GLMC Properties 2 Pty Ltd v Hassarati & Co Pty Ltd

Supreme Court of NSW|2016-06-21|Before: Garling J

Judgment

On 30 October 2015, Wilson LCM delivered a judgment in the Local Court of NSW.
Over a number of days, the learned Magistrate heard evidence about relations between adjoining land owners in Parramatta. The plaintiff, GLMC Properties 2 Pty Ltd, owned a heritage listed historic house ("the heritage house"). The defendant, Joe Hassarati & Co Pty Ltd, was developing and constructing a multi-storey building next to the heritage house.
In the course of that construction, it was necessary for the defendant to anchor a deep excavation which was undertaken as part of the development. It did this by drilling a series of bore holes, 37 in all, under the land on which the heritage house stood. Having drilled the bore holes, the defendant inserted rock anchors, grouted them, and tensioned them into place. After the rock anchors had served their purpose, the tension was released and the anchor cables were left in situ.
A tall construction crane was also used by the defendant. Its horizontal arm passed over the heritage house some storeys above it. It did so in order to lift things from the street to the building site which were necessary for the construction of the multi-storey building.

Relevant Legislation

A party to proceedings in the Local Court does not have a general right of appeal to the Supreme Court. Such right as a party has is conferred by the provisions of the Local Court Act.
Section 39(1) of the Local Court Act provides that a party to proceedings before the Local Court, who is dissatisfied with the judgment or order of the Local Court, may appeal to the Supreme Court, but only on a question of law.
Section 40(1) of the Local Court Act provides: "A party to proceedings before the Court sitting in its General Division who is dissatisfied with a judgment or order of the Court on a ground that involves a question of mixed law and fact may appeal to the Supreme Court but only by leave of the Supreme Court."
There is no right of appeal, or right to seek leave to appeal, to the Supreme Court from a decision of the Local Court with respect to an error of fact.
Section 41 of the Act makes provision for what the Supreme Court may do in the event of an appeal under ss 39(1) or 40. That section provides that the Supreme Court may determine an appeal: "(a) by varying the terms of the judgment or order; or (b) by setting aside the judgment or order; or (c) by setting aside the judgment or order and remitting the matter to the Local Court for determination in accordance with the Supreme Court's directions; or (d) by dismissing the appeal."
The proceedings before this Court were conducted by the parties by reference to the record of the Local Court. That is to say, the Supreme Court had placed before it by the parties the transcript of the proceedings, the affidavits and exhibits which were relied upon, and the reasons for the decision of the Magistrate. As well, the Supreme Court had before it the pleadings which were before the Local Court.

