Sherriff v Dudley No. Scgrg-00-409

[2000] SASC 324
SHERRIFF V DUDLEY

Full Court: Prior, Lander and Bleby JJ

1................ PRIOR J........... ............. I agree with the reasons now given by Lander J for the orders made on 12 September.

2................ LANDER J....... This is an appeal by a defendant to proceedings in the District Court against an order made by a Judge of that Court on 10 April 2000.

When the matter came on for hearing this Court heard, as a preliminary matter, the appellant’s claim that the District Court lacked jurisdiction in respect of this matter. The Court announced its decision allowing the appeal and indicated it would give reasons. These are my reasons.
The plaintiff commenced proceedings in the District Court on 8 March 2000 seeking orders against the defendant in the following terms:
“(1).. That the defendant, as caveator by virtue of caveat no. 8837376 do attend before this Honourable Court and show cause why the caveat should not be removed.
(2)That the Registrar General do cause caveat no. 8837376 to be removed from Certificate of Title Register Book Volume 5413 Folio 687.
(3)... Providing for the costs of this summons and of the proceedings upon a solicitor and own client basis.”
The summons carried the endorsement that it was brought pursuant to the District Court Act 1991, s 64 and s 191 of the Real Property Act 1886, and r 7 of the District Court Rules.
The application was supported by an affidavit of the plaintiff who stated that he was the owner and registered proprietor of the land referred to in the summons, which is situate at 21 Commercial Road, Port Noarlunga South.
He said that on 23 December 1999, by written agreement of that date, he agreed to sell the land to Evan Phillips with settlement to be effective on 1 March 2000. On 24 February 2000 he received a letter from the Deputy Registrar General notifying him that a caveat had been lodged in respect of the land and settlement was therefore unable to be effective.
It appears from the affidavits which have been filed and the exhibits to those affidavits that in late 1999 the plaintiff was intending to sell the subject land through the agency of Phil McMahon Real Estate. Mr Anthony Taylor of Phil McMahon Real Estate acted as the agent. Ms Sherriff was part of a syndicate which included a Mr and Mrs Main, a Mr Marendaz and a Mr and Mrs Muter, who were interested in purchasing the land.
Mr Phillips was also interested in purchasing the land.
The defendant asserts that a contract was entered into on 22 December 1999 whereby the plaintiff agreed to sell and the defendant agreed to purchase the land for the sum of $122,650.
It is the defendant’s case that the agreement was constituted by an oral acceptance of the defendant of a counter offer made by the plaintiff. The defendant says that the counter offer was made orally on behalf of the plaintiff by Mr Taylor in a telephone conversation with the defendant’s agent, Mr Marendaz on 23 December 1999 and is evidenced by the written alterations made to a contract initialled by the plaintiff and by the plaintiff’s execution of the form of the contract. The counter offer was accepted by Mr Marendaz on behalf of the defendant in that conversation.
It is the defendant’s case that the plaintiff repudiated that contract on 24 December 1999 when the plaintiff entered into a contract with Mr Phillips for the sale of the land.
The issues are tolerably clear although the facts are a little uncertain. The principal issue is whether or not the plaintiff entered into a binding contract with the defendant’s agent on 23 December 1999 to sell the land to the defendant.
The plaintiff’s application for the removal of the caveat was brought on before the District Court Judge on short notice.
After stating the issue to be decided the learned Judge said that the relevant principles are the same as pertain to the grant of an interlocutory injunction namely, whether there is a serious question to be tried and if so where the balance of convenience lies.
He decided that there was a serious question to be tried, having first observed that he was not in a position to determine where the truth lay and not in a position to make any findings as to the reliability of the evidence adduced before him in affidavit form.
He then concluded that the balance of convenience favoured the removal of the caveat. Three reasons influenced him in that regard. First that the plaintiff wished to deal with the land by sale to a purchaser who negotiated a contract in good faith. Secondly the defendant’s prospective action had real factual and possible legal hurdles. Thirdly because the factual issues appeared to arise more as between the plaintiff’s agent and various syndicate members rather than the plaintiff directly.
He observed if he was to order the removal of the caveat that would not deny the defendant a remedy. She would then be entitled to proceed in a claim for damages against the plaintiff and or the plaintiff’s agent.
He then made an order directing the removal of the caveat.
Subsequent to making the order complained of the learned Judge certified that the proposed appeal involved a point of law of difficulty or importance which justified it being reviewed on an interlocutory appeal or a point of sufficient importance to warrant it being reviewed on an interlocutory appeal without waiting for the final judgment in the action pursuant to r 96A.02 of the Supreme Court Rules.
After the notice of appeal was lodged, the appellant applied to a judge of this Court seeking leave to amend the notice of appeal which leave was granted.
The defendant’s grounds of appeal are:
1AThe District Court of South Australia does not have jurisdiction to make orders pursuant to section 191 of the Real Property Act 1882;

