Xu v Griffiths
[2017] WADC 16
•9 FEBRUARY 2017
XU -v- GRIFFITHS [2017] WADC 16
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 16 | |
| Case No: | APP:58/2016 | 2 NOVEMBER 2016 | |
| Coram: | EATON DCJ | 9/02/17 | |
| PERTH | |||
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted back to the Magistrates Court for a trial before a different magistrate | ||
| PDF Version |
| Parties: | XIHAN XU YING LI PETER GRIFFITHS MARA GRIFFITHS |
Catchwords: | Appeal from the Magistrates Court Inadequate reasons Procedural fairness when dealing with unrepresented litigants Matter remitted back to the Magistrates Court for further trial |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 |
Case References: | Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264 Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58 Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60; (2010) 269 ALR 262 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- YING LI
Appellants
AND
PETER GRIFFITHS
MARA GRIFFITHS
Respondents
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE POTTER
File No : JOO/GCLM/ 2911 of 2015
Catchwords:
Appeal from the Magistrates Court - Inadequate reasons - Procedural fairness when dealing with unrepresented litigants - Matter remitted back to the Magistrates Court for further trial
Legislation:
Magistrates Court (Civil Proceedings) Act 2004
Result:
Appeal allowed
Matter remitted back to the Magistrates Court for a trial before a different magistrate
Representation:
Counsel:
Appellants : In person
Respondents : In person
Solicitors:
Appellants : Not applicable
Respondents : Not applicable
Case(s) referred to in judgment(s):
Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264
Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC [2008] FCAFC 58
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
North East Equity Pty Ltd v Proud Nominees Pty Ltd [2010] FCAFC 60; (2010) 269 ALR 262
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816
1 EATON DCJ: The appellants, Xihan Xu and Ying Li, without legal representation, filed a notice of appeal in this Court on 26 July 2016. The respondents are Peter and Mara Griffiths, also without legal representation.
2 The appellants were, at all material times, resident at 30 Dillenia Way in Greenwood, a northern suburb of Perth, Western Australia. The respondents were, at all material times, resident at 32 Dillenia Way, Greenwood. The appellants and the respondents were, at all material times, neighbours.
3 The appellants, by their appeal, challenge a decision made by Magistrate Potter in the Magistrates Court at Joondalup on 5 July 2016. Those proceedings were initiated by the appellants who had filed a General Procedure Claim in that court seeking an amount of $9,000 plus fees. The respondents were the defendants in those proceedings. None of the parties in those proceedings were legally represented.
4 The appellants' claim in the Magistrates Court referred to a boundary retaining wall between 30 and 32 Dillenia Way, Greenwood. The appellants alleged that their neighbours, the respondents, had demolished a swimming pool at their property in December 2013. The demolition of the pool and subsequent compaction of earth, they claimed, damaged the retaining wall. In addition, they alleged that tree roots from the respondents' palm trees had damaged the wall. Finally, they alleged that salt water from the respondents' swimming pool had corroded the wall and damaged it. The appellants concluded their claim in the following terms:
Based on the above facts, our neighbours are responsible for the damages of the retaining wall and they have to pay for reconstruction of the retaining wall and fence.
5 The respondents filed a lengthy statement of defence to the claim and a counterclaim seeking an amount of $30,565.62, alleging in the latter, that the appellants had refused them permission to repair or replace the retaining wall and that, in consequence, they had constructed a retaining wall within their own property at their own expense.
6 On 19 February 2016 the respondents discontinued their counterclaim.
7 Following a number of interlocutory skirmishes the matter was listed for trial. At the abrupt conclusion of that trial, on 5 July 2016, Magistrate Potter dismissed the appellants' claim and ordered them to pay the respondents' costs in the sum of $3,848.32. That judgment is the subject of the appeal before me.
8 Section 40 of the Magistrates Court (Civil Proceedings) Act 2004 provides that a party to a case that is not a minor case may appeal to this Court against a judgment of the Magistrates Court in the case. Such an appeal must be commenced within 21 days from the judgment unless this Court gives leave to commence the appeal later.
9 Such an appeal must be conducted in accordance with the rules of this Court. I must decide the appeal on the materials and evidence that were before the Magistrates Court and on any other evidence that I give leave to be admitted. Leave may only be granted in exceptional circumstances.
