Lobo v D'Sousa
[2019] VSC 518
•29 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 01757
| RAYMOND LOBO | Appellant |
| v | |
| ESTEPHANIA HARRIET D’SOUSA | Respondent |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 July 2019 |
DATE OF JUDGMENT: | 29 July 2019 |
DATE OF WRITTEN REASONS: | 2 August 2019 |
CASE MAY BE CITED AS: | Lobo v D’Sousa |
MEDIUM NEUTRAL CITATION: | [2019] VSC 518 |
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APPEAL – Appeal from the Magistrate’s Court pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) – Whether the order sought to be appealed is a final order – Held no – Appeal dismissed – Hall v Nominal Defendant (1966) 117 CLR 423 applied.
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APPEARANCES: | Counsel | Solicitors |
| The appellant appeared in person | ||
| For the respondent | Ms C Sparke | Vernon Da Gama and Associates |
HER HONOUR:
Introduction
These reasons concern an application to summarily dismiss an appeal. The appeal is sought to be made pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) (‘MCA’). That section provides for appeal to this Court on a question of law from a final order of the Magistrates’ Court in a civil proceeding. The order in question was made on 22 March 2019 in the Magistrates’ Court, in proceedings which were commenced a number of years before that.
I granted the application for summary dismissal at the conclusion of the hearing on 29 July 2019, giving brief oral reasons at the time. I indicated that I would elaborate those reasons and provide them in written form. These are my elaborated reasons. Where appropriate I have retained the present tense and the more informal style of oral reasons.
The respondent contends for two reasons that this proceeding should be summarily dismissed. First, on the basis that the order in question is not a final order. Secondly, on the basis that the alleged errors articulated in the Notice of Appeal are not errors of law and/or were not the basis on which the order was made.
It is only appropriate for this Court to consider the second of those grounds if the first fails. This is because if the first contention succeeds, that is, that the order that is sought to be appealed is not a final order in the legal sense, then this Court has no jurisdiction to hear the appeal. It follows that it would not be appropriate to go on and consider the alleged errors of law.
For the reasons that I now give, I consider that the respondent has established that the order made by the Magistrates’ Court is not a final order in the sense required by the law, and for that reason the appeal should be dismissed. It follows that I do not address the second ground advanced by the respondent for summary dismissal of the appeal.
Consideration
Legal principles
Section 109 of the MCA provides as follows:
109 Appeal to Supreme Court from final order made in civil proceeding
(1)A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(2) An appeal under subsection (1)—
(a)must be instituted not later than 30 days after the day on which the order complained of was made; and
(b)does not operate as a stay of any order made by the Court unless the Supreme Court so orders.
(3)Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.
(4)An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).
(5)The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court—
(a)is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
(6)After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.
(7)An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for re-hearing to the Court, may be enforced as an order of the Supreme Court.
The section requires that the order in question be a ‘final’ order. Whether an order is ‘final’ has been often considered, chiefly by comparison with its converse - an order that is ‘interlocutory’. The context of these decisions has often been the limitations imposed on appeals from interlocutory orders.
In the seminal case of Hall v The Nominal Defendant[1] the court below had refused leave to the appellant to extend time for a suit against the nominal defendant. One question before the High Court was whether that order was a final order within the meaning of s 35 (1)(a) of the Judiciary Act 1903 (Cth) which at that time allowed an appeal as of right to the High Court against a final order. Taylor J, who gave the leading judgment of the majority on this question, held that the test is whether the order in question finally disposes of the rights of the parties. If it does, it is final. If it does not, it is interlocutory only. Taylor J drew a distinction between the practical and the legal effect of the order. In the case before the Court, he accepted that the practical effect of the order refusing an extension of time was that any further application would be fruitless unless supported by additional relevant facts. However, as this was not its legal effect, because it did not legally prevent the appellant from making a further application for extension of time, it was not a final order.[2]
[1](1966) 117 CLR 423.
[2]Ibid 440-441.
That test, whether the judgment or order finally determines the rights of the parties in a legal, as opposed to a practical, sense, has been followed consistently thereafter in more recent authority.[3] The comparison made within that test between legal and practical effect is perhaps of more limited utility in this particular case. In this case, the comparison is really between an order that finally determines the rights of the parties in the proceeding, as opposed to an order that determines a particular application made or step in the course of the proceeding. However, Taylor J also observed in the course of his reasoning that:
an order made in the course of an action or suit which does not conclude the rights of the parties inter se, although it may, of course, conclude the fate of the particular application in which it is made, is interlocutory only. [4]
[3]For example, Lucas v Public Transport Corporation Victoria (2000) 1 VR 156, 158 [8].
