Vella v Waybecca Pty Ltd (No 2)
[2015] VSC 678
•30 November 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 3536
| JOSEPH VELLA | Plaintiff |
| v | |
| WAYBECCA PTY LTD (ACN 143 303 511) | Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 27 November 2014 and further written submissions |
DATE OF JUDGMENT: | 30 November 2015 |
CASE MAY BE CITED AS: | Vella v Waybecca Pty Ltd (No 2) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 678 |
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APPEAL FROM THE MAGISTRATES’ COURT – appeal from an enforcement order - whether that order is a ‘final order’ – held that it is interlocutory and so appeal is incompetent – consideration of the claimed questions of law if appeal was competent – jurisdiction of the Magistrates’ Court to order a registrar of the court to sign a transfer and the plaintiff to take the other necessary steps to complete a contract for the sale of land - where the transferor has failed to comply with previous orders to do so – jurisdiction of the Magistrates’ Court to order the Registrar of Titles to register the transfer – whether there was any breach of procedural fairness – whether magistrate changed an earlier judgment that he could not make such an order – questions of the validity of the underlying contract do not arise where not raised below – Magistrates’ Court Act 1989 (Vic) ss 100, 109, 135 – Magistrates’ Court General Civil Procedure Rules 2010 r 66.11.
CHARTER – whether any claimed issue properly arises of arguable breach of a Charter right – whether any interpretation other than the plain interpretation of a statutory provision arises in respect of limitation of a right of audience to the party or a legal practitioner- Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 7,8,10, 24 and 32.
CONSTITUTION – whether adjournment required pursuant to s 78B Judiciary Act 1903 (Cth) - held no as no constitutional matter properly arises.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person with Mr R Giza as a McKenzie friend | |
| For the Respondent | Mr P Baker | Falcone and Adams Australia Lawyers |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
This proceeding............................................................................................................................. 1
Proceeding in the Magistrates’ Court........................................................................................ 1
Procedural history of the appeal................................................................................................ 2
Issues.................................................................................................................................................... 5
Factual background and proceeding in the Magistrates’ Court................................................ 8
Contract for sale of Unit 34.......................................................................................................... 8
Proceedings in the Magistrates’ Court..................................................................................... 10
Appellant’s factual contentions................................................................................................ 12
Notice of Constitutional Matter..................................................................................................... 15
Legal principles........................................................................................................................... 15
Application of these principles to this Notice........................................................................ 18
Is the order a ‘final order’?.............................................................................................................. 20
Questions of Law in the Notice of Appeal.................................................................................. 25
Questions of Law 2.2-2.5............................................................................................................ 25
Questions of Law 2.1 and 2.9.................................................................................................... 35
Hearing on 19 November 2013........................................................................................ 36
Hearing on 11 December 2013......................................................................................... 38
Hearing on 6 June 2014..................................................................................................... 40
Question of Law 2.6.................................................................................................................... 45
Questions of Law 2.7 and 2.8.................................................................................................... 46
Questions under the Charter.......................................................................................................... 47
Conclusion and orders.................................................................................................................... 51
HER HONOUR:
Introduction
This proceeding
This proceeding commenced by notice of appeal filed 4 July 2014 (‘the Notice of Appeal’) against orders made by Magistrate Connellan in the Magistrates’ Court at Dandenong on 6 June 2014. The appellant seeks to overturn orders that would enable the respondent and a registrar of the Magistrates’ Court in combination to take the necessary steps to complete on his behalf a contract for the sale of land by him to the respondent.
Proceeding in the Magistrates’ Court
The orders made on 6 June 2014 were the last in a series of orders made in the Magistrates’ Court proceeding. That proceeding commenced by a complaint dated 15 April 2013, apparently filed on 16 April 2013.[1] The complaint sought an order for specific performance by the then defendant, now appellant, of the contract. The appellant is the registered proprietor of an accessory unit, accessory unit number 34, at 595 Chandler Road, Keysborough, and by contract dated 7 December 2012 he agreed to sell the unit to the then plaintiff now respondent. The settlement date pursuant to the contract was 20 December 2012. The complaint recites that the plaintiff purchaser paid the deposit on 7 December 2012 and that the defendant has failed to complete the sale in accordance with the contract or in accordance with a notice to complete dated 26 February 2013 which stipulated 3pm on 4 March 2013 at the land in question as the time and place for completion.
[1]Exhibit 1 in this proceeding.
No defence was filed to the complaint. Magistrate Connellan made orders on 24 June 2013 for specific performance of the contract, requiring amongst other things that the defendant Mr Vella complete settlement of the sale on 17 July 2013.
Mr Vella did not comply with those orders. The then plaintiff sought further orders at a hearing in the Magistrates’ Court on 19 November 2013. On that date Mr Vella appeared in person to oppose the making of orders. Orders were nevertheless made for specific performance of the contract by him to be effected on 3 December 2013.
