Xu v Griffiths - [2019] WADC 126

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   XU -v- GRIFFITHS [2019] WADC 126
CORAM:   GLANCY DCJ
HEARD:   7 DECEMBER 2018
DELIVERED          :   20 SEPTEMBER 2019
FILE NO/S:   APP 71 of 2018
BETWEEN:   XIHAN XU
YING LI
Appellants
AND
PETER GRIFFITHS
MARA GRIFFITHS
Respondents

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE PONTIFEX
File Number             :   JO GCLM 2911 of 2015

Catchwords:

Appeal - Magistrate's decision on claim for damages to retaining wall - Claim founded on nuisance and/or purported liability under Building Act 2001 (WA) s 85

Australian Standard 3798-200-8 - Whether legally binding

Bunning v Cross - Whether discretion to exclude evidence obtained in contravention of Surveillance Devices Act 1988 applies where evidence obtained by private individual rather than enforcement officials

Denial of procedural fairness - Actual bias - Extent of participation by magistrate in a hearing - Witnesses - Whether particular witnesses should have been prevented from giving evidence

Magistrate's duty to give reasons

Statutory interpretation - Whether Building Act 2001 provides that damage identified following demolition works undertaken in absence of survey are deemed to be caused by owner of land on which demolition works were carried out

Legislation:

Building Act 2011 (WA)
District Court Rules 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Surveillance Devices Act 1998 (WA)

Result:

Appeal dismissed

Representation:

Counsel:

Appellants	:	In person
Respondents	:	In person

Solicitors:

Appellants	:	Not applicable
Respondents	:	Not applicable

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

Barker v R (1994) 54 FCR 451
Bunning v Cross (1978) 141 CLR 54
Butler v Bennett [2007] WADC 107
Currie v Dempsey (1967) 69 SR (NSW) 116
Denney v Lusted [2015] TASSC 10
Frigger v Murfett Legal Pty Ltd (No 2) [2017] WADC 7
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Googe v Spoljaric [2017] WADC 99
Ibrahim v The Honourable Justice Martin [2012] WASC 338
Michael Wilson & Partners v Nicholls (2011) 244 CLR 427
Miller v Miller (1978) 141 CLR 269, 277
Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507
Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273
Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403
R v Ireland (1970) 126 CLR 321
Re Damic [1982] 2 NSWLR 750
Smart v Prisoner Review Board (WA) [2012] WASC 48
Warren v Coombes (1979) 142 CLR 531
Xu v Griffiths [2017] WADC 16

GLANCY DCJ:

Introduction

This is an appeal from the decision of Magistrate Pontifex delivered on 25 June 2018 on a general procedure claim in which she dismissed Mr Xu's and Ms Li's (the appellants) claim for damages against Mr and Mrs Griffiths (the respondents) and ordered that Mr Xu and Ms Li pay the respondents' costs to be taxed.

Background

It is not in dispute that:
(a)The appellants own a property at 30 Dillenia Way, Greenwood. They have done so since 2009.
(b)In 2012 the respondents bought the neighbouring property at 32 Dillenia Way, Greenwood. They did so with the intention of subdividing the property into two.
(c)The appellants claim that the retaining wall between the two properties, located entirely within the boundary of the appellant's land (the wall), was damaged.
(d)The appellants allege that the damage was caused by:
(i)encroachment of roots from palm trees on the respondents' property; and/or
(ii)encroachment of salt water from the swimming pool on the respondents' property; and/or
(iii)the removal of the swimming pool at 32 Dillenia Way and the consequent compaction of soil which formed part of the works undertaken in order to subdivide the respondents' property (the demolition works).
(e)The appellants claimed damages from the respondents in the sum of $9,000.[1]
(f)The appellants' claims in relation to damage from alleged encroachment of tree roots and saltwater are said to arise in nuisance. The appellants claimed that the Building Act2011 (WA) (the BA), particularly s 85(2), created a cause of action and an entitlement to damages for damage allegedly caused by the demolition works.
(g)The respondents denied liability. They claim that there was no proof of encroachment of saltwater or tree roots into the appellants' property. Further, they say that any damage to the wall occurred prior to any demolition works being undertaken on their property and that the wall was not damaged further by those works. They also say that, in any event, the BA creates no entitlement to damages.
[1] It seems that while the appellants did not prove the damages claimed, $9,000 is the amount which the respondents were, at some time, quoted for repairing the wall.

Procedural history

The appellants' claim was commenced in the Magistrates Court in Joondalup on 29 November 2015.
The respondents initially made a counterclaim but withdrew it on 19 February 2016.[2]
[2] Appellants' summary of argument filed 4 October 2018 par 5.
The matter was heard by Magistrate Potter on 5 July 2016. The magistrate concluded the hearing prematurely dismissing the claim on the basis that he could not be satisfied on the balance of probabilities as to the facts in the matter. He ordered the appellants to pay the respondents' costs in the sum of $3,848.32.
The appellants appealed from that decision.
On 9 February 2017 his Honour Judge Eaton upheld that appeal on the basis that the magistrate had erred in law by failing to properly consider the evidence and by failing to give adequate reasons for his decision. Judge Eaton remitted the matter to the Magistrates Court for re-hearing by a different magistrate.[3]
[3] Xu v Griffiths [2017] WADC 16.
The matter was reheard by Magistrate Pontifex (the magistrate) from 18 to 20 December 2016.
On 25 June 2018 the magistrate published her reasons for decision: (JO GCLM 2911 of 2015) (reasons). She dismissed the appellants' claim and ordered that they pay the respondents' costs to be taxed.

Appeals to the District Court

Section 40(1) of the Magistrates Court (Civil Proceedings) Act 2004 (the MCCPA) provides that a party to a case that is not a minor case may appeal to the District Court from a judgment of the Magistrates Court.
An appeal must be commenced within 21 days of the decision complained of: MCCPA s 40(3). It is not in dispute that this appeal was commenced within time.
MCCPA s 40(4) requires the court to decide the appeal on the basis of the record (s 40(4)(a)) and considering any new evidence which it may give leave to be adduced (s 40(4)(b)). Leave may only be given under MCCPA s 40(4)(b) in exceptional circumstances.
Neither party to this appeal sought leave to adduce any further evidence.
The hearing of the appeal is not a hearing de novo. Rather, it is in the nature of a re‑hearing not involving a completely fresh hearing by the appellate court of all of the evidence.
In order to succeed in an appeal the appellant must demonstrate a legal, factual or discretionary error by the magistrate: Frigger v Murfett Legal Pty Ltd (No 2) [2017] WADC 7 [9] - [15] (Bowden DCJ).
In Warren v Coombes (1979) 142 CLR 531, 551 the majority of the court reiterated the rule that:
… in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are disputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, will not shrink from giving effect to it …

Litigants in person

In dealing with the appeal I have been cognisant of the fact that both parties are litigants in person. There are well established principles which govern the way in which courts should approach matters where there is a litigant in person. Those principles, were set out by Gething DCJ in Googe v Spoljaric [2017] WADC 99 [13] ‑ [15]. In summary, they are:
(a)a litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility: Smart v Prisoner Review Board (WA) [2012] WASC 48 [10] (Pritchard J);
(b)the court needs to be careful to ensure that if a litigant in person has a case, it is not denied because of a poorly expressed document or submission: Ibrahim v The Honourable Justice Martin [2012] WASC 338 [21] (Beech J);
(c)at the same time, the court must ensure that any latitude given does not work an injustice to the other party: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10] (judgment of the court).
Those principles governed the way in which I approached this matter.