Error of Fact or Error of Law

In order to understand and properly apply the provisions of s 39 of the Local Court Act in these proceedings, it is necessary to consider what constitutes an error of law as opposed to an error of fact.
This differential concept is of long-standing and the subject of binding authority. It is necessary, in light of the limited appellate jurisdiction of this Court under the Local Court Act, to identify what an error of fact is, and what an error of law is, as a matter of principle. What follows is drawn from previous decisions which I have delivered on this issue.
It is appropriate to commence by observing that, as a matter of statutory interpretation, the plain intention of the Local Court Act is not to permit a general review of the fact-finding process carried out in the Local Court: CSR Ltd v Amaca Pty Ltd [2009] NSWCA 338 at [89] per Basten JA.
In Australian Gaslight Co v The Valuer-General (1940) 40 SR (NSW) 126, a case in which the Court only had jurisdiction to determine questions of law, Jordan CJ said at pp 137-138 that the applicable rules were: "1. The question what is the meaning of an ordinary English word or phrase as used in the statute is one of fact not law: … This question is to be resolved by the relevant Tribunal itself, by considering the word in its context with the assistance of dictionaries and other books, and not by expert evidence: …; 2. The question whether a particular set of facts comes within the description of such a word or phrase is one of fact: …; 3. A finding of fact by a Tribunal cannot be disturbed if the facts inferred by the Tribunal, upon which the finding is based, are capable of supporting its finding, and there is evidence capable of supporting its inferences: …; 4. Such a finding can be disturbed only: (a) if there is no evidence to support its inferences, or (b) if the facts inferred by it and supported by evidence are incapable of justifying the finding of fact based upon those inferences: … or (c) if it has misdirected itself in law: … 5. Thus if the facts inferred by the Tribunal from the evidence before it are necessarily within the description of a word or phrase in a statute, or necessarily outside that description, a contrary decision is wrong in law: … 6. If however, the facts so inferred are capable of being regarded as either within or without the description, according to the relative significance attached to them, the decision either way by a Tribunal of fact cannot be disturbed by a superior Court which can determine only questions of law." (citations omitted)
Two years later, in Dennis v Watt (1942) 43 SR (NSW) 32, the Full Court of the Supreme Court was called upon to consider the question of whether an ultimate finding of fact, which led to a particular legal result, amounted to a question of law. At p 32, Jordan CJ said: "What the Statute penalises, for all purposes relevant to the present case, is the act of driving negligently, and the question whether negligence has occurred is essentially one of degree. From certain findings of fact, it would necessarily follow, as a matter of law, that an accused person had been negligent; from others, that he had not. Between these extremes, however, there lies a broad limbo in which, upon the facts found, the question whether negligence had occurred would depend upon the view taken of their relative importance and significance. In such a case, the ultimate determination becomes also one of fact, and a decision either way by a Tribunal of fact cannot be said to be wrong in law, unless it appears that the case has been so decided because some legal principle has been wrongly applied."
Davidson J said at p 35: "A magistrate is required to act both as judge and jury and there was evidence before him from which the existence of negligence was capable of being inferred. It was his function therefore, in his capacity as a jury to determine as a question of fact whether the existence of negligence should, or should not be inferred ... An appellate court in the absence of statutory direction in that behalf, never decides the issues of fact. It cannot usurp that function of the jury or of a magistrate acting in the same capacity, and can only interfere when the verdict rests on inferences which might not be drawn by reasonable men. Thus a verdict is not set aside because the Court disagrees with it, but only because there is such a preponderance of fact or inference against it that it is found to be unreasonable to a degree which establishes a miscarriage of the trial … It is a question of law therefore whether there is sufficient evidence of negligence to go to a jury or to support an inference one way or the other involved in its verdict that there has or has not been negligence … … The Superior Court will consider as a matter of law whether the inference drawn from admitted fact or facts specifically found by a magistrate is so unreasonable as to amount to a miscarriage, because as the judge expressed it, there was an irresistible inference to the contrary effect. In dealing with that aspect of the matter, there is a very wide field when the so-called 'ultimate fact' involves a question of degree, in which event the issue remains one of fact, so that if the inferior Court arrives at a conclusion upon it without having applied any wrong principle, its decision is final …"
It is now beyond argument that a wrong finding of fact does not in itself amount to an error of law: Waterford v The Commonwealth [1987] HCA 25; (1987) 163 CLR 54 at [14] per Brennan J; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at [88]-[89].
Even an erroneous finding of fact which is perverse, in the sense that it is contrary to the overwhelming weight of the evidence, is not an error of law: Azzopardi v Tasman UEB (1985) 4 NSWLR 139 at 155 per Glass JA.
The fact that the reasoning process by which a finding of fact is reached is demonstrably unsound or illogical does not mean that an error of law has been established. Nor does a faulty or illogical inference of fact constitute an error of law: R v District Court: Ex parte White [1966] HCA 69; (1966) 116 CLR 644 at 654 per Menzies J.
The issue of whether an error is properly to be characterised as one of law or fact received careful consideration by the Court of Appeal in Azzopardi. The majority reasoning of Glass JA, with whom Samuels JA agreed, was not agreed in by Kirby P (although he agreed in the ultimate result). At 155, Glass JA said, after referring to authorities of long standing: "It is clear from these extracts that numerous pejorative expressions in common usage possess a single meaning and are interchangeable. To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the [Workers Compensation] Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers Compensation Commission judge is vitiated in the same way, discloses no error of law and will not constitute a ground of appeal. It is also pointless to submit that the reasoning by which the Court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law … … It is important I believe to remember that whether an error is one of fact or law is determined by legal theory, and the theory is the same whether the Tribunal be divided or undivided. Errors may be committed by a workers compensation judge at any one of three points viz., determining the facts by way of primary findings and inferences, directing himself as to the law and applying the law to the facts found. At the first stage, the determination of facts by a reasoning process marred though it be by patent error, illogicality, or perversity will, as has been said, never be vulnerable to attack as an error of law by an applicant for compensation. At the second stage, any error made will by definition be an error of law. The third stage, when the law correctly stated is applied to the facts found in order to produce a conclusion, error may intrude again. An erroneous conclusion that facts properly determined fail to satisfy a statutory test, for example, injury arising out of the cause of employment, … will ordinarily be an erroneous conclusion of fact. It is only in marginal cases that the statutory test is satisfied or not satisfied as a matter of law, because no other application is reasonably open. Accordingly, this court will not entertain unexplained perversity of result as a ground for intervention although it will correct perverse or unreasonable applications of law to the facts found." (citations omitted)
In CSR v Amaca Pty Ltd, Basten JA noted at [89] that: "The scope of phrases such as 'question of law', 'point of law', and 'error of law' is less clear. Guidance may be obtained from the established grounds of judicial review, but these are often stated in terms of categories (of which error of law is one) which are notoriously imprecise and which overlap. Nor does the analogy with judicial review allow for the constraint in legislation which requires identification of a decision of the Tribunal below on a question, or in point, of law. It may also be erroneous to assume that such an error is to be equated with the kind of errors which would permit interference with a discretionary decision, in accordance with the principles established in House v The King [1936] HCA 40; (1936) 55 CLR 599 at 505."
Circumspection in addressing these issues is clearly required.
Finally, it is appropriate to note the plurality judgment in the High Court of Australia of Hayne, Heydon, Crennan and Kiefel JJ in Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390 at [91], where their Honours said: "91. ... Whether there was no evidence to support a factual finding is a question of law, not a question of fact. The Tribunal's factual finding in this case, that the builder had served the two relevant claims for extension of time, necessarily depended upon it first accepting that there was evidence to support the finding. As Dixon CJ said in Gurnett v The Macquarie Stevedoring Co Pty Ltd …: 'in the legal dichotomy between questions of fact and questions of law we place under the latter head a question whether there is sufficient evidence to submit to a jury in support of a cause of action. That is because it is a question for the court to decide and not for a tribunal of fact.' A tribunal that decides a question of fact when there is 'no evidence' in support of the finding makes an error of law. What amounts to material that could support a factual finding is ultimately a question for judicial decision. It is a question of law. And in this case, for the reasons given by the primary judge, there was no evidence before the Tribunal, when it decided the separate question identified by the parties, upon which the Tribunal could find that the disputed notices had been served."
While I accept that, to borrow the words used albeit in a different context by the plurality in Kostas at [88], it is not useful to attempt to chart the metes and bounds of this Court's task, and an attempt to do so is dangerous, and may, particularly at a level of abstraction, invite error, I nevertheless must say that I find the judgment of Kirby J in RL&D Investments Pty Ltd v Bisby [2002] NSWSC 1082 at [13] most helpful. There, his Honour encapsulated the relevant authorities in this way: "13 The issue has been considered in a number of cases since that time, including Poricanin v Australian Consolidated Industries Ltd [1979] 2 NSWLR 419;Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139; Mahoney v Industrial Registrar of NSW & Anor (1986) 8 NSWLR 1; Haines v Leves & Anor (1987) 8 NSWLR 442; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Gangemi Holdings Pty Ltd v Salter & Ors [1999] NSWSC 1004; Carr v Neill [1999] NSWSC 1263; SRA v Smith [2000] NSWSC 334. Arising from these authorities, a number of broad propositions can be stated: ● First, there is no error of law in simply making a wrong finding of fact (Australian Broadcasting Tribunal v Bond (supra) per Mason CJ at 341), unless there is no evidence to support that finding. ● Secondly, it does not amount to an error of law if the finding of fact, or the inference (or the refusal to make a finding of fact or draw an inference) is perverse, in the sense that it is contrary to the overwhelming weight of evidence (Glass JA in Azzopardi v Tasman UEB Industries Ltd (supra) at 155). ● Thirdly, it is not an error of law even if the reasoning process by which the Court reaches its conclusion of fact is demonstrably unsound or illogical (Menzies J in R v District Court: Ex Parte White [1966] HCA 69; (1966) 116 CLR 644, at 654). ● Fourthly, there is limited exception (which has no application in this case) in relation to decisions of fact in the context of a statutory description. In such a case there may be an error of law if the decision on the facts is one which could not be reasonably entertained, or supported, if the tribunal had properly understood the true construction of the relevant enactment (Mahoney v Industrial Registrar of NSW & Anor (supra) per Hope JA at 1 and Samuels JA at 5)."
Even if an error of law is established, this Court does not have the power to make primary findings of fact. The same limitation exists with respect to making findings of mixed fact and law: Lesley-Swan v Owners SP 32735 [2013] NSWSC 1635 at [71]; Thaina Tower (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 71 NSWLR 230 at [83]-[87].
Section 75A of the Supreme Court Act was not invoked by either party in this appeal as the basis to permit the leading of evidence which was not before the Local Court in these proceedings.

Extension of time

The decision of the Local Court Magistrate was delivered on 30 October 2015. The Summons was first filed in this Court on 23 December 2015.
The Summons was filed out of time by a little under a month. The plaintiff seeks an extension of time within which to file the Summons. The plaintiff submits that the reason why the Summons was not filed within time was because of a delay in obtaining a full copy of the transcript of the decision of Wilson LCM.
Power exists under r 50.3(1)(c) of the Uniform Civil Procedure Rules 2005 ("UCPR") to allow an extension of time within which a summons commencing an appeal to this Court can be filed. A similar power exists in the Court to extend time with respect to a summons which seeks leave to appeal: r 50.12(1)(c) UCPR.
Considering the exercise of this unconstrained discretion, the Court is guided by what the interests of justice in the particular case warrant.
Although the plaintiff's solicitor was in court at the time the Local Court judgment was delivered, the judgment was delivered orally and a transcript of it was not available until 27 November 2015. The Summons was filed within 28 days of the transcript becoming available. The plaintiff submitted that it was reasonable to wait for the transcript to become available before commencing proceedings.
The defendant, in its submissions, did not identify any specific prejudice to it occasioned by an extension of time for the filing of a summons. It sought to rely upon "… an intangible prejudice that arises from a party being exposed to prolonged litigation", and submitted that the Court should conclude that any delay by itself could be presumed to result in prejudice.
Additionally, the defendant pointed to weaknesses in the proposed appeal, the length of time which the litigation as a whole had occupied, and the relatively small sums claimed by the plaintiff. Based on those matters and presumed prejudice, the defendant submitted that an extension of time was not in the interests of justice.
In my view these submissions should be rejected.
The extension of time is needed because of a delay between the delivery of the oral judgment and the filing of a summons in this Court. That delay was wholly occasioned by the plaintiff waiting for a transcript of the Local Court judgment. Even though the judgment was relatively short, and the plaintiff's solicitor was present when it was delivered, it was responsible conduct on the part of the plaintiff to wait for the transcript of the judgment to ensure that it had properly available grounds upon which to commence proceedings in this Court.
In circumstances where the delay is relatively short, adequately explained, and does not cause real prejudice to the defendant, I am satisfied that the interests of justice point strongly in favour of a grant of an extension of time.
Accordingly, the time within which the plaintiff is to file a summons seeking to appeal, and leave to appeal, will be extended up to and including 23 December 2015.