1The learned Judge erred in law on holding that the balance of convenience favoured removal of the said caveat, and in particular;

(a)the learned Judge ought not to have taken account of the interests of persons not party to the action; and

(b)the learned Judge ought not to have taken account of the relative degree of fault which might be attributed to each of the persons having an interest in the subject matter of the action.

2On the whole of the evidence, the learned Judge ought to have found that the balance of convenience favoured maintenance of the caveat.

In my opinion the first ground of appeal which was allowed, by leave, to be added to the original grounds of appeal is decisive of this matter. It is therefore not necessary to pass any opinion on whether the views expressed by the District Court Judge were correct.
It must be observed that this first ground of appeal was not taken before the Judge but because it goes to the jurisdiction of the court the defendant is not thereby precluded from raising it.
A party’s entitlement to lodge a caveat is governed by s 191 of the Real Property Act. A party claiming to be interested at law or in equity whether under an agreement or otherwise, may lodge a caveat with the Registrar General forbidding the registration of any dealing with such land either absolutely or subject to conditions conformable to law. In this case, of course, the caveat which was lodged carried the endorsement:
“Forbids the registration of any dealing with the estate or interest of the abovenamed caveat or in the said land unless such dealing bear my written consent endorsed thereon and be made subject to my claim.”
The form of caveat which was lodged in this case was in the appropriate form: s 191 I.
The caveat had the effect provided for in s 191 III so that whilst it remained in force the Registrar General could not, contrary to the requirements of the caveat, register any dealing with the land in respect of which the caveat had been lodged: s 191 III.
Section 191 IV provides:
“The registered proprietor or any other person claiming estate or interest in the land may, by summons, call upon any caveator, including the Registrar-General, to attend before the Court to show cause why the caveat should not be removed; and the Court may, upon proof that the caveator has been summoned, and upon such evidence as the Court may require, make such order in the premises, either ex parte or otherwise, as shall seem just:”
That was the procedure which was adopted in this case. The registered proprietor issued a summons calling upon the caveator to attend before the District Court to show cause why the caveat should not be removed.
The Real Property Act defines Court in the following terms:
“Court means -
(a) The Supreme Court;
and
(b).... in section 52, 64, 71, 80, 87, 105, 108, 110, 142a, 165, 166 and 167 of this Act includes any other court or tribunal constituted under the law of this State or the Commonwealth.”
By reason of that definition the Court referred to in s 191 must be the Supreme Court.
The plaintiff argued that, notwithstanding the clear words in the Real Property Act, the District Court has jurisdiction by virtue of s 8 of the District Court Act.
Section 8 of the District Court Act provides:
“8     (1)    The Court has the same civil jurisdiction (both at law and in equity) as the Supreme Court at first instance subject, however, to the following qualifications:
(a)     the Court has no jurisdiction in probate or admiralty;
(b)... the Court has no supervisory jurisdiction except as expressly conferred by statute with respect to inferior courts or tribunals, or with respect to administrative acts, and has no jurisdiction to grant relief in the nature of a prerogative writ.
(2)    The Court, in its Criminal Injuries Division, has the jurisdiction conferred on it by the Criminal Injuries Compensation Act 1978.
(3)    The Court, in its Administrative and Disciplinary Division, has the jurisdiction conferred by statute.
(4)    The Court has any other civil jurisdiction conferred by statute.
(5)    All proceedings before the Court, other than in its Criminal Division, are to be regarded as civil proceedings for the purposes of this Act or any other Act or law.
(6)    Subsection (5) does not affect any special rule as to the conduct of proceedings for a contempt of the Court.”