Those orders were also not complied with. The proceeding was relisted on 11 December 2013, and again Mr Vella appeared in person. Magistrate Connellan made further orders noting that he was satisfied by the admission of Mr Vella that settlement did not take place on 3 December 2013 in accordance with the orders he had made on 19 November 2013. Magistrate Connellan made a further order for specific performance and also an order that Mr Vella pay a fine of one penalty unit per day in default of compliance for a maximum of 40 days.
The orders the subject of the appeal were made on 6 June 2014. Mr Vella did not appear on that day, having sought, through a Mr Richard Giza, an adjournment beforehand in writing. Ms Stansilawa Bahonko sought to appear for him at the hearing, and Magistrate Connellan heard her in relation to the adjournment, which he then refused. The orders made 6 June 2014 in substance permit the solicitors for the plaintiff to draw the transfer of land; a registrar of the Magistrates’ Court to execute the transfer on behalf of the defendant; the plaintiff to pay out to the mortgagee the discharge of mortgage fee to obtain a discharge of the mortgage and the certificate of title; and the plaintiff to pay the balance of the settlement sum to a caveator. The orders require the Registrar of Titles to remove the caveat and register the discharge of mortgage and transfer.
Before addressing the substance of the appeal against those orders, it is helpful to summarise the unusually complex procedural aspects and history of the appeal.
Procedural history of the appeal
The Notice of Appeal and summons for directions required by r 58.10 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’)[2] were not signed by the appellant in person or by a solicitor on his behalf but by Mr Giza, who stated on the document that he held a power of attorney from Mr Vella. Mr Giza also filed a copy of the power of attorney. It is a general power, dated 1 June 2014, given by Mr Joseph Vella who appoints Mr Giza to be his attorney and authorises him ‘to do on my behalf any thing that I may lawfully authorise an attorney to do.’
[2]Now repealed and substantively replaced by the Supreme Court (General Civil Procedure) Rules 2015.
On return of the summons for directions before me on 13 August 2014, Mr Vella did not attend Court. Mr Giza sought to appear for him on the basis that he held Mr Vella’s power of attorney, and Mr Vella is illiterate. I refused leave to Mr Giza to appear for Mr Vella. I held that a power of attorney does not confer any right on the donee of the power to appear in Court for the donor of the power. I also noted, without hearing at that time from Mr Vella in person, that even if he is illiterate that is not in itself a sufficient reason to allow another person, not a solicitor, to appear for him, as he could be assisted by a McKenzie friend, could make oral submissions, and could dictate documents and adopt documents on them being read to him. My orders on that day included orders requiring Mr Vella to depose on oath that he had authorised the commencement of the appeal, and allowing Mr Giza to make application to be joined or substituted as appellant.
My orders of 13 August 2014 were appealed. On 12 September 2014, Justice Hargrave dismissed that appeal, giving written reasons.[3] Justice Hargrave subsequently referred the hearing of the appeal to me pursuant to Rule 77.05 of the Rules by order made of his own motion on 22 September 2014.
[3]Vella v Wybecca (sic) Pty Ltd [2014] VSC 443.
The appeal next came before me for directions and on return of Mr Giza’s application to be joined or substituted as appellant on 1 October 2014. On that date Mr Vella appeared for himself in person. He had previously filed an affidavit confirming that he authorised the commencement of the appeal. I permitted Mr Giza to assist him as a McKenzie friend. A McKenzie friend is entitled to assist a litigant appearing in person by way of taking notes and being available should the litigant seek to discuss matters with the McKenzie friend, but has no right to make submissions on behalf of the litigant.[4] I heard and refused Mr Giza’s application to be joined to the appeal or be substituted as the appellant, giving reasons on that day. I listed the appeal for trial on 27 November 2014 and made various other pre-trial directions.
[4]Vella v Wybecca (sic) Pty Ltd [2014] VSC 443 at [30]-[31].
Shortly prior to the hearing date, the appellant signed a Notice of Constitutional Matter dated 17 November 2014 (‘the Constitution Notice’) which states that it was prepared by Mr Giza ‘with a pro-bono paralegal assisting’. I infer from other documents and her role in the hearing, that that ‘pro-bono paralegal’ is Ms Stanislawa Bahonko who sought to appear for Mr Vella at the Magistrates’ Court on 6 June 2014 and has assisted Mr Vella in the preparation of numerous documents in the appeal. The Constitution Notice was filed on 20 November 2014 and sought to give notice of constitutional matters arising in the appeal. Mr Vella also signed a document dated 25 November 2014, which states that it was prepared with the assistance of Mr Giza and Ms Bahonko, headed ‘Notice to the Attorney-General/the Victorian Equal Opportunity and Human Rights Commission’. That document was emailed to the Court the day before the hearing, that is, on 26 November 2014, accompanied by an application for adjournment. The Notice to the Attorney-General/the Victorian Equal Opportunity and Human Rights Commission sought to give notice to those persons of claimed questions of law arising in the appeal under the Charter of Human Rights and ResponsibilitiesAct 2006 (Vic) (‘the Charter’).
