Silvano Defendi as Trustee for Defendi Family Trust v SZIGLIGETI
[2018] WADC 99
•17 AUGUST 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: SILVANO DEFENDI as Trustee for DEFENDI FAMILY TRUST -v- SZIGLIGETI [2018] WADC 99
CORAM: VERNON DCJ
HEARD: 31 JANUARY 2018
DELIVERED : 17 AUGUST 2018
FILE NO/S: APP 18 of 2017
BETWEEN: SILVANO DEFENDI as Trustee for DEFENDI FAMILY TRUST
Appellant
AND
IREN SZIGLIGETI
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE MAUGHAN
File Number : PER GCLM 1944 of 2013
Catchwords:
Appeal from Magistrates Court - Trespass - Turns on own facts
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA), s 40
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | Mr S P Paonni |
| Respondent | : | Ms M Aranda |
Solicitors:
| Appellant | : | Lawley Legal |
| Respondent | : | Maryse Aranda Lawyers |
Case(s) referred to in decision(s):
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
De La Espriella-Velasco v The Queen [2006] WASCA 31
Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
VERNON DCJ:
Introduction
On 28 August 2013 the appellant commenced proceedings in the Magistrates Court against the respondent. The appellant claimed that, on 29 August 2007, the respondent, by her agent, trespassed onto the appellant's land and partially demolished a natural slope on that land. He claimed that this caused the soil retaining a concrete driveway on the appellant's land to degrade or give way, causing damage. The appellant claimed damages in the amount of $50,200.
The matter was heard over five days between 30 June and 5 December 2016. The appellant gave evidence at the trial through a translator.
On 7 March 2017, the learned magistrate dismissed the appellant's claim and delivered reasons.
The magistrate was not satisfied that the respondent's agent had carried out any part of the excavation work on the appellant's land. He was, therefore, not satisfied the alleged trespass had occurred. In the event that he was incorrect in that finding, the magistrate assessed damages at $13, 807.75.
By notice of appeal dated 22 March 2017, the appellant appealed against the magistrate's decision to dismiss the claim. No issue was raised with the assessment of damages.
On 4 December 2017 the appellant was granted leave to amend the grounds of the appeal, and to adduce further evidence concerning the translation of a passage of the appellant's evidence.
General principles
The appeal proceeds by way of a reconsideration of the evidence that was before the magistrate: Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act) s 40, District Court Rules 2005 (WA) r 50(1)(d).
The appellant must demonstrate that the order the subject of the appeal is the result of a legal, factual or discretionary error by the magistrate. The court may substitute its decision for that of the magistrate only if the court finds such an error has been made, based on the material before the magistrate, and any additional evidence that the appellant has obtained leave to adduce: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23].
If one set of significant evidence is preferred over another, the magistrate's reasons should be sufficient to explain why. However, those reasons do not necessarily need to be lengthy or elaborate, or to refer to all the evidence led in a case: Mt Lawley Pty Ltd v Western Australian Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [27], [28].
In considering whether reasons are adequate, the court may consider what can be legitimately inferred from a reading of the whole of the reasons and the magistrate's final conclusion: Bennett v Carruthers [2010] WASCA 131 [28] (Mazza J); Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443 (Meagher JA).
An appeal court will only intervene where no reasons have been given in circumstances where they are required, or when the inadequacy is such as to give rise to a miscarriage of justice: Mt Lawley Pty Ltd v Western Australia Planning Commission [29].
An error in translation will constitute an appealable error, if it is shown that the deficiency, either alone or in combination with some other deficiency, was sufficient to render the trial so unfair as to constitute a miscarriage of justice: De La Espriella-Velasco v The Queen [2006] WASCA 31 [76] (Roberts-Smith JA).
Facts not in dispute
It is not in dispute that:
(a)The appellant owns Lot 28 Brooking Road, Hovea (lot 28) as trustee for the Defendi Family Trust.
(b)The respondent is the appellant's neighbour, and owns Lot 27 Brooking Road, Hovea (lot 27).
(c)Lots 27 and 28 share a common boundary, on the western boundary of lot 28.
(d)Lot 28 is higher than lot 27 at the common boundary.
(e)The respondent's late husband signed a letter dated 20 April 2006 agreeing to the construction of a retention slope on the common boundary between lots 267 and 28 and for necessary fill material to be placed on lot 27.
(f)In May 2006 a company directed by Rocco Capece constructed the retention slope on the common boundary.
(g)On 29 August 2007, on the respondent's instructions, Peter Weir, levelled about 40 m to 50 m of land between lot 27 and lot 28 using a bobcat. He used a fence line as his reference, assuming it marked the boundary between the two properties.
Magistrate's reasons
The relevant findings appear at [110] to [117] of the magistrate's reasons, as follows:
110.it is difficult to ascertain from the evidence of either the [appellant] or the [respondent], the position of the boundary fence at the time Mr Weir conducted his works on 29 August 2016. Their evidence was confusing and dare I say tainted by the clear animosity which exist between the two of them.