It was argued that the section should not be construed narrowly and that s 8 has the effect of settling on the District Court any jurisdiction given to the Supreme Court whether at common law, equity or by statute in any matter that the Supreme Court has jurisdiction, subject of course to the exceptions in s 8(1)(a) and s 8(1)(b).
As I have already noted, the Real Property Act specifically provides for the jurisdiction which must be exercised by the Supreme Court and specifically provides for the jurisdiction to be exercised by other courts. Notwithstanding the plain words in the Real Property Act, it was submitted that any jurisdiction given to the Supreme Court accrued to the District Court by reason of the provision of the District Court Act.
The Real Property Act invests other courts with jurisdiction to hear and determine a number of matters under the Act. The section specifically reserves the remaining matters for determination by this Court. To give s 8 the construction contended for by the plaintiff would be to deny the clear intention expressed in the Real Property Act.
There is some support for the plaintiff’s submissions. In Churcher v Edwardstown Carpets (1993) 60 SASR 503, King CJ and Perry J discussed the effect of s 8 of the District Court Act in relation to the Corporations (South Australia) Act 1990 and both concluded, by way of obiter dicta, that the District Court Act may have jurisdiction to deal with matters under the Corporations Act, notwithstanding that the Corporations Act only invested the Supreme Court of South Australia with jurisdiction.
King CJ said at 508 of s 8 of the District Court Act:
“The intention disclosed by this section is that the District Court is to have jurisdiction concurrent with the Supreme Court, subject to certain immaterial qualifications stated in the section, in all civil matters in which the Supreme Court has jurisdiction from whatever source the Supreme Court’s jurisdiction might derive.”
Any dictum of this Court, whether binding or otherwise, has to be accorded respect. This Court ought to be slow to refuse to follow reasoning expressed in previous decisions of the court.
However, in my opinion, s 8 does not invest the District Court with jurisdiction to hear matters which are by statute exclusively the province of this Court.
Section 8(1) invests the District Court with the same civil jurisdiction both at law and in equity as the Supreme Court. That means the District Court has the same civil jurisdiction to hear any action brought at common law or equity and to give the same relief or remedy as the Supreme Court might in any action based upon common law or equity.
The jurisdiction given to the District Court in s 8(1) is subject to the qualifications mentioned in the subsection itself. The jurisdiction not conferred on the District Court by those qualifications is also part of the jurisdiction of this Court which has accrued at common law. There is no suggestion in s 8(1) that the jurisdiction being conferred or the qualifications to the jurisdiction thus conferred includes any statutory jurisdiction within the exclusive jurisdiction of this Court.
Section 8(1) does not give the District Court a concurrent jurisdiction with the Supreme Court. Nor does it give the District Court the jurisdiction of the Supreme Court. Section 8(1) merely invests it with the same jurisdiction in the limited sense to which I have referred.
If Parliament had intended the District Court to have the same civil jurisdiction that this Court enjoys pursuant to statute, in my opinion, s 8(1) would have said so. The inclusion of the words ‘at law and in equity’ define the same jurisdiction given to the District Court and the failure to refer to the exclusive statutory justification of the Supreme Court means in my opinion Parliament did not intend to invest the District Court with that jurisdiction.
Section 8(4) confirms the District Court’s statutory jurisdiction arising independently of the District Court Act. That subsection recognises that a Courts jurisdiction may be derived from statute. One would have thought that if Parliament intended the District Court to have the statutory jurisdiction exercised by this Court either s 8(1) or s 8(4) would have said so.
Alternatively there was no need to include the words “both at law or in equity” if the District Court was to have the same jurisdiction as the Supreme Court in all respects except for the jurisdiction in s 8 itself.
