Xu v Griffiths
[2019] WASCA 198
•3 DECEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: XU -v- GRIFFITHS [2019] WASCA 198
CORAM: MURPHY JA
MITCHELL JA
HEARD: 3 DECEMBER 2019
DELIVERED : 3 DECEMBER 2019
PUBLISHED : 3 DECEMBER 2019
FILE NO/S: CACV 113 of 2019
BETWEEN: XIHAN XU
First Appellant
YING LI
Second Appellant
AND
PETER GRIFFITHS
First Respondent
MARA GRIFFITHS
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram: GLANCY DCJ
Citation: XU -v- GRIFFITHS [2019] WADC 126
File Number : APP 71 of 2018
Catchwords:
Appeal - Magistrate's decision on claim for damage to retaining wall - Claim based in nuisance and purported liability under the Building Act 2001 (WA) - Magistrate found no statutory cause of action and that plaintiffs had not established that the retaining wall was damaged by a cause for which the defendants were responsible - Whether primary judge erred in dismissing appeal from magistrate's decision to dismiss claim - Turns on own facts
Legislation:
Building Act 2001 (WA), s 85
Result:
Grounds of appeal struck out
Appeal dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| First Respondent | : | In person |
| Second Respondent | : | In person |
Solicitors:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| First Respondent | : | In person |
| Second Respondent | : | In person |
Case(s) referred to in decision(s):
Nil
REASONS OF THE COURT:
On 3 December 2019, we ordered that all the grounds of appeal be struck out and the appeal be dismissed. These are our reasons for making those orders.
Background and Magistrates Court proceedings
The appellants own a property in Greenwood. In 2012, the respondents bought the neighbouring property, with the intention of subdividing the property into two. There is a retaining wall along the boundary of the two properties, located entirely within the appellants' land.[1]
[1] Primary decision [2](a) - (c).
On 29 November 2015, the appellants commenced a general procedure claim in the Magistrates Court of Western Australia in the amount of $9000,[2] claiming that their retaining wall was damaged by:[3]
(1)encroachment of roots from palm trees on the respondents' property; and/or
(2)encroachment of salt water from the swimming pool on the respondents' property; and/or
(3)the removal of the swimming pool at the respondents' property and the consequent compaction of soil which formed part of the works undertaken in order to subdivide the respondents' property (demolition works).
[2] Primary decision [2](e).
[3] Primary decision [3], [2](d), (f).
The appellants relied on common law nuisance as providing the basis for the respondents' liability for claims (1) and (2). As to (3), the appellants submitted that s 85(2) of the Building Act 2011 (WA) gave rise, in effect, to a statutory cause of action for damages.
The respondents denied liability. They claimed that there was no proof of encroachment of saltwater or tree roots into the appellants' property. Further, they said 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 said that, in any event, the Building Act creates no entitlement to damages.[4]
[4] Primary decision [2](g).
Magistrate Potter dismissed the appellants' claim on 5 July 2016.[5] The appellants appealed against that decision to the District Court of Western Australia.[6] That appeal was allowed and the matter was remitted to the Magistrates Court for re-hearing by a different magistrate.[7]
[5] Primary decision [5].
[6] Primary decision [6].
[7] Primary decision [7].
The matter was re-heard by Magistrate Pontifex on 18 - 20 December 2016.[8] On 25 June 2018, Magistrate Pontifex dismissed the appellants' claim and made costs orders.[9] Her Honour published written reasons for that decision.
[8] Primary decision [8].
[9] Primary decision [9].
In essence, Magistrate Pontifex found that the appellants had not established that the retaining wall was damaged by the demolition works, or by the encroachment of roots or salt water. Therefore, the appellants' claim failed on the facts. Magistrate Pontifex also held that the limited encroachment of tree roots indicated by the evidence had not been established to have occurred between the respondents purchase of their land in 2012 and the removal of trees on that land in 2013. Her Honour also held, in effect, that the Building Act did not create a statutory cause of action sounding in damages on which the appellants could rely.
Magistrate Pontifex ordered that the appellants' claim in the Magistrates Court be dismissed.
District Court appeal
On 10 July 2018, the appellants filed an appeal notice in the District Court against the magistrate's decision. The appellants advanced 14 grounds of appeal in that court.[10]
[10] Primary decision [18].
On 20 September 2019, the primary judge dismissed the appellants' appeal for written reasons which her Honour then published. Her Honour gave thorough and detailed reasons as to why none of the appellants' grounds of appeal were established, and dismissed the appeal.
The primary judge's reasons concluded with the following comments:[11]
The appellants' submissions contain many derogatory comments or assertions about both magistrates who have heard their claim.
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.
[11] Primary decision [153] - [154].
The appeal to this court
On 1 October 2019, the appellants filed an appeal notice seeking to appeal against the primary judge's dismissal of their appeal to the District Court.
On 1 November 2019, the appellants filed their appellants' case in the appeal, which contains 15 grounds of appeal. It does not appear that the appellants have taken on board the concluding comments of the primary judge quoted at [12] above, with which we agree. The substance of the grounds and submissions advanced in support are effectively reiterations of arguments run before and rejected by the primary judge, with the added element of pejorative statements directed at the primary judge and various allegations of judicial misconduct. For example, the grounds include contentions that:
The Judge errored in fact in that she told a lie about the transcript of the trial and she used non-existent words to support her argument that the Magistrate didn't ask the Appellant his view on the recorded conversation.
…
The Judge erred in fact in that she purposefully and skilfully changed the subject of the issue under discussion. She was using the trick of disguised replacement of argument to cheat.
On 5 November 2019, the registrar issued a notice for the parties to attend a hearing to consider whether the court should strike out any ground of appeal that did not have any reasonable prospect of succeeding or did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA).
Disposition
There is no basis for apprehending that the primary judge approached the determination of the appeal other than in a conscientious and scrupulous manner. It is evident from her Honour's reasons that she undertook a detailed impartial review of the material she was required to consider, recognising the need for care to ensure that a litigant in person is not denied a case because of a poorly expressed document or submission. There is no basis for the appellants' scandalous contentions that the primary judge acted dishonestly or failed to consider the material. The various grounds alleging misconduct by the primary judge were without any arguable merit.
The thoroughness of the primary judge's reasons makes it unnecessary for us to set out the detail of the appellants' arguments and the reasons they should be rejected. In our view, the primary judge was plainly correct to dismiss the appellants' appeal to the District Court for the reasons which her Honour gave. Nothing in the appellants' grounds of appeal or submissions in this court provides any arguable basis for apprehending that the primary judge erred in her rejection of each of the appellants' grounds of appeal to the District Court.
Therefore, we concluded that none of the appellants' grounds of appeal had any reasonable prospect of succeeding and struck out all of the grounds for that reason. As the deficiencies in the appellants' appeal were not capable of being cured by amendment, there was no utility in allowing the appellants to file a new appellants' case. The appeal was dismissed on the basis that it had no reasonable prospect of succeeding.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell3 DECEMBER 2019
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