111.On the evidence [of the appellant], as summarised herein at paragraphs 63 and 64, it is unclear to me that any works done by Mr Weir were done on Defendi's property. He clearly seems to testify:
(a)That the time that Mr Weir did his work the boundary fence had been moved into [the respondent's] property (in order for him to have built a natural retention slope).
(b)The work done [by] Mr Weir was only on the bottom one metre of the natural retaining slope (and again therefore within the boundary of [the respondent's] property.
112.Furthermore, in the initial Letter of Demand there is no suggestion by [the appellant] that [the respondent] had entered his property and in fact the letter refers to the removal of material 'from the eastern side of your property'. That letter was sent on 31 August 2017 (sic) , contemporaneously with the alleged trespass and is, in my view, telling in terms of lack of complaint.
113.The best evidence of trespass, from [the appellant's] point of view, is given by Mr Weir, when considered in conjunction with Mr Grant's survey (exhibit 4). Mr Weir has the fence delineating Lot 27 and 28 around the 'Large Red Gum' shown on the exhibit and therefore on the Claimant's property. I am not satisfied however that what is depicted as the old boundary fence in Exhibit 4 is in fact the fence which was in place when Mr Weir did his works in 2006. He was unable to say so. The evidence suggests at least one and possibly two incarnations of the boundary fence between the dates Mr Weir did his works and Lot 28 being surveyed. It is at odds with the fact that the fence ws replaced at least once in 2008 having previously, according to [the appellant] been on [the respondent's] property.
114.In my view Mr Weir's recollection may well have been tainted by his viewing Exhibit 4 prior to trial. His recollections are, in my view, unreliable.
115.As Mr Weir was [the respondent's] servant or agent in carrying out his work she is liable for his actions.
116.I find that [the respondent] was negligent in allowing the work to be done without having conducted a proper survey of the land prior to doing the work. In essence she and or Mr Weir merely 'guesstimated' the location of the boundary between Lot 27 and 28.
117.Whilst I am satisfied that a duty of care was owed by [the respondent] to carry out a survey and that duty was breached, I am not satisfied she trespassed onto Lot 28.
Paragraphs [63] and [64] of the reasons, which are referred to in [111] state:
63.A portion of the Statement prepared by Mr Capece was put [by the respondent to the appellant] and the following interchange took place between myself and the witness;
His Honour: Stop, I don't think we're getting an answer to the question which has been – so let me put the question.
Interpreter: Okay.
His Honour: Mr Capece, in his statement says as follows. I'm reading from the second – no, the last sentence of the third paragraph.
To install the slope it had been necessary to encroach over the boundary line by about one metre into Lot 27.
Right. And then on – in – at the end of August, Mr Capece says:
'When I got there I saw about a metre of the slope had been dug up across the base along the boundary line between lot 27 and 28.'
The proposition being put, Mr Defendi, is that in digging up the part of the slope she was only digging up that one metre part that was on her property. That's what Mr Capece says, do you agree or disagree with that?
Interpreter: He wrote this letter on 16 October 2015.
His Honour: Do you agree or disagree?
Interpreter: Okay. I just have to read it again. It was necessary to do that.
His Honour: All right. And do you agree that what was dug up was only that one metre part of the slope that was on [the respondent's] property? I am not worried about whether she retained it. I'm worried about whether that's the only bit that she dug up. Do you agree or disagree with that proposition?
Interpreter: It has not been explained correctly. Well, because this letter has been written by Mr Capecee when he came and saw the work finished.
His Honour: I'm simply asking if you agree or disagree with what he said. On word answer.
Interpreter: Yes (indistinct) finish. Yes. According to what he saw at that date.
His Honour: Mr Rice may want to ask you some further questions, but I think that is the proposition which [the respondent] is getting to. Yes, Ms Szigligeti.
64.Under re-examination the following exchange took place between [the appellant's] counsel a Mr Rice.
Rice, Mr: All right. And when – I just want to clear when the excavation was done in August 2007 by the contractor, Mr Peter Weir, what fence was there then?
Interpreter: There was the curved fence done by me.
Rice, Mr: And where was that fence in relation to the boundary line?
Interpreter: Yes. The fence was inside lot 27 as I have explained.
Rice, Mr: Which is your property?
Interpreter: Yes. My property is in lot 28. Okay. This curve section has been done in lot 27 for us to be able to build this (indistinct) so the fence was modified in April 2006, and then remained exactly the same until (indistinct) 30 August 2007.
Grounds of appeal
The amended grounds of appeal state
1.The learned Magistrate erred in finding that he was not satisfied the Respondent through her contractor Peter Weir had trespassed on the Appellant's property when digging the trench between the Respondent's property and the Appellant's property (Reasons [117]) when the evidence of both the Appellant and Peter Weir was that Peter Weir had dug on the Appellant's land.
Particulars
(i)The Appellant gave evidence of the trespass and produced a 'mud map' (Exhibit 22) locating the area of the trespass:
Reasons [51] to [53], Transcript 1 July 2016 pp 29 to34.
