Supreme Court New South Wales Medium Neutral Citation: Kazas-Rogaris v Gaddam [2014] NSWSC 1465 Hearing dates: 24 October 2014 Decision date: 09 December 2014 Jurisdiction: Common Law Before: Davies J Decision: 1. Appeal dismissed. 2. The Plaintiff is to pay the Defendant's costs. Catchwords: APPEAL - from Local Court - claim for trespass to land - neighbour cuts down trees on Plaintiff's land - various procedural errors alleged - whether errors of law - one party calls another party to give evidence - whether an abuse of process - magistrate permits discontinuance against one defendant - whether consent of other defendant needed - apprehended bias -failure of appellant to object at trial to matters now complained of - whether waiver by failing to raise matters Legislation Cited: Civil Procedure Act 2005 (NSW). Evidence Act 1995 (NSW) Local Court Act 2007 (NSW) Oaths Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 House v The King (1936) 55 CLR 499 James Hardie and Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 Trade Practices Commission v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 Vakuta v Kelly (1989) 167 CLR 568 SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 Texts Cited: Mark Aronson & Matthew Groves, Judicial Review of Administrative Action (5th Ed 2013, Thomson Reuters) J D Heydon, Cross on Evidence (8th Australian Edition 2010, Lexis Nexus Butterworths) Category: Principal judgment Parties: Anne Kazas-Rogaris (Plaintiff) Felicia Gaddam (Defendant) Representation: Counsel: B Levet (Plaintiff) R Lee (Defendant) Solicitors: Bechara and Company Lawyers (Plaintiff) Rhodes Legal (Defendant) File Number(s): 2014/122269 Decision under appeal Date of Decision: 2014-03-26 00:00:00 Before: Skinner LCM File Number(s): 2012/383582 Judgment 1On 23 July 2012 the Plaintiff Anne Kazas-Rogaris, by her agent Kodr Haj, a tree lopper, cut down 16 Cyprus pine trees on the neighbouring property owned by the Defendant Felicia Gaddam. The Defendant sued the Plaintiff and Mr Haj for trespass. Mr Haj was the Second Defendant in the Local Court. 2On 26 March 2014 Magistrate Skinner LCM gave judgment in favour of the Defendant against the Plaintiff for $20,000 general damages for rectification work and $5,000 exemplary damages together with costs. 3The Plaintiff appeals to this Court pursuant to s 39 Local Court Act 2007 (NSW). Four grounds of appeal are relied upon as follows: (1) In relation to the Second Defendant in the Court below ("the Second Defendant"), her Honour erred in: (a) Allowing the Second Defendant to be called as a witness in the case of the plaintiff in the Court below; (b) Allowing the Affidavit of the Second Defendant into evidence notwithstanding that the Second Defendant could not read English and in circumstances in which such affidavit had not been read to him by a qualified interpreter; (c) Allowing the Second Defendant to remain in court in circumstances in which he had commenced giving his evidence but other witnesses were interposed prior to the conclusion of his evidence; (d) Creating a reasonable apprehension of bias by expressing an opinion as to the truthfulness of the Second Defendant prior to the completion of his evidence and the testing of such evidence. (2) Her Honour erred in allowing the plaintiff in the Court below to unilaterally discontinue against the Second Defendant immediately upon the conclusion of his evidence without the plaintiff in the Court below seeking the leave of the Court or the consent of the other parties to the proceedings to such discontinuance. (3) Her Honour erred in misdirecting herself as to the appropriate burden and onus of proof. Particulars Page 3 of transcript of proceedings lines 31 and 32 (4) Her Honour erred in not permitting to be read into evidence the affidavit of Lena Pace. 4The dispute between the parties was whether Mrs Gaddam had given a licence to Mrs Kazas-Rogaris to remove the trees. The evidentiary difference between the parties concerned what conversation took place and on what date the conversation occurred. Mrs Gaddam's evidence (which was ultimately accepted by the Magistrate) was that a conversation took place in November 2011. Mrs Gaddam said that she and her husband were approached by Mrs Kazas-Rogaris shortly after they (Mr and Mrs Gaddam) had concreted a portion of their driveway. Mrs Kazas-Rogaris commented on the concreting and said: I want to move in with my mother who lives next door. We should get together and fix up both driveways. We should cut down the trees and replace them with pot plants. I will get a quote to cut down the trees and replace them with pot plants and I will get back to you. I can pay for the trees to be cut down. Mrs Gaddam said she did not respond to what was said. 5There was then no further conversation and no correspondence was subsequently received from Mrs Kazas-Rogaris. 6In late June 2012 Mr and Mrs Gaddam went to Europe. When they returned home on 25 July 2012 they discovered that the trees had been removed. They immediately walked to Mrs Kazas-Rogaris' house in Lancaster Avenue, Punchbowl and confronted her about the removal of the trees. Mrs Kazas-Rogaris acknowledged that she had arranged for removal of the trees and said that in the conversation in November 2011 she had told Mrs Gaddam that she would pay for the cost of cutting down the trees as Mrs Gaddam could not afford it. 7The evidence of Mrs Kazas-Rogaris was that a conversation occurred on 14 April 2012 witnessed by a Mr Fiorucci. Mrs Kazas-Rogaris said she expressed her concern to Mrs Gaddam that the trees were overgrown, unmanageable, had caused the concrete driveway to crack and were ugly and unsafe. Mrs Gaddam said, "Why do you need to cut them, they are nice. I love those trees." 8Mrs Gaddam also said that she did not have the money to remove the trees so Mrs Kazas-Roagaris said she would remove the trees at her cost and get quotes to cut the trees flush to the ground. Mrs Kazas-Rogaris said that she would advise Mrs Gaddam in writing when the tree lopping would occur. She said that she wrote to Mrs Gaddam in May 2012 to confirm that she was going to cut the trees. 