Yuzheng v Bowditch
[2018] WADC 50
•24 APRIL 2018
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: YUZHENG -v- BOWDITCH [2018] WADC 50
CORAM: JUDGE GILLAN
HEARD: 7 MARCH 2018
DELIVERED : 24 APRIL 2018
FILE NO/S: APP 92 of 2017
BETWEEN: RONG YUZHENG
Appellant
AND
HAYDEN BOWDITCH
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE WALTON
File Number : PE MINOR 14508 of 2016
Catchwords:
Appeal - Magistrates Court - Minor case claim - Unrepresented parties - Limited ground of appeal - Whether there was a denial of natural justice - Assertion of bias - Tort of nuisance
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Result:
Appeal dismissed
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | In person |
Solicitors:
| Appellant | : | Not applicable |
| Respondent | : | Not applicable |
Case(s) referred to in decision(s):
Chin v Legal Practice Board of Western Australia [2011] WASCA 110
De Alwis v The State of Western Australia [No 2] [2015] WASCA 42
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377
Minister for Immigration and Multicultural Afffairs v Jia [2001] HCA 17; (2001) 205 CLR 507
Rankilor v Circuit Travel Pty Ltd [2010] WADC 170
Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148
Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 [41]; (1979) 36 FLR 482
Rodriguez v Telstra Corp Ltd [2002] FCA 30
Waters v Williams [2013] WADC 169
Wise & Anor v Proprietors of Strata Plan 21513 [2009] WADC 115
JUDGE GILLAN:
This is an appeal from the decision of his Honour Magistrate Walton dismissing proceedings brought in the minor case division of the Magistrates Court of Western Australia.
The matter was a minor case claim within the meaning of the Magistrates Court (Civil Proceedings) Act 2004 (WA) (the Act). It may be helpful to set out the relevant legislative provisions before considering the detail of the matter.
Legislative provisions and the law pertaining to appeals in a minor case claim
Magistrates Court Act 2004 (WA)
Section 4 of the Magistrates Court Act 2004 (WA) provides that a court of record called the Magistrates Court of Western Australia is established. By s 6(1) a magistrate has the functions imposed or conferred on a magistrate by laws that apply in Western Australia, including that Act and other written laws. By s 9 the Magistrates Court has the jurisdiction conferred on it by that Act and by the written laws.
Section 10 of the Magistrates Court Act provides the court's civil jurisdiction is as set out in the Act.
Section 13 of the Magistrates Court Act provides that:
The Court, in exercising its discretion, is to decide all questions of fact and law.
Magistrates Court (Civil Proceedings) Act 2004
Section 6 of the Act provides that the court has jurisdiction to deal with various matters, for example, a claim for a debt or a claim to recover possession of personal property. Certain claims, not relevant to the determination of this appeal, are specifically excluded.
Part 4 contains provisions concerning the procedure in 'minor cases'. A minor case is a claim within the jurisdiction of the court where the value of the claim is not more than the minor case's jurisdictional limit, presently being $10,000.
Unless an order is made for a minor case to be dealt with under the general procedure, by s 28 of the Act the court must deal with a minor case in accordance with the minor cases procedure. Such an order can be made pursuant to a request by the parties because the case involves an important principle of law or complex facts or issues. No such request was made in this case.
Part 3 of the Act sets out the general procedure of the Magistrates Court for civil claims and pt 4 sets out the procedure for minor cases. Section 33 of the Act (contained in pt 4) provides that the rules of the court may provide for the procedure to be followed when conducting a minor case and may specify the circumstances in which any of the court's general powers under pt 3 may be exercised.
A case statement is defined in s 3 of the Act as meaning:
… a statement of a party's claim, or of a party's defence, whether as originally lodged with the Court or as amended or as supplemented by additional information given voluntarily or as ordered by the Court.
Other relevant provisions of the Act includes s 29 (contained in pt 3) which provides as follows:
Proceedings to be private and informal
(1)All proceedings of the Court when dealing with a minor case are to be held in private unless the Court otherwise orders.
(2)Relatives and friends of a party may be present at the proceeding unless the Court otherwise orders.
(3)In dealing with a minor case the Court is to act with as little formality as the Court thinks is reasonable.
(4)When dealing with a minor case the Court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit.
In relation to costs, s 31 of the Act restricts an order for costs in minor cases to court fees and service fees paid by a successful party. However, the court may order a party to pay the whole or part of another party's costs under the applicable costs determination contained in pt 3 of the Act where the court is satisfied inter alia that:
(a)because of the existence of exceptional circumstances an injustice would be done to the successful party if that party's other costs were not ordered to be paid; or
(b)the unsuccessful party's claim or defence was wholly without merit.
There are only limited grounds of appeal against a minor case decision. Section 32(1) and s 32(3) relevantly provide as follows:
(1)Except as provided by this section, no appeal lies against —
(a)an order made by the Court in the course of proceedings in a minor case; or
(b)the judgment of the Court in a minor case.
…
(3)Despite Part 7 an appeal against a judgment in a minor case may only be made on the grounds —
(a)that the minor case —
(i)was not within the jurisdiction of the Court; or
(ii)was not a minor case;
or
(b)that in dealing with the minor case there was a denial of natural justice; or
(c)that the judgment was beyond the Court's jurisdiction.
This means that errors of fact or law or of mixed fact and law normally cannot be corrected by an appeal and a magistrate's decision remains enforceable notwithstanding that type of error: Rankilor v Circuit Travel Pty Ltd [2013] WASCA 148 [55] and Wise & Anor v Proprietors of Strata Plan 21513 [2009] WADC 115 [20].
An appeal in a minor case matter is not, therefore, a rehearing on the merits save as to the extent that it is necessary to review the hearing to determine if there has been a denial of natural justice: Rankilor v Circuit Travel Pty Ltd [2010] WADC 170 [7].