I refused the application for adjournment on 27 November 2014, after hearing from the parties, and gave brief reasons on that day.[5] In particular, I ruled that the Constitution Notice did not raise any matter that in fact required adjournment pursuant to s 78B of the Judiciary Act 1903 (Cth) (‘Judiciary Act’), indicating that I would give reasons for that ruling with my reasons on the appeal.[6] I also ruled that I considered the hearing of the appeal could proceed notwithstanding the late service of the notice claiming questions of law under the Charter (‘the Charter Notice’). I indicated that I would allow time before delivering judgment for the Attorney-General or the Victorian Equal Opportunity and Human Rights Commission to give notice if they wished to intervene in the proceeding and seek that the hearing be re‑opened.
[5]T 111-115.
[6]T 103.12-21.
The hearing then commenced and concluded on 27 November 2014, subject to written submissions in reply from the applicant which were received on 4 December 2014. I heard from Mr Vella in person, who was assisted by Mr Giza at the bar table as a McKenzie friend, and Ms Bahonko in the body of the Court. As is shown in the transcript,[7] on a number of occasions those persons also sought to speak or interrupt Mr Vella while he was speaking, and I was required to remind them of their respective roles.
[7]For example, T 106.14-T 107.7; T 108.21-23; T 120.2-13; T 123.20-23; T 180.6-11; T 188.3-T 189.11.
After the hearing, the Court received confirmation from the Victorian Attorney‑General that he did not wish to intervene under either the Charter or pursuant to the Judiciary Act. The Court also received confirmation after the hearing from the Victorian Equal Opportunity and Human Rights Commission that it did not wish to intervene in respect of the Charter. The appellant had received some notices in response to service of the Constitution Notice prior to the hearing from the Commonwealth, Queensland and ACT Attorneys-General all to the effect that they did not wish to intervene in the hearing of the appeal. After the hearing, the appellant received notices to the same effect from the Attorneys-General of the Northern Territory and Western Australia. No other responses are in evidence.
Due to the press of other business I have been unable to prepare reasons for judgment before now. I extend my apologies to the parties for the delay.
Issues
This appeal is brought pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) (‘Magistrates’ Court Act’). That section provides as follows (emphasis in bold added):
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.
I have emphasised three critical elements of the right of appeal conferred by s 109. First, the appeal is not on the facts or merits of the decision made by a magistrate, but only in respect of a question of law. Secondly, the right of appeal only arises in respect of a final order. Thirdly, there is a time limit on the right of appeal, and any appeal instituted thereafter requires leave, and the grant of leave is limited by the requirements of s 109(5).
As noted earlier, the appellant seeks to appeal the last order made by Magistrate Connellan. The respondent contends that this order was only a procedural order, not a ‘final’ order in the sense intended by s 109. The respondent contends that the ‘final order’ was either the substantive order made 24 June 2013 in default of defence, or the order made on 19 November 2013 after the Magistrate heard from Mr Vella.[8] The appellant has also made reference in some of his material to earlier orders. As the respondent’s contention that the appeal was incompetent because the order made 6 June 2014 was not a ‘final order’ was flagged from the outset, I gave the appellant the opportunity to seek leave to appeal out of time any earlier order,[9] but he did not do so. The appeal was filed within 30 days of 6 June 2014, and so leave to appeal is not required.
[8]T 133.20- T 136.6; T 139. 7- T 140. 25.
[9]Order 2iii made 13 August 2014.
The appellant has listed nine ‘Questions of law upon which the appeal is brought’ in his Notice of Appeal. In broad terms, he raises questions relating to procedural fairness (Question of Law 2.1); jurisdiction of the magistrate to make the orders (Questions of Law 2.2-2.5); whether the magistrate had power to depart from an earlier determination by him (Question of Law 2.6); whether the orders breached the Magna Carta or English Bill of Rights (Question of Law 2.7); whether the contract of sale was invalid for duress (Question of Law 2.8); and whether the magistrate demonstrated ‘actual bias’ (Question of Law 2.9). The respondent submits that the appellant has not proved any error of law in relation to any of these questions.
I will first set out in this judgment my reasons for concluding that the Constitution Notice filed by the appellant did not in truth contain any issue that required adjournment of the hearing of the appeal pursuant to the Judiciary Act. I will then address the respondent’s submission that the appeal is incompetent because the order of 6 June 2014 is not a ‘final order’. I will then address the ‘Questions of Law’ as identified in the Notice of Appeal, as illuminated by the submissions. Finally, I will turn to the claimed questions of law under the Charter, as expressed in the Charter Notice. The respondent opposes the appellant being able to rely on any of these matters, as they were not asserted as questions of law on which he relied in the Notice of Appeal and in any event the document was filed and served only the day before the hearing. Those objections have force. However, in the interests of fairness to the unrepresented appellant and for completeness should this proceeding go any further, I will express my conclusions in relation to the matters in the Charter Notice.
Before dealing with these issues, I will set out more detail of the factual background to the appeal.