Grounds of Appeal and Leave to Appeal

It will be convenient to group the grounds of appeal, and those for which leave to appeal is required, together in the following ways: 1. grounds relating to Ms Winning being called as a witness and her documents being tendered: Grounds 1, 2 and 3; 2. legal error in the construction of the agreement between Ms Winning and the defendant: Ground 4; 3. erroneous factual findings about the number and date of installation of rock anchors under the plaintiff's land: Ground 5; 4. grounds relating to the legal cause of action in trespass: Grounds 6, 7, 8 and 9; and 5. grounds relating to matters of procedure including inadequate reasons and failing to consider submissions of the parties: Grounds 10 and 11.
It is convenient to deal with these grounds in the groups nominated. Prior to doing so, it is appropriate to review the Magistrate's decision.

Local Court Decision

The decision of Wilson LCM was delivered orally on Friday 30 October 2015. His Honour commenced by identifying the critical dates and the background facts and circumstances. He identified the claims being made by the plaintiff, and the response to those claims by the defendant.
His Honour turned to consider the issue of the consent given by Ms Winning, the previous landowner, to the installation of the rock anchors. The defendant's contention before the Local Court was that a concluded agreement had been reached between Ms Winning and the defendant, in which Ms Winning consented to the defendant installing the rock anchors beneath the heritage house. That agreement was said to have been constituted by an exchange of correspondence between the respective lawyers in the period from 2 August 2013 to 12 August 2013, and by the subsequent payment of money to Ms Winning.
The plaintiff contended that no agreement had been reached because the exchange of correspondence contemplated a final agreement on the method of encapsulating all of the terms of their agreement in either a Deed or an exchange of correspondence. The plaintiff submitted that there had been no agreement as to that final form of the agreement.
Wilson LCM referred to the relevant correspondence and set out parts of it in his judgment. He also called attention to the sequence of events which took place. He noted that it was: "… correctly submitted by the defendants that Ms Winning was not a party to these proceedings, nor was she called to give evidence on behalf of the plaintiff".
He then went on to consider the sequence of events and expressed this conclusion: "Based on the correspondence between the parties, it could not be asserted that the agreement reached was to be subject to the execution of a Deed rather than the exchange of correspondence. It is submitted by the plaintiff that the 12 August 2013 letter from the defendants did not constitute the completion of the agreement because a further response was required from the plaintiff, or Ms Winning, accepting the terms contained within that letter. It is accepted that because the letter did not contain any additional terms, but was an acceptance of the Terms of Offer, no further communication was required. There is no doubt that the consent of Ms Winning allowed and/or authorised the defendants to enter onto her land and to install the rock anchors. Such consent, of course, was subject to a number of conditions. The consent also set out the specifications of the anchoring works and that such consent allowed the defendants to enter upon the land."
His Honour went on to consider a factual question which related to the installation of the rock anchors under the heritage house. He recorded that the plaintiff acknowledged that by 3 October 2013, the date upon which the present plaintiff became the owner of the land upon which the heritage house stood, that 30 of the 37 proposed anchors had already been installed. His Honour then considered the issue as to whether all 37 had been installed by that date. His Honour referred to the evidence and submissions, and considered the conflicting evidence of some witnesses. His Honour, having reviewed those issues, found that he preferred the evidence of Mr Hassarati "… as being a true and correct reflection of the installation and subsequent meetings between the parties". His Honour then expressed these findings of fact: "Based on the evidence before the Court, the following findings of fact are made: (a) by way of exchange of correspondence between the defendants and Ms Winning, consent was provided for the installation of the anchors within the land then owned by Ms Winning. Such agreement/consent was made on 12 August 2013; (b) installation of the rock anchors commenced on 16 August 2013; (c) installation of the rock anchors was completed on 21 September 2013; (d) on 3 October 2013 the plaintiff became the registered proprietor of the land."
His Honour then noted matters which seemed to be uncontroversial, including that the rock anchors were de-stressed on or about 14 March 2014.
He then turned to consider the question of trespass. He noted that the plaintiff's submission was that the consent given to the defendant to place the rock anchors under the land had been revoked on or about 11 September 2013, and that whether or not such consent was revoked at that time, any consent given by Ms Winning ceased to have any legal force and effect once the plaintiff became the registered proprietor of the land. He noted that the submission was that thereafter, at least, there was a continuing trespass by reason of the anchor cables remaining under the land on which the historic house stood.
His Honour noted the arguments with respect to a continuing trespass. He then expressed this conclusion: "I am of the opinion that the submission made by the plaintiff that any consent would have ceased to have any legal effect when the land was transferred to the plaintiff on 3 October 2013, is incorrect, and in any event, installation of the anchors had already been completed by 21 September 2013. To enter a person's land without authority is trespass. Leave to enter must be provided. Following the occurrence of trespass, if a person/trespasser does not take steps to end a trespass, he will be liable for continuing trespass for as long as the trespass continues. I note that the defendants entered upon Ms Winning's land, as it was then, following the consent on 16 August 2013, the entry being lawful. Ms Winning never asserted that the defendants had entered upon her land and committed a trespass. … Ms Winning purported to withdraw her consent by way of correspondence from her lawyer dated 11 September 2013. At that point, she also informed the defendants that she intended to sell the land and had entered into an agreement with the plaintiffs for the sale. I consider that such an attempt to withdraw her consent acknowledges the fact that such consent was previously provided. … The anchors were installed before the plaintiff took possession of the land and the plaintiff has not sought the removal of the anchors, and only seeks compensation for damages for the trespass. The plaintiff relies on the continuing trespass, but such allegation applies only with regard to omissions for failure to remove. It must be first shown that there was an initial act of trespass, and in this case it is not, as consent was provided: see Ross & Anor v Town of Victoria Park [1999] WASC 91. … It therefore follows that there can be no continuing trespass having regard to the above authority in the circumstances of this case. As to the allegation that there was a trespass over the plaintiff's airspace by an overhead crane, it was conceded that the plaintiff that there was no direct evidence provided during the hearing of these proceedings and there was no evidence of any damage sustained. The plaintiff has therefore not made out its case in relation to this aspect of the claim."
His Honour dismissed the plaintiff's claim, and ordered the plaintiff to pay the defendant's costs.