In Rankilor, Birmingham DCJ, discussed the requirements of giving natural justice in the context of the hearing of a minor case claim in the Magistrates Court.
His Honour considered that both the hearing rule and the bias rule were encompassed within the meaning of the term 'denial of natural justice'. He also considered the obligations on a court to an unrepresented litigant.
In summary, his Honour said:
In respect to the hearing rule
1.Natural justice did not require an inflexible application of a fixed body of rules but rather required fairness in all the circumstances; including the nature of the jurisdiction, rules under which the tribunal was acting, the subject matter of the dispute and the statutory provisions governing the power or jurisdiction being exercised. At its heart, the requirement to accord natural justice required a litigant to be given the opportunity to present his or her case: Rankilor [9] - [12], [18], [67].
2.The law did not impose on the court the impossible case of ensuring that a party to proceedings took the best advantage of the opportunity to present their case: Rankilor [19], [68].
3.The primary object of the Magistrates Court in dealing with a minor case is to attempt to bring the parties to a settlement; see s 27 of the Act. Section 13 of that Act specifically provides that cases must be dealt with efficiently, economically and expeditiously and that the court's judicial and administrative resources are used as efficiently as possible. Section 29 of that Act provides that the court is also required to act with as little formality as it thinks reasonable, is not bound by formal rules of evidence and may inform itself on any matter in any such manner as it thinks fit: Rankilor [15] – [17].
In respect to the bias rule
4.Fundamental to the common law system of trial is that it is conducted by an independent and impartial tribunal: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 [3]. With respect to the apprehension of bias, the test is whether a fair‑minded lay observer might reasonably have apprehended that the judicial officer might not bring an impartial and unprejudiced mind to the resolution of the question they are called on to decide. In applying that test it has to be kept in the mind that the notional observer is taken to be reasonable and that the judicial officer is, by training, tradition or oath or affirmation, obliged to discard the irrelevant, the immaterial and the prejudicial: Rankilor [88] - [91].
With respect to unrepresented litigants
5.The duty of the judicial officer to assist litigants in person will vary and depends on the litigation, the nature of the case and the litigant's intelligence and understanding of the case. Relevantly, the advice and assistance to an unrepresented litigant is what is necessary to reduce, so far as possible, the disadvantage they would suffer when faced by traps which the adversarial system offer to the unwary and the untutored, to ensure that the unrepresented person does not, through a lack of legal skill or experience, fail to claim rights or put up arguments that they might otherwise have done: Rankilor [70] - [77].
6.The duty might extend to the judicial officer identifying any issue critical to the decision which was not otherwise apparent for the nature of or the terms of the matter under consideration: Rankilor [77].
It also should be noted that there is no requirement that a minor case hearing proceed in a particular way. Section 13 of the Act states:
(1)In dealing with cases and making rules of court the Court is to ensure that cases are dealt with justly.
(2)Ensuring that cases are dealt with justly includes ensuring —
(a)that cases are dealt with efficiently, economically and expeditiously; and
(b)so far as is practicable, that the parties are on an equal footing; and
(c)that the Court's judicial and administrative resources are used as efficiently as possible.
The principles of natural justice require that a party be given a reasonable opportunity to present their case. However, what is necessary to satisfy that requirement, cannot be determined in the abstract and only in context of the case. The requirements of natural justice in this case are therefore to be viewed in the context of the minor case procedure of the Magistrates Court and in particular the objects contained in s 27 and s 29 of the Act.
Determining whether there is a breach of natural justice requires consideration of the case and it is necessary to examine the claims of the appellant to ascertain if there has been a breach.
The claim in the Magistrates Court of Western Australia PER/MIN 14508 of 2016 in September 2016
The appellant was the claimant in the Magistrates Court. His cause of action really lie in private nuisance although he describe his claim as being for 'nuisance, trespass, negligence, gross negligence and assault'.
To establish a private nuisance the appellant needed to establish that he was within the class of persons who is entitled to sue and that the respondent had engaged in a use of the respondent's land that had substantially and unreasonably interfered with the beneficial enjoyment by the appellant of his land.
A private nuisance can be established without the need to prove any fault on the respondent's part. Common law damages will be obtained where the tort of private nuisance is made out and a damage claim can be physical or purely financial: Marsh v Baxter [2014] WASC 187; (2014) 46 WAR 377 [299] ‑ [302] (Kenneth Martin J).
The appellant who I will also refer to as Mr Yuzheng, filed a Minor Case Claim dated 13 September 2016. The description of claim was 25 paragraphs long but can be summarised as being:
1.the respondent was his neighbour and used his wood burning heater in such a way that it exposed the appellant to higher concentrations of emissions from a wood heater flue than would be the case if the respondent had a more distant or higher flue;
2.the flue was 8.6 m from the appellants windows and nearly the same height as his window head sitting in the middle of the appellants backyard, bedroom, living and entertainment room;
3.the emissions started between 4.00 and 5.30 pm almost every day from the start of May to the end of October and the emissions could be extreme;
4.the smoke or emissions build up inside of the appellant's house and were slow to reduce. Extreme concentrations of wood smoke could fill the appellant's house quickly or force the appellant to close up his house in anticipation of smoke entering it;
5.the influx of smoke or emissions is such that the appellant cannot prepare dinner inside of his house and his 3 and 4‑year‑old children cannot play outside in the late afternoon;
6.wood smoke is toxic, the air quality in his house had increased health problems in the winter, the burden of dealing with the interference was disruptive to the appellant in his normal working and living in his home, the emissions of smoke were offensive to his family's senses, known to degrade people's health and children are known to be particularly sensitive; and
7.there was a claim for relief being a damages claim for the period of 2015 and 2016 in the amount of $8,333 and a claim for exemplary damages.