[4]Ibid 440.
Application of principles to this case
The order sought to be appealed (‘Magistrate’s Order’) orders the appellant to take certain steps, including the payment of stamp duty, relating to an deed of assignment between the respondent as assignor and the appellant as assignee relating to land in India in which the parties each have, or may at some point have, an interest by virtue of the intestacies consequent on the deaths of their parents. The Magistrate’s Order requires the appellant to pay stamp duty as assessed upon that deed, and thereafter take steps to obtain the execution and registration of the deed. Order 8 of the Magistrate’s Order provides as follows:
In the event a party fails to comply with any matter required under orders 1-7 hereof, the party not in default shall be at liberty to apply to the court for further directions, including directions as to the conduct of any further cause of action which might arise.
Order 11 provides as follows:
The further determination of this proceeding is adjourned to a date to be fixed.
By her Amended Complaint in the Magistrates’ Court proceeding the respondent seeks to enforce an alleged agreement between herself and her brother, the appellant, made on or about 7 February 2008, by which she alleges she agreed ‘to transfer… all her right, interest and entitlement… as a residuary beneficiary entitled to the due administration of [their parents’ estates], in consideration of which [the appellant] agreed to pay [her] the sum of $100,000 [by certain instalments]’.[5] The respondent alleges that the appellant paid her the total sum of $50,000 in part performance of the agreement but has breached the agreement by failing and refusing to pay the balance. The claim is put in contract and alternatively in estoppel based on the plaintiff’s reliance to her detriment on various representations. The respondent/plaintiff below seeks the sum of $50,000 plus interest and costs.
[5]Exhibit RL-3 to affidavit of Raymond Lobo, sworn 24 April 2019, [7].
I do not consider that the Magistrate’s Order is a final order in the sense required. I reach this conclusion having regard to the face of the Order, the nature of the underlying proceeding, and the context in which the Order was made as revealed in the transcript of the hearing on the day it was made.
I consider first the face of the Order. The Magistrate’s Order contains at least two aspects that show that it does not finally determine the legal rights of the parties in the proceeding, being order 8 and order 11.
Order 8 allows for the possibility of default and provides that, in the event of default, the party not in default can come back to the Court for further directions, including directions as to the conduct of any further cause of action which might arise. In other words, it envisages that if the orders relating to the payment of stamp duty, execution and registration of the deed are not complied with then the underlying proceeding continues, although the cause of action might change or a new right to relief might be added.
Order 11 also supports the conclusion that the orders for the payment of stamp duty, execution and registration of the deed do not finally determine the parties’ rights in the proceeding. It provides that the further determination of this proceeding is adjourned to a date to be fixed. Order 11 applies whether or not the other orders made are complied with, but again, it shows that the underlying proceeding continues. In short, those aspects of the Magistrate’s Order show it is not a final order in the sense that it does not give a final determination of the rights of the parties.
I am fortified in this conclusion by consideration of the Amended Complaint. That shows that the principal underlying current cause of action is breach of contract. The orders about which Mr Lobo, the appellant, is aggrieved concern the payment of stamp duty in India on a deed of assignment, and steps to obtain its registration. Those steps do not finally determine the plaintiff’s right to damages for breach of contract. I am informed that there is a counterclaim as well which is not before me in evidence, but the argument has proceeded on the basis that the payment of stamp duty and registration of the deed do not finally determine that counterclaim either.
Lastly, although the Magistrate did not give discrete oral or written reasons for the order the subject of this proceeding, the manner in which the proceeding was relisted,[6] the discussion with him on that relisting, and the views the Magistrate expressed in that discussion as recorded in the transcript of the relisting, show that the Magistrate’s Order was made on the application of the plaintiff, the respondent in the appeal, to deal with a particular aspect of the underlying proceeding. On the view apparently taken by the Magistrate of the plaintiff’s claim before him, it would be fair to describe registration of the executed deed of assignment, which is the intended object of the Magistrate’s Order, as a substantial step towards a final order in favour of the plaintiff, but nevertheless it is plain from the views the Magistrate expressed that it is not in itself the final order.
[6]Letter dated 6 February 2019 from the solicitors for the respondent to the Magistrates’ Court requesting relisting, Exhibit RL-10 to affidavit of Raymond Lobo, sworn 24 April 2019, 1.