10 On 27 September 2016 Deputy Registrar Kubacz of this Court made orders in chambers listing the appeal for hearing on 2 November 2016, directing that the parties file any affidavit material by 11 October 2016 and that the appellants file and serve an appeal book containing any documents relevant to the hearing by 25 October 2016. She reserved the question of costs.
11 The order that the parties file affidavit material was erroneous given that this Court is required to decide the appeal on the material and evidence that was before the Magistrates Court and that additional material or evidence may only be admitted by leave in exceptional circumstances. No such leave had been granted.
12 At the commencement of the hearing of the appeal on 2 November 2016 I informed the parties that I intended to deal with the matter on the basis of the evidence and the materials that were before the Magistrate. I invited the parties to apply to adduce further evidence or materials if they thought it appropriate to do so. No application was made.
13 Given that the parties in the court below were unrepresented, the Magistrate, at the beginning of the trial, enquired, firstly, as to the possibility of a settlement being negotiated and, secondly, explained in simple terms the process of a trial. He explained to the appellants that it was incumbent upon them to prove their claim. He said:
The way you go about proving your claim, of course, Mr Xu and Ms Li, is to bring evidence. So evidence is by getting into a witness box, giving your evidence about what you say happened and what should have occurred, and why you say that the Griffiths are liable to pay for the replacement of the retaining wall. That's the basis of your claim. I don't know. Have you got any other witnesses?
14 Mr Xu, speaking for the appellants, said that he relied on the evidence of himself and his wife.
15 Mr Griffiths, on behalf of the respondents, indicated to the Magistrate that he would call eight witnesses.
16 The Magistrate explained to the parties that the appellants would call evidence first and that the respondents would have the opportunity of asking questions of them. At the conclusion of the appellants' case the respondents would call their evidence. The Magistrate explained to Mr Xu that he would have the opportunity of asking questions of their witnesses. He concluded:
Now, as I say, the court ultimately analyses the whole of the evidence, applies – and once – if it can make determinations on the – the balance of probabilities about the facts, then it moves to the next stage of applying the law to those facts. Okay. Okay. Bear in mind, witnesses are unlikely and shouldn't be really asked legal questions either. It's about the facts. Okay. Are there any questions about the process Mr Xu or Ms Li?
17 Mr Xu responded that there were not.
18 The Magistrate then asked Mr Griffiths whether he had any questions about the process. There was only one. He asked whether there would be the opportunity for a closing statement. The Magistrate said that there would.
19 The Magistrate then asked Mr Xu whether he wished to make an opening statement, explaining that it would not be evidence. Mr Xu responded by reading his opening statement to the Court. It was lengthy and detailed. The Magistrate clearly became concerned that Mr Xu had misunderstood his explanation of the procedure to be followed. In particular, he was concerned that the appellants might be confused as between the purpose of an opening statement and the giving of evidence. He was also concerned as to the length and detail of Mr Xu's opening statement. In consequence, he invited the appellants to call evidence. Xu Xihan was called to the witness box, took an affirmation and gave evidence.
20 The appellants' 16-page opening statement, which Mr Xu had been reading to the court, became exhibit A and a series of photographs produced by them became exhibit B.
21 In evidence Mr Xu confirmed that he was, at the time, with his wife, resident at 30 Dillenia Way in Greenwood. The neighbouring property, number 32 Dillenia Way was, he said, owned by the respondents. Number 30, in terms of height above sea level, is lower than number 32. A 19 m long, 1.16 m high wall retains number 32.
22 Mr Xu sought to introduce into evidence a recording made on 11 July 2014 of a conversation he had with Peter Griffiths. He used his iPhone concealed in his pocket to make the recording. His wife was present.
23 He said that he and his wife went to the Griffiths' house and knocked on the front door. Mr Griffiths answered and they engaged in conversation. Mr Griffiths was not aware that their conversation was being recorded. The subject matter of the discussion, said Mr Xu, was the retaining wall and damage to it.
24 The Magistrate enquired as to what was said in that conversation. Mr Xu then began to read what purported to be a transcript of the conversation from his type-written opening statement. The Magistrate observed that, given that the opening statement was in evidence as an exhibit and that the terms of the conversation were contained within the opening statement, there was no need for Mr Xu to read it out or play the recording. In fact, he did not allow the tender of the audio-recording.