Grounds of appeal

The appellants advanced 14 grounds of appeal. The written and oral submissions made were extensive.

Misunderstanding of earlier appeal decision and allegations of bias by the magistrate

Before dealing with each of the grounds of appeal, I should say something about two issues which permeate the appellants' submissions which, in my view, arise from their expectations following the decision of his Honour Judge Eaton to remit the claim to the Magistrates Court for re‑hearing.
In the course of his judgment his Honour Judge Eaton referred to the principle that a court would not remit an action for re‑hearing even if error on the part of the magistrate had been found if the court came to the view that an appellants' claim had no prospects of success.[4]
[4] Xu v Griffiths [16].
The appellants appear to have seized on that expression of the law and taken it to mean that his Honour had made it clear that they would be successful in a new trial.[5] It is clear from his Honour's decision that that was not what he was saying.
[5] ts 15, 16 (7 December 2018).
The assertions made throughout the appellants' written and oral submissions to the effect that the magistrate must have dismissed their claim for an improper purpose given what Judge Eaton had said, stem from that misunderstanding of his Honour's judgment.
Further, the submissions made by the appellants in support of many of their grounds of appeal reveal that, in many instances their real complaint about the magistrate's decision is that she did not accord them procedural fairness because she was not a person who was disinterested in or unbiased in the matter to be decided. For example, at page 25 of their written submissions they assert that the magistrate had an 'evil purpose'. I have taken that, and other similar submissions, to mean that the appellant's submit that the magistrate's purpose was to find in favour of the respondents irrespective of the evidence or law. The assertion that the magistrate was biased is also revealed in their contention that she interrupted proceedings for the purposes of distracting the appellants from their submissions, assisted the respondents' witnesses when they were having difficulty and accepted the evidence of the respondents' witnesses, even when, according to the appellants, that evidence was false or forged.
I will deal with the individual allegations of bias in dealing with individual grounds of appeal but at this stage I will set out the relevant law relating to denial of procedural fairness on the grounds of judicial bias and deal with the assertion that the magistrate's conduct throughout the hearing demonstrated actual bias.
The test for actual bias requires that the party alleging that bias exists show that the mind of the decision‑maker was so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Such an allegation must be distinctly made and clearly proved: Minister for Immigration and Multicultural Affairs v Jia [2001] HCA 17; (2001) 205 CLR 507, [36], [69], [72] and [127].
Actual bias requires an inquiry into the actual thought processes of the decision‑maker. It is the actual state of mind of the judicial officer which is in issue where actual bias is alleged: Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 [33] and [67].
Actual bias will exist where the decision maker has prejudged the case against a party or acted with such partisanship or hostility as to show that the decision‑maker had his or her mind made up against that party and was not open to persuasion: Minister for Immigration and Multicultural Affairs v Jia [36] and [72].
Having reviewed all of the transcript of the hearing and the magistrate's reasons for decision it is apparent that at times the magistrate became impatient with the appellants during the hearing. However, there is nothing in her conduct which could legitimately give rise to any reasonable apprehension that she was acting for an improper purpose or was actually biased towards the respondents.
I will now turn to consider each ground of appeal.

Ground 1 – the recorded conversation

Ground 1 asserts:
The Magistrate erred in that she did not allow the Appellants to tender the legally admissible evidence: the recording of conversation between the Respondent and the Appellants about the retaining wall. The Magistrate's ruling that the recording of conversation is not admissible is contrary to the Surveillance Devices Act 1998.
On 11 July 2014 Mr Xu recorded on his iPhone a conversation he had with the respondents regarding the wall. He did so with the iPhone concealed in his pocket and without the knowledge or consent of the respondents.[6] Mr Xu's wife was present throughout the conversation. From that recording the appellants prepared what they say is a written transcript of the conversation. The appellants submit that the recording contains admissions made by Mr Griffiths that he had caused damage to the wall. The respondents objected to the recording and the transcript being admitted into evidence. They submitted that the conversation was recorded in breach of the Surveillance Devices Act 1988 (WA) (the SDA) and that the transcript is not a complete and accurate recording of the conversation as it does not record matters such as Ms Li swearing at Mr Griffiths during the conversation. The respondent submits that the magistrate was correct to exclude the recording and the transcript.
[6] ts 197 (18 December 2017).
The magistrate refused to allow the appellants to tender either the recording or the transcript. In so ruling the magistrate said:
I'm going to rule this – I will give reasons eventually, when I hand my decision down in more fullness of time. But in this case the Act prohibits the use of a listening device except in certain circumstances and subsection (1)(b) applies to record a private conversation. (1)(b) doesn't apply in the situation of section (3)(d) … In my view, in this circumstance, it was not reasonably necessary and the law has a discretion to exclude evidence which has been improperly obtained by the use of a surveillance device. You have other means of proving that evidence. You can tell the court orally what was said on that time and that can be tested. So I rule against the admissibility of the recordings made on the surveillance by the use of a recording - listening device on that occasion. So that's my ruling on that.
…
I've made my ruling. You can tell me orally what was said. That is admissible. But I'm not admitting that surveillance recording.[7]
[7] ts 199 - 200 (18 December 2017).
The appellants contend that the magistrate erred in law in failing to allow them to tender the recording and the transcript because her ruling was contrary to the SDA.
In criminal cases, the court has a discretion to exclude illegally or improperly obtained evidence: Bunning v Cross (1978) 141 CLR 54. The discretion allows the balancing of the competing public requirements that there is a need to bring to conviction those who commit criminal offences and that there is a public interest in the protection of the individual from unlawful, improper or unfair treatment by those responsible for enforcing the law: R v Ireland (1970) 126 CLR 321, 334 - 335 (Barwick CJ). In considering whether to exercise the discretion to exclude such evidence the court has regard to matters including whether the unlawful act was the result of a mistaken belief that the act was lawful, whether the nature of the illegality affected the cogency of the evidence obtained, the seriousness of the offence and whether the illegal act was the deliberate result of cutting corners so as to make the job of the police easier.
In Miller v Miller (1978) 141 CLR 269, 277 his Honour Justice Gibbs indicated in obiter dicta that he would have exercised the discretion in Bunning v Cross to exclude illegally obtained evidence had it been necessary to determine the issue. That case concerned Family Court proceedings in which the father sought to give evidence of a telephone discussion between his son and his former wife to which he has listened by way of a second handset/extension at his home. It seems therefore that it might be that the discretion in Bunning v Cross would extend to civil proceedings and to cases in which the illegal obtaining of evidence was not undertaken by those involved in law enforcement.
But in cases where the illegality has been occasioned by the act of some person other than a law enforcement officer, the discretion to exclude may not arise. For example in Barker v The Queen (1994) 54 FCR 451, a recording, made in breach of the relevant legislation, had been made by a private individual of a conversation between herself and another party which was later made available to the Australian Federal Police and the DPP (who had no hand in the making of it) was admitted in criminal proceedings. In that case the court said (479A):
No occasion in our opinion arose for the exercise of the discretionary power to exclude the recording from evidence because it had been illegally made.
This was, presumably, because the public policy reason for excluding illegally obtained or improperly obtained evidence, being the public interest in the protection of an individual from improper police practices lest the law be seen to be condoning or encouraging unlawful conduct by those whose duty it is to enforce the law, did not arise: Police v Dunstall [2015] HCA 26; (2015) 256 CLR 403 [26].
In my view, even if the recording was made in breach of the SDA the magistrate might have erred in refusing to allow the recording to be admitted in evidence because of the possible application of the principle in Bunning v Cross in this case. However, it is unnecessary to express a concluded view on that issue because evidence of the conversation was given by the appellants at the hearing. The magistrate made it clear to the appellants that they could give oral evidence of the contents of the discussion and it is clear from the transcript and from ground of appeal 3 itself, that Mr Xu did give evidence of the contents of the conversation by reading the transcript which he had prepared during the course of his evidence-in-chief. The magistrate had regard to that evidence in deciding the case. The fact that evidence of the conversation was given and that the magistrate had regard to that evidence means that even if the magistrate was wrong not to admit the best evidence of the conversation, that failure did not affect the outcome of the hearing. For those reasons, it has not been necessary for me to determine whether the conversation was a private conversation and, if so, whether the recording of it by the appellants was necessary to protect their legal interests.
It is therefore not necessary to decide whether the error alleged in ground of appeal 1 was made.