Factual background and proceeding in the Magistrates’ Court
Contract for sale of Unit 34
The essential facts underlying the proceeding in the Magistrates’ Court and so the appeal in this Court are contained within the recitals to a deed dated 7 December 2012 between the respondent, Waybecca Pty Ltd (‘Waybecca’), a company Recoilless Technologies International Corporation Limited (‘RTICL’), Mr Vella and Mr Giza (‘the Deed’). The parties to a deed can be held to the factual recitals.[10] It is, however, also helpful to set out the factual contentions of Mr Giza and Mr Vella, to properly understand Mr Vella’s stance in this appeal.
[10]Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407 per Campbell JA at [380].
Recital A to the Deed recites (emphasis in bold added) that:
By Contract of Sale dated 18 July 2012 Waybecca purchased from Vella’s mortgagee the property known as Factory 15, 595 Chandler Road, Keysborough (‘Factory 15’). Settlement was effected on 1 October 2012 (“the Settlement Date”) and Waybecca is now registered or entitled to become registered as the sole proprietor of Factory 15.[11]
[11]WRM 1 to the affidavit of Wayne Robert McLeod sworn 17 June 2013, which affidavit was before the Magistrates’ Court and is now exhibited to the affidavit of Marcus Christopher Adams sworn 12 August 2014 in this proceeding. The Deed is also exhibited to material filed by the appellant.
The implication from the words I have bolded, is that Factory 15 was registered in the sole name of Mr Vella.[12] Mr Vella signed the Deed both in his personal capacity, and in the capacity of director of RTICL. Mr Giza contends that he was also a director of that company, and indeed managing director.[13] It appears that RTICL is now in liquidation. The business of RTICL concerned the development of weapons technology. Mr Giza contends that the company had significant government, defence and investment interest in this technology.[14]
[12]There is no certificate of title to Factory 15 in evidence.
[13]A company search is not in evidence. Mr Giza styled himself ‘Chairman, Managing Director and Chief Technology Architect’ in emails to the director of Waybecca Mr Wayne McLeod in January 2013-Exhibit JVF to the affidavit of Joseph Vella affirmed 28 October 2014.
[14]See, for example, affidavit of Richard Giza sworn 28 September 2014 in support of his application for joinder or substitution as an appellant at [7].
Recitals C – E of the Deed recite that a variety of goods belonging to RTICL, Mr Vella or Mr Giza were, as at the date of the Deed (i.e. after the sale of Factory 15 had completed), still located ‘in, on or at Factory 15 and Unit 34’; that the parties ‘have been negotiating for the removal of (these goods) from Factory 15’ and that by notice dated 5 October 2012 Waybecca gave notice of its intention to dispose of the goods. It is apparent from the affidavits sworn by Mr Vella and Mr Giza that there was a significant dispute between them and Waybecca about these goods.
Unit 34 is the formal description of a parking lot or lots in the proximity of Factory 15. Recital F to the Deed records that Waybecca had a need for these parking lots, and that the parties had reached agreement on the terms and conditions set out in the Deed in relation to access to Factory 15 and Unit 34 to remove the goods.
Clause 2 of the operative part of the Deed provided that on receipt by Waybecca of an executed contract for sale by Mr Vella to Waybecca of Unit 34 for the price of $15,000 plus GST and ‘evidence to the reasonable satisfaction of Waybecca that Vella is able to provide unencumbered title to Unit 34’ that Waybecca would provide to RTICL, Mr Vella and Mr Giza unrestricted access to Factory 15 and (following settlement) Unit 34 until midnight on 24 December 2012 (or a later date agreed in writing) for the purpose of allowing them to remove the goods. Clause 4 of the Deed provided that after that date, the goods would be deemed abandoned, and became the property of Waybecca, who was permitted to dispose of them as it saw fit. The operative part of the Deed contained various other releases and implementation provisions.
Mr Vella signed a contract for the sale of Unit 34 for $15,000 plus GST on the same date as signing the Deed, 7 December 2012. The contract provided for settlement on 20 December 2012.[15] Mr McLeod deposed in the Magistrates’ Court in his affidavit in support of an order on the complaint in default of defence that Waybecca paid Mr Vella the deposit of $3000 also on 7 December 2012, but that notwithstanding service of a notice to complete dated 26 February 2013 Mr Vella had failed to complete the contract.[16]
[15]WRM-3 to the affidavit of Wayne McLeod sworn 17 June 2013, which is MCA-2 to the affidavit of Marcus Adams in this proceeding. For reasons which are not clear to me, the solicitor for the then plaintiff said the sale price was $16,500 at the first enforcement hearing on 19 November 2013.
[16]Affidavit of Wayne McLeod sworn 17 June 2013 , which is MCA-2 to the affidavit of Marcus Adams in this proceeding.
Proceedings in the Magistrates’ Court
As noted earlier, the respondent commenced a proceeding seeking an order that Mr Vella complete the contract by complaint dated 15 April 2013. For reasons that are not made clear in the material before me, the complaint[17] states that the balance of the contract price, after payment of the deposit of $3000, is $13,500, not $12,000 as the contract and the Deed state. All the orders subsequently made in the Magistrates’ Court are based on the balance being $13,500.
[17]Exhibit 1 at [3(c)(iii)].