If those words were not meant to be words of limitation those words could have been omitted. The omission of those words would give rise to the construction contended for by the plaintiff, i.e. that the District Court has the same jurisdiction, including the statutory jurisdiction, of the Supreme Court subject to the qualifications in s 8(1)(a) and (b).
If the plaintiff’s argument were to be accepted it would mean that any statute passed after the proclamation of the District Court which invested the Supreme Court with jurisdiction “at first instance” would also have to be read, in the absence of any other expression, as conferring the same jurisdiction on the District Court.
An example of the recent conferral of exclusive statutory jurisdiction on the Supreme Court is contained in the Associations Incorporation (Miscellaneous) Amendment Act 1997. Section 24A of that Act provides for an application to this Court to vary the rules of an incorporated association. (See also s 41B of the same Act.) Section 309 of the Co-operatives Act 1997 provides for the winding up of a co-operative by the Supreme Court. On the face of the Co-operatives Act the Supreme Court has exclusive jurisdiction. They are two examples of Parliament investing this Court with exclusive jurisdiction at first instance, subsequent to the proclamation of the District Court Act.
In my opinion s 8 does not operate to invest the District Court with all of the statutory jurisdiction given the Supreme Court. Clearly, s 8 does not pick up the statutory jurisdiction given the Supreme Court by the Jurisdiction of Courts (Cross Vesting) Act 1987. If it was otherwise the District Court could transfer a matter in the Supreme Court to another court. Mr Edmonds-Wilson, counsel for the plaintiff, agreed that the District Court may not have jurisdiction under that Act because of a contrary intention expressed in the Special Act.
That concession meant that the plaintiff’s argument had to be understood as meaning that s 8(1) included in it a conferral of jurisdiction upon the Court of any exclusive statutory jurisdiction invested in the Supreme Court, unless the contrary intention appeared in the Special Act. That would mean, for example, that the exclusive jurisdiction given to this Court by s 103 of the Electoral Act 1985, constituting this Court as a Court of Disputed Returns, would also devolve upon the District Court. There is nothing in the Electoral Act to indicate otherwise. I cannot think that Parliament intended in such an oblique way to invest the District Court with that particular jurisdiction.
The better way to construe s 8 is to recognise that the section invests the District Court with the same civil jurisdiction both at common law and equity as the Supreme Court subject to the qualifications mentioned in the sub-section. Otherwise the Supreme Court continues to have the exclusive jurisdiction invested in it by the Special Acts of Parliament giving jurisdiction to this Court. That would be consistent with the proposition that in construing State Acts “there is a very strong presumption that the State legislature did not intend to contradict itself, but intended that both acts should operate. In other words it will commonly be found that the appropriate maxim is not leges posteriores priores contrarias abrogant but generalia specialibus non derogant” per Fullagar J in Butler v Attorney General for Victoria (1961) 106 CLR 268 at 276.
Notwithstanding the opinions of King CJ and Perry J in Churcher v Edwardstown Carpets (supra), to which respect must be accorded, in my opinion, the District Court has not been invested with the jurisdiction which has been exclusively vested in the Supreme Court by statute.
In my opinion the District Court did not have jurisdiction to hear this application and it follows it had no jurisdiction to make the orders complained of. In my opinion the Supreme Court has the exclusive jurisdiction in relation to any application under s 191 of the Real Property Act and the proceedings before the District Court Judge were irregular.
Because, in my opinion, the first ground of appeal was decisive it was not necessary to discuss the further grounds of appeal.
For these reasons it was my opinion that the appeal should be allowed, the orders made by the District Court Judge set aside and there should be an order in lieu thereof dismissing the plaintiff’s claim.

57.............. BLEBY J.......... I also agree with the reasons now given by Lander J for the orders made on 12 September 2000.

[2000] SASC 324

3 November 2000