(ii)In cross examination (Transcript 27 October 2016 pp 28 to 29), the Respondent challenged this evidence but the Appellant's response can not be accepted due to the misinterpretation:
Refer to the affidavits of the Appellant, Rossana Perino below.
(iii)Exhibit 4 (a cadastral survey of Lot 28) was tendered (Reasons [25]) without objection: Transcript 30 June 2016 p46 bottom.
(iv)On Exhibit 4, on the west boundary of Lot 28, it is written 'ENCROACHMENT AROUND LARGE REDGUM OF 1.46m'. That point is on Lot 28 (the Appellant's land) and is the only point on Exhibit 4 which refers to a tree.
(v)Peter Weir's evidence was that that he dug where the existing fence line was or had been (Transcript 28 October 2016 p148 middle, 149 top) and close to it (Transcript 28 October 2016 p151 middle), and adjacent to and to the west of the 'gum trees' as shown on the western boundary of Lot 28 as marked on Exhibit 4 (Transcript 28 October 2016 p154 top).
(vi)The evidence of Peter Weir on this point was not challenged.
5There was a miscarriage of justice in that the learned Magistrate was misdirected on a critical piece of oral evidence (refer to Reasons [63])
Particulars of miscarriage
(i)The learned Magistrate had put the question (or proposition) to the Appellant that the Respondent had only dug one metre on her own land.
(ii)This was not the question put to the Appellant by the interpreter.
(iii)This was not the question as understood by the Appellant.
(iv)Had the Appellant understood the question correctly, his answer would have been to the effect that the Respondent had dug 1 metre into the Appellant's land.
(v)Had His Honour's question been properly put to the Appellant the Appellant's evidence would have been different in a critical way and a finding (including that the Respondent had trespassed onto the Appellant's land) may have been made as a result.
6.The learned Magistrate erred in law by failing to give reasons why he found the evidence of Peter Weir unreliable (Reasons [114]) or, in the alternative the learned Magistrate erred in fact in rejecting the evidence of Peter Weir that he dug adjacent to and on the west side of trees as shown on Exhibit 4) when that evidence was unambiguous and not challenged.
7.The learned Magistrate erred in fact by placing emphasis on the fact that the letter from the Appellant to the Respondent dated 31 August 2007 (exhibit 23) made no mention of the alleged trespass when:
(a)Evidence was led that the Appellant can't communicate well in English; and
(b)The Appellant is not a lawyer.
8.There was a denial of procedural fairness in that a critical question put by the learned Magistrate to the Appellant was misinterpreted by the translator with the consequence that the Appellant did not understand the true question being put to him and the answer he gave did not answer the learned Magistrate's question was unclear.
Particulars of denial of procedural fairness
(i)The Appellant speaks and understands English poorly: Transcript p38 top. This evidence was not contested.
(ii)Appellant gave evidence via interpreters who interpreted between English and Italian:
Transcript 1 July 2016 p2 top, Transcript 27 October 2016 p5 middle.
(iii)During cross examination on 27 October 2017, the learned Magistrate put the following question/proposition to the Appellant (repeated twice in different forms):
[Referring to the statement of Rocco Capece]
The proposition being put, Mr Defendi, is that in digging up the part of the slope, [the Respondent] was only digging up that one metre part that was on her property. 'That's what Mr Capece says, do you agree or disagree with that?'
(iv)The learned Magistrate directed the Appellant to answer the question 'yes' or 'no'.
Transcript 27 October 2016 page 29, bottom.
(v) The question was critical to the central issue at trial: had the Respondent (via her agent Peter Weir) dug on the Appellant's land?
(vi)In the exchange between the learned Magistrate, the interpreter and the Appellant, this question was not put clearly to the Appellant:
Affidavits of Rossana Perino, Luciana Russo and the Appellant.
(vii)The Appellant understood the learned Magistrate's question as being: 'At the end of August did Mr Capece see that a metre of the slope had been dug?', and answered 'yes'.
(viii)Had the learned Magistrate's question/proposition been put to the Appellant accurately, the Appellant would have answered 'no'.
(ix)The question/proposition as expressed by the learned Magistrate was ambiguous and not capable of being clearly answered by 'yes' or 'no'.
After the hearing of the appeal, on 5 February 2018, the appellant's counsel wrote to the court stating that he had received instructions that Mr Weir had not excavated near the tree shown in the survey (which is exhibit 4) and withdrew his submissions to that effect.
That allegation is referred to in particular (v) of ground 1 and is, accordingly, no longer relied on in support of that ground. It also formed the basis of the alternative error alleged in ground 6. Accordingly, that alternative falls away, and ground 6 is limited to the allegation that the magistrate erred in failing to give reasons why he found the evidence of Mr Weir unreliable.
The appellant relies on ground 5 in support of ground 1. In addition, there is some overlap between the content of grounds 5 and 8, and between grounds 1 and 6, and then ground 7. Accordingly, I will first deal with grounds 5 and 8, followed by grounds 1 and 6, and then ground 7.[1]
[1] Grounds 2, 3 and 4 were deleted by amendment.
