is in some way a trustee with respect to her. This ground of appeal does not in any way identify any defence to the Claim, let alone a reasonable one, nor any other basis for the exercise of the discretion to be exercised so as to set aside the Default Judgment.
Ground of appeal 5.1 is not made out.
In the November Submissions, Ms Krysiak contends that on at least two occasions in her decision, the Magistrate acknowledged that there was a prima facie defence on the merits.[55] This appears to be a reference to the finding by the Magistrate that Ms Krysiak's defence was not 'wholly without merit' within MCCPA s 31(2)(b) for the purposes of determining whether the Housing Authority should be awarded its costs. This finding is not inconsistent with the finding that the defence did not have reasonable prospect of succeeding for the purposes of determining whether or not to set aside the Default Judgment.
[55]November Submissions, par 12, referring to Decision pages 15, 16 and 19.
This leaves ground of appeal 2.7. This ground of appeal is that the Magistrate 'erred in law when she failed to strike out the Respondent's case, as she accepted and/or found that … the Respondent had standing at law to bring its claim, contrary to the Act (as outlined in Ground 1.1 above)'. I take this to be a contention that the Magistrate erred in exercising the discretion as to whether to set aside the Default Judgment.
As I have already stated, the Magistrate correctly identified that an important issue in the exercise of her discretion was whether Ms Krysiak had a defence to the Claim which had a reasonable prospect of succeeding.[56] In Shilkin, Newnes J, after discussing this issue, made two observations:[57]
First, it remains the case that the power summarily to terminate proceedings must be exercised with caution. Secondly, the expression 'a reasonable prospect of succeeding' … requires a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial.
The second of these observations was expressly referred to by the Magistrate.[58]
[56] Decision, p 9; see [17] above.
[57] Shilkin [40].
[58] Decision p 16.
The principles as to what constitutes an error in the exercise of a discretionary power are well established.[59] They were recently summarised by the Court of Appeal in Strzelecki Holdings Pty Ltd v Jorgensen:[60]
An appellate court is not entitled to substitute its own decision for the decision under appeal merely because it would have reached a different decision, or because it considers that a different result would be more just and equitable. Instead, before it intervenes, an appellate court must be satisfied that the order made stands outside the limits of a sound discretionary judgment. In order to establish that that was so, an appellant must establish either an express error (namely that the primary judge acted upon a wrong principle, mistook the facts, took into account an irrelevant consideration, or failed to take into account a relevant consideration) or demonstrate that an error can be inferred. An error may be inferred if the order under appeal is shown to be unreasonable or plainly unjust.
[59] Singer v Berghouse [1994] HCA 40; (1994) 181 CLR 201, 212 (Mason CJ, Deame & McHugh JJ); Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 518 - 519 (Mason & Deane JJ); House v The King [1936] HCA 40; (1936) 55 CLR 499, 504 - 505 (Dixon, Evatt & McTiernan JJ); Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96 [43] (judgment of the court); MIB v JAP [2019] WASCA 175 [39] (judgment of the court); Ammon v Colonial Leisure Group Pty Ltd [2019] WASCA 158 [124] - [129] (judgment of the court).
[60] Strzelecki [43] (footnotes omitted).
Given the conclusions I have reached so far, I am not satisfied that the Magistrate made any express error in the exercise of the discretion. Nor am I satisfied that the decision of the Magistrate was so unreasonable or plainly unjust that I may infer that the Magistrate in some way failed to properly exercise the discretion to set aside a default judgment. Rather, the Magistrate exercised the discretion, as she was required to do, 'so as to do justice between the parties, having regard to the circumstances of the case'.[61] In the present case:
[61] Hall [63]; Wildflower [9].
(a)the Dividing Fence was damaged in a storm;
(b)the Housing Authority advised Ms Krysiak, in writing, what it proposed to do to repair the fence, how much it this was going to cost and what amount it would claim from her;
(c)Ms Krysiak was given ample time in the circumstances to consider the proposal;
(d)in the Consent Letter, Ms Krysiak consented to the Housing Authority undertaking the repairs it proposed;
(e)the Housing Authority carried out the repairs in the manner it proposed;
(f)Ms Krysiak has the continuing benefit of the repairs; and
(g)the Housing Authority claimed from Ms Krysiak the amount it proposed.
In these circumstances there is no basis for any assertion that it would be unjust to require Ms Krysiak to pay half the cost of the repairs.

Did the Magistrate act towards Ms Krysiak in a manner such as to give rise to a reasonable apprehension of bias?