9Mrs Kazas-Rogaris said that she confirmed the arrangement regarding the removal of the trees by a letter dated 22 May 2012. She produced what was said to be a copy of the letter. However, she failed to include a quote with the letter. Mrs Gaddam denied receiving the letter. The Magistrate found that Mrs Kazas-Rogaris was unable to provide evidence of the creation of the letter. 10Mrs Kazas-Rogaris accepted that the judgment of the Court below was ultimately one based on credit but submitted that the errors made by the Magistrate should result in the judgment being set aside and the matter remitted to the Local Court to be dealt with according to law. 11In the original Summons filed the Plaintiff purported to appeal as a right and also sought leave to appeal. In the Amended Summons filed 9 July 2014 that dichotomy was maintained. By the time the appeal was argued a Further Amended Summons had been filed on 15 August 2014. In the section headed "Details of Appeal", where previously both an appeal as of right and leave to appeal were indicated, the Plaintiff purported to appeal only as of right. Yet, in the Orders Sought, the first such order was "Leave to appeal from the whole of the decision below". 12However, in answer to an enquiry from me, counsel for Mrs Kazas-Rogaris affirmed that he had not sought leave to appeal, and that he he needed to demonstrate an error of law. Section 39 gives a party an appeal as of right to this Court but only on a question law. Section 40 requires leave if a party is dissatisfied with a judgment on a ground that involves a question of mixed fact and law. Ground 1(a): Her Honour erred in allowing the Second Defendant to be called as a witness in the Plaintiff's case 13Mrs Kazas-Rogaris submitted that it was an abuse of process in the circumstances for Mrs Gaddam to call Mr Haj as a witness in Mrs Gaddam's case. That was partly because Mr Haj had filed an affidavit in the proceedings and it became clear that such affidavit had been prepared by Mrs Gaddam's solicitor for Mr Haj as a witness in Mrs Gaddam's case. In that way Mrs Gaddam knew what the Second Defendant was going to say. 14Mrs Kazas-Rogaris pointed to an exchange that took place at the opening of the trial as follows: HER HONOUR: First defendant. What's happened with the second defendant? LEE: The second defendant's outside. HER HONOUR: Yes. LEE: He's unrepresented. HER HONOUR: Okay. LEE: We will, we would ask your Honour that at some point in time or that, we're happy for him in our case to give evidence first and then after that it may or may not be the plaintiff will discontinue against him. 15Mrs Kazas-Rogaris submitted that the only utility in Mrs Gaddam maintaining her action against Mr Haj was to exert an improper influence over him to ensure that he gave evidence in accordance with the affidavit prepared by her lawyers. Mrs Kazas-Rogaris submitted that the Magistrate should have put Mrs Gaddam to an election either to discontinue against Mr Haj and then call him in her case or simply to proceed against him in the ordinary course of events without calling him. Her failure to do so had the effect of tainting Mr Haj's evidence. 16Section 12 of the Evidence Act 1995 (NSW) provides that: Except as otherwise provided by this Act: (a)every person is competent to give evidence, and (b)a person who is competent to give evidence about a fact is compellable to give that evidence. 17Nothing in the Act makes it an exception to competence that the person concerned is another party in the proceedings to give evidence. In J D Heydon, Cross on Evidence (8th Australian Edition 2010, Lexis Nexus Butterworths) at [13020] the learned author says: It is important to bear in mind that since 1851 in England, and a short time later in various Australian jurisdictions, a party's right to call an opponent as a witness and compel the opponent to give evidence has been beyond dispute. 18Whilst what took place as set out at [14] above is somewhat unusual no objection was taken to that course by Mrs Kazas-Rogaris. Further, an issue of Mr Haj's credibility was certainly raised because Mr Haj had hanging over him at the time the possibility that Mrs Gaddam would pursue her claim against him. It was open to Mrs Kazas-Rogaris' counsel to cross-examine Mr Haj (which he did) and make submissions in relation to that credibility issue. The Magistrate in her final judgment found Mr Haj to be a reliable witness. There is no challenge to that finding. 19I would reject this ground of appeal. Ground 1(b): Admitting the affidavit of the Second Defendant into evidence 20Mrs Kazas-Rogaris submitted that the affidavit of Mr Haj should not have been admitted into evidence because Mr Haj could not read English and the affidavit had not been read to him by a qualified interpreter. 21The Magistrate asked Mrs Gaddam's solicitor what evidence he was relying upon. He identified a number of affidavits including the affidavit of Mr Haj sworn February 2014. The Magistrate then asked Mrs Kazas-Rogaris's counsel if there was anything that he was contesting with respect to the admissibility in any of the affidavits. He identified two paragraphs of Mrs Gaddam's affidavit and one paragraph of Mr Gaddam's affidavit. There were no other objections. The transcript then relevantly reads: EXHIBIT #5 AFFIDAVIT OF KODA HAJ PREPARED SOME TIME IN FEBRUARY TENDERED AS AMENDED, ADMITTED WITHOUT OBJECTION. 22In her final decision the learned Magistrate said this: [10] Despite Mr Haj signing a legal document without regard to the content, I am satisfied that he understood the content of the document as the solicitor who prepared it had translated it into Arabic. His evidence, once translated, was consistent with his affidavit and he was a reliable witness. 