Grounds 5 and 8
Grounds 5 and 8 are each based on the allegation of the inaccurate translation of questions the magistrate asked the appellant concerning whether he agreed with a statement made Mr Capece to the effect that Mr Weir had only dug one metre into the slope between the two lots, and on lot 27.
Mr Capece's evidence
At this point it is necessary to address Mr Capece's[2] evidence.
[2] Referred to as Capicci in the transcript.
The appellant called Mr Capece as a witness, principally in relation to the issue of damage. Mr Capece had provided a written statement dated 16 October 2015, which had been filed in the proceedings. The statement was not tendered in evidence.
The magistrate questioned the appellant about what Mr Capece had said in his statement. This passage is referred to at [63] of the reasons.
Subsequently, Mr Capece gave oral evidence that:
(a)he did the work creating the slope between lot 27 and 28.[3]
(b)he had judged the boundary between lot 27 and 28 because 'the picket was there and the fence was there'.[4]
(c)the slope encroached into lot 27 by about one metre.[5]
(d)he inspected Mr Weir's excavation on 31 August 2007, at which time he observed that about one metre at the base of the slope had been dug out.[6]
[3] ts 129, 28 October 2016.
[4] ts 129, 28 October 2016.
[5] ts 129 – 130 and ts 145, 28 October 2016.
[6] ts 132 and 145, 28 October 2016.
Mr Capece confirmed, when questioned by the magistrate, that it had been necessary to encroach a metre into lot 27 to install the slope, and that the part of the slope that had been dug up was on lot 27. He also said that he was not aware exactly where the boundary was at the time he observed the part of the slope which had been dug up, in August 2007.[7] The magistrate refers to this evidence at [73] of the reasons.
Additional affidavit evidence
[7] ts 145, 28 October 2016.
The appellant relies on the additional affidavit evidence, referred to in [6] above, in support of grounds 5 and 8.
Rosana Perino is a professional translator and interpreter, and is qualified to translate between Italian and English. Ms Perino is accredited by the National Accreditation Authority for Translators and Interpreters (NAATI) to translate and interpret at a professional level.
Ms Perino refers, in her affidavit sworn 23 November 2017, to a portion of the transcript, which reads:
Magistrate: The proposition being put, Mr Defendi, is that in digging up the part of the slope, she was only digging up that one metre part that was on her property. That's what Mr Capece says, do you agree or disagree with that.
Appellant: Yes (indistinct) finish. Yes. According to what he saw at that date.
Ms Perino says that, having listened to the recording of the hearing, the question as expressed by the magistrate in English was not put to the appellant in Italian. Her translation of what was actually said in that portion of the evidence is set out in attachment RP2 to her affidavit, as follows:
Magistrate: … [Mr Capece says] When I go there I saw about a metre of the slope had been dug up across the base along the boundary line between lot 27 and 28.
Interpreter: And the [sic] he says that also when he went there he saw that about a metre of this slope has been dug up accor … at the edge between lot 27 and 28 … [interruption].
Magistrate: The proposition being put, Mr Defendi, is that in digging up that part of the slope, she was only digging up that one metre part that was on her property.
Interpreter: So he only dug up this metre between the two … [missing interpretation – interruption].
Magistrate: So this is what Mr Capece says, do you agree or disagree with that?
Mr Defendi: I see that Mr Capece writes this letter on 16 October of 2015.
Interpreter: He wrote this letter on 16 October 2015.
Mr Defendi: Therefore …
Magistrate: You agree or disagree?
Interpreter: He wants to know if you agree with what he says or not? … Do you agree that they did this excavation of one metre?
Mr Defendi: It was done and excavation of one metre?
Interpreter: Okay. I have to read this again. That he said that to make this slope it was necessary to enter by one metre in the lot 27 and that this had been requested and authorised by the owner.
Mr Defendi: Yes it was necessary to go beyond it.
Interpreter: Yes it was necessary to do that.
Magistrate: And do you agree that what was dug up was only that one metre part of the slope that was on Mrs Szigligeti's property?
Interpreter: And so you say that what was dug up was only one metre between the edges of the property inside the lot of the Lady.
Magistrate: And do you [talking over each other].
Interpreter: It does not matter what [he/she] says he only wants to know if this is right that what was dug up was one metre as it had been said.
Magistrate: Do you agree or disagree with that proposition?
Interpreter: Do you say that is right or wrong.
Mr Defendi: It is not expressed correctly.
Interpreter: Not been explained correctly.
Mr Defendi: Because this writing here was made when Capece on 19 October came to see the finished situation.
Interpreter: Well because this letter has been written by Mr Capece when he came and saw the work finished.
There is apparently no dispute that the magistrate's next question and the appellant's next answer were accurately recorded in the transcript as:
His Honour: I'm simply asking if you agree or disagree with what he said. One word answer.
The appellant: Yes (indistinct) finish. Yes. According to what he saw at that date.