An Interlocutory Judgment

On the first day of the hearing on 25 March 2015, the solicitor for the plaintiff opened his case and the Magistrate heard argument about the admissibility of various pieces of evidence. The solicitor for the plaintiff then called Ms Winning to give evidence.
Counsel for the defendant objected to Ms Winning giving evidence on the basis that, contrary to the Court's directions, no affidavit had been served from Ms Winning setting out the evidence which was intended to be led from her. He submitted that he was placed in a prejudicial position because he had no idea what Ms Winning would say.
Counsel for the defendant pointed to orders of the Court which required the plaintiff to serve affidavits to be relied upon in its evidence in chief, first by 23 September 2014 and then, ultimately, by 21 October 2014. Counsel for the defendant pointed to the absence of any indication at all that Ms Winning was to be called, let alone the provision of an outline of her anticipated evidence.
Counsel for the defendant pointed to the absence of any explanation from the solicitor for the plaintiff as to why it was that no affidavit or statement had been taken from Ms Winning. Counsel for the defendant added two other reasons why Ms Winning ought not be permitted to give evidence. The first was, having regard to a letter which had been sent a few days before the hearing, that none of Ms Winning's evidence could "possibly be relevant".
The solicitor for the plaintiff submitted that he ought be permitted to call Ms Winning and adduce evidence from her because her evidence would be in reply to the content of an affidavit of Joe Hassarati, which was affirmed on 17 February 2015. That affidavit had been served on 17 February 2015.
The solicitor for the plaintiff, having referred to that affidavit, said: "And so that calls for a reply, or I've determined, albeit late in the stage, that it calls for a reply. And the topic of the evidence that has been outlined in the letter served two days ago, the substance of it, deals with this subject matter, the conversation between Mr Hassarati and Ms Winning, the deposit of the cheque and subsequently the return of the cheque."
It was put to the solicitor for the plaintiff by his Honour that the evidence sought to be led from Ms Winning was not really in reply, but was rather an integral part of the plaintiff's evidence in chief, which could have been attended to months before the first day of hearing.
The solicitor for the plaintiff replied: "Without, with respect, conceding that, where is the prejudice, I ask rhetorically, to the defendant's case. How will they not be able to meet this case? There are two days to think about. That's the nature of litigation. It happens all the time. We make decisions. Something provokes a thought, a forensic thought, and so we take measures. And make late applications for amendments. We come up with evidence at a late stage. It happens all the time but, in the end, one has to look at balancing the act and seeing if there's any prejudice."
Despite the prevarication inherent in this statement to the Bench, Wilson LCM was entitled to take from this statement that the substance of the position of the plaintiff's solicitor was that he had simply not turned his mind to the fact that proper preparation of his client's case required evidence to be led from Ms Winning until he sent the letter two days earlier.
In further discussion with the Bench, the solicitor for the plaintiff conceded that the forensic decision to call Ms Winning was only made a few days before the commencement of the hearing. In answer to a question from the Bench, the solicitor for the plaintiff indicated that he proposed to tender correspondence involving Ms Winning, but because they were business records, he could do so without having to call any evidence from Ms Winning with respect to those documents.
Both parties made submissions with respect to the decision of the High Court of Australia in Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175. The solicitor for the plaintiff also pointed out to the Bench that any prejudice suffered by the defendant could be cured by an adjournment and Ms Winning returning to be cross-examined in due course.
In the course of further debate between Bench and Bar, counsel for the defendant took the Magistrate to the judgment of French CJ in Aon, where his Honour said at [5]: "On the proper exercise of the primary Judge's discretion, the applications for adjournment and amendment were not be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary Judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the Court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of satisfactory explanation for seeking it, the amendment to ANU's Statement of Claim should not have been allowed."
His Honour then addressed this remark to the solicitor for the plaintiff from the Bench: "… I tend to agree with that. I don't think you've given an adequate explanation. I don't think the proceedings should be delayed by an adjournment. That's the last resort and I wouldn't grant an adjournment. … I think you had ample time to put evidence on from this witness. I mean, from one aspect of it, you had a year to put on evidence. These proceedings have been on foot since you commenced them, and you're saying that this witness is an integral part of your case."
Discussion continued between the Bench and the solicitor for the plaintiff in which the solicitor for the plaintiff attempted to persuade his Honour to allow Ms Winning to be called. After the solicitor for the plaintiff completed his submissions, the Magistrate said this: "Mr Tzovaras, I've heard your submissions and I've also heard the defence submissions and I've taken into account the history of this matter with respect to the preparation and the orders that have been made and the period of time since all of the defence evidence has been filed and served, and particularly with regard to the submissions made by the defence, and I do not make this decision lightly. I accept the defence's submissions and I will not permit you to call this witness."
At the end of the second day of the hearing, on 26 March 2015, it became apparent that the hearing would not conclude as scheduled. A further hearing date of 17 July 2015 was allocated. Prior to the final adjournment, at the request of the solicitor for the plaintiff, the Magistrate marked as MFI 1 a bundle of correspondence between Ms Winning and her solicitors, and between Ms Winning's solicitors and the plaintiff's solicitors.
The Magistrate ordered that each party file submissions on the admissibility of the documents in MFI 1.
On the morning of 17 July 2015, at the commencement of the hearing, Wilson LCM gave this ruling with respect to the documents in MFI 1: "I have read your submissions and I have had regard to the matters you have raised in relation to s 55 [of the Evidence Act]. I have given close consideration to what the documents are, and the lengthy discussions we have had in relation them previously. I find that all of that evidence that you seek to rely upon, and the background that you have put to the Court, is too equivocal. There is an authority of the High Court of BBH v R [2012], in particular the decision of French CJ, for the reasons that he has given in those proceedings, I am going to follow what he says when he deals with equivocal evidence, and I reject the tender."
The decision to which Wilson LCM referred is BBH v The Queen [2012] HCA 9; (2012) 245 CLR 499. It is relevant to note that neither party in their written submissions referred to the decision of BBH. It was a decision about whether evidence as to what had been observed of an incident earlier in time, between the appellant, who was charged with maintaining a sexual relationship with a person under 16 years of age and related charges, and the complainant, was admissible as propensity evidence. Four of the Justices of the High Court (Heydon, Crennan, Kiefel and Bell JJ) were of the view that the evidence was admissible as propensity evidence, because it was relevant, and whilst prejudicial to the accused, had strong probative force, and there was no rational view of it that was consistent with the accused's innocence.
Three of the Justice of the High Court (French CJ, Gummow and Haine JJ) dissented. French CJ delivered an individual judgment. At [50], the Chief Justice emphasised that in his judgment the key principle was relevance, being the threshold test which was a necessary condition of admissibility. He said: "Relevance is determined by reference to the content of the proposed evidence and the issues at trial, including the elements of the offences with which the accused is charged, issues about the facts constituting those elements, and issues about facts relevant to facts in issue."
His Honour went on to deal with the question of relevance in the context that, BBH being a Queensland case, there was no applicable statutory test of relevance under the Evidence Act 1977 (Qld), and that the question of relevance was to be dealt with in accordance with the common law.
His Honour then dealt with the admissibility of propensity evidence in relation to sexual offence cases. In that context, his Honour said that the evidence which was challenged was irrelevant "because it was equivocal". His Honour concluded at [59] in these terms: "Even if the evidence could be said to have some probative force sufficient to meet the requirements of logical relevance, the existence of a rational explanation consistent with innocence remained open. On the test established by this Court in Pfennig, the evidence could not have been admitted."
Whilst the reference by the Magistrate to BBH does not include identification of any specific passage, it seems that his Honour had in mind the passages to which I have just referred.