23Section 27A Oaths Act 1900 (NSW) provides: 27A Affidavits by persons unable to read written English If it appears to the person before whom an affidavit is made (the authorised person) that the person making the affidavit (the deponent) is blind, illiterate or otherwise unable to read written English, the authorised person must certify, in or below the jurat: (a) that the affidavit was read to the deponent in the presence of the authorised person, and (b) that it appeared to the authorised person that the deponent understood the affidavit, and (c) that the deponent subscribed the affidavit (by signature or mark) in the presence of the authorised person. 24The Magistrate found that the solicitor who prepared the affidavit translated it into Arabic for Mr Haj. There is no obligation for the affidavit to have been read to the deponent by a qualified interpreter. In my opinion, the evidence discloses that the provisions of the Oaths Act was sufficiently complied with. 25However, when it became clear that Mr Haj had difficulties with English the Magistrate made it clear that she would place little or no weight on the affidavit. Her Honour said (T 80): [B]ut the upshot of it is that his affidavit can't be given much weight. A little later she said (T 106): HER HONOUR: But if both of you were satisfied that there was no significant prejudice from adopting what was contained in the voir dire of Mr Haj into the hearing proper then I would be more inclined to rely upon the evidence that was elicited from him orally. DAVIE: I would have no objection. LEE: No objection HER HONOUR: All right so now that we have heard what he has had to say there has been no significant prejudice flowing from it we will adopt what was contained in the voir dire into the hearing proper. DAVIE: Does that mean we can dispense with the affidavit? HER HONOUR: I do not think, I still have a problem with my power. DAVIE: Yes all right. HER HONOUR: I am happy to give very little weight to the affidavit but I am not sure that I can shuffle it back over the bench and pretend that I never saw it. DAVIE: I understand. HER HONOUR: But I recognise there are flaws with the affidavit and I would be accepting well over the affidavit the evidence that came orally but I am happy for all of us to do some research and see what to do about that affidavit. ... 26The following day there was a discussion about the Magistrate's power to reject the affidavit, having earlier admitted into evidence. During the course of that discussion her Honour said (T 2): I think in substance it's not going to make a lot of difference because I can't give the affidavit any weight even if it remains in. 27Then in final submissions the following exchanges occurred (T 71): HER HONOUR: Okay. Now the only thing we have to resolve. 61, Mr Haj's affidavit. Exhibit 5. It looks to me as if s 61 of the Civil Procedure Act gives me the power to strike out, disallow, reject any evidence the parties adduced or seeks to adduce. DAVIE: Yes, adduced or seeks to adduce yes. HER HONOUR: Mr Lee, do you want to be heard if I interpret that power as allowing me now that we've heard further evidence from Mr Haj with respect to his knowledge of what's contained in his affidavit to strike out exhibit 5 from the record and not take it into evidence. LEE: No HER HONOUR: And we are left with the oral evidence that he gave. LEE: I have no difficulty with that course your Honour. HER HONOUR: All right, so I think that S 61E [scil. S 61(3)(e)] gives me the power which makes it quite clear because I have made it very clear to the parties that I cannot accept the evidence of Mr Haj in affidavit because he cannot read English, he can not really speak English and he did not know what was contained in that when he signed it and in those circumstances it seems as if it would be unfair for it to be retained as evidence in the proceedings and I am going to strike it out. 28The position was, therefore, that the affidavit was admitted into evidence without objection from counsel for Mrs Kazas-Rogaris. It was then excluded from forming part of the evidence. If there was an initial error in admitting it (which I do not accept) the error was rectified before the Magistrate's judgment. 29I would reject this ground of appeal. Ground 1(c) Allowing the Second Defendant to remain in Court when other witnesses gave their evidence 30The transcript discloses that Mr Haj commenced to give evidence at 10:25am on the first day of the hearing. His evidence in chief was found in the affidavit he had sworn in February 2014. He swore that it was true and correct to the best of his belief. He was then cross-examined for a short time but it became clear that his understanding of English was limited. Mr Haj was stood down so that an interpreter could be found. He was asked to wait outside the Court while the issue of his understanding was debated. The matter of the affidavit he had sworn was also raised. 31It is necessary to set out the transcript at this point: HER HONOUR: All right, well Mr Haj would you step down for a moment and just walk outside and Deb the court officer will come and get you but we need to have a quick discussion about this matter. WITNESS: All right. HER HONOUR: He's a second defendant. DAVIE: Well nonetheless-- WITNESS: I can't read the - I can't read the - but I can't understand every - each word, you know-- DAVIE: You see I have a difficulty with the integrity of - all right I'll say it with the witness here, I have difficulty with the integrity of this evidence. HER HONOUR: Yes. DAVIE: What I - he's the second defendant. HER HONOUR: Yes. DAVIE: He's been called by the slightly unusually in the plaintiff's case although the plaintiff joined him, if there is a problem with the integrity of this evidence this affidavit should be withdrawn. HER HONOUR: Well I think we need to talk about it. DAVIE: I'm very happy to leave that with Mr Lee and with Mr Lee's instructing solicitor. HER HONOUR: Yes. DAVIE: But if there's a problem here it's not in Mr Haj's interests and it's not in anybody else's interest that this proceed