Luciana Russo is a translator and interpreter, and is also accredited with NAATI at a professional level. Ms Russo says, in her affidavit sworn on 21 November 2017, that she was the interpreter for part of the trial in the Magistrates Court. Having listened to the recording of the evidence and having read Ms Perino's translation, Ms Russo says that she believes that the translation (at RP2) is accurate.
Ms Russo also gives evidence of her observations at the appellant at the trial. She says that the appellant appeared unsure of the question as put by the magistrate and confused by the magistrate's insistence on restricting his answer to either 'yes' or 'no. She says that she believed that when the appellant said 'yes' he was in effect saying 'yes, Mr Capece saw that at that date', and was not answering to the effect that 'yes, Ms Szigligeti only dug 1 metre on her own land'. I consider that Ms Perino's observations of what the appellant was thinking or feeling should be given little, if any, weight.
In his affidavit dated November 2017[8], the appellant says that at the time he answered the question put to him by the magistrate as interpreted by Ms Russo, he understood the question to be: 'At the end of August did Mr Capece see that a metre of slope had been dug'. He says he was confused by this and tried to give a full answer, but the magistrate insisted on a 'yes' or 'no' answer.
[8] The date on this affidavit is incomplete. No issue was raised about this in the appeal.
The appellant deposes that, when he answered 'yes', what he meant was:
Yes, Mr Capece saw, during his visit and declaration [sic] of 16 October 2015 [sic], that the fence built on the border line between the two properties clearly showed that there had been a trespassing of approximately 1 metre into the land belonging to lot 28, when the bottom of the slope had been dug up.
Mr Defendi says that, had he been asked in Italian, 'Had Mrs Szigligeti dug only 1 metre on her land', he would have said, 'No, Mrs Szigligeti had also dug up 1 metre on my land'.
Mr Defendi says that, had he been asked in Italian, 'Had Mrs Szigligeti dug on your land', he would have said 'Yes, as I saw the excavation as it was happening and then not long afterwards later saw where my land had been dug up'.
Appellant's submissions on grounds 5 and 8
The appellant refers to the two questions the magistrate poses to the appellant in that part of the transcript quested at [63] of the reasons, that:
First Question:
His Honour: The proposition being put is that in digging up that part of the slope [the respondent] was only digging up that one metre part that was on her property. That's what Mr Capece says, do you agree or disagree with that?
And
Second Question:
His Honour: And do you agree that what was dug up was only that one metre part of the slope that was on [the respondent's] property. I'm not worried about whether she retained it. I'm worried about whether that's the only bit that she dug up. Do you agree or disagree with that proposition?
Interpreter: It has not been explained correctly. Well because this letter has been written by Mr Capece when he came and saw the work finished.
His Honour: I'm simply asking if you agree or disagree with that he said.
The appellant submits that the first question is ambiguous in English and as translated to the appellant and that the appellant misunderstood the question to mean 'at the end of August did Mr Capece see that a metre of the slope had been dug', and answered that question.
The appellant submits that the second question was 'initially clear in English, but then repeats the ambiguity of the first question'. It is said that the question was not clearly expressed by the translator, leaving the appellant with the impression that the magistrate was concerned about what Mr Capece had written. The implication is that the appellant did not understand that the magistrate was interested in his view about whether what Mr Capece had said was true.
The appellant also submits the appellant's answers to these questions were critical to the magistrate's determination of the matter. It is said that, had the magistrate (and, presumably, the appellant) had the benefit of an accurate translation, the magistrate could not have decided to find against the appellant on the basis of the appellant's answers, and had the appellant answered as he intended, this may have impacted on the magistrate's finding as to credibility.
The appellant also submits that the evidence given in re‑examination, referred to in the magistrate's reasons at [64], reflects an inaccurate interpretation which the magistrate ought to have detected given it was contrary to the appellant's initial evidence.
Finally, the appellant submits that in the passage which appears in RP2 of Ms Perino's affidavit, the appellant had, in fact, given evidence that the respondent had dug on lot 28, which evidence was mistranslated to the magistrate.
Consideration of grounds 5 and 8
For the reasons that follow, I find that grounds 5 and 8 are not made out.
I accept Ms Perino's evidence that the passage of oral evidence was as she has transcribed in attachment RP2 of her affidavit.
I also accept that the question ultimately posed by the magistrate, as recorded in that portion of the portion of the transcript quoted in [63] of the reasons, was ambiguous. That ambiguity meant that an affirmative response (leaving aside the qualification that followed it) could be read as meaning that the appellant agree that the digging was done on lot 27 or that the appellant agree that Mr Capece had said that the digging was done on lot 27.
However, the effect of the question that was actually put to the appellant did not contain the same ambiguity. What Ms Perino records in RP2 is the translator saying, in relation to the first question:
And the [sic] he says that also when he went there he saw that about a metre of this slope has been dug up accord … at the edge between lot 27 and lot 28 [interruption]. So he only dug up this metre between the two [missing interruption – interruption]. So do you agree with what Mr Capece says or not.