The issue of bias is raised in ground 6:
6.The learned magistrate erred in fact and law when she demonstrated an apprehension of bias by categorising the matter as a 'debt recovery' at the hearing outset and decided the matter based on that initial categorisation.
It is also reflected in ground 2.5:
2.5the matter was a debt recovery under the mechanisms of the Act and/or contract law;
Ground of appeal 6 is developed in the October Submissions:[62]
Had the hearing continued on 14 July it seems that Her Honour would have simply read from a decision which she had prepared prior to the hearing. The question arises then' was the hearing just to avoid being accused of lack of procedural fairness?
[62] October Submissions par 50.
In the November Submissions, Ms Krysiak identifies the portions of the transcripts of the hearings relied on:[63]
[63] November Submissions par 65 - par 66 (footnotes to transcript references omitted).
65.The learned Magistrate made several comments and findings which could lead a reasonable person to conclude that she was perceivably biased towards the government, perhaps, it is suggested, from some misguided inclination that the government should not have to bear the total cost of dividing fences.
66.Some of this includes:
66.1Her Honour misconstruing the plain intent of part 5 of the Magistrates Court Civil Procedure Rules 2005;
66.2Her Honour misconstruing the definition of the word 'owner' for the purposes of the Act and not other statutes;
66.3Her Honour misconstruing the invocation of contract law in lieu of the Act.
66.4'… the ensuring repairs … cost of repairs … that she has any entitlement to rely on section 15(7)(a)';
66.5'implicitly arising from the fact that Mrs Krysiak agreed to the Housing Authority doing the repairs and approved its proposal';
66.6Her Honour ignoring the third party payment issue.
At the hearing before me, Mr Krysiak did not identify any other portions of the transcripts.[64]
[64] District Court ts 46 - ts 47.
In R v Watson; ex parte Armstrong[65] the High Court expressed the principle to be that 'a judge should not sit to hear a case if in all the circumstances the parties or the public might reasonably suspect that he was not unprejudiced and impartial'.
[65] R v Watson; Ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, 262 (Barwick CJ, Gibbs, Stephen & Mason JJ).
The relevant test was stated by the Court of Appeal in Smart v Albuquerque:[66]
The test to be applied in determining whether a judge should be disqualified for apparent bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to determine: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [11]. The majority in that case pointed out that in applying the test two things need to be remembered:
[T]he observer is taken to be reasonable; and the person being observed is 'a professional judge whose training, tradition and oath or affirmation require [the judge] to discard the irrelevant, the immaterial and the prejudicial' [12]. (footnotes omitted)
[66] Smart v Albuquerque [2011] WASCA 231 [9] (judgment of the court).
In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judicial officer's conduct in the context of the trial as a whole.[67]
[67] De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 [70] (McLure P, with whom Buss & Mazza JJA agreed).
Dealing with ground 2.5 first, based on the description in the general procedure claim lodged by the Housing Authority on 31 January 2018, (which I have quoted above [5]), the Claim is accurately characterised as a debt recovery action. It is also accurate to characterise it as a debt recovery action under the mechanisms of the DFA. Nothing turns on this characterisation. The substantive issue in the Claim was whether Ms Krysiak owed the Housing Authority the debt set out in the Claim.
In my view, there is no basis for any reasonable apprehension of bias either in the passages identified in the November Submissions or more generally. The Magistrate carefully considered all the grounds of potential defence put forward by Ms Krysiak as set out in her submissions. From my review of the case as a whole, I do not consider that a 'fair-minded lay observer might reasonably apprehend' that the Magistrate had not brought an impartial and unprejudiced mind to the resolution of the issues the Magistrate had to decide.
The November Submissions also contain a contention that the Magistrate failed to provide adequate reasons:[68]
63.Magistrate Ward gave no real reasons for her findings, except to say that she was not persuaded by the Appellant's evidence and submissions. It is a failure by Her Honour to provide in law and/or in fact the necessary and/or specific and/or essential and/or, proper and/or sufficient reasons for Her Honour's decision.
64.This thereby denied the Appellant proper bases for the appeal and thereby does not accord natural justice to the Appellant.
[68] November Submissions, pars 63 - 64.
The Magistrates Court Act 2004 (WA) (MCA) by s 31 places limits on the requirement of a magistrate to provide reasons:
31.Judgments, content of
(1)The Court's reasons for a judgment in a case -
(a)need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b)need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c)need not canvass all the evidence given in the case; and
(d)need not canvass all the factual and legal arguments or issues arising in the case.
(2)The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.

In Manonai v Burns[69] Hall J made the following observations about the duty to give adequate reasons in the MCA s 31(1):
Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred …
[69] Manonai v Burns [2011] WASCA 165 [53] (Hall J, with whom Pullin & Murphy JJA agreed).See also: Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] - [27] (judgment of the court); Velez Pty Ltd v Tudor [2011] WASCA 218 [59] - [67] (Murphy JA, with whom Pullin & Newnes JJA agreed).
His Honour went on to make the following observation about the realities of work pressure in the Magistrates Court:[70]
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvas all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
[70] Manonai [56]; Velez [69].
In relation to the adequacy of reasons, in Velez Pty Ltd v Tudor Murphy JA observed:[71]
Whether the content of reasons is adequate will depend on the circumstances of the case, including the nature of the jurisdiction being exercised … The court will look at the reasons as a whole and, if necessary in the context of the evidence, to determine whether they give a sense of what was intended in a way that achieves their required function and purpose …
[71] Velez [63] (references omitted).
In my view, the Magistrate complied with the requirements in MCA s 31(1)(a) and s 31(1)(b). More generally, the reasons were more than adequate for Ms Krysiak to ascertain the basis for the decision and whether she had any grounds of appeal, and for me, sitting as the appeal court, to determine whether any errors of fact, law or discretion occurred. To the extent that Ms Krysiak complains that the reasons given by the Magistrate did not canvass all the evidence given in the case nor all the factual and legal arguments or issues arising in the case, that was permissible pursuant to MCA s 31(1)(c) and s 31(1)(d).
Ground of appeal 6 has not been made out.