any further. HER HONOUR: Mr Haj, do you want to get down from the witness box for the moment, I'll excuse you because I think we need to talk about what to do with your evidence. I don't want you to be in a situation where you're giving evidence and you're not feeling comfortable with-- WITNESS: Yeah. HER HONOUR: --speaking in English or reading in English. It's very important that you tell the truth-- WITNESS: Yeah, of course I can't say yes or no I not understand 100%, that's why. I just what I know is - but the trees is belong to her she tell me and I cut them and I said, that's - that's all-- HER HONOUR: Why don't you just step down from the witness box for a moment and we'll have a talk about it and see if there's some way we can deal with it properly. THE WITNESS WITHDREW 32Whilst an interpreter was being found for Mr Haj the learned Magistrate said that the matter should proceed with other evidence. The transcript discloses the following: SHORT ADJOURNMENT DAVIE: (recording equipment not turned on) will think about it, some other witness go in and I utterly agree with that proposal. HER HONOUR: All right so we will stand Mr Haj down for the moment. LEE: I think though given that he still is the second defendant he probably is entitled to be in the room. DAVIE: In my respectful submission your Honour, I think your Honour probably had ... (not transcribable) ... is Mr Haj requires some advice in relation to his affidavit and it cannot come in those circumstances from either us, the first defendant or from the plaintiff he requires advice maybe from the pro bono duty solicitor up the road but I just think that's fair to him. HER HONOUR: I think I absolutely agree with you, but practically it may hinge a little on what the course of the proceedings - what course the proceedings take? 33A short time later, counsel for Mrs Gaddam said that he did not believe that any of the evidence that was to be led in relation to other witnesses for the Plaintiff touched upon Mr Haj so that even if Mr Haj was "in here" that would not prejudice him in any way. There was no objection to that course from counsel for Mrs Kazas-Rogaris. 34Mrs Gaddam then gave evidence. During the course of that evidence a duty barrister appeared to announce that he was prepared to provide assistance to Mr Haj. Mrs Gaddam's evidence was followed by the evidence of Mr Gaddam. At least for part of the evidence given by these witnesses Mr Haj was outside the Court with the duty barrister and an Arabic interpreter. There was then very brief evidence from one Tara Hilton. That evidence consisted of the reading of her affidavit in chief and one question in cross-examination about being upset about the removal of the trees. 35Mrs Kazas-Rogaris then gave evidence and was cross-examined for a period of time until the luncheon adjournment. Counsel for Mrs Kazas-Rogaris on the appeal pointed to pages 51 to 65 of the Transcript concerning her cross-examination whilst Mr Haj was said to be in the courtroom. However, a reading of those pages demonstrates that none of the evidence concerned Mr Haj or the matters involving him. The cross-examination was about a letter that Mrs Kazas-Rogaris alleged she sent to Mrs Gaddam in May 2012 and whether she had produced evidence of it pursuant to a Notice to Produce. 36None of the other evidence given before Mr Haj completed his evidence related to the evidence that he was likely to give and in fact gave. Moreover, the reason that Mr Haj's evidence was interrupted was that his inability with English was so poor that he needed an interpreter. There is a strong likelihood, based upon a reading of the transcript of his evidence before he had an interpreter, that he would have understood very little of what was being said in any event. Moreover, no objection was made by counsel for Mrs Kazas-Rogaris in relation to Mr Haj's remaining in Court for part of the time that other evidence was given. No attempt was made to demonstrate precisely when Mr Haj was in the courtroom. 37The only significant aspect of Mr Haj's evidence was that Mrs Kazas-Rogaris had told him that the trees he was to cut were hers. Neither she, nor any other witness, gave evidence about that conversation whilst Mr Haj was stood down and before he completed his evidence. 38Ultimately, the fact that a witness overhears other evidence before that witness gives evidence on behalf of the same party gives rise to an issue of credit only. The Magistrate was obliged to consider the credibility of Mr Haj's evidence, particularly, because it was asserted that he had sworn an affidavit when he did not understand its contents. The Magistrate found, nevertheless, that Mr Haj was a reliable witness. 39I would reject this ground of appeal. Ground 1(d): Reasonable apprehension of bias 40Immediately following the passage set out at [31] above the following appears: DAVIE: I have no difficulty with Mr Lee and Mr Lee's instructing solicitor talking to this witness even though he's in cross-examination to sort this out. HER HONOUR: I suppose the difficulty I have with this witness is I - it has been flagged where we - where it might be headed. DAVIE: Yes your Honour. HER HONOUR: So I don't know whether each of you have a - whether you have a different view as to how the proceedings are going to end with respect to Mr Haj or whether you have the same view about it, then I don't particularly understand why the evidence needs to be on the record except for your own purposes but the difficulty that we have is he is not comfortable in English, he doesn't understand it particularly well. You can get what you need from him but the integrity of that evidence is questionable because I have real questions as to whether or not he understands. I believe he's doing his best, I believe he is here as a witness of truth. DAVIE: Yes. HER HONOUR: But I would not like to be in the position that he is in without the familiarity with the language to be forced in Court to give detail, sometimes semantic detail in a language that I'm not familiar with. (emphasis added) 41Mrs Kazas-Rogaris pointed to what appears in bold in that passage and submitted that that comment would be such as to excite in the mind of a party or a fair-minded and informed member of the public a reasonable apprehension that her Honour had already formed a view as to the truthfulness of the witness. 