Consideration
75Mr El-Saeidy's overriding complaint is that there has been a substantial miscarriage of justice warranting a grant of leave to appeal because the associate Judge did not afford him a "fair trial". This is because, he contends, the only evidence her Honour considered was that of Housing's expert and, too, because her Honour did not allow him to test Housing's expert evidence.
76Mr El-Saeidy's draft notice of appeal identifies 10 proposed grounds of appeal although some of the "grounds" are more in the nature of submissions.
77Mr El-Saeidy's primary complaint in his first proposed ground of appeal is that the associate Judge denied him procedural fairness because she refused to allow him to rely upon two reports of Mr De Silva dated 11 October 2013 and three affidavits sworn by Mr Jakimoski one on 11 October 2013 and two on 16 October 2013 (the "excluded evidence"). All three of Mr Jakimoski's affidavits were said to have been served on Housing at 2.40pm on 16 October 2013, the day before the hearing. This proposed ground of appeal is inter-related with his proposed ground 2 that he was denied a fair trial because her Honour did not allow him to rely on the excluded evidence.
78Mr Jakimoski's 11 October 2013 affidavit annexed two reports from Mr De Silva both dated 11 October 2013. The two 16 October 2013 affidavits sought to explain why, according to Mr Jakimoski, the timing of service of Mr De Silva's affidavits was consequent upon non-compliance by Housing with a timetable to file and serve evidence, we assume, in relation to the hearing to take place before the associate Judge on 17 October 2013.
79Mr El-Saeidy contended that the excluded evidence responded to evidence Housing filed out of time and without leave on 13 September 2013. Mr El-Saeidy's contention that Housing had served its evidence out of time appears to be based on the proposition that he personally received an affidavit attaching Mr Clifton's report on 15 September 2013. However, as Housing submitted, he accepted when he appeared before the Registrar on 8 October 2013, that Housing emailed the documents to Mr Ardino, the solicitor then acting for him, on 5 September 2013.
80It is not clear why Housing forwarded a copy of the sealed affidavit annexing Mr Clifton's report, to Mr El-Saeidy by letter dated 13 September 2013. It is apparent that Mr Ardino ceased to act for Mr El-Saeidy at some stage and Mr Jakimoski became Mr El-Saeidy's solicitor from 11 October 2013. The precise chronology is not apparent, however it appears from Mr El-Saeidy's affidavit of 27 September 2013, which was relied upon below, that Mr Ardino had notified Ms Hawkins, Mr El-Saeidy's counsel, in late September 2013 that he was considering withdrawing from the matter. On 20 September 2013 Mr De Silva asked Ms Hawkins to seek a postponement of the case (his email said "fixed for 28 August 2013" but that is clearly a mistake) so that he could complete his re-analysis in accordance with the Guidelines of some soil samples (email from Mr De Silva to Ms Hawkins, annexure "B" to Mr El-Saeidy's affidavit of 27 September 2013).
81However it is apparent that Mr El Saeidy was legally represented whether by solicitor or counsel from at least 5 September 2013 until 27 September 2013, during which period those representing him ought to have arranged for Mr De Silva to respond to Mr Clifton's report provided on 5 September 2013 by 28 September 2013. Instead they filed the motion seeking an extension of time to file his evidence. As is apparent from what we have earlier outlined, the associate Judge did not accept that Housing had defaulted in service of Mr Clifton's report: El-Saeidy 4 (at [41]). Finally on this point we would observe that the forwarding of Mr Clifton's report to Mr El-Saeidy on 13 September 2013 appears to be a red herring.
82Mr El-Saeidy's proposed ground 3 seeks to complain that the associate Judge erred in relying on Mr Clifton's analysis of soil samples when his sampling did not comply with a document described as Guideline on Investigation Levels for Soil and Groundwater - NEPM (2013)/WA Guidelines 2009 (the "Guidelines"). It appears from the associate Judge's reasons (at [66]) that the Guidelines commenced on 25 May 2013, after the clearance certificate was issued in February 2013. Mr El-Saeidy's counsel first produced them in court on 17 October 2013 just before the luncheon adjournment after the associate Judge had spent some time taking joint evidence from Mr Clifton and Mr De Silva.
83The primary judge accepted (at [66]) that Mr Clifton's testing was undertaken in accordance with guidelines in force prior to 25 May 2013. Her Honour considered the Guidelines and concluded that, notwithstanding the statement therein that a large sample size may improve the likelihood of identifying asbestos material greater than 2mm fraction, that was not relevant as the asbestos found in samples Mr De Silva had taken prior to February 2013 had been in bonded form for which both the current and old guidelines permitted a presence of 0.01% and that such asbestos was considered safe if left alone: El-Saeidy 4 (at [71]).