Ground 2 – intervention by magistrate

Ground 2 asserts:
The Magistrate erred in that she kept asking the Appellant if the conversation is a private conversation. She should not have asked the Appellant such a question. The Appellants told the Court the topic of the conversation and the circumstances in which the conversation took place. It is up to the Magistrate to decide whether it is a public or private conversation.

It is permissible and proper practice for a judicial officer to ask questions directed at clarifying or elucidating answers given by a witness where he or she considers this course desirable in the interests of justice: Re Damic [1982] 2 NSWLR 750, 762 - 763 (Street J). It is also the case that more latitude to questioning by judicial officers is given in civil proceedings than is given in criminal trials: Denney v Lusted [2015] TASSC 10 [15] (Pearce J).
There will, of course, come a point where unfairness arises from excessive judicial questioning. That may come about in a number of ways. It can indicate prejudgment of issues amounting to bias. It can also result in the bolstering of one case or another to such an extent that it amounts to an impermissible intrusion on the adversarial nature of the proceedings: Denney v Lusted [29]. But that is not what is complained of by the appellant in ground of appeal 2.
The appellants' submission that the magistrate should not have asked questions about whether the conversation was private because it was for her to determine as a matter of law, in my view misapprehends the purpose of the magistrate's questions. Rather than asking Mr Xu for his view on a matter of law, an examination of the transcript from 18 December 2017, pages 195 and 200 reveals that the purposes of the impugned questions were: first, to clarify Mr Xu's evidence about where and how the conversation took place; and second, to clarify his submissions in response to the objection to the admissibility of the recording and the transcript.
Accordingly, I find that the magistrate did not err in asking the questions about which the appellants complain in ground of appeal 2.
This ground of appeal fails.

Ground of appeal 3 – finding on conversation on 11 July 2014

Ground 3 asserts:
The Magistrate erred in that although she allowed the Appellant to tell her the content of the recorded conversation, to read the transcript of the recorded conversation, she leaves everything of the conversation out of her findings for her decision. In the conversation, on 9 occasions the Respondent admitted that his work caused part of the damages to the retaining wall and on another 7 occasions he said that his work did not cause all the damages to the wall. On no occasions did the Respondent say that his work did not cause any damages to the wall. The Respondent admitted that these are what he said. Are all these not clear enough? The Magistrate knows these too well, so she simply chooses to leave all these out of the equation completely.
Ground 3 is essentially an assertion that the magistrate failed to have regard to relevant material because the reasons for decision do not touch upon the evidence of the conversation of 11 July 2014.
Inadequate reasons will not necessarily amount to appellable error. An appeal court will only intervene when no reasons have been given in circumstances where they were required, or when the inadequacy gives rise to a miscarriage of justice.
As the Court of Appeal said in Mount Lawley Pty Ltd v Western Australian Planning Commission (2004) 29 WAR 273 [26] ‑ [29]:
The starting-point … is that the giving of reasons is a normal (albeit not universal) incident of the judicial process. That is because 'the duty is a function of due process, and therefore of justice'. Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment. The requirement also furthers judicial accountability.
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
Reasons need not be lengthy and elaborate; nor do they need to refer to all the evidence led in the proceedings. However, relevant evidence should be referred to (albeit not necessarily in detail) and, where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to. Where one set of significant evidence is preferred over another, the trial judge should set out findings sufficient to explain why. Similarly, where a dispute involves a form of 'intellectual exchange, with reasons and analysis advanced on either side', the judge 'must enter into the issues canvassed before him and explain why he or she prefers one case over the other'.
Inadequacy of reasons does not necessarily amount to an appealable error. An appeal court will only intervene when no reasons have been given in circumstances in which they were required, or when the inadequacy is such as to give rise to a miscarriage of justice. Nor does an appealable error arising from inadequate reasons necessarily result in a new trial. The appeal court is entitled to consider the matter and, if it can do so (where, for example, only one conclusion is reasonably open on the available evidence), it may itself decide the matter.
It is not necessary for the decision-maker to make explicit findings on every disputed aspect of the evidence if such findings can be inferred: Butler v Bennett[2007] WADC 107 [47] (Bowden DCJ).
The transcript of the recorded conversation which had been prepared by the appellant was admitted into evidence. Mr Xu read it to the magistrate in the course of giving evidence. The evidence he gave as to the contents of the recorded conversation is annexed to these reasons.
The appellants submit that the transcript shows Mr Griffiths admitted damaging the wall eight times in that conversation.
Mr Griffiths gave the following evidence‑in‑chief as to his proposals to fix the wall and his explanation of the conversation with the appellants on 11 July 2014:[8]
And I remember saying to him that if he thought that I had moved these blocks any further than what I knew the wall was leaning, then I would fix that five or six blocks in that area ...
… Now, I offered this as a gesture of good will, not because I believe I had damaged his wall.
…
In July 2014 the claimants came over again. That's the transcript that Mr Xu read. And they became abusive, shouting and swearing, particularly Ms Ying [sic]. Calling me a liar at the top of her voice and shouting f words at me. I restated that I would fix the blocks that I agreed to fix in the first place around those five or six blocks as mentioned. But they weren't happy with that. And they said they would be speaking to the Building Commission and have the building stopped.
But the truth of it is that we wanted to get on with building – being able to build our home.
[8] ts 164 - 166 (19 December 2017).
During his cross-examination (ts 177, 19 December 2017), the following exchange on the point took place:
Mr Xu: Okay. Yesterday, after – in cross-examination, you said from the transcript of the conversation of 11 July 2013 [sic] you (indistinct) eight times (indistinct) costs for damages for the retaining wall; is that right? --- That's how you put it. I think I've explained to the court that I had taken ownership to fix that and so that's what I was referring to.
(indistinct) and you also claimed that you – you also said nine times that you didn't damage the whole wall?--- In the conversations in about nine areas, the expressions were that I wasn't responsible for the damage. Whether you want to count nine or …
The only specific reference the magistrate made to the disputed conversation of 11 July 2014 is found at [35] of her reasons. That paragraph states:
In July 2014 he again stated that the defendants would fix the blocks that they had agreed to fix in the first place, being the five or six blocks as mentioned. The claimants were unhappy with that and indicated that they would take the matter up with the Building Commission and have the building stopped.
But that passage is found within [33] – [37] of the magistrate's reasons for decision in which she made findings accepting Mr Griffith's evidence that the wall was leaning when he purchased the property (which she found, crucially was evidence corroborated by the evidence given by the former owner of the property,[9] and by the expert witnesses who gave evidence about the cause of the damage)[10] and that his offers to fix parts of the wall were not admissions that he had caused the damage in the ways contended by the appellants, but rather were made in attempts to put an end to the dispute between neighbours.
[9] See reasons for decision [39].
[10] See reasons for decision [46].
The evidence of the conversation was admitted into evidence. It was up to the magistrate to determine what weight she gave to it.
It can be inferred from the reasons that the magistrate rejected the appellants' submission that the conversation of 11 July 2014 demonstrated that Mr Griffiths had admitted that he was responsible for the damage to the wall either as a result of nuisance or breach of the Building Act 2011.
It was open for her to do so on the evidence.
No error of law is revealed and the ground of appeal fails.
In any event, while it may have been open to the magistrate to reject Mr Griffiths' explanation of the comments made by him in the recorded conversation and to find that he had admitted to damages to five or six blocks of the wall, the appellants did not prove that the damage was caused by the ingress of saltwater or tree roots onto their property or that the damage was caused by the demolition works as they had claimed. Nor did they prove the cost of repairing those blocks.
Accordingly, even if the magistrate had found that conversation contained admissions about damaging parts of the wall, the appellants' case would have been dismissed.