42The test in Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at [33] is: ... whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide. 43In Aronson & Groves, Judicial Review of Administrative Action (5th Edition 2013, Thomson Reuters) at [9.40] the learned authors say of this test: The exact standard that flows from the use of two "mights" remain unclear and the Courts frequently stress that a claim of apprehended bias will not be upheld lightly (see R v Lucink; ex parte Shaw (1980) 32 ALR 47 at 50 per Gibbs CJ). In McGovern v Kuringai Council (2008) 72 NSWLR 504 at 508 Basten JA cautioned that "the use of the words "might" in both limbs connotes the concept of a real chance or realistic possibility, falling short of a probability." Spigelman CJ similarly accepted that the use of two "mights" "perhaps sets a low threshold" but noted that the requirement to identify the source of alleged bias "involves an issue of some specificity": McGovern at [14]. 44The Magistrate's comment must be read in the context which emerges clearly from the extracts set out at [31] and [40]. The issue was Mr Haj's understanding of, and his ability in, English in relation to the reliability of his evidence. I do not believe that any fair-minded lay observer might reasonably apprehend that the Magistrate might not bring an impartial mind to the issues to be determined, including Mr Haj's evidence, by saying that she believed she was doing his best and was trying to tell the truth. 45Significantly, counsel for Mrs Kazas-Rogaris made no submissions at all about Mr Haj's evidence including about whether or not his evidence should be believed. In those circumstances, if there was any basis for the complaint about the Magistrate's remark, it was not material to the outcome of the case. 46In Vakuta v Kelly (1989) 167 CLR 568 the joint judgment of Brennan, Deane and Gaudron JJ said this (at 572): For example, the appearance of impartial justice could be compromised if the words or actions of a trial judge conveyed the impression that preconceived adverse views about a particular medical witness were influencing the judge's approach to the case to an extent that the judge was entering the arena to denigrate the witness or to oppose the witness' views or that the judge was biased against the party who had called that particular witness or that the judge was likely to be concerned, in the judgment actually deciding the case, to vindicate the preconceived adverse views about the witness by findings contrary to whatever views that witness might express. Where such comments which are likely to convey to a reasonable and intelligent lay observer an impression of bias have been made, a party who has legal representation is not entitled to stand by until the contents of the final judgment are known and then, if those contents prove unpalatable, attack the judgment on the ground that, by reason of those earlier comments, there has been a failure to observe the requirement of the appearance of impartial judgment. By standing by, such a party has waived the right subsequently to object. The reason why that is so is obvious in such a case, if clear objection had been taken to the comments at the time when they were made or the judge had then been asked to refrain from further hearing the matter, the judge may have been able to correct the wrong impression of bias which had been given or alternatively may have refrained from further hearing. It would be unfair and wrong if failure to object until the contents of the final judgment were known were to give the party in default the advantage of an effective choice between acceptance and rejection of the judgment and to subject the other party to a situation in which it was likely that the judgment would be allowed to stand only if it proved to be unfavourable to him or her. This passage was re-emphasised more recently in Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 at [43]. 47No objection was taken by counsel for Mrs Kazas-Rogaris to the Magistrate's remark. In those circumstances she must be taken to have waived her right subsequently to object. 48I would reject this ground of appeal. Ground 2: Permitting the Plaintiff to discontinue against the Second Defendant 49Mrs Kazas-Rogaris pointed to the circumstances which led to the discontinuance that are more particularly dealt with in relation to ground 1(a) above. 50The transcript discloses that what occurred in relation to the discontinuance was as follows: LEE: Your Honour on that basis now that Mr Koda has been dealt with, the plaintiff is happy for the claim to be discontinued as against the second defendant on the basis that there be no order as to costs if Mr Haj wants to-- HER HONOUR: Does someone want to get him? DAVIE: Why would he conceivably agree to there being no order as to costs, he does have advice in relation to that ... (not transcribable) ... I understand it. HER HONOUR: Yes Mr Dunn(?) will have to move swiftly. DAVIE: Your Honour I have already interrupted Miss Kazas-Rogaris' but her brother Arthur Kazas has difficulties tomorrow, would it be possible-- SPEAKER: Your Honour ... (not transcribable) ... coming back in. HER HONOUR: Okay, thank you. DAVIE: Will and this is addressed to my friend, will we be able to get rid of Mr Arthur Kazas today? LEE: If he was to be interposed now I think that that is possible but it is in I guess every ... (not transcribable) ... nature not to give a guarantee. DAVIE: I understand that, we will see what we can do because if that is a possibility. HER HONOUR: Why don't you two have a talk about what issues are in contention or whether