A further statement of minor case claim filed at the end of December 2016 contained some further factual assertions such that the appellant was forced to cook in a backyard shed 5 m from the flue and that he had used a digital thermometer to ascertain when the heater was being used and amended the relief sought to:
1.an amended claim for damages in the sum of $7,450;
2.an injunction to:
(a)limit the use of the wood heater to between 7.00 pm and 6.00 am the next morning and for a maximum of three months in winter per year; and
(b)raise the height of the flue to 2 m and to add a new 'Ventur Cowl' capping.
The respondent filed a statement of defence which can be relevantly summarised as pleading:
1.that the flue was 10 m from and 1.8 m higher than appellants windows;
2.the operation of the heater had been investigated by the Wanneroo Council and found to be compliant;
3.the respondent operated his heater in accordance with the Burn Wise guidelines so that there was minimal smoke;
4.there were many other heaters in the area and a nearby neighbour used an incinerator burning many items and emitting strong toxic odours;
5.the appellant's cooking shed was approximately 11 m from the flue; and
6.that the heater was used between 26 May and 6 September in 2015 and between 5 June and 8 October in 2016.
Prior to trial there was disclosure of documents between the parties in the matter.
The trial
The matter came on for trial before the learned magistrate on 19 June 2017.
As he was required by the Act to do, the learned magistrate initially attempted to assist the parties to reach a resolution of the matter.
When that was unsuccessful, the trial commenced. The two main issues appear to be whether the heater was being used 'legally' and if it was causing a nuisance.
The appellant presented his own case.
The appellant gave evidence, some of it in the nature of opinion evidence and was cross‑examined. He was then invited to give further evidence by way of re‑examination.
The appellant submitted that he was a civil engineer and as such was qualified to express the opinions that he sought to express. By way of example, he produced a hand drawn diagram setting out what he said was a wind whirlpool and wind flows operating between the two houses: see exhibit 1A.
The appellant tendered, among other things, a number of documents that were independent of him and which set out the applicable standards for the use of wood burning heaters and the installation of them. In particular:
1.Exhibit 1G: Wood Heater Compliance Requirements produced by The Department of Environment and Conservation. That document summarised the wood heater standards and the initiatives to reduce smoke and particle emission;
2.Exhibit 1J: two versions of the Australian Standard 2918 relating to the installation of flues for wood heaters. The 1990 version of which provides, relevantly, that:
a.the top of the flue should be at a level of not less than 600mm above where it exits through the roof;
b.no part of the building lies in or above a circular area described by a horizontal radius of 3 m about the flue exit; and
c.there should be no risk of penetration of flue gases through nearby windows or other openings, fresh air inlets, mechanical ventilation inlets or exhausts or the like;
The 2001 version relevantly provides that:
a.where the flue is within 3 m of the highest point of the roof the minimum height is not less than 600 mm above the highest point of the roof;
b.where the flue is further than 3 m from the highest point of the roof, the minimum height should be 1000 mm above where the flue penetrates the roof;
c.no part of the building lies in or above a circular area described by a horizontal radius of 3 m about the flue exit; and
d.there should be no risk of penetration of flue gases through nearby windows or other openings, fresh air inlets, mechanical ventilation inlets or exhausts or the like;
4.Exhibit 1L and 1M: Burn Wise brochures which set out the correct way to use a wood heater;
5.Exhibit 1N: a 1999 publication of the Environment Protection Authority of NSW which provides, very generally, that the effectiveness of a chimney depends on its height, and which says importantly,
… the EPA recommends that the flue be installed so that the discharge height is a minimum of 600 millimetres above any structure within a 3‑metre horizontal radius, or according to the distances used in AS 2918 Domestic Solid Fuel Burning Appliances (whichever is the greatest),
and goes on to say:
There are locations, however, where because of topography or the proximity of multilevel buildings, smoke emissions … are likely to cause nuisance to neighbouring dwellings. To assess the suitability of a site in these circumstances, the EPA recommends that the minimum discharge height of the chimney be 1 metre above any structure within a 15-metre horizontal radius. This is a guide – not a rigid rule – and high buildings or terrain beyond the 15 metre radius should also be considered; (emphasis added)
6.Exhibits 5, 6, 7 and 8A - D: photographs showing the respondents roof and in particular the respondents flue well above the respondent's roof line; and
7.Exhibits 9 and 10: which were videos taken on various days showing limited smoke coming out of the respondent's flue.
The respondent then called his witnesses. Ms Maria Makinson went first and then the respondent started to give his evidence.
The appellant was cross‑examining Mr Bowditch when it became apparent to the learned magistrate that the matter would not finish that day. According to the transcript it was at 4.18 pm when that occurred.
The magistrate asked the appellant, 'How long do you think you would be? Without restricting you, in any way, Mr Yuzheng, how long do you think you will be?' The transcript records that Mr Yuzheng replied, 'I have prepared 14 questions'.[1]
[1] ts 148.
His Honour then indicated that the matter would not be able to finish and proceeded to adjourn it part-heard. In the course of doing so he said:
HIS HONOUR: So Mr Yuzheng, you will be at least another hour, do you think?
YUZHENG, MR: Yes.
HIS HONOUR: Sorry, court administration. So don't worry about this. You don't have to worry about this, Mr Yuzheng. Yes. Mrs Bowditch, I agree with your unspoken comment. Okay. So we're – cross‑examination remains on foot. So – sorry, I should – you're still under cross‑examination. We'll have to adjourn to 12 noon on 15 September 2017. The hearing will be 12 noon till 1, and then 2.15 to around 4.30. I may have to reserve my decision, again.