(emphasis added)
The second question referred to in the appellant's submissions was put to the appellant after he had acknowledged that, in order to create the slope between lots 27 and 28, it had been necessary, with the owner's permission, to enter 1 m into lot 27. The appellant's response 'yes, it was necessary to go beyond it', is clearly an acceptance of that proposition. It is not, in my view, evidence from the appellant that the respondent had dug on lot 28, as has been submitted.
Following that interaction, the magistrate's second question was actually put to the appellant in this way:
And so you say that what was dug up was only one metre between the edges of the property and inside the lot of the lady. It does not matter what [he/she] says he only wants to know if this is right that what was dug up was one metre as it had been said. Do you say that is right or wrong?
The appellant was clearly asked by this whether he agreed that what Mr Capece had said was correct, not whether Mr Capece had said it. That question was capable of a 'yes' or 'no' answer. In my view, there was no denial of procedural fairness in this respect. In any event, it was open to the appellant's counsel to clarify the appellant's response in re-examination.
I accept for the purposes of the appeal that, despite my views about the lack of ambiguity of the question being posed to him, the appellant did not intend, by his answer, to convey to the magistrate that he agreed with the proposition that the excavation had been limited to the respondent's land. On my reading of the translation of the exchange, the appellant did not answer the question directly, but said instead that what Mr Capece had said (as it had been translated to him, 'that what was dug up was only one metre … inside the lot of the lady') had not been expressed correctly and was based on what Mr Capece had seen in October 2015.
The answer the appellant now says was what he meant by his answer 'yes', referred to in [34] above, is inconsistent with what he appears to have said in the re-translated evidence, which was that Mr Capece had observed, in October 2015, that the excavation of the slope by Mr Weir encroached into lot 28. However, even accepting what he says in his affidavit, that evidence could not have assisted his case. Firstly, that evidence would have been inadmissible as hearsay, being evidence of Mr Capece's observation. Secondly, it was inconsistent with Mr Capece's oral evidence, to which I have referred at [24] and [25] above. The magistrate, in my view, clearly had this evidence in mind in reciting the evidence at [63].
In my view, the magistrate's assessment of the appellant's evidence, in [111(a)] and [111(b)] of the reasons, is accurate, when his evidence is considered as a whole, rather than being limited to the contents of the passage of evidence referred to in [63] of the reasons.
I do not accept, as the appellant submits, that his evidence in re‑examination, referred to by the magistrate in [64] of the reasons, was also affected by the inaccurate translation. That re-examination did not concern the question of what Mr Capece had said, but the location of the fence between lot 27 and lot 28 in August 2007 at the time Mr Weir carried out the excavation of part of the slope. That evidence put the fence in place in August 2007 within lot 27.
The appellant gave evidence-in-chief that the slope crossed the boundary line into lot 27 by about a metre.[9] He also gave evidence that the part of the slope that was being 'demolished' by the bobcat (used by Mr Weir) was 'the final – the landing point – the very part that was going over into the boundary of 27 lot'.[10] The effect of this evidence, when read with Mr Capece's evidence that Mr Weir excavated 1 m at the bottom of the slope, is that the excavation was likely confined to lot 27.
[9] ts 28, 1 July 2016
[10] ts 30, 1 July 2016
In my view, the identified errors in translation, when considered in light of the whole of the evidence, are not such as could have given rise to a different outcome. Neither has the appellant been denied a fair hearing in consequence.
Grounds 1 and 6
The determination of these grounds essentially turns on a single question, namely whether the magistrate erred in finding, at [113] of the reasons, that he could not be satisfied that the fence identified in the survey (exhibit 4) was in the same location as the fence line that Mr Weir used as his guide to the boundary when he did the excavation work.
The appellant submits that:
(a)the evidence of Mr Weir, in the context of the unchallenged evidence of the surveyor, Peter Grant, and the evidence of the appellant, was to the effect that Mr Weir had excavated on lot 28;
(b)the magistrate had no basis for finding that Mr Weir's evidence may have been tainted by his seeing Mr Grant's survey before giving evidence, and did not give reasons for rejecting Mr Weir's evidence about the location of the fence in 2007 as unreliable; and
(c)in light of that evidence, the magistrate was in error in finding that he was not satisfied the appellant had proved the trespass.
Consideration of grounds 1 and 6
For the reasons which follow I find that grounds 1 and 6 of the appeal are not made out.
Mr Grant gave evidence that he had surveyed the boundary between lot 27 and lot 28 in March 2012.[11] At that time there was a post and wire fence between the two lots, which encroached into lot 28.[12] He produced a survey, which was exhibit 4.
[11] ts 45, 30 June 2016.
[12] ts 44 – 45, 30 June 2016.
This fence is represented, in the survey, by a line beginning, at its northernmost point, 0.2 m off the actual boundary line, in lot 28. The line then follows a straight line to the 'Large Redgum', which is 1.46 m within lot 28. The line goes around the 'Large Redgum' and follows a straight line encroach slightly over the boundary into lot 27 at its southernmost point. The line depicted in the survey is between 0.72 m and 0.92 m within lot 28 at the location where Mr Weir identified the gap in the fence, being where he carried out the excavation of the slope.