25 Mr Xu also produced photographs of the retaining wall and the alleged damage to it.
26 What followed the production of photographs was, essentially, a discussion between the Magistrate and Mr Xu as to what was depicted in various photographs in the context of the claim made by the appellants.
27 In the course of his evidence-in-chief Mr Xu produced a copy of Australian Standard 3798, or part thereof, read from that document and tendered it. It became exhibit C. With the tendering of those documents the Magistrate ascertained that Mr Xu had no further evidence to give.
28 The Magistrate then had a brief discussion, in effect, with both parties as to attempts to settle the dispute months before. Mr Griffiths, for the respondents, indicated that he would call evidence from witnesses who saw the wall before there was compaction of his land and noted that the wall was leaning. He said: 'I am not liable for the damage that's on there'. The Magistrate replied 'Okay. Well, if there is a dispute about liability, then it's different'.
29 Following a luncheon adjournment the Magistrate invited Mr Griffiths to cross-examine Mr Xu. At the conclusion of cross-examination of Mr Xu the Magistrate enquired of the other appellant, Ms Li, as to whether she had any questions for her husband. He then asked if she intended to give evidence. She replied that she would like to inform the court of her qualifications and experience but had nothing to add to her husband's evidence. Mr Xu left the witness box.
30 The Magistrate explained that, as the appellant's case had closed, he would call upon, following a short adjournment, the respondents and would afford the appellants the opportunity to cross-examine.
31 Following the adjournment Peter William Griffiths gave evidence under oath. He said that he and his wife were the joint owners of 32 Dillenia Way in Greenwood. He confirmed that there was a retaining wall on the boundary between numbers 30 and 32 in that street. He said that, in 2013, he noticed that the retaining wall was leaning because, he said, a fence was leaning against it and putting pressure on it. That was, he said, before the removal of a swimming pool at number 32 and the subsequent compaction of earth in the area where the swimming pool had been. He said:
Well, after the pool was compacted we dug down beside the fence on my side and a friend of mine and I put ropes on the top of the fence and pulled the fence to an upright position and then backfilled behind the wall with sand, between the wall and the fence, so it wouldn't fall back against it.
32 Compaction of the area where the pool had been was completed in November 2013.
33 In due course the Magistrate invited Mr Xu to cross-examine. In the course of cross-examination a letter to Mr Griffiths from the City of Joondalup dated 1 April 2015 became exhibit D. A further letter from the City of Joondalup to Mr Griffiths dated 16 March 2015 became exhibit E.
34 At the conclusion of cross-examination the Magistrate asked Mr Griffiths whether there was anything that he wanted to clarify, in effect, by way of re-examination. He said that there was not. He replied:
No, I think that the answers will be borne out by the witnesses.
35 Following Mr Griffiths' evidence the Magistrate said:
I'm actually going to deal with this now, because I – and I advised at the outset of this trial that the court would have to be satisfied as to the facts and they had to be satisfied by the claimant on the balance of probabilities. And I am finding at this juncture, without even hearing from any of the expert witnesses for the defendant, that I can't be satisfied on the balance of probabilities of the facts of this matter.
36 Clearly, he informed the parties that he did not need to hear from the expert witnesses waiting to be called by the respondents. He indicated that he was not satisfied on the balance of probabilities that damage was caused to the wall. He told the appellants that their claim was going to be dismissed. He explained that he could not make a determination, on the evidence to that point, as to how, if at all, the wall was damaged. He indicated that he would hear an application for costs from the respondents.
37 Mr Xu said: 'Your Honour, can I ask you a question?' The Magistrate replied that he could. Mr Xu asked 'what law did you make your judgment based on?' The Magistrate replied that the appellants had failed to prove their case on the balance of probabilities.
38 It is clear that, at the conclusion of the evidence of the first of a number of witnesses for the respondents, having heard only the evidence of Mr Xu and Mr Griffiths, the Magistrate, without any application from the parties gave judgment for the respondents, dismissed the appellants' claim and invited a submission as to the costs against them. What occurred was a very significant departure from the process outlined by him to the parties at the outset. It, no doubt, took both parties by surprise.
39 Putting aside the somewhat abrupt termination of the proceedings the Magistrate made it very clear to the appellants that they had failed to prove their case on the balance of probabilities. His reasons said little more than that.