Ground 4 – construction of s 85(2) of the Building Act 2011

Ground 4 asserts:
The Magistrate erred in that she does not interpret Section 85(2) of Building Act 2011 correctly. She erred also in that she misinterprets many other law clauses.
The appellant's fourth ground of appeal states that the magistrate erred in not interpreting BA s 85(2) correctly. In particular, the appellants contend that the BA provides that if a survey (often called a 'dilapidation report') is not obtained before the commencement of any demolition works, then any damage to a neighbouring property, whether old or new, is deemed to have been caused by the demolition works unless the contrary is proved on the balance of probabilities and the owner of the land on which the construction works occurred is liable for the cost of repairing that damage.
The appellants submit that the purpose of BA s 85 is to protect the interests of the persons responsible for the work and the owners of the affected land. They say that the section serves to 'stop people from playing tricks when they find their work has caused damages to the adjoining properties and they want to run away from the responsibility for the damages'.[11]
[11] Appeal book pages 8 – 9 par 4.
The relevant provisions of the BA are set out in pt 6 div 3 ('obtaining consent or court orders to affect other land'). The relevant sections provide as follows:
83. Terms used
In this Division -
affected land, in relation to a notifiable event, means land that is reasonably likely to be affected by the event;
notice means a notice under section 84;
notifiable event means any of the following -
(a)a part of a building or structure is placed into, onto or over land beyond the boundaries of the works land;
(b)land beyond the boundaries of the works land is adversely affected;
(c)a protection structure is placed into or onto land beyond the boundaries of the works land;
(d)the structural, waterproofing, or noise insulation capacity of a party wall or a substantial dividing fence shared with the works land, or a boundary retaining wall that protects land beyond the boundaries of the works land, is affected;
(e)a fence, gate or other barrier to land on or beyond the boundaries of the works land is removed;
(f)in doing the work a person goes onto other land as defined in section 81(1);
specified means specified in a notice or court order.
84. When notice about effect on other land required
If it is reasonably likely that a notifiable event may occur if work proceeds, the person responsible for the work must give notice of the likely notifiable event to each owner of the affected land.
Penalty: a fine of $10 000.
85. Form and content of notice about effect on other land
(1)A notice must -
(a)be in an approved form; and
(b)set out the prescribed information about the proposed work; and
(c)if relevant, give details of the part of a building or structure that would be placed into, onto or over the affected land, and seek the consent of each owner of the affected land to the encroachment; and
(d)if relevant, give details of how the affected land would be adversely affected, and seek the consent of each owner of the affected land -
(i)to the work being done even though the land may be adversely affected in that way; or
(ii)to the placement of a protection structure into or onto the affected land for the purpose of preventing, or minimising the risk of, the land being adversely affected; and
(e)if relevant, give details of each protection structure that would be required to be placed into or onto the affected land including the reason for, and nature, location and duration of, the protection structure and the estimated time for doing the protection work, and seek the consent of each owner of the affected land to the placement of the protection structure as proposed;
(f)if relevant, give details of how the structural, waterproofing, or noise insulation capacity of a party wall, a substantial dividing fence, or a boundary retaining wall that protects the affected land would be affected, and seek the consent of each owner of the affected land to do the work; and
(g)if relevant, specify the fence, gate or other barrier shared by, or located on, the affected land that would be removed, the reasons for its removal and details of any temporary barrier that is proposed to be erected, and seek the consent of each owner of the affected land for the removal; and
(h)if relevant, state that in doing work a person will be required to go onto the affected land and the reasons for the requirement, and seek the consent of each owner of the affected land to go on to the affected land to do the work; and
(i)be accompanied by a response notice, in an approved form, to be completed by or on behalf of each owner of the affected land and given to the person responsible for the work; and
(j)set out, or be accompanied by, each other thing that is prescribed to be set out in, or accompany, the notice;
(2)a person responsible for work may, in a notice, request that a survey of the affected land be conducted, and seek the consent of each owner of the affected land for a person to go on to the affected land to conduct the survey.
86. Application for court orders if no consent
(1)A person responsible for work who gives a notice to each owner of the affected land may, in accordance with subsection (2A), apply to the Magistrates Court for an order under subsection (2).
(2A)An application may be made -
(a)if the consent sought in the notice is refused, any time after the refusal is given; or
(b)if the consent sought in the notice is neither refused nor given and no request for further information is made within the 28 day period after the notice is given, after that period has expired; or
(c)if the person responsible provides further information in response to the request of a person given the notice, 14 days after the further information is given.
(2)On an application the court may order that -
(a)a specified part of a specified building or structure may be placed into, onto or over specified land beyond the boundaries of the works land; or
(b)specified land beyond the boundaries of the works land may be adversely affected by the work in a specified way; or
(c)a specified protection structure may be placed into or onto specified land beyond the boundaries of the works land; or
(d)specified work may be done which may affect the structural, waterproofing, or noise insulation capacity of a specified party wall, a specified substantial dividing fence or a specified boundary retaining wall; or
(e)in doing specified work a specified person or a person who belongs to a specified class of person may go onto specified land and the court may specify the times of access; or
(f)a survey may be conducted of specified land beyond the boundaries of the works land and in conducting the survey a specified person or a person who belongs to a specified class of person may go onto the specified land, and the court may specify the times of access; or
(g)a specified fence, gate or other barrier to specified land may be removed for the purpose of going onto the land to do work or conduct a survey or for any other specified purpose.
(3)In deciding whether to make an order under subsection (2) the court must have regard to -
(a)the nature and likely extent of any burden or other detrimental effect to the affected land or inconvenience to an owner or user of the affected land if the order is made; and
(b)whether there are reasonable and practicable alternative courses of action available to the person responsible for the work that do not involve the affected land.
(4)If the court makes an order under subsection (2) in the absence of a person affected by the order, the person responsible for the work must ensure that the person is given a copy of the order as soon as practicable, but not more than 7 days, after the order is made.
Penalty: a fine of $10 000.
87. Requirement for building or demolition permit not affected by court order
(1)An order under section 86(2) that allows building or demolition work to be done without the consent of an owner of the affected land does not affect a requirement under section 9 or 10 for a building permit or demolition permit to be in effect for the work.
(2)If -
(a)an order is made under section 86(2)(c) for the placement of a protection structure into or onto land beyond the boundaries of the works land; but
(b)an application for a building permit for the placement of the protection structure is not made within 30 days of the order,
the person responsible for work on the works land may apply for a building permit for the placement of the protection structure, and for that purpose section 16(b) applies as if the application must be signed by that person instead of each owner of the land into or onto which the protection structure is proposed to be placed.
It is clear from the terms of the BA which I have set out above that where proposed works are reasonably likely to affect land other than that on which the works are to be conducted, the person responsible for the proposed works must give notice of the proposed works to the owners of the land reasonably likely to be affected by those works: BA s 84. The form and content of the notice is prescribed in the BA s 85(1). The giving of the notice is mandatory. That is clear from the use of the word 'must' in s 84.
Importantly, BA s 85(2) allows, but does not require the owner of the land to request that a survey of the affected land be conducted and to seek the consent of the owners of the affected land to conduct the survey. That the section is permissive rather than mandatory is revealed in the use of the word 'may', in contrast to the word 'must' which is used in connection with the giving of the notice in the BA s 84 and in relation to the content and form of the notice in the BA s 84(1) and from an appreciation of the purpose of the provisions.