Accordingly, as the appellant submits, it would follow that, if the line on the survey is in the same location as the line Mr Weir used as his guide, and if Mr Weir excavated within 0.72 m and 0.92 m of that fence line when he did his works, it is more likely than not that he excavated the slope within lot 28.
The magistrate clearly understood this. However, he was not satisfied that the line depicted in the survey in 2012 was the same line Mr Weir was using as his reference in 2007. His reasons for making this finding are set out in [1.13] and [114] of the reasons. In summary:
(a)there was evidence to suggest at least one and possibly two incarnations of the boundary fence between the date Mr Weir did his works and Mr Grant's survey, and the fence had been replaced at least once in 2008 having previously been on the respondent's property;
(b)Mr Weir could not say that the fence that was his reference was the same fence as was depicted in the survey; and
(c)Mr Weir's evidence that the fence between lot 27 and lot 28 went around the 'Large Redgum' may have been tainted by his viewing the survey prior to trial, and was therefore unreliable.
Mr Weir's evidence was that, in the place where he excavated the slope, the fence line had been flattened by the clay fill that had been used to create the slope, and buried it.[13] Mr Weir said, 'in places the fence wasn't there but you could see where the fence was to the south end and I knew where the existing fence line was to the north end'. He said, in parts 'there was just a line where the fence used to be'. This was the result of a difference in height in the land surface that forms when a fence is in position for any amount of time.[14]
[13] Because it had been buried under the fill – ts 150 – 151, 28 October 2016
[14] ts 149, 28 October 2016.
In light of the evidence that the fill had buried the old fence at the point the excavation was carried out, it may be inferred there was no remnant fence line in this location.
Mr Weir said that, when making the cut, he went close to the old fence line, but did not say how close.[15] He excavated on the western (lot 27) side of the fence line. He did not know when that fence line went in.[16]
[15] ts 151, 28 October 2016.
[16] ts 151, 28 October 2016.
The effect of Mr Weir's evidence was that he judged the location of the boundary between lots 27 and 28, at the point where he carried out the excavation, from the location of an existing fence, or a remnant fence line, which he could see to the north and south of that excavation.
The appellant submits that Mr Weir's evidence was that he worked 'sort of' in a straight line. In the passages relied on in support of this submission,[17] Mr Weir is describing the depth he cut the slope to, and in particular that he had not cut back to the natural ground level. Accordingly, the reference to a straight line appears to be a reference to the level of the cut rather than its distance from the fence line. As such it does not assist the appellant in identifying which lot Mr Weir was on when carrying out this work.
[17] ts 157 and ts 161, 28 October 2016.
As the magistrate correctly identified in [113] of the reasons, the best evidence in support of the appellant's case was Mr Weir's evidence that the line on the survey that goes around the 'trees' was where the fence was, in apparent reference to the fence he could see to the south of him.
Whilst Mr Weir did volunteer his evidence, rather than agreeing with a proposition that had been put to him, as the magistrate found, he did so only after seeing the survey that depicted both the line and the tree.
The appellant relies, in submitting that the magistrate erred in finding that Mr Weir's evidence may have been tainted by his viewing the survey prior to trial, on Mr Weir's evidence that he did not have his glasses when he went to lot 28 and was shown the survey.[18] However, in his evidence-in-chief, Mr Weir identified the survey as a document he had seen at the appellant's house about six months before.[19] He must, therefore, have seen the survey sufficiently well on that occasion to recognise it. Given that he had done the work nine years earlier, and in light of the evidence of other witnesses, including the appellant, as to the movement of the boundary fence, in my view it was open to the magistrate to find that Mr Weir's evidence in this respect was unreliable.
[18] ts 153, 28 October 2016.
[19] ts 154, 28 October 2016.
The appellant relies on the fact that Mr Grant's evidence as to the location of the fence line depicted in the survey was not challenged. Mr Grant's evidence was that he carried out the survey on 15 March 2012, more than four years after Mr Weir did his work. It is apparent that the fence Mr Grant described was complete, that is, it did not have a gap in it.[20] It may be inferred from this that the fence Mr Grant identified in 2012, at least in part, could not have been in place when Mr Weir did the work.
[20] ts 46, 30 June 2016.
The magistrate was correct in finding that there was evidence that the fence on the boundary between the properties had been moved again, having previously been on lot 27. The appellant said 'from the year 2006 onward that the fence has been erected and then demolished and then put back again … It was not any more the fence we were discussing about. Well, at least only a proportion of it'.[21] As has been noted in [54] above, there was evidence that in 2006 the boundary fence had been moved, at least partially, into lot 27.
[21] ts 11, 27 October 2016.