Mr Da Gama’s evidence for the respondent is that the Magistrate had taken the view that for the plaintiff to succeed she needed to show that the interest the subject of the agreement she alleges was capable of being registered.[7] Mr Lobo disputes this characterisation of the Magistrate’s view to some degree, but not that the impugned orders relate to registration of an interest in land. I consider that Mr Da Gama’s evidence is confirmed by the views expressed by the Magistrate in the course of discussion on 22 March 2019. The Magistrate compendiously summarised this view in the following passage, directed to Mr Lobo, after discussion with counsel for the plaintiff as to the orders sought:
HIS HONOUR: - - - what you’ve bargained for was all of your sister’s interest intestate, the estate of your mother. Correct? That’s what you bought. All of her interests, that was what the bargain was. Everyone agrees that the only thing of value in that estate was the interest held by the siblings in the property in Mumbai. Right? At the outset, the plaintiff’s case was that all you bought was a chance. If you like, a chance. I said no. You didn’t buy a chance for $100,000. You bought whatever valuable interest she had. Right. The question then arose, yes, under the intestacy formula, she is entitled to her share of that property. Right?
That is what you bought. Her share. Her interest in the intestate estate of your mother. That’s what you bought. Okay? Get that very clear. The next question arose is, well, in that case, what am I getting for my money? I said, “No, you’re not just buying a chance. She has to be in a position to give you whatever interest she has arising under that estate of your mother.” And that is what we’ve been dealing with for the past two years. And I have made it clear to you, more times than I care to remember, that she must be in a position to put you on title to that interest before you are obliged to pay her the price. This is what we’ve been doing for the last two years. All right?
Those cases are not on point, Mr Lobo. All right? Let me make that very clear to you. We have now come to the situation where the plaintiff says, “I can put you on title. I can give you what you bought. I have gone through all the steps required by the court in Mumbai,” and I have told you more times than I care to recollect that if the responsible, proper judicial officer in Mumbai says that land, that interest, is yours, you are on title, they have kept their bargain. They will have given you what you bought. If they can’t do that, then they haven’t.
And then we will talk about what money goes where and who pays costs and interests. We are going to determine whether or not they can keep their bargain. If the registrar says yes, they have. If the registrar says no, they have not. Very simple. Very straightforward. And that is how it will proceed. They are now going to draft up orders - - -
MR LOBO: Your Honour - - -
HIS HONOUR: - - - to bring that – just wait – before the registrar in India. You can have a look at them. Look at the wording and say whatever you would like to say about that proposition, but that is how the matter is going forward. If you decline to take any steps in your own interest, as you are required to do under the law in Mumbai, the plaintiff’s position is very simple. They will say, “You have walked away from the contract. You have repudiated it.” Right? “We want our money.” That’s what they will say. They will say it’s your fault and they want their price. Now, then we can argue about the money. But until that situation arises, if it ever does, we are going to find out what this gentleman in Mumbai has to say. And whatever he says, I will follow. Clear?[8]
[7]Affidavit of Vernon Da Gama, sworn 7 June 2019 [5].
[8]Exhibit RL-16 to Affidavit of Raymond Lobo, sworn 25 July 2019, 57, line 17-58, line 15.
In that context, the Magistrate’s Order relates to a step in the proceeding, and is not the conclusion of the proceeding.
Mr Lobo submits that the Magistrate’s Order ‘is manifestly unjust and so grossly unreasonable, that it should be considered to be a Final Order for the purposes of s 109 [of the MCA]’.[9] He seeks to rely on an extract from a legal journal to the effect that leave to appeal from an interlocutory decision should be granted only where the decision was wrong, or at least attended with sufficient doubt to justify granting leave, and substantial injustice would be done if the decision were not reversed.[10] He submits that the decision is grossly unreasonable, as the plaintiff/respondent has not ‘determined her legal rights in the property’ (as I understand it, because no administrator has been appointed to the intestate estates of their parents) and would occasion him substantial injustice because it will require him (and the plaintiff) to break Indian law.[11] This submission is based on the assertion that the land in question is classified as ‘Agricultural Land’, and that as an Australian citizen the appellant cannot legally buy Agricultural Land in India. Mr Lobo seeks to support these submissions by extensive written arguments which he asserts he unsuccessfully endeavoured to present to the Magistrate, and by other supporting material.
[9]Affidavits of Raymond Lobo sworn 24 April 2019 and 13 May 2019, [2].
[10]Simon Tisher, ‘Appeals from interlocutory orders – will leave be granted?’ [2008] (85) Precedent 14, 16.
[11]Affidavits of Raymond Lobo, sworn 24 April 2019 and 13 May 2019, [2] and [3].