There was a fair bit of interaction then between the parties and his Honour before his Honour made the following comments directed, first, to Mr Bowditch and then Mr Yuzheng:
HIS HONOUR: You're still under cross‑examination, so please don't discuss your evidence with anybody. Mr Yuzheng, so what will happen on the next occasion is that you will conclude your cross‑examination.
YUZHENG, MR: Okay.
HIS HONOUR: And I don't think there's any other evidence from you Mr Bowditch?
BOWDITCH, MR: No, I'm done.
HIS HONOUR: No. And then there will be closing submissions. So each party has an opportunity to tell me just a summary of what their position is, and then I'll either make a decision on 15 September or I will reserve my decision because of the nature of this matter. It won't be long.[2]
[2] ts 161.
Mr Yuzheng made further comment on the matter and eventually the Magistrate gave him leave to put on further evidence and the matter was adjourned at 5.17 pm.
The appellant filed further material – some 21 pages.
On Friday 15 September at 12.15 pm the matter came back on. His Honour appears to have mistakenly formed the view that on the earlier date the trial had been completed and, it appears, that he was ready to give his decision. There was the following lengthy exchange:
HIS HONOUR: Mr Yuzheng?
YUZHENG, MR: Yes. Because you – you haven't asked – you haven't given me the question time to the – to the Hayden next time.
HIS HONOUR: No, no, no, no, no. Sorry. What did you just say?
YUZHENG, MR: Because you haven't let me – the question – the ‑ hidden last time. It's not enough time – last hearing.
HIS HONOUR: No, no. It was not. That is absolutely incorrect. You were given time to cross‑examine Mr Bowditch, and you had that opportunity.
YUZHENG, MR: Because you asked me, because I have – it's too late. I ask to go to next hearing. I can ask the question to the Bowditch. Because I haven't had time to question him, because - ‑ ‑
HIS HONOUR: That's – that's – sit down, Mr Yuzheng. You had no time whatsoever to ask him any questions. Is that what you're saying?
YUZHENG, MR: Yes. It's too late at that time.
HIS HONOUR: Okay then. Okay then. No problem. Let me just check my records. Do you recall being cross‑examined?
BOWDITCH, MR: Yes, your Honour.
HIS HONOUR: Yes. I recall that as well. End of complainant's case at 3.15 pm on 19 June 2017. Then we interposed Maria Makinson to give evidence. She gave evidence. She was cross‑examined. Then, at 3.33 pm on 19 June 2017 Mr Bowditch gave evidence. Then he was cross‑examined by you. What further questions do you want to ask?
YUZHENG, MR: Because he submit – sorry, do I need to stand up?
HIS HONOUR: No. That's fine. What do you need to ask?
YUZHENG, MR: Because we have different ideas about the height of the chimney and the – and the ‑ ‑ ‑
HIS HONOUR: That's the evidence. You gave evidence. Mr Bowditch gave evidence.
YUZHENG, MR: Everything is wrong.
HIS HONOUR: Yes.
YUZHENG, MR: I have asked him the questions – why it is wrong. I haven't any time then to ask them at that time. Because it's too late at that stage. Let me ask to go to the next hearing to ‑ ‑ ‑
HIS HONOUR: Mr Bowditch, I'm going to give leave for you to give evidence, further examination‑in‑chief. Sorry. Further cross‑examination. Fortunately I make notes. In relation to exhibit 13. I explained I will adjourn to watch video on 2 June 2016, and no other video. Only exhibit is the video from 2 June 2016, and I confirm I will not watch, nor consider in any way any other video. In fact, I am satisfied, as at 19 June 2017, that I have watched and heard exhibit 13, and made sufficient notes to not need to watch it again.
If I do need to do I will advise the parties. What further questions do you have to ask?
YUZHENG, MR: At that time, you know, I haven't got any – you know, the ‑ ‑ ‑
HIS HONOUR: There has got to be a limit, Mr Yuzheng.
YUZHENG, MR: Yes.
HIS HONOUR: You can't extend this. You've had ample opportunity. You've filed 21 pages of further documents.
YUZHENG, MR: I tell you ‑ ‑ ‑
HIS HONOUR: Listen to me. And you now want to cross‑examine on some further evidence. You've given your evidence. You've been cross‑examined. Mr Bowditch gave evidence. He has been cross‑examined. Just because his version of events is different to your version of events, that's what the whole point of a trial is. And then I have to make decisions, based upon the evidence. What evidence do you want to put to Mr Bowditch.
YUZHENG, MR: Last time, you know ‑ ‑ ‑
HIS HONOUR: What evidence do you want to put to Mr Bowditch?
YUZHENG, MR: I have a (indistinct) list, including the, how to calculate the height of the chimney, how that extends the risk of the ‑ you know, the – the smoke going into my house. How fast? Just two seconds. How to calculate this – get this risk – (indistinct). Because ‑ ‑ ‑
HIS HONOUR: Why is – this witness is your neighbour. Why is he being asked questions about the rate – your presumed rate of unpredictable winds blowing smoke into your house? Tell me.
YUZHENG, MR: Because this ‑ ‑ ‑
HIS HONOUR: Based on what?
YUZHENG, MR: ‑ ‑ ‑ this case you need to consider the location of this house.
HIS HONOUR: I have.
YUZHENG, MR: Yes.
HIS HONOUR: I've got – received a lot of evidence.
YUZHENG, MR: So this one – because in the installation standard is that very clear. It's ‑ ‑ ‑
HIS HONOUR: You've already given that evidence.
YUZHENG, MR: ‑ ‑ ‑no risk of the wood smoke penetrating into the existing nearby windows. And I want to give you some evidence. My house is built earlier than his. And how much – how fast the wood smoke it go into my house. I want to give you this piece of evidence.
HIS HONOUR: What's that based on? What's the – what ‑ - ‑
YUZHENG, MR: Based on the wind.