you narrow the scope of cross-examination or something, what you are focussing on and then perhaps you can organise it so that it can be done in the limited amount of time available. Now Mr Darville, Mr Lee has indicated that the proceedings against Mr Haj will be discontinued with no order as to costs. DARVILLE: No orders, we consent to that order. HER HONOUR: Do you want to advise him with respects to costs. DARVILLE: I have sufficient instructions to note that is acceptable and have told him about those orders. HER HONOUR: All right so proceedings discontinued against second defendant. Mr Haj you no longer need to be concerned about your liability with respect to this matter but no doubt you have learnt some lessons about the tree lopping on boundaries in the future and you will take some steps to speak to both owners, okay. 51Mrs Kazas-Rogaris submitted that the Plaintiff did not did not seek nor obtain the consent of the First Defendant to discontinue against the Second Defendant nor did it seek or obtain the leave of the Court. Her counsel pointed to what was said of the similar rule in the Federal Court to 412.1 Uniform Civil Procedure Rules 2005 (NSW) in SCI Operations Pty Ltd v Trade Practices Commission (1984) 53 ALR 283 by Lockhart J (at 332): It is for the court in the exercise of its discretion in each case to decide whether leave to discontinue should be granted and if so, on what terms. The court must consider all of the relevant circumstances, including any injustice that might be sustained by any party if leave to discontinue is granted or refused as the case may be. 52Reference was also made to what Lee J said in Trade Practices Commissioner v Manfal Pty Ltd (No 3) (1991) 33 FCR 382 at 383. 53What is set out at [50] above shows that there was no objection from the counsel for Mrs Kazas-Rogaris. He simply queried why Mr Haj would agree to there being no order as to costs. However, the counsel who had been assisting Mr Haj obtained instructions from him and said that he consented to there being no order for costs. 54In any event, it is difficult to see what interest Mrs Kazas-Rogaris had that was infringed by the leave that the Magistrate obviously gave to the Plaintiff to discontinue the proceedings. Not only was there no cross-claim by her against Mr Haj, but her own counsel had said this of Mr Haj: He should never have been joined in the first place. I concede that it makes no difference to my liability. I concede because the law commands this, that since his was acting on my behest he would be entitled to an indemnity from me in the event that there is any liability found. 55This was not a situation such as was considered in James Hardie and Co Pty Ltd v Seltsam Pty Ltd (1998) 196 CLR 53 where another party was effectively shut out by entry of a judgment involving two other parties without the agreement of the affected party. Removing Mr Haj from the proceedings had no impact at all upon the position of Mrs Kazas-Rogaris. There is no suggestion that any costs had been incurred by her as a result of Mr Haj's being joined to the proceedings. 56I would reject this ground of appeal. Ground 3: Burden and onus of proof 57At the outset of the hearing when the parties were opening to her Honour about the case the following exchange occurred: HER HONOUR: The management of the matter today though is primarily going to be hearing evidence from each of your client's in relation to conversations that occurred-- DAVIE: Exactly. HER HONOUR: -and my determination on balance as to what's more likely to have happened and whether consent had been given. DAVIE: Precisely. HER HONOUR: And then there'll be arguments between you as to whether if there's, if consent's been given whether that was limited in scope or I mean, is there any issue with respect to whether-- DAVIE: That's right. 58Mrs Kazas-Rogaris submitted that the Magistrate misdirected herself as to the appropriate burden and onus of proof by her words "my determination on balance as to what's more likely to have happened and whether consent had been given". She submitted further that the incorrect identification of the onus and burden of proof was "indicative of the degree of chaos and irregularity which attended the hearing of the case in the court below". 59It should first be said that there is no indication at all of chaos or irregularity in relation to the hearing before the Magistrate. The submission is a baseless and offensive one which should not have been made. I have read the entire transcript of the hearing before the Magistrate. As her Honour acknowledged at the outset, her background had not been in civil law and she said she would be guided by counsel on what to do at various times. The Magistrate conducted the case entirely appropriately and, to a large extent, with the agreement of counsel for each of the parties. 60Secondly, it should be noted that when the Magistrate made the remarks complained of counsel for Mrs Kazas-Rogaris responded "Precisely". If he thought her Honour was misdirecting herself he made no attempt to correct her notwithstanding her frank disclosure of her background and her need for assistance in the conduct of the proceedings. 61Thirdly, as counsel for Mrs Kazas-Rogaris at the appeal acknowledges, the learned Magistrate said in her judgment at [30]: Mrs Gaddam has discharged the onus of proving that Mrs Kazas-Rogaris committed a trespass on her property. 62Further, in her judgment the learned Magistrate at [19]: ...close examination of the evidence causes me to have grave concerns about the manner in which Mrs Kazas-Rogaris has conducted these proceedings and leaves me with no doubt that she knew Mrs Gaddam was away from home during July 2012 and did not consent to the removal of the trees. 63Even if it is accepted that the remark made in passing by the Magistrate during the openings of the case mis-stated the position, the Magistrate did not misdirect herself in her judgment. 