Where consent is not forthcoming, the person responsible for the works can seek orders from the Magistrates Court permitting the survey to be conducted: BA s 86.
The appellants also rely on a passage from the Building Act Handbook published by the Building Commission, Department of Commerce, in support of their contention that where the survey referred to in the BA pt 6 div 3 is not conducted, any damage will be deemed to have been caused by the works unless proved otherwise. That passage provides:
85(2) allows a person responsible for work to request a survey of affected land and seek the consent of the adjoining owner to go on to the affected land to carry out the survey. It is normal practice for a person about to do building or demolition work to carry out a dilapidation survey of adjoining buildings and land to help determine whether any future damage is caused by the building or demolition work. If the owner of the affected land does not consent to the survey then that owner will have to provide evidence that any future damage was caused by the building or demolition work.
A proper reading of that passage, which, like the relevant provisions of the BA itself is unambiguous in its terms, reveals the situation is not that which is contended for by the appellants. To say the owner of land who does not allow his neighbor access for the purposes of the preparation of a survey will be required to prove any damage to his property was caused by the demolition work is not to say that where no survey is sought to be undertaken in the first instance, any damage will be assumed to be caused by the works. Rather the provision is there to encourage the preparation of survey reports so that disputes about the condition of a property before and after demolition works can be avoided.
The magistrate dealt with the appellants' submission on this point at [10] ‑ [18]. She correctly held at [18] that there is no principle of statutory interpretation that would allow for the BA s 85(2) to be read in the way that would give it the meaning contended by the appellants and that it does not reverse the onus of proof.
This ground of appeal fails.

Ground 5 – onus of proof

Ground 5 alleges:
The Magistrate erred in that she shifts the onus of proof to the Appellants when the other party makes a claim. The Magistrate erred also in that she was using double standards.
It is trite law that unless legislation provides otherwise, in civil claims the party bringing the claim bears the onus of proving the facts necessary to establish their claim and that the standard of proof which they must achieve is the balance of probabilities.[12]
[12] Currie v Dempsey (1967) 69 SR (NSW) 116 (Walsh JA).
In their written submissions the appellants referred to passages of the transcript from 20 December 2017 (pages 249 – 250) as examples of the error alleged in this ground of appeal. In oral submissions the appellant gave further examples of the 'double standards' or the 'shifting of the onus of proof' which they said arose when 'the other party made a claim'.
The appellants' complaint is best illustrated by one of the examples to which they referred.
One of the issues raised before the magistrate was whether a building permit should have been (but was not) obtained before the swimming pool was removed from the respondents' property. Whether such a permit was required depended on the size of the pool. Mr Ethrington, one of the respondents' witnesses, who was the manager of compliance and regulatory services at the City of Joondalup at the relevant time, gave evidence as to the size of the swimming pool and was cross‑examined by Mr Xu about that issue. The following exchange took place in the course of the cross-examination:[13]
[13] ts 404 (20 December 2017).
Xu, Mr: … So for this swimming pool what criteria do you use?
--- Well, it did not exceed 40 square metres.
Sorry? --- It didn't exceed 40 square metres.
Do we have the calculations to prove that? --- Not on me, no, sorry.
No, you don't have to provide that calculation to prove it doesn't - - -
Her Honour: He doesn't have to prove anything. He has given you his evidence. He is not here to prove anything. He's a witness. Move on.
From an examination of all of the other passages referred to in respect of which the same complaint is made, it is apparent that the appellants fundamentally misunderstood that the onus of proving their claim fell to them. Using the example above, if the appellants had wished to prove a permit was required, they should have led their own evidence as to the size of the pool.
There is no merit in this ground of appeal.

Ground 6 – 'lies' and 'loopholes'

Ground 6 alleges:
The Magistrate erred in that she accepts whatever the other party and their witnesses said, even sophistries, as facts without any questioning. The Magistrate erred also in that in her findings she ignores the apparent loopholes in the other party's witness statements.
In their written submissions the appellants make many complaints about the magistrate's decision under this ground of appeal.
The appellants contend that much of the respondents' evidence was 'sophistry'. A sophistry is a fallacious argument, a clever but false argument, one made especially with the intention to deceive.[14]
[14] New Shorter Oxford English Dictionary.
In support of this ground of appeal the appellants referred to the statements made by Mr Griffiths in the conversation of 11 July 2014 as an example of the magistrate's acceptance of sophistries. In essence, they submit that the conversation is evidence of admissions made by Mr Griffiths that his demolition works had caused damage to the wall and that his explanation for those comments, being that he was prepared to fix the wall in order to get on with the construction of his house, were sophistries which the magistrate ought to have rejected.
Having read the transcript of the hearing before the magistrate I have come to the view that there is no merit in the ground of appeal. At all times the appellant had the onus of proving that the demolition works, or alternatively the encroachment of the saltwater or tree roots, caused damage to the wall. The fact that Mr Griffiths may have at some time, made comments that seemed to indicate an acceptance of responsibility for the damage, which he later explained in evidence were not such admissions, was something the magistrate was entitled to take into account in assessing the honesty, accuracy and reliability of Mr Griffiths' evidence. It is apparent from her reasons that the magistrate found Mr Griffiths to be an honest, accurate and reliable witness whose evidence that the wall was damaged prior to the construction works was corroborated by the evidence of other witnesses. It was open on the evidence for the magistrate to make that finding.
Under this ground of appeal the appellants also make similar complaints about the magistrate's acceptance of the evidence of other witnesses in the face of what the appellants submit are 'loopholes in the evidence'. I take the reference to 'loopholes' to mean inconsistencies. Having reviewed all of the evidence I am satisfied that there was evidence before the magistrate upon which it was open to her to make each finding that she did.
Under this ground the appellants' written submissions also contend that the error alleged is apparent from the fact that the magistrate's decision contains more paragraphs dedicated to the respondent's witnesses and evidence and not enough facts related to the appellants' claim. Even if this is true, it does not demonstrate error in the magistrate's reasoning or conclusions. First, the explanation for the difference may be found in the fact that the respondents led more evidence than the appellants. Second, there is no requirement that the reasons contain equal discussion of each parties' case. I have already set out what is required of reasons when dealing with ground of appeal 3. The magistrate's reasons adequately set out the relevant findings of fact and the applicable law.
No error of law, or fact or discretion is revealed from the difference in the treatment of the parties' evidence and submissions in the magistrate's reasons.
Under this ground of appeal the appellants' written submissions assert that the error can also be seen in the fact that the magistrate's decision included background information that was not relevant to their claim. They give as examples of this irrelevant material the magistrate's reference to the fact that the respondents ultimately built a new boundary retaining wall within their own property when agreement could not be reached with the appellants about a wall being constructed on the boundary of the two properties and her reference to the fact that the appellants tried to have the respondents demolition works stopped by making a complaint to the Building Commission.
I accept that these matters do not seem to be directly relevant to whether the appellants had proved to the requisite standard that the respondents were responsible for the damage to the wall as claimed. They are simply part of the factual background to the way in which the appellants and the respondents conducted themselves in the course of their dispute. However, their inclusion as part of the narrative in the reasons for decision does not demonstrate any error of law or fact or error in the exercise of any discretion on the part of the magistrate.
This ground of appeal is without merit, and fails.