The respondent made application for an order in default of defence on 17 June 2013.[18] On 24 June 2013, Magistrate Connellan made an order in default of defence requiring completion of the contract by Mr Vella on 17 July 2013, in particular by handing to the plaintiff the certificate of title and a discharge of mortgage.[19] Mr Vella did not comply with that order. The respondent filed an affidavit of Mr Adams sworn 4 September 2013 in the Magistrates’ Court deposing to service of the order of 24 June 2013 on Mr Vella and his former solicitor, and his non-compliance with the order. The plaintiff then filed a summons pursuant to s 135 of the Magistrates’ Court Act seeking enforcement of the default order, which came before Magistrate Connellan on 19 November 2013.
[18]MCA-1 to the affidavit of Marcus Adams sworn 12 August 2014.
[19]MCA-1 to the affidavit of Marcus Adams in the Magistrates’ Court proceeding sworn 4 September 2013, which affidavit is MCA-3 to Mr Adams’ affidavit sworn 12 August 2014 in this proceeding.
Exhibited to Mr Adams’ affidavit of 4 September 2013 is an email from the mortgagee, the NAB, to the effect that the Dandenong branch had handed its ‘client’ the title as well as the discharge of mortgage in January 2013.[20] It transpired that this was incorrect, and the branch subsequently advised as at 1 October 2013 that it still held the title.[21] I was informed at the hearing that Mr Giza had directed the NAB not to hand over the certificate of title and discharge of mortgage to the respondent, which he confirmed was correct.[22]
[20]Email dated 14 August 2013, being Exhibit MCA-5 to that affidavit of Mr Adams.
[21]Affidavit of Marcus Adams sworn 6 November 2013 filed in the Magistrates’ Court, and exhibited in this proceeding as MCA-4 to his affidavit of 12 August 2014.
[22]T 183.19-22.
Mr Vella appeared when the matter came before the Magistrates’ Court on 19 November 2013. I will summarise that hearing when considering Questions of Law 2.1 and 2.9 later in this judgment. Magistrate Connellan ordered Mr Vella to complete the contract of sale on 3 December 2013 at the Springvale branch of the NAB. On that day a solicitor for the respondent attended with the balance purchase price for Mr Vella. Mr Vella attended with another person, who contended that the order of 19 November 2013 had been obtained ‘under false pretences’ and sought to record the discussion with the solicitor for the respondent. That person said that Mr Vella would not settle, and so the solicitor left.[23]
[23]Affidavit of Nadia Falcone sworn 9 December 2013, exhibited as MCA-6 to the affidavit of Marcus Adams sworn 12 August 2014.
The matter came back before Magistrate Connellan on 11 December 2013. Again Mr Vella attended. I will set out what transpired in detail when considering Questions of Law 2.1 and 2.9 later in this judgment. Magistrate Connellan ordered Mr Vella to comply with the previous orders, and to pay a fine of one penalty unit per day in default for a maximum of 40 days.
Mr Vella did not comply. By affidavit sworn 17 April 2014, Mr Adams, solicitor for the respondent, sought an order that Mr Vella be imprisoned for so long as his default continued (for no more than two months), that a registrar of the Court execute the transfer for him and other orders for the stated purpose of ‘an arrangement for carrying into effect’ the earlier orders.[24]
[24]MCA-7 to the affidavit of Marcus Adams sworn 12 August 2014, in particular at [6].
The matter came before Magistrate Connellan on 6 June 2014. As I set out in more detail later in this judgment, Mr Vella did not attend, having sought an adjournment. The Magistrate declined to order that Mr Vella be imprisoned, but made orders for the completion of the contract substantially as sought by the respondent. Those orders are the subject of this appeal. It remains the case that Mr Vella has not complied with the earlier orders made by Magistrate Connellan to complete the contract.
Appellant’s factual contentions
I turn now to the additional factual contentions advanced in this appeal by Mr Vella and Mr Giza, in relation to Mr Giza only to the extent that those contentions are endorsed by Mr Vella.
Mr Vella contends in his written material (prepared by others but signed by him) that he signed the contract for sale of Unit 34 under duress, in order to have the goods stored in Factory 15 released.[25] He contends that he declined to settle because the respondent Waybecca had ‘broken its promise’, apparently in Mr Vella’s view by taking possession of gun parts, ammunition and a car that belonged to RTICL.[26]
[25]Affidavit of Joseph Vella sworn 28 October 2014 at [7]; see also his affidavit of 9 September 2014 at [7].
[26]Affidavit of Joseph Vella sworn 28 October 2014 at [8].
Mr Vella concedes that he is the sole registered proprietor of Unit 34.[27] However, he contends that Mr Giza shares ownership of the land with him. He states that the land ‘originally belonged’ to Mr Giza ‘under the name of his son’.[28] Mr Giza also made this assertion in the affidavits he relied upon in his application to be joined or substituted as appellant. Mr Giza asserted in that material that he and his son were also the ‘original owner’ of Factory 15, and that the respondent had knowledge of this. He contends that the land was transferred to Mr Vella only because Mr Vella had the better credit rating.[29]
[27]Affidavit of Joseph Vella sworn 28 October 2014 at [9].