64I doubt, in any event, that the Magistrate's passing comment was incorrect in law. In Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 the joint judgment of Gleeson CJ, Gummow, Kirby and Hayne JJ said at [43]: As was pointed out in this Court's decision in Plenty v Dillon (1991) 171 CLR 635 at 647, it is necessary to approach questions of the kind now under consideration by recognising the importance of two related propositions. First, a person who enters the land of another must justify that entry by showing either that the entry was with the consent of the occupier or that the entrant had lawful authority to enter. ... 65In the present case, there was no dispute that Mrs Kazas-Rogaris had entered the land of Mrs Gaddam. The only issue was whether or not she had a licence to do so. She had an onus in that regard. 66 I would reject this ground of appeal. Ground 4: Rejecting the affidavit of Lena Pace 67Mrs Kazas-Rogaris made application at the commencement of the hearing to rely on an affidavit of Lena Pace which was served out of time. The Magistrate disallowed reliance on the affidavit. A brief chronology is necessary. 68On 17 September 2013 the matter was listed before Magistrate O'Brien. His Honour made a number of orders on that day including an order that evidence was to be exchanged by 17 December 2013. Mrs Kazas-Rogaris failed to serve evidence by 17 December 2013. 69The matter again came before Magistrate O'Brien on 21 January 2014 who directed that Mrs Kazas-Rogaris was to serve all evidence upon which she intended to rely by 28 January 2014. Mrs Kazas-Rogaris did not serve her evidence by 28 January. Instead she served on 31 January her own affidavit sworn 31 January 2014, an affidavit of Edvardo Fiorucci sworn 28 January 2014 and an affidavit of Arthur Kazas sworn 28 January 2014. 70On 4 February 2014 the matter was again listed before Magistrate O'Brien. Mrs Kazas-Rogaris appeared in person with his Honour noting that she was a legal practitioner. Amongst other orders that he made Magistrate O'Brien noted that Mrs Kazas-Rogaris' evidence had by then been served. 71On 11 February 2014 Mrs Kazas-Rogaris served an affidavit of Lena Pace sworn 11 February 2014. She did not give any notice of her intention to file and serve that affidavit to Mrs Gaddam's solicitor nor on 4 February 2014 did she seek leave from Magistrate O'Brien to do so. 72The significance of Ms Pace's affidavit was that it purported to corroborate the conversation that Mrs Kazas-Rogaris claimed that she had with Mrs Gaddam in April 2012. This was the conversation Mrs Gaddam denied. 73There was no evidence explaining why the affidavit was served out of time and so soon before the commencement of the hearing. Mrs Kazas-Rogaris's Counsel simply said this to the Magistrate: Your Honour, Mrs Kazas-Rogaris has an explanation as to why it was late, shortly on my instructions Ms Pace had moved and was living in Coffs Harbour. 74The Magistrate delivered a short judgment in relation to the admissibility of the affidavit in these terms: HER HONOUR: Let me deal with the tender of the affidavit of Lena Pace first then we'll talk more about Ms Kazas-Rogaris' affidavit. I do not propose to allow the tender of the affidavit of Lena Pace, I have the Court file in relation to previous appearances at Court and the orders that have been made by the chief civil magistrate with respect to this matter. This matter has a very lengthy history, it started in the District Court, it came to the Local Court and then it has been case managed through the Local Court. It first came before the Local Court on 21 August 2013 with directions hearings. On 3 September it appears it went over to 17 September. There were instructions required from the solicitors with respect to mediation. On 17 September it showed that that was not successful and there was an order for parties to exchange evidence by 17 December. It was then back before the Court on 21 January and there were orders that had to be forwarded to the defendant, came back again before the Court for review on 4 February and at that point the magistrate noted that the defendant's evidence had now been served and leave was required to allow that evidence to be relied upon as it was at short notice at that point and that was granted and the plaintiff was to file any evidence in reply by 10 February. The defendant has since that review put on two affidavits but I am dealing particularly with the affidavit of Lena Pace, that is dated 11 February and was filed on 12 February which means that it was filed on Wednesday last week before the hearing today. I note that the overriding purpose of the Civil Procedure Act has been to facilitate the just quick and cheap resolution of the real issues in the proceedings. Lena Pace's affidavit is a corroborative evidence of a conversation that occurred at about the time this cause of action arose in or around mid-2012. I also note the practice notes with respect to Court's directions and the practice notes more specific (sic) regarding reliance on evidence that is not able to be relied upon if the directions have not been complied with. In my view the directions have not been complied where the defendant's attempted to file this evidence out of time. In my view there is a prejudice because the plaintiff has not been able to make the investigation that they might have deemed appropriate to look into the evidence that was going to be provided by Lena Pace. I note that it is I am told corroborative but I am of the view that it would lengthen the proceedings unnecessarily, it has come too late in the proceedings and the defence cannot rely on it. 75Mrs Kazas-Rogaris submitted that the affidavit should have been admitted into evidence because there was no unfair prejudice which could have flowed from the late admission of the affidavit. Reliance was placed on what the plurality said in Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146 at 154. She submitted that the principle there established was not negated by what was said in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. 