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
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…
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- AGLC
- Xu v Griffiths [2019] WADC 126
- Case
- [2019] WADC 126
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the Australian Standard 3798-2007 was legally binding, whether the magistrate had discretion to exclude evidence obtained in contravention of the Surveillance Devices Act 1988 (WA), whether the magistrate had denied procedural fairness or was actually biased, whether the magistrate had exceeded the extent of her participation in a hearing, and whether the Building Act 2001 provided that damage identified following demolition works undertaken in the absence of a survey are deemed to be caused by the owner of the land on which the demolition works were carried out.
The court found that the magistrate had not erred in excluding the recording of a conversation between the appellants and the respondents. The court held that the magistrate was correct to exclude the recording and the transcript as the conversation was recorded in breach of the Surveillance Devices Act 1988 (WA). The court also found that there was no actual bias on the part of the magistrate and that the magistrate had not denied procedural fairness to the appellants. The court further held that the Australian Standard 3798-2007 was not legally binding and that the Building Act 2001 did not provide that damage identified following demolition works undertaken in the absence of a survey are deemed to be caused by the owner of the land on which the demolition works were carried out. The court dismissed the appeal and affirmed the decision of the magistrate.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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 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).