40 In exhibit A the appellants state that they are both structural engineers. The Magistrate heard the evidence of Mr Xu but he also admitted into evidence substantial documentary material tendered by the appellants. In his explanation to the parties of the trial process and the nature of evidence, he made no reference to the distinction between expert and non-expert evidence. In the case of Mr Xu's viva voce evidence and exhibit A, no attempt was made to ascertain what might be relied upon by the appellants as expert evidence as opposed to non-expert evidence of fact.
41 In his ex tempore judgment, the Magistrate seemed to accept that there was damage to the retaining wall and that the issue was one of causation. In exhibit A the appellants' state:
Based on the damages of the retaining wall, it is very clear that the compaction was carried out just next to the retaining wall so it produced huge impacts onto the top part of the wall.
42 In addition, said the appellants, the wall was damaged by tree roots encroaching and salt water corrosion from the respondents' swimming pool. They state:
It is very clear that at the movement joints there is a lot of tree roots. This proves that the mortar bedding has been destroyed by tree roots. Under the action of impacts from compaction, blocks were moved at joints where mortar bedding has been destroyed and block material weakened by salt water corrosion just fell off. These tree root encroaching and salt water corrosion destroyed the integrity of the retaining wall so the retaining wall could just not withstand the impacts of the compaction. The retaining wall had stood there perfectly for 40 years before it was badly damaged by compaction impacts. Its structural integrity has been destroyed by tree root encroaching and salt water corrosion.
(Exhibit A, page 4).
43 It is unclear as to whether the foregoing passage was relied upon by the appellants as expert opinion as to what occurred. The magistrate failed to enquire, to explain or invite submissions in that regard.
44 Returning to the Magistrate's judgment and reasons for it, the duty of a judge or magistrate to give reasons is well established. They must be sufficient to give effect to any right of appeal. The basis for the decision must be apparent. In the trial before Magistrate Potter, following judgment being given in favour of the respondents, it is clear that the appellants did not know why they had lost the case.
45 Reasons need not be lengthy or elaborate, nor need they refer to all of the evidence led in the proceedings. Relevant evidence should be referred to (albeit not necessarily in detail). Where there is conflicting evidence of significance to the outcome, both sets of evidence should be referred to (Mount Lawley Pty Ltd v Western Australia Planning Commission[2004] WASCA 149; (2004) 29 WAR 273, 283 per the court).
46 I accept that a full or detailed statement of reasons will not always be practical. Reasons may be stated shortly without being developed in any detail but they should set out relevant findings of fact. The tribunal of fact need not make explicit findings on every disputed aspect of the evidence. The judicial obligation, at least, obliges a judge or magistrate to state generally and briefly the basis of a conclusion reached as to disputed facts or questions and to list the findings on the principle contended issues (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 258 (Kirby P)). In Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816 [86] (Kirby and Heydon JJ) made it clear that while it is not necessary for a trial judge to set out and analyse the totality of the evidence, it is necessary to explain why one body of evidence is to be preferred over another.
47 In the trial before Magistrate Potter, Mr Xu completed his cross-examination of Mr Griffiths. The Magistrate then enquired of Mr Griffiths as to whether he wished to clarify any matter in re-examination. Little was said and he left the witness box. The Magistrate then announced that he would give judgment based on, in effect, the failure of the appellants to satisfy him as to their claim on the balance of probabilities. At that point the evidence before him included exhibit A being the first 16 pages of the appellants' opening statement. In that statement the appellants' asserted:
In November 2013 Mr Griffiths, our neighbour of No. 32 asked us to allow him to straighten up the fence. We agreed so he removed the soil from the base of the fence on his side and pulled the fence straight. Then on two weekend afternoons Mr Griffiths came onto our property to fill sand into the gap between the fence and the retaining wall. So Mr Griffiths saw everything of the retaining wall and knew the state of the retaining very well.
At the time there were no visible damages to the retaining wall, no moved blocks and no leaning. The retaining wall face is rendered. Signs of salt corrosion could be seen because there was white salt deposit on the surface and deformed mortar. The retaining wall face was vertical and in one plane …
There was a swimming pool on Mr Griffiths' property and the swimming pool was very close to the retaining wall. There were two big palm trees between the swimming pool and the retaining wall … In 2013 the palm trees were cut and tree stumps removed. In December 2013, Mr Griffiths had the swimming pool demolished, the hole filled and the ground compacted. The compaction caused huge impacts to our property. After Mr Griffiths finished compacting the ground, we found the retaining wall was badly damaged … We went to Mr Griffiths' house, told him about the damages and asked him to come and have a look. So he and another man came to look at the damages. At first he denied that his work caused the damages. After I pointed out the huge movements of the blocks, the deformed lattice and huge gap between the retaining wall and the lattice … he could not deny the fact anymore and admitted that his work caused the damages and promised to repair them.