Ground 7 – balance of probabilities

Ground 7 alleges:
The Magistrate erred in that she questions and then ignores the obvious facts the appellants tendered. Most importantly, the Magistrate erred in that she abuses balance of probabilities.
In the opening paragraph of their written submissions concerning ground 7 the appellants say:
The Appellant is a structural engineer himself. When giving evidence in the Court he provided his opinion as a structural engineer. But the Magistrate put this aside in her decision. Why did she allow the Appellant to present his opinion in the first place? This case involves a lot of engineering knowledge and I don't think the Magistrate is an expert in engineering. So how could she judge what is right and wrong?
Of course the magistrate is not a structural engineer. Her role was to assess the evidence of all parties, including experts and to make findings of fact based on her assessment of the honesty, accuracy and reliability of the evidence given by each of the witnesses. This is precisely what the magistrate has done in this case. It is clear from her reasons, particularly at [46], that she preferred the evidence of the respondents' witnesses to the evidence given by Mr Xu as to the damage to the wall. The findings she made were open on the evidence.
The magistrate's conclusion on the engineering evidence given by Mr Xu are set out at [47] – [48] of her judgment. In those paragraphs she found that while Mr Xu had asserted that he was a structural engineer and sought to give expert evidence, he gave no evidence as to his qualifications and experience in that field and gave evidence that he did not do any investigations into the construction of the wall. The magistrate's reasons reveal that she also put aside his evidence as to the construction and condition of the wall because Mr Xu accepted that he was not an independent expert witness.
No error of law or fact or discretion is apparent from these findings.
The submissions then move on to a contention that the magistrate erred in not finding, based on a photo tendered by the appellants,[15] that the wall was undamaged before the respondents' demolition works took place. In respect to that photo the magistrate made the following finding:[16]
The claimants tendered a photo of the wall taken before the demolition and compaction work. This was said to demonstrate that there was no damage prior to the compaction. The photo is of very little probative value. It is of a very small portion of the wall taken from some distance and partly obscured by vegetation. Nothing about the prior condition of the wall can usefully be taken from it.
[15] Exhibit 16aa.
[16] Reasons for decision [30].
Having viewed the photograph and the evidence given in respect of it, I have come to the conclusion that it was open to the magistrate to find as she did in relation to it.
As to the assertion that the magistrate abused the balance of probabilities, that submission arises from a misconception of the role of the court and the obligations of the parties to this litigation. The hearing before the magistrate was an adversarial, not an inquisitorial process. The appellants, as claimants, had an obligation to prove their case to the requisite standard. This required them to lead evidence from which the magistrate could conclude that it was more likely than not that the encroachment of tree roots, or saltwater or the demolition works had caused the damage to the wall.
The complaints which the appellants make about the view which the magistrate took of the evidence of the saltwater and tree root encroachment - that the appellant was being asked to do the impossible in being expected to lead evidence of when and how water from the respondents swimming pool encroached onto his land - and their question 'could the magistrate tell which party's evidence is more probable to be true?' all stem from the same misunderstanding of the onus and standard of proof.
Ground 7 also fails.

Ground 8 – Australian Standard

Ground 8 alleges:
The Magistrate erred in that she even agreed with the Respondents on that AS 3798-2007, Guidelines on earthworks for commercial and residential developments, an Australian national standard, is just a guideline, and it is ok not to abide by these guidelines.
In their written submissions the appellants submit that the magistrate made no mention of AS 3798-2007 (the Australian Standard) in her decision. The appellants submit that when something goes wrong, the Australian Standard 'is the law for checking why it has gone wrong when something does go wrong and now this standard act [sic] as the LAW'.
The Australian Standard was referred to in the course of Mr Lewis' evidence. His evidence was that that it was a guideline only and there was no requirement for an engineer to abide by it.[17]
[17] ts 269-270 (19 December 2017).
The preface to the Australian Standard states:
… The objective of this Standard is to provide guidance to those responsible for or involved in the design, specification, supervision and control testing of earthworks for commercial and residential developments. This Standard is a guideline, which is an informative document only.
The appellants' written submissions say:
Now it is expected that the District Court provides its opinion if AS 3798 is the LAW that needs to be followed in this case.
The magistrate did not refer to the Australian Standard in her reasons for decision. The appellants submit that the magistrate should have accepted that the Australian Standard was legally binding on persons undertaking earthworks. An Australian Standard has no legal application unless adopted and applied by statute or by contract. An Australian Standard may, however, be relevant in evidence if it is accepted as representing a consensus of professional opinion and practical experience about sensible, safe precautions. In that way, an Australian Standard can assist the court in determining whether some aspect in the design, specification, supervision and control testing of earthworks for commercial and residential developments constitutes a danger which must be guarded against by the exercise of reasonable care. Failure to follow a standard does not, without more, establish negligence: MR & RC Smith Pty Ltd t/as Ultra Tune (Osborne Park) [69], [70]. As stated by McHugh J in Jones v Bartlett [2000] HCA 56; (2000) 205 CLR 166 [110] in respect of the application of Australian Standards, they are a guide to, but they cannot dictate, the standard of reasonable care required in the circumstances of individual cases.
The magistrate correctly held that the Australian Standard was not binding.
Further, given the way the appellants had framed their claim – that the respondents were liable for any damage to the wall, whenever and however caused, because they had not had carried out a dilapidation report – it was unnecessary for the magistrate to have regard to the Australian Standard.
No error of fact, law or discretion has been made by the magistrate in respect of this matter. This ground of appeal fails.

Ground 9 – documents tendered not on List

Ground 9 alleges:
The Magistrate erred in that she allowed documents not on the List of Documents to be tendered as evidence. The Magistrate simply dismissed the Appellant when he pointed out that these documents are forged.
The relevant documents were:
1.a photo showing a compactor;[18]
2.a bank statement;[19] and
3.a business statement.[20]
[18] Exhibit 3.
[19] Exhibit 2.
[20] Exhibit 2a.
There is no rule of practice or procedure in the Magistrates Court which prohibits the tendering of documents which are not on a party's List of Documents. The purpose of providing a list of documents is to ensure that litigation is not conducted by surprise. If the appellants felt that they were at some disadvantage because they did not have prior notice of the respondents' intention to tender any or all of those three documents, then the appropriate course would have been to ask for an adjournment of the trial of sufficient duration as to allow the appellant to deal with the documents or to object to their being tendered on the basis of fairness. No complaint about the reception into evidence of those three pieces of evidence was made at the time. In any event, there is nothing to suggest that the tendering of those documents led the magistrate into error.
The ground of appeal also asserts that the documents were forged and the magistrate therefore erred in relying on them. An assertion by the appellants that a document is a forgery is not proof of that fact. Without some evidence upon which the magistrate could reasonably conclude that the documents were forgeries she was obliged to reject that assertion. To do otherwise would have been to come to a conclusion that was not reasonably open to her on the evidence.
This ground of appeal is without merit and fails.