The appellant seeks to overcome these difficulties by relying on the fact that Mr Weir was not asked whether the fence in the survey was the same fence he saw when he did the work in 2007. The appellant says that the finding to that effect in [113] must have been an erroneous reference to Mr Grant's evidence. Mr Weir does not appear to have been asked directly if the line that Mr Weir followed in 2007 was the same as the line in the survey. In my view, if he was able to give this evidence, it was for the appellant to lead it. However, there is nothing to suggest that Mr Weir had any knowledge of the movement of the boundary fence after he had performed the works in 2007. He was asked if he had gone back to the property to inspect it, and said that he had been at some time earlier in 2016 at the appellant's request. This was the occasion on which he was shown the survey. He did not refer to having returned to the property on any other occasion.
The appellant also relies on the appellant's sketch tendered in evidence (exhibit 22) as evidencing the location of the line cut by the bobcat within the boundary of lot 28. However, as that sketch shows the retaining wall constructed in 2014, it must have been created after that date. Consequently it is of little, if any, evidentiary value in identifying the line cut by the bobcat in 2007.
In my view:
(a)it was open to the magistrate to make the findings that he did; and
(b)the magistrate has given sufficient reasons for the finding of facts he made, and for finding Mr Weir's evidence about the location of the fence in 2007 was unreliable.
Even if I am wrong in this, at its highest Mr Weir's evidence was to the effect that he could see a fence to the south of where he was excavating, going around to the east of some trees that he thought were in the location of the tree depicted in the survey. In light of the lack of evidence as to whether Mr Weir followed a straight line between that fence and the northern end, and how far he was from that line, the magistrate could not have been satisfied, on the balance of probabilities, that the work was done on lot 28. It is to be remembered that the distance from the fence line in the survey to lot 27 ranged from between 0.72 m and 0.92 m. If Mr Weir had been a metre off the line in the survey, he must have been within lot 27, even if he had followed the fence line referred to in exhibit 4.
Ground 7
The appellant submits, in effect, that the magistrate erred in placing any evidentiary weight on the appellant's letter to the respondent dated 31 August 2007 because there was evidence that the appellant did not communicate well in English and that he relied on his wife to communicate with the respondent, such that the magistrate should have inferred the appellant did not write the letter, and that there was no evidence that the appellant understood the law of trespass.
Consideration of ground 7
For the reasons which follow, I find that ground 7 has not been made out.
The letter was tendered as part of the appellant's case.[22] At the time it was tendered the appellant summarised the content of the letter as follows:
I simply said that I basically have rung her and I don't understand why she has decided to carry out this cut. And I asked to fix the matter immediately the building what was being built because this could cause some damage to the property [sic]. And that was should basically agree on what needs to be done since there's some more material that needs to be ordered.
[22] The appellant refers to the letter as exhibit 23 in the grounds of appeal and corrects this to exhibit 31 in his submissions. In fact the letter was tendered by the appellant (exhibit 23, ts 37, 1 July 2016) and a copy was tendered by the respondent (exhibit 31, ts 26, 27 October 2016).
This evidence, which is consistent with the contents of the letter, indicates that the appellant did understand what had been said in the letter.
In addition, whilst the appellant did use an interpreter throughout the trial, his solicitor submitted to the magistrate, when asked about the appellant's understanding of English, that the appellant 'was good with the written language but no so good with the spoken language'.
Even assuming that the appellant did not write the letter himself, it may reasonably be inferred, in light of the abovementioned evidence, that his wife assisted him. The appellant's evidence was to the effect that his wife's English was good.[23]
[23] ts 38 1 July 2016, referring to his wife telephoning the respondent on his behalf, interpreting what the appellant said.
Finally, the appellant was asked directly about his failure to complain that the excavation had occurred on lot 28 in the letter.
The magistrate asked the interpreter to read the first paragraph of the letter to the appellant. That paragraph says:
As already mentioned to you by telephone last night and tonight as well, I am writing to ask you to kindly and with the utmost urgency, arrange for the restoration of the material removed from the eastern side of your property …
The magistrate then asked:
If you were concerned with the removal of material from your property, namely the western side of your property, why did you not say so in the letter.
The appellant responded by saying 'I – I – what I am asking in the letter is only to put things back as they – as they were before, nothing else'. This answer did not, however, address the express identification of the excavated soil as being on lot 27 rather than lot 28.
Whilst it may be accepted that a non-lawyer would not be expected to know the law with respect to trespass, the magistrate did not rely on the letter making no mention of the 'alleged trespass' as is alleged in ground 7. The magistrate refers, in [112], to the appellant's failure to mention the facts that were the basis of the claim of trespass. As the magistrate points out there is no allegation in that letter that the respondent, or anyone else, had entered into or removed soil from lot 28. This absence is notable had the appellant observed at that time, as he says he did, that the bobcat had excavated within his property, whether or not the appellant knew this constituted a trespass in law. The letter does refer, however, to the removal of soil from lot 27.[24]
[24] By the words 'the eastern side of your property'.
In the circumstances, the magistrate did not err in relying on the lack of complaint in the letter in reaching his decision.
Conclusion
The appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
JG
ASSOCIATE TO JUDGE VERNON15 AUGUST 2018
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