HIS HONOUR: Wind. Okay. So ‑ ‑ ‑
YUZHENG, MR: Yes. Wind.
HIS HONOUR: ‑ ‑ ‑ you can predict the wind?
YUZHENG, MR: Average.
HIS HONOUR: You've got an expert – average.
YUZHENG, MR: Average. Yes.
HIS HONOUR: Average wind.
YUZHENG, MR: Average speed.
HIS HONOUR: Average speed of wind.
YUZHENG, MR: Yes. And then ‑ ‑ ‑
HIS HONOUR: So you can give evidence, you think, of the average speed of wind?
YUZHENG, MR: Yes. Because I get it from the – you know, the weather port. And then I show you his calculation of the chimney height. It's fully wrong. It's just 1.1 metres. But he calculates 1.8. He just gets it from the one photo. And at that time, you know, he just gave me two documents about the (indistinct).
HIS HONOUR: You had ample opportunity, Mr Yuzheng. What do you want to cross‑examine? Because if you're just going to repeat ‑ ‑ ‑
YUZHENG, MR: No.
HIS HONOUR: And you will have another chance and another chance and another chance. You've already given me a whole heap of information about chimney heights. So if it's just going to repeat the same thing I'm not going to hear it.
YUZHENG, MR: No. I tell you at that time, you know, you haven't given me the copy of his evidence. I just get one ‑ ‑ ‑
HIS HONOUR: I'm not giving him a copy of his evidence.
YUZHENG, MR: No. He had just give me the – these two copies, you know. These two – two page papers. I haven't ‑ ‑ ‑
HIS HONOUR: What are you talking about?
YUZHENG, MR: He prepared evidence to you, but he hasn't prepared the evidence to me. I just get this two pages.
HIS HONOUR: What ‑ ‑ ‑
YUZHENG, MR: I haven't – and I haven't ‑ ‑ ‑
HIS HONOUR: All the exhibits have been taken into account. Mostly ‑ ‑ ‑
YUZHENG, MR: Because ‑ ‑ ‑
HIS HONOUR: I gave the person – the tenderer of all of those exhibits is up to exhibit – from one to 11, is you – to you.
YUZHENG, MR: And you told me ‑ ‑ ‑
HIS HONOUR: And Mr Bowditch tendered from 12 to 20, and then you tendered 21. So that was just mostly photographs, audio. You saw all the evidence.
YUZHENG, MR: I want to show you the photos and some video.
HIS HONOUR: Okay.
YUZHENG, MR: Because you – and I only some time to question him, because at that time it's too late.
HIS HONOUR: Right. Let's ‑ ‑ ‑
YUZHENG, MR: You haven't give me any time.
HIS HONOUR: Let's – listen. In accordance with my obligations, under the Magistrates Court (Civil Proceedings) Act Part 4, this is still a minor case, and rule 6A of the Magistrates Court (Minor Case Procedure) Rules, which says:
The Court's power in Part 3 of the Act, except sections 14, 18 and 25, may be exercised by the Court in every circumstance.
I'm specifically acknowledging that, especially section 13, subsection 2. That cases are dealt with efficiently, economically and expeditiously. That's what's guiding me. So what's the evidence you want to show me? And it has got to be confined. What is it?
YUZHENG, MR: Evidence ‑ ‑ ‑
HIS HONOUR: Don't just hand me up a – what is it?
YUZHENG, MR: It's about, you know, the – some different values we get. Because we get that.
HIS HONOUR: Different values of what?
YUZHENG, MR: The chimney height. You said it's very important. You asked me three times. I said it's nearly the same height as my window. So I just go back home to check it. And then he said it's 1.8 metres higher than my window. It's wrong. It's just 1.1 I get this evidence to you.
HIS HONOUR: What's the evidence that says it's 1.1?
YUZHENG, MR: Because, at that time, just showed you just one photo. One page. You cannot get any value from that. It is ‑ ‑ ‑
HIS HONOUR: Don't tell me what I can get value from, Mr Yuzheng.
YUZHENG, MR: I ‑ ‑ ‑
HIS HONOUR: Tell me, right now, what's the evidence you want to rely upon, and we will write it down.
YUZHENG, MR: Because I have to print out two photos.
HIS HONOUR: What are the photos you want to show me?
YUZHENG, MR: His house photo and my house photo. And then ‑ ‑ ‑
HIS HONOUR: Okay. Well, show it to me. Let's have a look.
YUZHENG, MR: Okay.
HIS HONOUR: Thanks. That photo?
YUZHENG, MR: Yes.
HIS HONOUR: Whose house?
YUZHENG, MR: This is Hayden's house. The same as this photo.
HIS HONOUR: Who is that house?
YUZHENG, MR: It's my house.
HIS HONOUR: Okay. Who wrote on that?
YUZHENG, MR: Me. Because I measured it.
HIS HONOUR: You get up on the roof, did you.
YUZHENG, MR: No. I just – because the same as (indistinct) Hayden's measure, it's 1.8 metres. But in this page, he give it to us, no – any value inside. How can you get the – it's 1.8 metres? So I measured the column height and then measured the – the length of the column inside this paper, and then compared with others, to get the length of the – no – the higher of the chimney, and then compare with the windows. You can see it. Have a look. Because I get the photos here.
HIS HONOUR: So let me ask you this question. Go into the witness box now, Mr Yuzheng. We will further extend time, because that's what you want. It will be done with today, Mr Bowditch. I'm not allowing Mr Yuzheng to take advantage of this matter indefinitely. So we're going to confine Mr Yuzheng to further evidence, and we're going to assess it as well. Okay? so we're going to have confined evidence. So do you want to promise to tell the truth or swear to God to tell the truth? What is it?