Ground 10 – conduct of trial

Ground 10 alleges:
The Magistrate erred in that she rushed to answer questions for the Respondent. She erred also in that she interrupted the Appellant frequently at critical moments, adjourned the trial when the Respondent's witnesses did not know what to say.
I have read the full transcript of the hearing before the magistrate and have had regard to the appellant's oral and written submissions in respect to this ground of appeal.
It is clear that at times the magistrate became frustrated with the way in which Mr Xu conducted himself throughout the proceedings and that at times she became curt with him. She frequently had to ask Mr Xu to move along with his cross-examination when he had asked the same question repeatedly and when he became argumentative with witnesses. On occasions he was asked not to shout at the witnesses. But the suggestion that the magistrate did anything with the intention of favouring the respondents is baseless, as an examination of some of the complaints made under this ground of appeal reveals.
The adjournment which the appellants submit was called at a time when Mr Xu's cross-examination of Mr Lewis was going well and which they submit derailed that cross‑examination was taken at the usual time at which a lunch break is taken and was proceeded by the following exchange between the magistrate and Mr Xu:
Her Honour:        This is – I think we might – we will have our lunch break now and you can come back and finish your questions after lunch.
Xu, Mr:              Okay.
Her Honour:        So, perhaps, if we could reconvene at 2. I'm sorry, Mr Lewis? ---- 2.
I have to give my staff a lunch break and so if you could return at 2.

The appellants made no complaint to the magistrate about adjourning the court for lunch at the time. The appellants made no request to postpone the lunchbreak so that the cross‑examination could continue. Further, there is no indication from the transcript that the witness's answers to the questions asked after the luncheon adjournment were somehow affected by that adjournment in the way asserted by the appellants.
Another example of conduct complained of under this ground of appeal is said to be evidenced from a portion of Mr Griffiths' evidence where the magistrate interrupted Mr Xu's cross‑examination and disagreed with the way in which he was then characterising evidence given earlier by Mr Griffiths. In the relevant exchange, Mr Xu put to Mr Griffiths that he had admitted that the tree root had encroached into Mr Xu's wall. The magistrate interrupted him and said that Mr Griffiths had used the word 'roots' but had not said 'tree roots'. She then went on to say that Mr Griffiths had said repeatedly that there were roots but that he was unable to say whether they were tree roots and that he had not said 'tree roots' in his answer to the earlier question. The appellants submit that this exchange clearly shows that she was on the respondents' side rather than acting as a magistrate 'sitting in the middle'.
The transcript records,[21] that in the answer which immediately preceded the exchange between Mr Xu and the magistrate about whether Mr Griffiths had said tree roots, he did indeed say 'tree roots'. The magistrate was therefore wrong about what Mr Griffiths' had said on that occasion.
[21] ts 205 (19 December 2017).
However, even though the magistrate misunderstood what the witness had said in evidence on that occasion, the passage of evidence referred to does not demonstrate that the magistrate was not impartial in her judgment of the case. Nor do any of the other examples of the magistrate's conduct put forward by the appellants in support of this ground of appeal demonstrate that the magistrate was anything other than impartial.
This ground of appeal fails.

Ground 11 – issues of language

Ground 11 alleges:
The Magistrate erred in that she pays particular attention to the Appellant's language issues to find whatever she can so that the Respondents can be favored.
In their written submissions the appellants contend that the magistrate perverted Mr Xu's words, taking advantage of his less than perfect English to find that his evidence on particular points was not clear. The appellants then ask 'why didn't the magistrate ask questions about these issues?' They then submit that in fact the errors or confusion may have arisen because the words transcribed were wrong rather than the language used in the actual answers being the problem. The written submissions in respect to this ground of appeal conclude by stating:
Why does she include such an issue in her decision while leaving many facts out of her decision which have been proved? The answer is that the Magistrate would only include those that support her decision in her decision and leave those that support the Appellants out of her decision.
The exchange referred to does no more than demonstrate that at that point she had misunderstood, from Mr Xu's use of the word 'our' when he meant 'your' what it was that Mr Xu was saying at the time. The misunderstanding was clarified by a subsequent exchange between the magistrate and Mr Xu.[22] The magistrate did not improperly use Mr Xu's language difficulties against him in these proceedings.
[22] ts 203 (18 December 2017).
This ground of appeal is without merit.

Ground 12 – findings on which there was no issue

Ground 12 alleges:
The Magistrate erred in that in her findings she raises an issue that no parties, including the Magistrate herself, has questioned in the trial.
The appellants submit that neither party took issue with whether the pool was saltwater but that the magistrate nevertheless raised and dealt with the issue in her reasons by saying:
Second, there was in fact no evidence that the pool was a saltwater pool. I do accept that both parties appeared not to have a dispute in that regard.[23]
[23] Reasons for decision [90]
It is clear from the second sentence quoted above that the magistrate did proceed on the basis that the pool was a saltwater pool. Therefore, while the comment may have been strictly unnecessary, the magistrate has not made any error of law, fact or discretion in this regard.
This ground must also fail.

Grounds 13 – 'imagination as facts'

Ground 13 alleges:
The Magistrate erred in that she takes her own imaginations as facts.
In their written submissions in relation to this ground the appellants submit that the opening paragraph of the reasons for decision, which provides:
In 1970 someone built a poorly designed and constructed limestone retaining wall wholly inside the boundary of 30 Dillenia Way Greenwood
is a finding which was not open to the magistrate to make on the evidence. The appellants say that this sentence demonstrates that the magistrate 'has taken her own imaginations as facts' and that this finding shows her 'evil purpose'.
Leaving aside for the moment the inappropriate way in which that submissions has been advanced, I regard this ground of appeal and submissions made in support of it as an assertion that the magistrate has erred in making a finding of fact which was not supported by the evidence.
When regard is had to the finding made by the magistrate in relation to the state of the wall prior to the demolition work, it is clear that the magistrate is, in the passage complained of, summarising the finding she makes at [27] of her reasons for decision that the damage to the wall predated the demolition works and the conclusion reached at [56] that the cause of the damage to the wall was its poor initial construction.
This ground of appeal is without merit and fails.