[28]Affidavit of Joseph Vella sworn 28 October 2014 at [8] and [16].
[29]Affidavits of Richard Giza sworn 12 September 2014 at [4]-[6]; and affidavit sworn 1 October 2014 at [1].
Mr Vella gave an oral account of the background facts at the hearing of the appeal in these terms:
MR VELLA: Yeah. This all over a car park, isn't it, that I can't sell. No, no - my car park that - they never got when they bought the factory. It's all about that.
HER HONOUR: Yes.
MR VELLA: And I done everything that I was told to do to sell three factories. They - they - and then, after that, the auction went off, they bought one and the car park wasn't with the factory, it was a different title because Richard used to own that factory and I owned the other two and we put them together, and it got sold and, of course, they told me to sign s.32. Not them ‑ ‑ ‑
MR GIZA: But ‑ ‑ ‑
HER HONOUR: Please, Mr Giza, do not interrupt. I am hearing Mr Vella. Ms Bahonko, sit down. I am hearing Mr Vella.
MR VELLA: I thought they've got the whole lot and apparently the car parks was a different title from the factory to the car park and then what happened was we - we're getting sued for it, for the car park and, you know, I done - I done nothing wrong and the lady who sold them at auction, because I owed her half a million dollars, she sold the factories and then she gave our money to the - what's his - the people's name - the other side, who bought the factory, to pay me $20,000 out of my own money that they sold the factories for to give to me to give them the car park.
HER HONOUR: So - - -
MR VELLA: You know, I'm - I'm the guilty one - that's how I see it. I - you know, I done everything that I could. I don't know, it's just - to me it's the wrong way to go about it. I'm the - I'm the guilty - I'm called as guilty but I'm the innocent. He - he - we had a meeting with him and he was going to sue the lady who auctioned the factory with the car parks. I didn't know I still owned the car parks. They did the s.32, or whatever it was.
MR GIZA: They didn’t.
MR VELLA: They were supposed to. They did the other two and they then miss it out on Factory 15.
Mr Vella’s contention that he was to be paid for the car parks out of his own money may be the same concern expressed by Mr Giza in his affidavits in support of his joinder or substitution application to the effect that the sale of Factory 15 was at an undervalue by $17,000. His belief is that this $17,000 was then ‘used by Waybecca to offer $15,000 for the Lot 34 (in this judgment called Unit 34) which was not for sale’.[30]
[30]Affidavit of Richard Giza sworn 25 September 2014 at [4]-[5].
It is plain that both Mr Vella and Mr Giza consider these grievances to be the underlying issues that should be resolved in his or their favour. For example, in the appellant’s affidavit filed in court by leave on 27 November 2014, which was in essence submissions, the appellant contends that ‘(t)he Question as to whether there is any valid, lawful contract of sale is the primary question of law and it has not been determined as yet’.[31] If these factual assertions are correct, then it may be that Mr Vella or Mr Giza or both had, subject to the Deed, rights of action against other persons arising out of the sale of Factory 15. It may also have been the case that, again subject to the Deed, Mr Giza had a basis for claiming an interest in Unit 34 and so a basis for seeking a right to be heard when Waybecca sought to enforce the contract for sale of that land signed by Mr Vella.
[31]Affidavit in Reply to Defendant’s Submission of 19/11/14 sworn 26 November 2014 at [3].
I express no view on these matters, however, as they are not before me in this appeal. Whatever the truth or otherwise of the assertions by Mr Vella and Mr Giza they cannot be determined in this proceeding. That is because the appeal is on questions of law only, and the factual and procedural background in which those questions of law arise is confined to the facts before the Magistrates’ Court and the way the case was run in the Magistrates’ Court. The factual assertions that Mr Vella was under duress in entering into the contract for sale and that Mr Giza as well as Mr Vella had an interest in the land were not raised before the Magistrates’ Court in the appropriate manner, being by way of defence by Mr Vella to the action to enforce the contract for sale and/or application by Mr Giza to be joined to that proceeding. Mr Vella did not file a defence at all. Nor was any action taken by him to seek to appeal the order made 24 June 2013 in default of defence, or to seek a rehearing, so as to enable the facts to be determined at a contested hearing. Mr Giza was not a party to the proceeding in the Magistrates’ Court, and there is no evidence that he sought to be made a party. I ruled in refusing Mr Giza’s application for joinder or substitution as an appellant that as he was not a party below (and, I would add, did not seek to be) he cannot be an appellant in this appeal.[32] Further, as the question of the validity of the contract was not run below, this appeal cannot be a vehicle to address that question now.[33]
[32]T 72-73 (unrevised ruling on the application for joinder or substitution 1 October 2014, released to the parties on 21 October 2014).
[33]T 48-49 (unrevised ruling on amendment to the summons seeking joinder or substitution 1 October 2014, released to the parties on 21 October 2014).
I acknowledge that Mr Vella and Mr Giza have profound underlying grievances about what occurred in relation to the sale of Factory 15 and Unit 34. They had the opportunity to ventilate those grievances in the Magistrates’ Court by defence to the complaint. This Court on appeal is confined to appeal on a question of law on the basis of how the case was run before the Court below. It is not an avenue by which the whole transaction can be explored and a judicial determination as to its validity sought for the first time.