Grounds 1, 2 and 3: Ms Winning as a Witness and MFI 1

These grounds challenged the decision of Wilson LCM to refuse the plaintiff's application to call Ms Winning as a witness, and to reject the tender of documents contained in MFI 1. The plaintiff submitted that Wilson LCM erred in law in his judgment in preventing Ms Winning from being called to give evidence. It submitted that Ms Winning's intended evidence was relevant and material to the plaintiff's case.
The plaintiff acknowledged that it needed leave to proceed with Grounds 1, 2 and 3 either because the judgments were interlocutory or, alternatively, because the errors relied upon raised questions of mixed law and fact.
In the course of oral submissions, the solicitor for the plaintiff accepted that he required leave of the Local Court to call Ms Winning because an affidavit had not been filed in accordance with that Court's directions. He accepted that it was open to Wilson LCM to exercise his discretion in the way he did, but submitted that the consequence of the decision was that his client was deprived of the opportunity to adduce evidence which was of significance in its case.
In the course of submissions in this Court, the solicitor for the plaintiff, who appeared in the Local Court, had his attention drawn to the need to refer to the principles enunciated by the High Court of Australia in House v The King [1936] HCA 40; (1936) 55 CLR 499 in addressing any error which he claimed Wilson LCM made in his discretionary judgment. In particular, it was necessary for the solicitor for the plaintiff to identify an error in the manner in which the Magistrate exercised the discretion, which was undoubtedly vested in him, to grant or refuse the application to call of Ms Winning.
The plaintiff's solicitor accepted that he was unable to identify any particular error in the way in which the Magistrate exercised his discretion. He did not identify any extraneous or irrelevant matters which influenced the Magistrate to his decision. He did not contend that there had been any wrong principle upon which the Magistrate acted. He did not contend with respect to this decision that the Magistrate had mistaken the facts or failed to take into account a material consideration. Ultimately, the plaintiff's solicitor argued that because the decision resulted in important evidence not being adduced by the plaintiff, and having regard to the absence of any real prejudice to the defendant, the decision was an unreasonable one.
The plaintiff advanced similar arguments with respect to the tender of the documents comprised in MFI 1. He also accepted that the decision of the Magistrate was one which was open to him.
These grounds can be dealt with together. They are grounds which attack interlocutory rulings given in the course of a trial.
The decision not to grant leave to the plaintiff to call Ms Winning was a discretionary one. The reasons, delivered orally and succinctly by Wilson LCM, do not display any error of law. They do not indicate that his Honour acted upon any wrong principle nor that he did not have regard to all of the relevant factors. The decision to refuse to allow Ms Winning to be called was a rational one, and one which was well available to his Honour.
The significance of the effect of the decision on the plaintiff does not of itself, and without more, demonstrate that the decision was erroneous. It will often be the case that interlocutory decisions have an effect on the conduct of a hearing and potentially on the outcome. This is one element of the interests of justice to which the Court is obliged to have regard. It is not a factor which must outweigh all other factors. It falls to be considered as a part of the evaluative process undertaken by the Court.
Here, I am not satisfied that this factor was wholly ignored, or else was not given appropriate weight.
The plaintiff has not identified error in the House v King sense. Leave ought not be granted with respect to Grounds 1 and 2.
The tender of the evidence in MFI 1 was dealt with by the parties in the Local Court on the principal basis that it was not relevant to the issues between the parties.
Wilson LCM, having taken submissions, indicated, appropriately briefly, that he was not persuaded that the documents were relevant. His Honour's reference to BBH, and the dissenting judgment of French CJ, was unfortunate. BBH was not a decision of any relevance to these proceedings. It dealt with a different area of discourse on the law of evidence, and was simply not analogous. There was no principle enunciated in BBH, and certainly not by French CJ in what was a dissenting judgment, which was of assistance to the Magistrate.
Nevertheless, the plaintiff has not persuaded this Court that the evidence in MFI 1 was relevant or admissible in the Court below, having regard to the issues which were being tried.
In those circumstances, leave ought not be granted to the plaintiff to advance this appeal on the basis of Ground 3.
The plaintiff has not made out Grounds 1, 2 and 3 of the appeal in this Court.

Ground 4: Misconstruction of Agreement

This ground raises a question as to whether Wilson LCM erred in law by construing the correspondence between Ms Winning's lawyers and the defendant's lawyers in the period between 2 and 12 August 2013 as an agreement between them pursuant to which Ms Winning gave consent to the defendant to install rock anchors upon the land which she then owned.
As set out in [49] above, Wilson LCM found that consent was provided by Ms Winning to the defendant for the installation of rock anchors on her land, by an agreement through correspondence made on 12 August 2013.
The plaintiff submitted that Wilson LCM "erred in law" in so construing that correspondence. It submitted that, because the Court was engaged in construing the correspondence, the resulting decision involved a question of law. In oral submissions, by reference to the correspondence, the plaintiff sought to demonstrate that there had been a misconstruction of that correspondence, and that the proper conclusion was that unless and until a formal deed was entered into, there was no agreement.
In effect, the defendant submitted, that the conclusion to which the Magistrate came was, as the Magistrate himself said, a finding of fact. The defendant submitted that it was not open to the plaintiff to challenge that finding of fact in circumstances where the plaintiff was not suggesting, and could not suggest, that there was no evidence upon which Wilson LCM could make that finding.
The conclusion attacked in Ground 4 is that set out above, namely, whether there was or was not an agreement between Ms Winning and the defendant constituted by correspondence culminating on 12 August 2013.
On any view, that conclusion was a finding of fact. There was evidence to support it contained in the correspondence to which the Magistrate referred. There is no right of appeal against an erroneous finding of fact. It must be established that an error of law occurred. However, all that was argued was that the Magistrate had incorrectly interpreted the facts, and ought to have found that an agreement had not been reached at that time. There is no suggestion of any error of legal principle.
In those circumstances, the plaintiff has not established any error of law with respect to this factual finding.
I would not be prepared to uphold Ground 4.