48 In his evidence Mr Griffiths said that he knew there was a problem with the retaining wall. He said that in 2013, before the removal of his swimming pool, he climbed a ladder and looked over into the appellants' property. It was obvious to him that the wall was leaning. He thought at the time that it was being impacted by the weight of a fence leaning against it. He said that he brought the problem of the leaning wall to the attention of the appellants and warned that if something was not done, it would fall over. His evidence was that he said to the appellants: 'We need to straighten it' and that they replied 'Yes. Okay'.
49 Mr Griffiths then said:
Well, after the pool was compacted we dug down beside the fence on my side and a friend of mine and I put ropes on the top of the fence and pulled the fence to an upright position and then backfilled behind the wall with sand between the wall and the fence so it wouldn't fall back against it.
- By November 2013 the swimming pool had been removed and the area had been compacted.
50 Mr Griffiths agreed that Mr Xu had asked him to look at a section of the wall where he said there was damage. He looked and said to Mr Xu:
Look there's some movement there. If you feel that I've done any damage to it then we will fix it.
51 Towards the end of Mr Griffiths' evidence-in-chief, the Magistrate asked Mrs Griffiths whether she had anything to add to what had been said. She said: 'your Honour, I think it would be worth him mentioning that some of the engineers have said that that wall was built basically as a garden wall. So it's built …' Mrs Griffiths was referring to engineers to be called by them in the respondents' case. The Magistrate replied: 'Okay, we will wait for them to give that evidence'.
52 During cross-examination Mr Griffiths said to the Magistrate: 'The wall was already leaning. He says these cracks, these blocks have moved. I said "If you perceive I've moved them I will fix them". I can't say anything else than that really'. Mr Xu asked Mr Griffiths why he had got a quote from a contractor to fix the wall. Mr Griffiths replied:
Because I've said I would fix the retaining wall because I couldn't move on with my building until the wall was done. So then I needed to find out what the cost would be of doing that.
53 In large part, the remainder of Mr Griffiths' evidence in cross-examination was interrupted by numerous exchanges between Mr Xu and the Magistrate. On many occasions the Magistrate made references to the witnesses still to be called in the respondents' case. In that regard, he noted at one point that it was 4.10 pm and that cross-examination of Mr Griffiths was still not complete.
54 It appears safe to assume that the Magistrate was satisfied that there was damage to the wall. The dispute appears to have been as to the timing of the damage to the wall and, in particular, whether it was caused by salt water corrosion, encroaching tree roots and compaction as alleged by the appellants. The Magistrate made no findings as to credibility but, rather, in somewhat summary fashion arrived at a conclusion that the appellants, bearing the onus of proof, had not discharged that onus to the requisite standard, that is, that they had not proved their case on the balance of probabilities. He observed that both Mr Xu and Mr Griffiths had given their evidence. He noted that Mr Griffiths had said that he had seen no damage to the wall. He said:
I am not satisfied on the balance of probabilities that damage was caused to the fence. So, Mr Xu, your claim is going to be dismissed.
55 Moments earlier he had identified the issue as being one of causation of damage to the wall as opposed to an issue of whether, in fact, there was damage, when it was caused and what caused it.
56 In giving judgment for the respondents the Magistrate observed that there was clearly a dispute on the facts. He said:
This claim must fail based on the fact that I can't determine, and I won't be able to determine the facts on the balance of probabilities. As I indicated at the outset of this hearing, that is the starting point for the court. The claimant must satisfy the court on the balance of probabilities about the facts of the matter. Here is a very clear issue about causation to damage to the wall. I can't even be satisfied at this juncture that the wall was actually – what state the wall was in prior to the compaction. So because – Mr Griffiths has given his evidence and, as I say, Mr Xu has given his evidence, both have very firm views as to what the state of the wall was prior to compaction. Mr Griffiths had given evidence about what he cited post-compaction. He says there was no damage that he could see to the wall.