76In Aon Risk the plurality judgment said at [111]: Statements in JL Holdings which suggest only a limited application for case management do not rest upon a principle which has been carefully worked out in a significant succession of cases. On the contrary, the statements are not consonant with this Court's earlier recognition of the effects of delay, not only upon the parties to the proceedings in question, but upon the Court and other litigants. Such statements should not be applied in the future. 77In my opinion, that is a comprehensive rejection of the approach contained in Queensland v J L Holdings. The fact that Aon was concerned with an application for an adjournment does not weaken the effect of the passage I have referred to as far as the present case is concerned. 78The one aspect of J L Holdings that appears to have survived is the fact that an explanation for the delay in doing an act is a relevant consideration: Aon at [103]. The plurality there said: The importance attached by r 21 [of the ACT Court Procedure Rules] to the factor of delay will require that, in most cases where it is present, parties should explain it. 79Rule 21 is relevantly similar to s 56 Civil Procedure Act 2005 (NSW). In any event, Aon Risk made it clear that the starting point for a consideration of procedural matters such as the present is the Act and Rules which govern the court concerned. In that regard, ss 56 to 59 are the starting point for a consideration of the present matter. 80As I have mentioned, there was no evidence explaining the delay. Moreover, the statement of Mrs Kazas-Rogaris's counsel made on the instructions of his client, who was also a solicitor, would appear to be at variance with Ms Pace's own evidence. The address she provided on her affidavit was 194 Old Pitt Town Road, Box Hill. Paragraph 11 of the affidavit said this: I lived at 40A Lancaster Avenue, Punchbowl for approximately 2 years until about mid-2012. I still regularly visit Connie [Mrs Kazas-Rogaris's mother who was Mrs Gaddam's neighbour]. I have moved into my son's property at Box Hill to be closer to my grandson and to assist with looking after him. None of that material suggests that Ms Pace had ever moved to or lived in Coffs Harbour at any relevant time. 81The Magistrate's decision to disallow the affidavit of Lena Pace was a discretionary decision involving practice and procedure. It would be necessary in the first place for Mrs Kazas-Rogaris to show an error of a House v The King (1936) 55 CLR 499 type. 82Counsel for Mrs Kazas-Rogaris submitted that the Magistrate, in effect, failed to take into account a relevant consideration, namely, the content of the affidavit. He asserted that the Magistrate failed to read the affidavit. 83The Magistrate does not indicate that she had not read the affidavit. However, even if that was the case the substance of what was contained in it was fully ventilated in the arguments put by both counsel on the issue of its disallowance. The Magistrate made clear in her reasons for rejecting it at [74] above that she understood its import. 84No such error has been shown. The explanation for the late production of the affidavit was entirely inadequate and was unsupported by evidence. It was open to the Magistrate to refuse to admit the affidavit into evidence. 85I would reject this ground of appeal. Conclusion 86Grounds 1(a), (b), (c) and 2, even if made out, involve procedural error only. It is doubtful if they amount to errors of law. Procedural error which amounts to procedural unfairness will amount to an error of law. Although the present proceedings are an appeal and not proceedings for administrative review, some light is cast on the result of a breach of a procedural requirement in administrative law by what appears in Aronson & Groves at [6.240]: It is in the nature of procedural rules that they are frequently broken. Procedure being the servant of substance, invalidity is the least common of the possible consequences of such breaches. Breach of procedure can usually be overlooked by all concerned, "waived" by those adversely affected, or rectified by the parties or the decision-maker, all without risk to the validity of the final outcome. Indeed, the very concept of procedural requirements implies that they are usually of lesser order of importance than substantive requirements, and one frequently sees the term qualified by the adjectival "mere". 87What is clear in this matter is that, in respect of Grounds 1(a), (c), 2 and 3, there was no objection taken to the course of conduct now complained of by those acting for Mrs Kazas-Rogaris before the Magistrate. So much was conceded by counsel for Mrs Kaza-Rogaris at the hearing of the appeal. Similarly, in relation to Ground 1(d), if the Magistrate's statement about Mr Haj was such as to give rise to apprehended bias, there was an obligation on those acting for Mrs Kazas-Rogaris to raise the matter with the Magistrate. By standing by and not challenging the remarks at the time, Mrs Kazas-Roagaris must be taken to have waived the point and cannot now complain: Vakuta v Kelly at 572. I consider, in those circumstances, that if any of the matters in those grounds constituted procedural breaches they have been waived. 88In relation to Ground 1(b), although the affidavit went into evidence by consent, it was ultimately rejected by the Magistrate when she was persuaded that she had power to do so. There was, therefore, no error in respect of which an appeal could be brought. Although a significant contest at the hearing before the Magistrate was whether Mr Haj should be entitled to give oral evidence of matters that were in his affidavit, no complaint was made in the appeal concerning the Magistrate's decision to allow such evidence. 89I would make the following orders: 1. Appeal dismissed. 2. The Plaintiff is to pay the Defendant's costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 December 2014