Ground 5: Erroneous Factual Findings about Date of Installation of Rock Anchors

In this ground, the plaintiff argues that Wilson LCM erred in law in finding that by 21 September 2013, the defendant had installed all of the rock anchors in the plaintiff's land, which was then owned by Ms Winning.
The plaintiff submitted that the finding made by Wilson LCM is inconsistent with documentary evidence before the Court which established that only 30 of the 37 rock anchors were installed prior to 3 October 2013, and only 16 were installed prior to 21 September 2013.
The plaintiff acknowledged that, in significant part, the disputed findings of fact with respect to the rock anchors depended upon the Magistrate's preference for the evidence of Mr Hassarati over two other witnesses called by the plaintiff, Mr Chu and Mr Hung,. The plaintiff characterised this preference in submissions to this Court as an adverse finding based upon credibility.
The plaintiff submitted that where there was incontrovertible documentary evidence to the contrary of the evidence of Mr Hassarati, and therefore the finding of the Magistrate constituted an error of law.
The defendant submitted that there was adequate evidence to support the Magistrate's finding, and that it was not open, in this Court, to mount any challenge to it.
The defendant submitted that Mr Hassarati had given clear evidence in his affidavits and in cross-examination that all 37 anchors were installed by 21 September 2013. The defendant submitted, that evidence was not the subject of any direct challenge. The defendant submitted that there was no evidence adduced by the plaintiff which supported a finding that any installation of anchors took place after 3 October 2013 (which was the date upon which the plaintiff became the registered proprietor of the land).
Mr Joe Hassarati, who is the director of the first defendant, and who was closely engaged in the particular development, swore an affidavit dated 17 February 2015.
In that affidavit, he identified that as one of the conditions of the development consent issued by the Parramatta City Council, the defendant was required to ensure that the excavation work would not cause the soil beneath adjoining buildings to collapse or be washed away. In order to fulfil that condition, Mr Hassarati retained a structural engineer to design the structure of the building and the basement carpark.
The design prepared by the structural engineer required: "… that a set of anchors be drilled and installed along the shoring wall constructed on the land during the excavation process. … The purpose of the rock anchors is to secure and stabilise the sub-soil around the excavation site so as to ensure that the sub-soil does not move and hence cause any damage to neighbouring properties during construction".
Mr Hassarati then dealt with the question of obtaining consent from Ms Winning to the installation of the rock anchors.
In his affidavit, Mr Hassarati said that the defendant commenced installing the rock anchors in the adjoining land on 16 August 2013. He recorded that on 11 September 2013, he received a letter which informed him that Ms Winning had sold the adjoining property to GLMC. The letter informed him that the settlement of that sale was due on 3 October 2013. His affidavit then includes this paragraph: "28. By this time the rock anchors were already installed into the GLMC land and it was too late to take them out."
Mr Hassarati also deposed in a second affidavit sworn 20 March 2015 that: "18. All the Rock Anchors were installed and grouted by 21 September 2013, which is before the plaintiff became the proprietor of the GLMC land."
Earlier in that second affidavit, Mr Hassarati had explained when various levels of rock anchoring had taken place, and when various parts of the shoring process had been completed. Mr Hassarati was cross-examined before the Magistrate.
Before considering the cross-examination, it is necessary to observe that the evidence adduced in chief by the plaintiff consisted of affidavits of Mr Chu and Mr Hung. Neither of those witnesses purported to give any evidence of having seen the installation of the rock anchors at the time they were being installed, nor having observed the physical state of the excavation at any time prior to about 17 October 2013, when they together met with Mr Hassarati. Each of Mr Chu, Mr Hung and Mr Hassarati gave differing versions of the conversations which took place at or about that time. It was this clash of evidence to which the Magistrate referred when he announced that he preferred the evidence of Mr Hassarati. By the end of the proceedings, there was no evidence which positively contradicted the evidence of Mr Hassarati that all rock anchors had been installed prior to 21 September 2013. He did not resile at any stage from this evidence.
However, it was submitted in this Court that Mr Hassarati's evidence in cross‑examination sufficiently demonstrated that the Magistrate's finding that all rock anchors had been installed prior to 21 September 2013 was erroneous in law.
The cross-examination by the plaintiff's solicitor of Mr Hassarati was, it must be said, somewhat discursive and unfocussed. It took place largely by reference to photos, documents and a video. When a video dated 20 September 2013 was shown to the Court, and subsequently became an exhibit, Mr Hassarati was asked to identify what could be seen in it. He said that one could observe in it a machine which was drilling holes for the rock anchors on the lowest level of the excavation. There had earlier been evidence that ordinary practice meant that rock anchors were drilled starting on the uppermost level, and progressing to the lowest level.
The process of inserting the rock anchors had also been described. What the Magistrate had been told was that, first, a hole was drilled to enable the rock anchors to be inserted; secondly, the rock anchors, which consisted of cables, were inserted into the hole; thirdly, the cables were grouted into place by insertion of cement; fourthly, the wall of the excavation, through which the rock anchors had been inserted, was then covered with concrete in a process described variously as "shotting" or "shotcreting". The final step in the process was to stress the rock anchors, which could only take place after the grout had been inserted and the shotcreted wall had been cured. Stressing took place wholly within the boundaries of the excavation.
Accordingly, the Magistrate was told that the video of 20 September 2013, which showed drilling taking place at the lowest level, necessarily demonstrated that all rock anchors down to that level had been inserted by that time.
The cross-examination of Mr Hassarati was not completed on the second day, but was resumed on 17 July 2015. On that day, the cross-examination continued by reference to various site reports which recorded work carried out on particular days and in particular shifts. It appears from the questioning that the reports came from a subcontractor working on the site, and also from an employee of the defendant. It was not suggested that Mr Hassarati personally had completed these reports. Apparently these written reports described the completion of some, but not all, of the rock anchors.
The final report to which Mr Hassarati was taken was dated 21 September 2013. Thereafter, the next daily report to which he was taken was dated 2 October 2013, which apparently contained a description of works involved in stressing, that is, applying stress to the anchor cables.
In the course of cross-examination, it was put to Mr Hassarati that one reading of the daily site reports was that only 25 rock anchors had been installed by 21 September 2013. Ultimately, after a discussion with the presiding Magistrate about some documents relating to 3 September 2013, the plaintiff's solicitor conceded that the documents showed that a total of 30 anchor cables had been installed before 21 September 2013. Once that was established, the following exchange took place between the Bench and Mr Hassarati: "His Honour: Q. It's your evidence that all of the anchors were completed by 21 September? A. Correct, installed but not stressed. … Q. So far we have accounted for 30. A. I'm just going through my records again, just to make sure, but I, I do know the date that the wall was shotcreted, so that must mean that they were [there]."
At that point, it was suggested to Mr Tzovaras that he could again check the documents and return to further cross-examination after the morning adjournment. He agreed with that suggestion and proceeded to deal with another topic in cross-examination. After the morning adjournment, the plaintiff's solicitor indicated that he had no further cross-examination.
Mr Hassarati was then re-examined. He gave this evidence: "Q. This morning you were taken through your records which I think accounted for about 30 anchors. Is there any reason you can think why those records that you were taken through would not have referred to the entire 37 anchors that were installed? A. There, there may be a discrepancy in relation to the notation of the anchors, whether they were drilled or stressed or both. Obviously both can't happen on the same day, but in terms of the numbering, that might be why there's a bit of confusion. But I, I have seen, personally, I have seen them all go in. …"
The Magistrate was assisted by written submissions provided by the parties at the conclusion of the evidence. The plaintiff submitted that he ought conclude that only 30 of the 37 rock anchors had been installed prior to 3 October 2013, and that seven were installed after 3 October 2013. That submission was based upon the records which were shown to Mr Hassarati during the course of his cross-examination.
The defendant submitted that the Court should find, by reference to the affidavit evidence to which reference has been earlier made, that the process of installation of all 37 rock anchors was completed by 21 September 2013. In support of that submission, the defendant pointed to the fact that a photograph which was annexed to the affidavit of Mr Hassarati, and taken on 4 October 2013, demonstrated that the relevant wall had been shotcreted, which could only have occurred after all of the rock anchors were installed and grouted. The defendant also relied upon the contents of the video, to which reference has been made, and the statements by Mr Hassarati in his affidavit, and evidence.
To the extent that the documents shown to Mr Hassarati did not account for all 37 of the rock anchors, the defendant submitted that the cross‑examination provided an adequate basis for concluding that all rock anchors had been completed by 21 September 2013. The defendant submitted that the Magistrate was entitled to take into account the difference between what the records showed, and the evidence which Mr Hassarati gave of his direct observations. The defendant noted that Mr Hassarati's direct observations and evidence that all rock anchors were installed by 21 September 2013, was not the subject of any direct cross-examination, but was subject to an unfocussed and rather lateral attack by reference to the documents.
As well, the defendant pointed to the fact that there was no reference in the daily site reports to the installation of rock anchors after 21 September 2013. It submitted that the absence of any such reference contradicted the plaintiff's assertion that seven rock anchors were in fact installed after 3 October 2013.
This review of the evidence demonstrates that there was a real factual contest before the Local Court as to the number of rock anchors that were installed prior to 3 October 2013, and no later than 21 September 2013. The plaintiff accepted that 30 of the 37 rock anchors had been installed by 21 September 2013. The issue which remained in contest was whether all 37 of the rock anchors had been installed by that date. There was evidence upon which the Magistrate could conclude that that was so. There were the direct statements of Mr Hassarati, which he was entitled to accept; there was the evidence from the video that the machine drilling the holes was working on 20 September 2013 at the bottom level, that is, the last level to be drilled; and there was evidence as to when the wall was shotcreted, which necessarily meant that all rock anchors had been installed prior to that time.
In combination, all of this evidence supported a finding by the Magistrate that all the rock anchors had been installed by 21 September 2013. Whilst the Magistrate's finding of fact may have been erroneous in the sense that it was open for him on the evidence to come to a different view, there is no basis to find that it constituted an error of law. Accordingly, there is no basis for this Court to interfere with a finding of fact which was open to the Magistrate on the evidence before him.
Ground 5 must fail.