\YUZHENG, MR: Yes.
HIS HONOUR: What is it?
HIS HONOUR: Affirmation.
YUZHENG, RONG: re‑affirmed.
Mr Yuzheng then gave further evidence about his calculation of the height of the flue on the respondent's house above the top of the windows on his house. His evidence was to the effect that the top of the flue was only 1.1 m above his windows and not 1.8 m as had been stated by the respondent in his evidence. He produced photographs to support his calculations and he also gave further opinion evidence calculating the manner in which different winds might cause smoke from the heater to circulate into his windows and the likelihood of it doing so.
After hearing Mr Yuzheng's further evidence and taking further documents as exhibits from him the magistrate decided that he would give judgment in the matter.
Mr Bowditch was not further cross‑examined and he did not make any particular submissions.
The magistrate dismissed the appellant's claim and gave substantive reasons for doing so.
By way of summary, those reasons showed that the magistrate:
1.had considered the further material filed by Mr Yuzheng which, he said, were mainly submissions.[3] He summarised the submissions;[4]
[3] ts 213.
[4] ts 214.
2.correctly identified that the nature of the appellant's case was for the tort of nuisance and said that the other claims were subsumed in the case for nuisance;
3.pointed out that the damages claim for the period of 2015 ‑ 2016 was based on leaving the house and renting elsewhere in another house and on the loss of the use of the house but that there was no evidence that the appellant had moved out of the house;[5]
[5] ts 215.
4.found that the flue, chimney and wood heater were in compliance with the relevant laws applicable to their installation and there was no evidence to suggest otherwise;[6]
[6] ts 217.
5.gave some reasons relating to why he had found the appellant not to be a credible or reliable witness. Those reasons can be summarised as:
(a)the appellants evidence at the first hearing that the height of the top of the flue was at the top of his window but that was contradicted by exhibit 6 and by the appellant's later evidence at the hearing that day that the top of the flue it was at least 1.1 m above the height of the windows;[7]
[7] ts 219, 225, 236.
(b)the appellant had pretended to be his neighbour in an email exchange with Burn Wise;[8]
[8] ts 220.
(c)the appellants unusual and unsubstantiated evidence to the effect that:
(i)it was necessary for the appellant to have the house open at all times while using the gas hob in his kitchen because of potential for gas emissions;[9] and
[9] ts 220.
(ii)with the result that the appellant could not use his gas hob to cook inside when the neighbour was using his heater because when the heater was on the heater had to be closed up;
(d)the evidence of the appellant to the effect that he now cooked in his cooking shed which was external to the house and, so, directly subject to smoke, was contrary to the contention that the smoke was dangerous;[10]
[10] ts 222 – 223.
(e)the appellants refusal to concede that he had taken photographs of and used a laser thermometer over the fence within the respondent's property, a matter which was of limited import in the proceedings but which demonstrated the appellants lack of reliability;[11]
[11] ts 221 – 222 and exhibit 16.
(f)the photographs which clearly showed that the top of the flue was above the height of the top of the appellant's windows;[12] and
[12] ts 224, exhibit 20.
(g)exhibits 9, 10, 11 and 30 which showed only a limited amount of smoke coming out of the flue;
6.the learned Magistrate then said that he accepted the respondent's evidence that when he had lit a fire on the day that the Wanneroo Council was testing the smoke from the flue that he had lit it in the same way that he always lit it;[13]
[13] ts 224.
7.observed that videos taken that day had shown some smoke rising up from the flue and away from the appellant's house;
8.said that he was not satisfied with the appellant's evidence about how he had undertaken the measuring of the height of the flue above the respondent's window. The magistrate said, '[b]ut, in any event, being 1.1 metres is not overwhelming significance, in my view';[14]
[14] ts 225.
9.rejected the submission that based on Mr Yuzheng's estimate that whenever the fire or the heater was on there was a 50% chance of smoke going into the appellant's house;[15]
[15] ts 226.
10.pointed to the fact that the appellant would not admit that the smoke could be from other sources notwithstanding his own evidence and that of Ms Makinson about other sources;[16]
[16] ts 227.
11.accepted Mr Bowditch's evidence as to:
(a)how he lit the fire on the day of testing, 25 September 2015 and his evidence contained in two logs, (exhibits 18 and exhibit 14) as to how often his heater was being used and how often the appellant was cooking in his outdoor shed;[17]
[17] ts 227.
(b)that he did not use the wood heater on 2 June 2016 and described that evidence as critical and noted that both exhibits 13 and exhibit 27 supported that evidence ;[18]
[18] ts 228.
12.the learned Magistrate then dealt substantially and correctly with the law,[19] before finding that the respondent had lived in the property for more than 20 years and used the wood heater during that entire time and that the Wanneroo City Council had investigated and found no case to answer with respect to the use of the wood heater;
[19] ts 229 – 232.
13.noted that the evidence about the significant degree of smoke and smoke particles was the appellants evidence and was not supported by any expert evidence from an independent expert, there was no evidence that the chimney had been improperly installed or that any standard relating to its use had been breached;
14.accepted that in his view the top of the flue was 1.8 m above the top of the appellant's windows; but having reviewed the Australian Standards and the EPA standards from New South Wales in 1999, which were expressed to be a guide only, went on to find that:
(a)the top of the respondents flue was not less than 600 mm above the level at which the access of the flue penetrates into the his house;[20]
(b)no part of the buildings were in a circular area 3 m above the top of the flue;
(c)the appellants property was not within 3 m of the flue but was 8.6 m away; and
(d)the chimney was in any case, including on the appellants own evidence that day, at least a metre from the top of the windows;
15.critically, having found that the appellant was not a credible witness, found he was not satisfied that smoke entering the house of the appellant was of substantial duration or level because there was no expert evidence of that; and
16.found that he was not satisfied that there was a substantial and unreasonable interference by the respondent with the use and enjoyment of the land by the appellant. The appellant had failed to prove his case. The magistrate went on to say that the use of such heaters is commonplace in the metropolitan area.