57 In dismissing the appellants' claim the Magistrate made very few findings of fact and, in large part, said that he could not make factual findings. At the beginning of his reasons he said that he couldn't be satisfied on the balance of probabilities 'of the facts of this matter'. He told the parties that he did not need to hear from the witnesses still to be called, notwithstanding that he had, on numerous occasions to that point, indicated to the parties that he would be hearing evidence from those witnesses.
58 He informed the parties that there was clearly a dispute on the facts (as there undoubtedly was) and that he didn't think he could resolve that dispute. He continued:
This claim must fail based on the fact that I can't determine, and won't be able to determine, the facts on the balance of probabilities.
59 A magistrate sits as the tribunal of fact and law. Conclusions of fact must be based on admissible evidence. It is incumbent upon a judicial officer, when allowing or dismissing a party's claim and giving final judgment for one party over another to give proper reasons for doing so, informing the parties of the factual basis for doing so. That must involve findings of fact. In my view the magistrate failed to undertake the task of deciding the facts of the case and failed, in dismissing the appellants' claim, to give adequate or proper reasons for doing so.
60 There is authority to support the proposition that, on appeal, an appellate judge mayremita matter back to the court appealed from for the provision of reasons where they have not been properly provided in the first place (see Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC[2008] FCAFC 58 and North East Equity Pty Ltd v Proud Nominees Pty Ltd[2010] FCAFC 60; (2010) 269 ALR 262).
61 A failure to give adequate reasons does not necessarily mean that the matter should be remitted for a new trial or for the purpose of the magistrate formulating adequate reasons for the orders. In Bourke v Beneficial Finance Corp Ltd (1993) 47 FCR 264, for example, the Full Court considered (at 284) that, although the trial judge in that case had not given adequate reasons for his conclusions, the appropriate course was for the Court to analyse the documentation upon which the appellants relied and reach its own conclusions as to whether the orders made at first instance were justified. Since the analysis showed that the appellants could not succeed in their claims for relief, the Court concluded that there was no point in sending the matter back for a new trial.
62 Their Honours pointed out that in Echo Tasmania Pty Ltd v Imperial Chemical Industries PLC, as in Bourke v Beneficial Finance Corp Ltd, there was no issue concerning the credit of witnesses. The case depended entirely on the documentation and on unchallenged evidence. In those circumstances, they thought the appropriate course was for them to determine, on the evidence before the primary judge, whether his orders were properly made.
63 It was recognised by the Supreme Court of Western Australia in Mount Lawley Pty Ltd v Western Australian Planning Commission [29], that an appeal court should consider the matter and if it can do so (where, for example, only one conclusion or outcome is available on the evidence), it may itself decide the matter.
64 When the Magistrate gave judgment for the respondents he did so, not on the application of the respondents, rather, in circumstances where he summarily brought the trial to a premature conclusion. There was, at that point, a substantial amount of documentary material before him, including photographs. Neither party had sought an adjournment. Until he gave judgment the expectation of the parties was clearly that the trial would continue as the Magistrate had outlined at the outset with closing submissions by the parties at the conclusion of the evidence.
65 Section 43(7) of the Magistrates Court (Civil Proceedings) Act 2004 provides that an appeal court may confirm, vary or set aside all or a part of the lower court's judgment, give any judgment and make any order that the Magistrates Court could have given or made or order a new hearing in, or trial of, the case to be held in the Magistrates Court. I propose to set aside the judgment of the Magistrate and order that the matter be remitted back to the Magistrates Court to be retried before a different magistrate. The Magistrate in the court below clearly failed, firstly, to properly consider the nature and admissibility of the substantial amount of evidence that was before him and, secondly, failed to properly evaluate that evidence. He made, as mentioned, very few findings of fact.
66 Both parties were very earnest and articulate. Both were without legal training or experience. Both were well-prepared for the trial. The Magistrate appears to have been somewhat concerned by the prolongation of the trial. He brought the proceedings to an abrupt and unsatisfactory end, to the detriment and bemusement of the appellants.
67 It was very apparent on the hearing of the appeal that the parties, at that point, were frustrated by the course of the litigation. The matter should have been the subject of a careful and considered judgment in the light of all of the admissible evidence in the Court below. Unfortunately it was not. The frustration of the parties will likely continue. Unfortunately I have come to the conclusion that I must, as foreshadowed, remit the matter back to the Magistrates Court for a re-trial before a different magistrate.
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