Grounds 6, 7 and 8: Trespass by Anchor Cables

These grounds allege that Wilson LCM: 1. erred in law in failing to hold that upon the plaintiff becoming the registered proprietor of the land on 3 October 2013, any consent that Ms Winning may have given to the defendant ceased to have any legal effect (Ground 6); 2. erred in law in failing to find that from 3 October 2013 onwards, the continued presence in the plaintiff's land of the 37 rock anchors installed by the defendant in the land prior to that date constituted a trespass (Ground 7); and 3. erred in law in failing to find that after March 2014, when the defendant de-stressed the 37 rock anchors installed by them in the plaintiff's land, the continued presence of the rock anchors in their de-stressed state constituted a trespass (Ground 8).
These grounds can conveniently be dealt with together. Wilson LCM found that Ms Winning gave her consent to the defendant installing the rock anchors in the land whilst she was still the registered proprietor. He also found that all of the rock anchors had been installed prior to 21 September 2013, at which time Ms Winning was the registered proprietor of the land.
Although the plaintiff challenged these findings in this Court, for the reasons which I have earlier set out, those challenges fail.
It was also not in dispute that the way the rock anchors were installed was to first drill a hole about 100mm in diameter. The holes extended 8 metres into the plaintiff's property and were generally angled downwards at about 30° to the horizontal. After the anchor cables were inserted, they were grouted (or cemented) into place. Once the grout had cured and other appropriate adjoining works had been undertaken, tension was applied to the cables to support the construction on the defendant's site. The cables were de-stressed in March 2014.
The holes were bored at various depths below ground level. It appears that the depth closest to the surface was about 3.5 metres below ground level.
The relevant finding by Wilson LCM is in the following form: "… I am of the opinion that the submission made by the plaintiff that any consent would have ceased to have any legal effect when the land was transferred to the plaintiff on 3 October 2013, is incorrect, and in any event installation of the anchors had already been completed by 21 September 2013. To enter a person's land without authority is trespass. Leave to enter must be provided. Following the occurrence of the trespass, if a person/trespasser does not take steps to end the trespass, he will be liable for continuing trespass for as long as the trespass continues. I note that the defendants entered upon Ms Winning's land as it was then, following the consent on 16 August 2013, the entry being lawful. Ms Winning never asserted that the defendants had entered upon her land and committed a trespass. … Ms Winning purported to withdraw her consent by way of correspondence from her lawyer dated 11 September 2013. At that point, she also informed the defendants that she intended to sell the land and had entered into an agreement with the plaintiffs for the sale. I consider that such an attempt to withdraw her consent acknowledges the fact that such consent was previously provided. … The anchors were installed before the plaintiffs took possession of the land, and the plaintiff has not sought the removal of the anchors, and only seeks compensation for damages for the trespass. The plaintiff relies on the continuing trespass, but such allegation applies only with regard to omissions for failure to remove. It must be first shown that there was an initial act of trespass, and in this case it is not, as consent was provided, see Ross & Anor v Town of Victoria Park [1999] WASC 91 (14 July 1991)."
Wilson LCM went on to consider the claim for continuing trespass after the plaintiff became the proprietor. His Honour said of that claim, this: "Therefore it follows that there can be no continuing trespass having regard to the above authority and the circumstances of this case."
It appears that his Honour's reasoning involved these steps: 1. Ms Winning provided her consent, which was not effectively revoked prior to 2 October 2013, to the defendants to install rock anchors beneath the heritage house; 2. the rock anchors were all installed prior to 21 September 2013, during a period when the defendants had the consent of the registered proprietor of the land to install those rock anchors; 3. when the plaintiff took over ownership of the land, although it did not indicate its consent to the rock anchors being installed under the house, or remaining in position under the house, it also did not specifically make any request for their removal, but rather contented itself with seeking damages for their presence; 4. as the rock anchors were installed, lawfully and without any trespass to the land, their continued presence under the land after 3 October 2013, when the plaintiff became the registered proprietor of the land, did not constitute an ongoing nuisance.
In this Court, the plaintiff submitted that the decision of the Local Court is erroneous because it is contrary to the legal principles enunciated by Young CJ in Eq (as his Honour then was) in Di Napoli v New Beach Apartments Pty Ltd [2004] NSWSC 52.
Further, the plaintiff submitted that to the extent that the decision in Di Napoli differed from, or was inconsistent with, the decision of a Master of the Supreme Court of Western Australia in Ross v Town of Victoria Park [1999] WASC 91, being the case relied upon by the defendant, the Local Court should have applied Di Napoli.
The defendant submitted that the Magistrate was correct to conclude that no trespass had been established in circumstances where: 1. the completion of the installation of the anchors had occurred prior to the plaintiff becoming the registered proprietor and a concession was made before the Local Court by the solicitor for the plaintiff that "anything that occurred before it became owner of the land on 3 October 2013, could not constitute a trespass"; 2. the process of stressing and de-stressing of the anchor cables occurred wholly within the defendant's land; 3. the unchallenged evidence before the Local Court was that any material left in the ground following the de-stressing of the cable anchors would sit harmlessly in the ground "like tree roots" without any detrimental effect on the land; 4. the uncontested evidence before the Local Court was that any building on the plaintiff's land would need to be demolished in order to access any of the anchor cable material which was left underground. Demolition of the building was said to be highly unlikely because of its heritage classification, and hence the plaintiff would have no reason to be burdened or inconvenienced by the presence of the anchor cables.
It was submitted that there was no basis for the plaintiff to contend that it has been deprived of the use and enjoyment of its land and has suffered, or continues to suffer, loss and damage.
It cannot be doubted that the tort of trespass is complete without evidence of actual damage. The trifling nature of a trespass is no defence to it: Yeloly v Morley (1910) 27 TLR 20. Put differently, trespass is actionable per se.
Ms Winning, on the facts found by the Magistrate, which have not been shown to have been erroneous as a matter of law, received a not insignificant sum from the defendant for the giving of her consent to the installation of the rock anchors under her land. There was no evidence before the Local Court, and none was foreshadowed to be called, from Ms Winning which suggested that she had an inadequate or incomplete understanding of what it was that she was being asked to consent to.
It was always the defendant's proposal to leave the anchor cables in situ after they were de-stressed. That is because the ordinary process of using the underground reaches of adjoining properties for rock anchors required the anchor cables to be cemented into position after drilling and insertion, and removed only by excavation starting from ground level. To some extent, the cables are like tree roots growing under an adjoining property. But the analogy is not entirely accurate, because anchor cables do not grow or expand, and are not capable of causing any physical damage to the adjoining property after their insertion. The evidence was that the cables are entirely "inert".
Ms Winning gave her consent to the defendant to insert the anchor cables on the basis that they would remain in situ and would not be removed unless excavated from within the grounds of the heritage house. That consent was operative at the time all of the cables were inserted and grouted into their final position.
The decision of Young CJ in Eq in Di Napoli, upon which the plaintiff relied, is distinguishable from the present case. This is so for a number of reasons. First, the decision was an interlocutory one delivered ex tempore. His Honour was not purporting to lay down considered and lasting principles of law.
Secondly, the developer who inserted the anchor cables relied only upon a consent which was properly described as a "bare license or a contractual license". No consideration had been paid by the developer. In contrast, here the defendant paid to the previous owner, Ms Winning, a sum of money in consideration for her agreement and the granting of a license to the defendant to do what it did.
Thirdly, in Di Napoli, the plaintiff clearly withdrew her consent (given by her former husband) prior to the developer inserting the rock anchors. She did so by directly notifying the developer before any installation works commenced.
Fourthly, the developer, knowing of the lack of consent, proceeded nonetheless to insert the rock anchors, relying upon a claim that council‑approved plans which contemplated the placing of the rock anchors under the adjoining land owned by Ms Di Napoli gave it sufficient authority to so do. On any view, this was an inadequate basis for proceeding with inserting the rock anchors, rendering the insertion of the rock anchors unlawful and, in fact, a trespass. In this case, the opposite circumstances existed.
To the extent that Di Napoli is authority for a proposition of law, it is that a revocable licence is automatically determined by the death of the licensor, or else by the assignment of land over which the licence is exercised: see Turrunanse v Turrunanse [1968] AC 1086 at 1095-6. However, that principle is not in conflict with the decision upon which the defendant relied in the Local Court and again in this Court, of Ross v Town of Victoria Park [1999] WASC 91, where Master Bredmeyer said at [5]: "If, as I consider, the initial construction of the pipe was not a trespass, then it is not arguable to say that it is a continued trespass to leave the pipe on the land, and it cannot be argued that every day the pipe is on the land is a continuing trespass."
The learned Master was there applying a long-standing principle of tort law that unless the original entry onto land is unlawful, and therefore a trespass, then there were will not be any continuing actionable trespass thereafter.
The doctrine of trespass ab initio, although disparaged in some quarters, will make a person who entered land lawfully, but who abuses that lawful purpose, a trespasser whose original entry was tortious. Here, the original entry by the defendant was lawful because it was consented to by Ms Winning. There is no suggestion that what the defendant did at any time fell outside the permitted terms of entry. There was thus no trespass.
Put differently, as a licensee the defendant did not exceed the terms of its licence, and therefore it is not a trespasser: Brunner v Williams (1975) 73 LGR 266.
There is a further, and additional, basis for concluding that the plaintiff did not establish in the Local Court an actionable trespass. The evidence did not clearly establish that after the plaintiff became the registered proprietor of the property, it demanded the defendant to remove the rock anchors. Rather, as the evidence seems to disclose, the plaintiff simply asserted that: the rock anchors had been placed in the absence of any consent being given by Ms Winning; Ms Winning had withdrawn her consent even if given prior to the insertion of the rock anchors; a number of the rock anchors had been inserted after the plaintiff had taken ownership and possession of the land; and in all of those circumstances, the continued presence of the rock anchors constituted a continuing trespass.
If the plaintiff was to succeed in establishing a basis for a continuing trespass, such as that there was no consent originally, or else that the consent had been revoked, it would still have had to issue a demand upon the defendant to remove the rock anchors. The evidence did not reveal the existence of such an express demand. The mere commencement of proceedings claiming damages for trespass is not, in my view, a demand by implication. This is an additional, and further, reason, although not dealt with by the Magistrate, as to why the plaintiff's argument cannot succeed.
The plaintiff has failed to demonstrate that the Magistrate erred in law in concluding that there was no trespass by the defendant of an actionable kind either before or after the plaintiff became the registered proprietor of the land.
This ground of appeal fails.