Notice of Constitutional Matter
Legal principles
As noted earlier, the appellant sought an adjournment of the trial on the basis in part that he had filed the Constitution Notice, and a reasonable time had not yet elapsed for responses to be received from the giving of the notice to the Attorneys General of the Commonwealth and the of the States for the purposes of Section 78B of the Judiciary Act. Section 78B relevantly provides as follows (I have bolded the critical words):
78B Notice to Attorneys‑General
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b) may direct a party to give notice in accordance with that subsection; and
(c) may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
On refusing the adjournment, I noted that I did not consider that the matters said in the Constitution Notice to arise under the Constitution or involve its interpretation in law truly fell within that description. Accordingly, the Court was not bound to adjourn the trial to allow further time to elapse for responses from the various Attorneys-General. I said that I would elaborate my reasons for that conclusion in my judgment. What follows are my elaborated reasons.
The obligation imposed on a court by s 78B(1) was considered by French J (as he then was) in Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd.[34] In that case, the Federal Court raised a constitutional matter of its own motion, and adjourned the trial, requiring that notice of the constitutional matter be given to the Attorneys-General of the Commonwealth and the States. In his reasons for taking that course, French J considered the duty cast on a court by s 78B(1), and reviewed previous authority in that regard. He affirmed previous authority to the effect that the court is under a duty not to proceed where the section applies, and has no residual discretion to proceed, subject only to s 78(5) which permits the grant of interlocutory relief (not here relevant) or the possibility of severance provided by s 78(2)(c). He held, however, that:
Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.[35]
[34](1999) 95 FCR 292; [1999] FCA 1151.
[35]At [14] (citation omitted).
These principle were recently considered by Rares J in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 3).[36] In that case, a notice of constitutional matter had been filed and served on all but one Attorney General of a state, who had been omitted by inadvertence. The omission only came to light on the final day of the trial. Rares J was required to consider whether he would have been required to adjourn the hearing had he known the true situation at the commencement of the trial. He held that, while the parties themselves cannot agree to negate the effect of s 78B(1), it is ‘a matter for the court to determine that such a matter does arise’. In that case, he concluded that no constitutional matter in truth arose, and the notice had been filed and served out of an abundance of caution. He also noted that, had he been made aware of the situation on the first day of trial, he would have proceeded, but with matters that were severable from the claimed constitutional matter.
[36](2010) 184 FCR 516.
Assessment by the court as to whether a notice of constitutional matter properly raises any such matter for the purposes of s 78B(1) was also undertaken by the Family Court in In the Marriage of Smith and Saywell,[37] by the Federal Court in Pham v Secretary of the Department of Education, Employment and Workplace Relations[38] and by this Court in Attorney-General for the State of Victoria v Bahonko (‘Bahonko’).[39] The reasoning in each case supports the view that a court is required to consider if the claimed constitutional matter truly is of that character, and, if it is not, the court is not required to comply with s 78B(1).
[37](1980) 6 Fam LR 245.
[38][2009] FCA 1310.
[39][2011] VSC 352 (J Forrest J).
Bahonko is of particular relevance in this regard. That case concerned an application by the Attorney-General of the State of Victoria to have Ms Stanislawa Bahonko declared a vexatious litigant. It is that same Ms Stanislawa Bahonko who has assisted Mr Vella and Mr Giza in this appeal. In her own case, she sought to adjourn the hearing of the application on the basis of a notice of constitutional matter. J Forrest J refused her application for adjournment on that basis finding (citation omitted) that:
(a)The notice does not disclose any proper basis for asserting a constitutional issue. It is said that two provisions of the Constitution (s 75 and s 117) have been breached. The assertions contained in the notice do not support any arguable breach of either section. In any event, the allegations are just that: allegations of a florid and bizarre nature, none of which demonstrate any valid suggestion that matters of constitutional significance are raised; and
(b)this application was made immediately prior to the commencement of the trial (as with the previous adjournment application). It is, in my view, a device to avoid the determination of the Attorney General’s application.[40]
[40]Bahonko at [12].
Ms Bahonko did not attend the hearing, which then proceeded. The Court made orders declaring her to be a vexatious litigant, and so confined her ability to institute and prosecute legal proceedings, with the exception of two pending proceedings.[41]
[41]Bahonko at [95]. The Court of Appeal refused leave to appeal the judgment of J Forrest J on 16 December 2011, and the High Court refused to grant special leave to appeal that judgment on 29 March 2012- Bahonko v Attorney-General for the State of Victoria [2012] HCASL 46.
Application of these principles to this Notice
I now express the reasons why I did not consider the Constitution Notice to fall within s 78B(1).