The difficulty with these submissions is that the test Mr Lobo seeks to invoke is not the relevant test for the purposes of s 109 of the MCA. It is not a test to determine whether an order is interlocutory or final. It is a test to determine whether or not to grant leave to appeal an order determined to be interlocutory. As is apparent from the citations in the article on which he relies,[12] that test formerly applied to determine whether or not the Court of Appeal would grant leave to appeal to an interlocutory decision from a single judge decision of the County Court or Supreme Court. There is no provision in s 109 of the MCA to grant leave to appeal an interlocutory decision. The test Mr Lobo seeks to invoke does not, and never did, apply to appeal from a magistrate pursuant to s 109 of the MCA.
[12]Niemann v Electronic Industries Ltd [1978] VR 431; BHP Petroleum Pty Ltd v Oil Basins Ltd [1985] VR 756; King v Lintrose Nominees Pty Ltd (2001) 4 VR 619.
In my view, it is not necessary for the purpose of determining whether or not the Magistrate’s Order is a final order in the relevant sense to consider the arguments and material on which Mr Lobo relies to assert that the order would require him to commit an illegal act in India. For the purposes of my determination of the application before me today, I have assumed that the assertion may be correct, and that as a consequence the Magistrate’s Order may be affected by error of law. I emphasise that I have assumed that for the purposes of argument, I have not made any finding to that effect.
For the purposes of the argument I have assumed that the Magistrate’s Order may be affected by error of law and perhaps that error is that it would actually be illegal for the deed of assignment to be registered in India. But that is not enough. It is not enough that the order is erroneous. It is only appellable pursuant to s 109 of the MCA if it is a final order, in the sense of finally determining the legal rights of the parties in the proceeding. It is not enough that it determines the plaintiff’s application below that the defendant, now appellant, be ordered to facilitate registration of the deed, including by payment of stamp duty. There may have been other rights of review available to Mr Lobo, but the right of review that he has sought to pursue – an appeal under s 109 of the MCA – requires that the impugned order be a final order, as well as being erroneous in law.
As I have sought to explain in these reasons, it is not a final order. For that reason, I grant the application for summary judgment and will dismiss the appeal.
Mr Lobo has sought that in the event I reach this conclusion I make an order that he can appeal the decision of the relevant official in India to impose stamp duty. He is concerned that that official may not have undertaken due diligence in reaching his or her conclusion that stamp duty is payable. I will not make any such order, as a court in this state does not have the jurisdiction to do so. Courts in this state do not have the jurisdiction to determine appeal rights in relation to the assessment of stamp duty in India, if there are indeed such appeal rights. If there are such appeal rights, they are to be invoked in India and cannot by invoked by this Court either to confer or extend such a right, or to exclude it.
Mr Lobo has referred me to portions of the transcript of 22 March 2019 before the Magistrate in which he contends the Magistrate sought to exclude a right of appeal within the Indian legal system.[13] In my view, the passages to which he has taken me do not show that. I think that is a misunderstanding of what the Magistrate was seeking to say. As I read what the Magistrate has said, in both the passage quoted at length earlier and other passages, he was seeking to say that for the purposes of his jurisdiction in the Magistrates’ Court he is making this order, but that does not relate to any appeal rights Mr Lobo may have in India in respect of the determination of stamp duty.[14]
[13]Exhibit RL-16 to Affidavit of Raymond Lobo, sworn 25 July 2019, 39-40.
[14]There are a number of comments by the Magistrate to similar effect in Exhibit RL-16 to Affidavit of Raymond Lobo, sworn 25 July 2019, 41-43, 51-53.
Mr Lobo has also expressed concern that should he fail to comply with the Magistrate’s Order he will liable to a penalty of $165 per day. He did not refer me to any source for this concern. The Magistrate’s Order does not in its terms provide any criminal penalty for non-compliance, and in a civil proceeding that would be questionable in any event. As Mr Lobo is self-represented, I have turned my mind to whether he could arguably suffer a quasi-criminal penalty for contempt for failure to comply with the Magistrate’s Order. This possibility was in fact canvassed before the Magistrate. Counsel for the plaintiff, who is also counsel in this appeal, expressly stated at that time that the plaintiff did not seek that consequence, and the Magistrate expressed the view that it would not be open to find Mr Lobo in contempt for non-compliance if the order envisaged the possibility of non-compliance, which it does.[15] In this appeal, counsel for the respondent informs the Court that she is not aware of any financial penalty that would apply to non-compliance. If Mr Lobo remains concerned about this possibility he should seek his own legal advice in relation to it.
[15]Ibid 53 line 43-55 line 12.
Conclusion
I will grant the application for summary dismissal and dismiss the appeal.
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