[20] ts 234.
Notice of appeal
The grounds of appeal contained in the appeal notice were expressed as being:
1.a denial of natural justice – lack of procedural fairness and that the magistrate acted unfairly towards the appellant. This was primarily based on the appellant's cross‑examination of the respondent being cut short at the end of the first hearing and not continued in the second hearing as the magistrate had promised and planned. That failure was said to deny the appellant enough time for discovering the lies in the evidence of the respondent;
2.the magistrate was prepared to read out his decision at the start of the second hearing and was obviously frustrated and making comments to the respondent creating procedural unfairness and showing apparent bias;
3.the appellant had supplied further evidence for the second hearing but the magistrate had made his decision in a rushed fashion and unfairly before hearing the new evidence;
4.the appellant had no chance to proceed with a final address at the end of the second hearing because the magistrate had already made his decision; on the other hand the magistrate remembered to ask the respondent to cross‑examine;
5.the magistrate did not take into account the most important factors in the case of locality, duration, frequency, extent of interference, and a time of day to determine if a private nuisance was occurring;
6.the magistrate did not take into account whether it was possible for the respondent to take precautions to prevent the causing of a nuisance by raising the chimney and only using it after 7.00 pm which were of a low cost company with the substantial interferences for the appellant's family for half a year;
7.the magistrate erred in not accepting the toxic nature of the wood smoke, its frequency, unpredictability and intrusion into the appellant's house by high concentration emission at short distance (the chimney being only 8.6 m from the appellant's window head) which all constituted the substantial and unreasonable interference with a private tort in connection with the use and enjoyment of the appellant's land under the Health Act 1911 which defines smoke nuisance from a domestic chimney; and
8.biases further summarised and listed in papers attached to the Notice of Appeal.
The summary of biases run to some 36 paragraphs over 10 pages.
I heard the matter for about half a day on 7 March 2018.
At the end of this hearing, however, I gave the appellant the opportunity to put before me further written submissions, which he did. The written outline of submissions runs to some 56 pages. I do not intend to summarise those submissions but essentially they are in accordance with the grounds of appeal which I have already outlined.
Error of fact and law
I have set out above the authority for the propositions that the rights of appeal to this court from a decision in a minor case are limited and that grounds of appeal that assert errors of fact and law are beyond the jurisdiction of this court on appeal.
In this appeal, assertions of error of fact and error of law are encompassed by the submissions and by the grounds of appeal that the magistrate did not take into account the important factors of location, duration, frequency of emissions, that the magistrate did not take into account that it was possible for the respondent to take precautions to prevent smoke going into the appellant's house and that the magistrate erred in not accepting the grounds of the toxic nature of the wood smoke.
Further, the appellant submitted that the magistrate should not have come to any part of his decision based on a lack of credibility on the part of the appellant. Each of those matters is a matter of fact or law and they are beyond the jurisdiction of this court on this appeal.
I will discuss below why the learned magistrate's decision was open to him on the evidence as was presented by the appellant. It is necessary for me to review that evidence to determine whether the appellants allegations of a lack of procedural fairness has been made out.
Denial of natural justice and procedural fairness
An available ground of appeal under the Act is the denial of natural justice and I have outlined above, briefly, the law as it relates to a denial of natural justice.
It seems to me that under this heading there are three matters that fall to be considered. Namely, whether:
1.the appellant had an adequate opportunity in the hearing before the magistrate to present his case, in particular, if references to there being time constraints and the refusal to allow the appellant to further cross-examine the respondent resulted in an inadequate opportunity to present his case;
2.the magistrate failed to assist him adequately as a self‑represented litigant; and
3.whether the magistrate was biased.
In respect to the first of those matters it is my view that the appellant had an adequate opportunity to put his case.
The matter had been the subject of a minor case statement of claim and statement of defence which put matters in issue.
The appellant used the most substantial part of the first day to put his evidence and was given a second opportunity to give further evidence about how far the top of the flue was above the appellant's windows on the second day.
The magistrate did refer to there being some time constraints, but, it is clear that any magistrate in a minor case matter is obliged to take into account the size of the claim and ensure that the matter is dealt with expeditiously: s 13(2)(a) of the Act.
The real issue in this appeal is whether the refusal of the magistrate to allow further cross‑examination of the respondent prevented the appellant being fully able to put his case in the circumstances of the hearing.
Section 29(4) of the Act provides:
(4)When dealing with a minor case the Court is not bound by rules or practice as to evidence but may inform itself on any matter in such manner as it thinks fit.
Of course this does not mean that the rules of evidence should simply be ignored. It would not for instance justify a finding being made without any basis at all in the evidence: Rodriguez v Telstra Corp Ltd [2002] FCA 30 [25] (Keifel J) referring to Re Pochi v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 33 [41]; (1979) 36 FLR 482, in which Brennan J found that a tribunal which is not bound by the rules of evidence is entitled to have regard to evidence which is logically probative whether legally admissible or not.
When asked, the appellant indicated that he wanted to cross‑examine the respondent about the height of the chimney and about other matters which the respondent was not able to give any evidence about, for instance, how the height of the chimney increased the risk of smoke going into his house, how fast that happened and how to calculate that risk. Those are matters that require expertise, and, the respondent had no expertise or capacity to answer those questions.