Ground 9: Trespass by the Tower Crane

This ground contends that the Magistrate erred in law in failing to hold that the sailing of the tower crane over the plaintiff's land which was conduct of, or else caused by, the defendants during the course of construction by them, between the period November 2013 until about October 2014, constituted a trespass to the plaintiff's land.
I have earlier referred (at [52] above) to the relatively brief conclusion by the Magistrate which suggested that the plaintiff had not established the facts necessary to prove this claim. As well, the Magistrate seems to have held that because no damage was sustained, the claim to trespass must fail.
The plaintiff submitted that although a concession was made in written submissions to the Local Court that there was no "direct evidence" of the passage of the boom of the crane over the plaintiff's land, there was other evidence, which was unchallenged, which demonstrated that in fact there was passage of the crane's boom across the top of the plaintiff's land.
Additionally, in this Court, the plaintiff pointed to the fact that there was some evidence that the crane's boom had sailed over the plaintiff's land. Mr Chu in his affidavit said: "… I observed this occurring on many occasions when I drove past the [plaintiff's] land during the period from November 2013 to October 2014."
The defendant, in this Court, submitted that the Magistrate was correct in acting upon a concession of there being no direct evidence of the crane's boom sailing over the plaintiff's land and that, since there was no evidence of any loss or damage, the claim could not succeed. The defendant submitted that the plaintiff did not draw the Magistrate's attention to the existence of any evidence at all about the behaviour of the crane which was capable of supporting its claim.
The law is concisely stated, with respect, by Hodgson J (as he then was) in LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (1989) 24 NSWLR 490 at 495, where his Honour said: "I think the relevant test is not whether the incursion actually interferes with the occupier's actual use of land at the time, but rather whether it is of a nature and at a height which may interfere with the ordinary uses of the land which the occupier may see fit to undertake. Such a rule has the advantages stated by Griffiths J in Bernstein of Leigh (Barron) v Skyviews and General Ltd (at 486): 'Adjoining owners then know where they stand; they have no right to erect structures overhanging or passing over their neighbours land and there is no room for argument whether they are there by causing damage or annoyance to their neighbours about which there may be much room for argument and uncertainty.' "
His Honour cited with approval at 496 the passage from Fleming's Law of Torts 7th Ed, which was published in 1987. In that edition of that significant text, at 51, the author said: "Most of the caselaw has been concerned with competing claims by adjacent occupiers with respect to overhanging parts of buildings and branches of trees. Here, the weight of authority clearly favours the view that direct invasion by artificial projections, like a swinging crane, advertising signs, electrical cables, or the overlap of a wall, constitute trespass actionable per se and, in suitable cases, warranting a mandatory injunction to compel removal."
This extract from Fleming is supported by a decision, Anchor Brewhouse Developments v Berkeley House [1987] 2 EGLR 173, a case in which Scott J held that a crane which passed its boom over private land without permission created an actionable trespass. However, the report of that decision is not clear as to the precise factual details giving rise to the claim.
Here, had the plaintiff not made the concession set out in [162], it was open to the Magistrate to hold that the evidence established that the crane travelled over the plaintiff's land during the course of construction and that it did so on a number of occasions, the dates of which were not established. The plaintiff did not present any evidence which established the nature of the crane's passing over the plaintiff's land, nor the height at which it passed. The evidence did not establish with any precision the length of time during which the crane passed over the land. There was no evidence that noise, or some other physical sign, indicated the crane passing over the plaintiff's land to anybody on the land. No doubt it was visible. The evidence did not enable the Local Court to be satisfied that the crane's incursion may have interfered with the ordinary use of the land by the plaintiff, as the authorities required.
On the evidence before the Local Court, the plaintiff was not in occupation of the heritage house on the property, and the plaintiff's land was entirely unused and idle during the period of construction on the adjoining land.
The evidence did not enable a finding to be made of a trespass by the defendant to the plaintiff's land by reason of the movement of the crane. As well, the Local Court was entitled to act on the concession made by the solicitor for the plaintiff. In those circumstances, Ground 9 must fail.

Conclusion

I have concluded that each of the grounds raised by the plaintiff has not been made out. This result is dictated by the fact that this Court is not authorised by statute to undertake a general appellate function, including correcting errors of fact. Nor is it authorised to conduct a review of the merits of the Magistrate's decision. It would be impracticable for this Court to be required to undertake such a review, particularly in circumstances where, often, small sums of money are involved in Local Court decisions. Here, when the plaintiff's argument and submissions were examined, they were largely an attempt to re-litigate the merits of the fact-finding exercise engaged in by the Local Court. Only Grounds 6, 7 and 8 involved true questions of law. In my view, the Magistrate correctly decided the matters complained of in those grounds.
Accordingly, it follows that the plaintiff's proceedings in this Court fail and must be dismissed.
The ordinary rule is that an unsuccessful party bears the costs of the proceedings "unless the Court otherwise orders": r 42.1 UCPR.
There is no reason appearing in the course of these proceedings for the Court to exercise its discretion other than in accordance with the ordinary rule. It follows that the plaintiff must pay the defendant's costs of these proceedings.

Orders

I make the following orders: 1. Extend time for the filing by the plaintiff of its Summons to 23 December 2015. 2. Summons filed 23 December 2015 is dismissed. 3. Plaintiff 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: 25 November 2016

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