84Mr El-Saeidy's submissions addressing proposed ground 3 did not explain how the application of the Guidelines might have led to a different outcome before the associate Judge. However, in relation to his proposed ground 4 (a complaint that the associate Judge's finding that "the inside of the property and the top soil of the front and back yards was decontaminated in the absence of evidence of that fact"), Mr El-Saeidy contended that Mr Clifton and Mr De Silva had given evidence before the associate Judge that if the Guidelines had been applied at the time of the soil sampling, the premises were not safe for occupation.
85If by "premises" Mr El-Saeidy intended to refer to both the house and the yard (as is apparent from proposed ground 4), we observe that it is apparent from El-Saeidy 4 (at [30]), that as at 22 August 2013 the only outstanding issue as between the experts related to the efficacy of the remediation work carried out in the yard, not within the premises. As we have said, Mr Jakimoski said that was the only extant remediation issue Mr El Saeidy sought to pursue an appeal. Mr Clifton's report of 3 September 2013 dealt with that issue, taking samples from the locations detailed on a document referred to as Mr De Silva's site sample location plan, all of which were found to be free of asbestos fibres.
86Returning to proposed ground 3, we do not read the transcript to which Mr El-Saeidy refers as recording an agreement between the experts in the terms for which he contends. Rather, it is apparent that Mr Clifton, in particular, gave a conditional answer, dependent upon the assumption that Mr De Silva's results in his 11 October 2013 report were correct, that to the extent they referred to samples Mr De Silva took in December 2012, it could not be said that "the premises" were clear of asbestos (T/s 17/10/13, p 16). However, Mr De Silva's samples were taken before the remediation works were completed whereas, as might be expected, Mr Clifton's were taken after that process.
87Other proposed complaints Mr El-Saeidy flagged in relation to proposed ground 4 concerned technical complaints about the certificates admitted below without objection or as to objections taken below but overruled by the associate Judge (T/s 17/10/13 46). In our view, such rulings do not raise an arguable ground of appeal.
88The associate Judge determined the issue of whether the premises (including the yard) were free of asbestos posing any danger to health by reference to Mr Clifton's reports, the Guidelines and a report Mr De Silva prepared dated 7 February 2013. It is apparent that there was evidence before her Honour capable of supporting her conclusion. In our view, having regard to the observations we make about the concept of a "fair trial" in the light of ss56 - 60 of the CPA Mr El-Saeidy has not demonstrated any substantial reason to grant leave to appeal in respect of this issue.
89Proposed ground 5 complains that the associate Judge erred in disregarding or giving insufficient weight to, in substance, evidence that the premises (meaning we would infer for reasons earlier given, the yard) had not been fully remediated or cleared of hazardous material. This ground, to the extent that it can be identified from the "particulars" given of that proposed ground in the draft notice of appeal, substantially, if not entirely, covers the same complaint as was made in relation to proposed ground 4 and our reasons in relation to that ground apply to it too.
90Proposed ground 6 is a bald assertion that the associate Judge unduly interfered in the conduct of the hearing. It is sufficient to say that, from our perusal of the transcript before her Honour, there is no basis for this assertion. Rather, it appears that her Honour did her best to deal with the difficult situation created by Mr El-Saeidy's failure to comply with orders concerning preparation for the hearing but, at the same time, tried to accommodate the concern that he not be ordered to relocate to the premises unless, on the balance of probabilities, her Honour could be satisfied that the premises were free of asbestos contamination.
91Mr El-Saeidy seeks to complain, in proposed ground 7, about Housing's failure to comply with a subpoena to produce documents he asserts were critical to his case that the soil at the premises was contaminated (this complaint is also raised as part of proposed ground 1). There was no reference in El-Saeidy 4 to any issue concerning a subpoena. It appears that the complaint Mr El-Saeidy seeks to agitate concerning a subpoena arises from the Registrar's dismissal of that part of his 27 September 2013 motion which sought to enforce compliance with that subpoena. There is no appeal, even by leave, from a decision of a Registrar in a Division of the court to this Court: cf section 48, SCA. This aspect of Mr El-Saeidy's application for leave to appeal is, accordingly, incompetent.
92Finally, in proposed grounds 8 - 10 Mr El-Saeidy seeks to complain about Decision 5 (see [37(5)] above). This complaint appears to have no utility having regard to the fact that Mr El-Saeidy has been relocated to the premises. The submissions group 2 other complaints under this heading, though there is no apparent relationship with Decision 5. They are complaints that the associate Judge erred in determining what were "safe" levels under the Guidelines and in "failing to accept unopposed evidence of the Plaintiff's expert". We have already dealt with the integrity of the associate Judge's conclusion on the safety of the premises (including the yard). As to the latter point, on the assumption that the evidence from Mr De Silva is that in his 11 October 2013 report, we have explained why the associate Judge did not err in rejecting Mr El-Saeidy's application to rely upon it.