While it may often be the case that a refusal to allow cross‑examination on evidence was a denial of natural justice, in this case an examination of the magistrate's reasons reveal that the appellant's claim failed largely because of his own evidence. Some of the matters about which the magistrate accepted the respondents evidence were:
1.the respondent had lit his fire on the testing day in the way he always did;
2.the respondent had not use the wood heater on 2 June 2016; and
3.the logs recording when the respondent used his wood heater and the appellant used his external cookhouse (the last being a matter which did not appear to have really been in issue),
none of which appear to have had, or should have had, real impact on the decision the magistrate reached.
Further, while the magistrate said that he had found the top of the flue was 1.8 m above the appellant's windows, he clearly went on to find that it was also more than 600 mm above the respondent's roof and not within the prohibited distance of the appellant's house: see [48] above at point 14.
At its heart the magistrates decision was reached on the basis that the flue was properly installed within the relevant standards and that he was not satisfied that the use of the heater was in any way illegal but, more importantly for this appeal, he did not believe Mr Yuzheng as to either how much smoke came into his house or how that impacted on the appellant's use and enjoyment of his property. This had the result that magistrate could not and did not find there had been a substantial and unreasonable interference with the appellant's enjoyment of his land. The evidence, including the videos showing smoke issuing from the chimney and being blown away from Mr Yuzheng's house supported that decision.
The appellant, Mr Yuzheng was obliged to prove his case. It was open to the magistrate not to believe Mr Yuzheng. If the magistrate was wrong in that it is an error of fact which is not within the scope of this court's jurisdiction.
Turning now to the question of Mr Yuzheng being an unrepresented person. Mr Yuzheng presented at court on both days with an interpreter but specifically required the interpreter to only give him assistance with a very limited part of the case and when he asked the interpreter to give that assistance.
It is clear from the transcript that while not entirely fluent in English, Mr Yuzheng spoke more than adequate English to present his case, he is a civil engineer educated at Curtin University and he had held down employment in Western Australia up until 2015. While he was assisted by an interpreter, Mr Yuzheng was up to the task of presenting his own case in English.
The magistrate went to some length to enable Mr Yuzheng to put his case properly.
He allowed Mr Yuzheng to augment his evidence on the second day and he took into account some 21 pages of submissions and further evidence. He simply found that none of the evidence was sufficient to satisfy him of the matters in issue.
The appellant was also up to the task of running his appeal before me and, making written submissions. The written submissions were readily readable and cross‑referenced to the evidence although I was told by Mr Yuzheng that in their preparation he would have the assistance of someone who helps him with his written English.
In my view there is nothing to suggest that his Honour did not help Mr Yuzheng so as to give a denial of natural justice. This ground of appeal has no merit.
Bias
These are allegations of actual bias. The onus of establishing the facts from which an allegation of reasonable apprehension of bias, or actual bias, is made lies on the party making it. Actual bias occurs when the tribunal has pre‑judged the case against a party, or acted with such partisanship or hostility that it shows that the tribunal has its mind made up against that party and was not open to persuasion: Minister for Immigration and Multicultural Afffairs v Jia [2001] HCA 17; (2001) 205 CLR 507 [36], [72]; Waters v Williams [2013] WADC 169 (Davis DCJ).
To establish actual bias the appellant needed to establish that his Honour's mind was already made up and was incapable of alteration whatever evidence or arguments were presented: Chin v Legal Practice Board of Western Australia [2011] WASCA 110 [5] (Newnes JA), Waters v Williams.
Of course for apparent bias there is a lower threshold. It was discussed in De Alwis v The State of Western Australia [No 2] [2015] WASCA 42 where the court stated [67] – [70]:
67It appears the appellant's claim is of actual and apprehended bias. In the case of apprehended bias, the test is whether a fair‑minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: The Legal Practitioners Complaints Committee v De Alwis [2006] WASCA 198 [64].
68The apprehension of bias principle involves two steps. First, it requires the identification of what it is said might lead a judge or juror to decide a case other than on its legal and factual merits. Second, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits: Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [8].
69…
70In judging whether there is a reasonable apprehension of bias, it should be assumed that the lay observer would base his or her opinion on a fair assessment of the judge's conduct in the context of the trial as a whole: Galea v Galea … .
I have read the whole of the transcript in this matter and reviewed all exhibits.
The appellant claims a substantial number of matters indicate that his Honour was prejudiced against him. In particular, he points to some of the comments made by his Honour during the course of attempting to settle the matter.
I have reviewed those comments as well as the transcript of the trial itself.
Even if it could be said that his Honour had indicated a preliminary view, his Honour then went on and heard all of the evidence that the appellant wanted to present. He gave the appellant additional opportunities to put on evidence and listened to that evidence. It is clear from his reasons for decision, which were substantial and considered, that he considered the appellant's case properly.
The real complaint is that his Honour's conclusion was adverse to the appellant and that the court did not accept all of his evidence and submissions. Clearly it is the case that the court at first instance made a decision that is not to the appellant's liking.
There is no basis in my view for an assertion there is any actual or apprehended bias.
Having reviewed all of the evidence I am of the view that the decision reached by the magistrate was well open to the magistrate on the evidence.
Further, while the magistrate did express some matters in favour of the respondent which the appellant could not cross‑examine on, those matters were not, on a proper analysis of his Honour's judgment, central to the decision. His Honour specifically indicated that even if he were to accept the appellant's evidence, when the concession was made, that the top of the flue was 1.1 m above the appellant's windows, it would not change his decision.
The appellant's evidence did not establish that the flue was incorrectly installed, and in any case, the real issue was whether the use of the flue was causing an unreasonable interference. The magistrate did not believe the appellants evidence on that and so his case failed.
Considering all of the grounds of appeal relied on I find that there has been no denial of natural justice in relation to the hearing rule, the bias rule or the no evidence rule. I would therefore find no merit in the grounds of appeal.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
CDZ
ASSOCIATE TO JUDGE GILLAN24 APRIL 2018
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