Did the Magistrate err in dismissing the Strike Out Application?

Ground of appeal 4.7 challenges the Magistrate's decision to dismiss the strike out application:
The learned magistrate erred in fact and law when she accepted and/or found that:
…
4.7the Respondent's claim was not misconceived and/or vexatious and/or misleading and/or scandalous and/or improper and/or an abuse of the Court's process.
The findings I have made so far mean that there is no basis to set aside the Magistrate's decision to dismiss the Default Judgment Application. The issue of whether the Magistrate erred in not granting the Strike Out Application does not arise. Notwithstanding this conclusion, for completeness I add that the reasons which I have set out above are also to the effect that there was no basis to strike out the Claim on the grounds identified set out in ground of appeal 4.7.
Ground of appeal 4.7 has not been made out.

Should Ms Krysiak be given leave to adduce further evidence in the Appeal?

The remaining issue is whether Ms Krysiak should be given leave to adduce further evidence in the Appeal.
The District Court does have the power to allow an appellant to adduce further evidence in an appeal from a decision of a Magistrate.[72] However, leave may only be given in 'exceptional circumstances'.[73]
[72] MCCPA s 40(4)(a).
[73] MCCPA s 40(5).
The scope of this power was considered by the Court of Appeal in Shilkin, where Newnes JA observed:[74]
A heavy onus lies on an appellant who seeks to have new evidence admitted on appeal. It will normally be incumbent upon the appellant to provide an explanation as to why the evidence was not led at first instance … [O]rdinarily the court will refuse to admit new evidence on appeal unless the court is satisfied that the new evidence would have led to a different outcome if it had been led below. That is because unless that condition is satisfied it will seldom, if ever, be in the interests of justice to deprive the respondent of the orders made below and to put that person to the expense, inconvenience and worry of a new trial (or in this case, of a full trial) …
On an appeal of the present kind, this court may give leave for additional evidence to be admitted only in exceptional circumstances: Magistrates Court (Civil Proceedings) Act, s 42(3)(c), s 42(4). It is not helpful to attempt to describe what would constitute 'exceptional circumstances' for the purpose of s 42(3)(c). The variety of circumstances that might arise is inexhaustible and restating the statutory test in different words would serve no useful purpose.
[74] Shilkin [68] - [69].
The evidence sought to be adduced in the Appeal is set out in an affidavit sworn by Ms Krysiak on 7 October 2019 (Further Evidence). There are three parts to the Further Evidence. The first part deals with the construction of the Dividing Fence in 2004. The second part sets out some aspects of the statement of intended evidence of Scott Bates, an employee of the Housing Authority, which Ms Krysiak takes issue with. The third part sets out some aspects of the statement of intended evidence of Julie Tognolini, another employee of the Housing Authority, which Ms Krysiak also takes issue with.
In her affidavit filed in this court on 6 November 2019 Ms Krysiak deposes that the Further Evidence is evidence that she would have adduced had there been a trial of the Claim in the Magistrate Court.
None of the Further Evidence would change any of the conclusions I have reached in the balance of these reasons. This is an ample basis for me to conclude that there are no exceptional circumstances warranting the admission of the Further Evidence.

What final orders are appropriate?

For the reasons set out above, the appeal should be dismissed.
At the hearing on 13 November 2019 both Mr Krysiak and counsel for the Housing Authority made submissions on the issue of costs.
Costs would ordinarily follow the event.[75] Mr Krysiak did not advance any reason why this should not occur, and none is apparent from the materials before the court. The appropriate costs order is that Ms Krysiak pay the costs of the appeal on a party and party basis.
[75] DCA s 64; Rules of the Supreme Court 1971 (WA) O 66 r 1(1).
In the event that the appeal was dismissed, counsel for the Housing Authority invited the court to fix the costs so as to avoid further expense, and provided a schedule of costs. It is open to me to fix the costs of the appeal.[76] Given the familiarity I now have with the appeal, this is a sensible proposal. I will convene a further hearing to allow Ms Krysiak, through her son if she chooses, to provide submissions as to the appropriate quantum of costs.
[76] District Court Rules 2005 (WA) r 59(2).

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JM
Associate
22 NOVEMBER 2019