Ground 14 – allowed evidence from certain witnesses

Ground 14 alleges:
The Magistrate erred in that she allowed some witnesses whom should not have been allowed.
The appellants' written submissions contend that Ms Hartley, Mr Lewis and Mr Etherington should not have been allowed to give evidence for the respondents.
Ms Hartley was the former owner of the property at 32 Dillenia Way. It was she from whom the respondents purchased the property. She gave evidence as to the state of the wall at the time she owned the property. Her evidence was relevant to a fact in issue in the proceeding and was therefore admissible.
The appellants submit that Ms Hartley ought not to have been permitted to give evidence because they never had any interaction with her and they question whether her memories of the state of the wall are reliable. They ask:
How could such a thing give her a very deep impression in her mind when she was not concerned about it and she didn't do anything about it?
The appellants' submissions about Ms Hartley's evidence are directed at her credibility. The questions posed by the appellants in their written submission go to the conclusion they wished the magistrate to reach in relation to Ms Hartley's evidence about which questions should have been asked of Ms Hartley in cross‑examination in order to provide a factual foundation for that conclusion. There was no evidence before the magistrate that would have given her any reasons to find that the evidence of Ms Hartley was anything other than honest, accurate and reliable.
Mr Lewis was a registered builder and professional civil engineer prior to his retirement. The magistrate referred to his qualifications as a chartered and registered civil engineer for over 40 years and his life membership of the Institute of Engineers of Australia. The magistrate found that Mr Lewis was qualified as an expert by his training and experience as an engineer. That finding was appropriate given his evidence in relation to those issues. Mr Lewis gave factual evidence about the damage to the wall which he saw when he inspected it and his expert opinion as to how that damage was caused. At [51] of the magistrate's reasons for decision she found him to be an 'impressive expert witness with considerable expertise, experience and qualifications'. She also said she regarded him as 'frank and even handed in his evidence'.
The appellants submit that Mr Lewis should not have been entitled to give evidence because he attends the same place of religious worship as the respondents and was not independent.
Mr Lewis was not cross‑examined about his relationship with the respondents however Mr Griffiths was cross‑examined about his relationship with Mr Lewis. He acknowledged that they were friends and that they attended the same Jehovah's Witness congregation.[24] At [51] of her reasons the magistrate said:
A submission that suggests that that the religious preference and association of a particular witness leads to trickery must be rejected. Mr Lewis was an impressive expert witness with considerable expertise, experience and qualifications which I have set out above. He was frank and even handed in his evidence. The fact that he knew the defendants through a church association did not in my view diminish his independence and I accept him as an independent expert witness.
[24] ts 207 (19 December 2017).
The fact of some acquaintance between Mr Griffiths and Mr Lewis alone would not disqualify Mr Lewis from giving evidence as an expert. At most, it may have gone to the view which the magistrate took as to the independence and hence honesty, accuracy and reliability of Mr Lewis' evidence. The magistrate accepted he was reliable and even handed in his evidence. There is nothing in his evidence which has been identified by the appellants that would give rise to a finding that she erred in so concluding and consequently erred in relying upon his evidence.
The appellants also submitted that Mr Lewis' lack of independence is evidenced by the fact that his report is full of 'lies and nonsense'.[25] Lack of independence may be able to be inferred where an expert's evidence and opinion is found to be unreliable although of course, there may be other reasons why an expert's opinion may be unreliable. In this case however, the appellants have not demonstrated that Mr Lewis' report was full of lies and nonsense and merely stating that as a fact does not make it so.
[25] Appeal book page 26.
Mr Ethrington gave evidence that he was employed by the City of Joondalup (City) for 16 years and that he left his position as the manager of compliance and regulatory services in July 2017. In their written submissions the appellants say his behavior in that role:
… turned the City into the protector of law breaching people. He even tried to help the law breaching people by blackmailing the victims through an illegal Building Order. In fact, he is a part of the forces that we are fighting against. How could such a person be a witness? ... Did he see or hear any facts regarding the retaining wall? What facts can he provide? Does he know the state of the wall before the work? Was heat the site overlooking the work? … The only fact is that the Magistrate allows the Respondent to do whatever they want to do in the Court.
The magistrate found Mr Ethrington to be an honest witness who had a good recollection of the processes he was involved in where he was dealing with some of the issues involved in this claim.[26] His evidence had been:
(i)that a demolition permit had not been required because the pool did not exceed 40 sqm and the work would not adversely affect the neighbouring property;
(ii)that the City did not require a dilapidation survey before the demolition works were undertaken; and
(iii)that the City did not require the consultation with neighbours before the demolition works were undertaken.[27]
[26] Reasons for decision [73].
[27] Reasons for decision [73].
The magistrate also held that, although it was not necessary for the determination of the claim, it was open for her to find on the available evidence, that a demolition permit was not required by the respondents for the removal of the pool.[28]
[28] Reasons for decision [74].
Given that Mr Etherington's evidence did not affect the outcome of the claim, it is not necessary to determine whether he ought to have been permitted to give evidence.
This ground of appeal also fails.

Concluding comments

The appellants' submissions contain many derogatory comments or assertions about both magistrates who have heard their claim.[29]
[29] See for example submissions at Appeal Book pages 11, 12 and 25
It is regrettable that the appellants, who were to be afforded some leniency in their approach as a result of being litigants in person, but who ultimately misapprehended the nature of the task of a claimant in legal proceedings of the kind they brought against the respondents, and misunderstood both the law and the role of the magistrate, would be so intemperate and unreasonable in their criticism of the magistrate. Being unhappy with the outcome of litigation is understandable. Genuinely holding the view that the magistrate erred and seeking to have the errors corrected on appeal is the appellants' right. But such pejorative language, disrespect and scandalous assertions are not acceptable under any circumstances.

Outcome

I have found grounds 2 - 14 of the grounds of appeal to be without merit. In the case of ground 1, if an error of law was made, I have found that it did not affect the outcome of the hearing.
Accordingly, I dismiss the appeal.

Appendix

Xihan Xu: Hello, Peter.
Peter Griffiths: How are you (indistinct). I heard – I heard back from the guy yesterday. Through all honestly, this is what he said to me. He doesn't really want to do the job because he thinks there is going to be too many problems with my neighbours, with you, because, you know, how Ying was raising her voice on there to me and he did not want to get involved in it. So I've got another guy to ring to see if he will come and look at it on Tuesday. He said the fact that that – it's been kicked out from the back of there, he said that he thinks you might interfere with things. So that's what he said to me. I want him to do it because (indistinct). That's where I am at the moment.
Xihan Xu: What did he say? What did I do?
MR GRIFFITHS: No, not you. At the end of the wall you can see it's been (indistinct) out. That thing just fell out. That's been (indistinct) out and he is worried that it has come – and he's worried that he does some work and it gets interfered with. So that's what he said to me. Because he's got a lot of work on, so he just is – he's picking and choosing his jobs, virtually. But so I'm going to get this guy – this other guy to come and have a look, and that's all I can do at this moment.
Xihan Xu: So have another contractor to come and have a look.
Peter Griffiths: Well, that's all I can do. Just keep getting contractors until someone will come and do something.
Ying Li: So if we can't solve the problem - - -
Peter Griffiths: Well, the whole issue is that the wall is in on your property. It's your responsibility to maintain it; all right? That guy said to me the swimming pool would not have affected the limestone wall. The problem is that it's a natural limestone wall, and natural limestone breaks down over time; right?
Ying Li: I'll ask the Building Commission about it.
Peter Griffiths: Yes, you can.
Xihan Xu: It's our responsibility – our activity make it like that?
Peter Griffiths: No.
Ying Li: Um, I think you should read the Building Act.
Peter Griffiths: The Building Act is (indistinct) property (indistinct).
Ying Li: No, no. About a subdivision. The building permit.
Peter Griffiths: No. That wall was already - - -
Ying Li: No matter what you do on your property affects our property. You should get our consent.
Peter Griffiths: Excuse me. Can I talk for a bit? I said I would fix the bit of damage that I did on that side and I stand by what I said. But I'm not going to fix the whole wall because the whole wall - - -

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CH
Associate to Judge Glancy
19 SEPTEMBER 2019