The Constitution Notice raises the following matters, which it asserts involve matters under the Constitution or involving its interpretation:
(1) The allegation that the protections afforded by s 20 of the Magna Carta 1215 and the English Bill of Rights 1689 mean that the appellant cannot be deprived of his basic ‘tool of trade’ being Unit 34 ([2.1-2.2]);
(2) Whether ‘the appellant and his business partner being by duress then force of the Magistrate’s orders deprived of their tools of trade /Land in Question’ is a breach of the requirement of acquisition of property on just terms ([2.3]);
(3) The allegation that the conferral of power on the Commonwealth government to make laws concerning the service and execution of process throughout the Commonwealth makes the case a constitutional issue ([2.4]);
(4) The allegation that the conferral of power on the Commonwealth government to make laws with respect to defence is engaged because the business of RTICL concerned defence oriented research and development ([2.5]);
(5) S 109 (the law of the Commonwealth to prevail where there is inconsistency with the law of a state) ([2.6]);
(6) S 117 (no discrimination between residents of different states) ([2.7]);
(7) The issues of procedural fairness, judicial prejudice, equality before the law and access to justice set out in paragraph 2.8 and 2.9 of the Constitution Notice are said to engage the treaty and external affairs powers of the Commonwealth ; and
(8) 80- requirement of trial by jury in respect of indictable offences against Commonwealth laws ([2.10]).
The matters identified as 3), 5), 6) and 8) in the list above are not shown to in any way arise on the facts in this case. In relation to 3), both parties are resident in Victoria, and the litigation both in the Magistrates’ Court and this proceeding is entirely conducted in Victoria. In relation to 5), the statement of facts in the Constitution Notice does not identify any inconsistency between state and federal law that arises on the facts. In relation to 6), the statement of facts does not identify any issue of different treatment depending on residence in different states. Finally, s 80 of the Constitution can plainly have no possible application as this is a civil case, not one concerning an indictment for a Commonwealth offence.
The matters identified in 1) and 7) are in whole or in part restatements of matters raised as Questions of Law in the Notice of Appeal. Even if sensible argument could be put that in some circumstances land may constitute a ‘tool of trade’ and is so protected by the Magna Carta and the English Bill of Rights, which in turn are incorporated into the Constitution, the matter identified in matter 1), which replicates Question of Law 2.7 in the Notice of Appeal, simply does not arise in this appeal because it was not litigated below. The issues raised in matter 7), which include Questions of Law 2.1 and 2.9 of the Notice of Appeal, arise in the appeal, but the appellant has not identified any obligation pursuant to international treaty and imported into domestic law that is said to have been breached.
The matter raised in 2) turns on an allegation of duress, and that factual question does not arise in this appeal because it was not litigated below. In any event, even if duress was a question in this appeal, duress occasioning the entry into a private commercial arrangement such as the sale of this land does not raise any constitutional issue about the acquisition by the Commonwealth government of property on just terms.
The matter raised in 4) relates to the nature of the work carried on by the company formerly operated by the appellant and Mr Giza. Even assuming that the land the subject of the contract for sale was integral to that work, as the appellant asserts, it is a complete misconception to say that this somehow means the defence power of the Commonwealth arises in an appeal from an order enforcing the sale of that land. The power in the Constitution exists to allow the Commonwealth to make laws relating to defence. The existence of the power to legislate in respect of defence does not mean that every private contract that in some way may relate to defence engages that power. The power relates to legislation, not to private contracts.
I now turn to the question of the competence of the appeal.
Is the order a ‘final order’?
The order made 6 June 2014 is the last order in time made by Magistrate Connellan. That does not, in itself, mean that it is a ‘final order’ for the purposes of s 109 of the Magistrates’ Court Act. Appeal only lies pursuant to that section from a ‘final order’. The appellant has not utilised the opportunity afforded by earlier directions to seek leave to appeal any of the earlier orders out of time.
The respondent contends that the ‘final order’ made in the proceeding was the order made 19 November 2013, apparently on the basis that on this occasion the appellant/defendant appeared and was heard. Alternatively, the respondent contends that the ‘final order’ was the order made on 24 June 2013 in default of defence.[42] Neither party has referred me to any authority on this issue.
[42]T 133-T 134.
In my view, neither of the principal positions advanced by the parties is correct. I think the order made 24 June 2013 was the only order made in the proceeding in the Magistrates’ Court that can be properly characterised as a ‘final order’ for the purpose of s 109. I reach this conclusion for the following reasons.
The expression ‘final order’ is not defined in the Magistrates’ Court Act. The expression is also used in s 110 of the Magistrates Court Act, which provides as follows:
110 Re-hearing
(1)If a final order is made by the Court in a civil proceeding against a person who did not appear in the proceeding, that person may, subject to and in accordance with the Rules, apply to the Court for an order that the order be set aside and that the proceeding be re-heard.
(2)On an application under this section, the Court may set aside the order subject to any terms and conditions that it thinks just and re-hear the proceeding.
(3)Subject to subsection (4), an application under this section does not operate as a stay of the order unless the Court so orders.
(4)An application under this section with respect to an order for the payment of money operates as a stay of so much of the order as relates to the payment of money.
(5)If an applicant under this section fails to appear at the time fixed for the hearing of the application and the application is struck out, the applicant can re-apply only if the applicant first obtains the leave of the Court.
Section 110 allows a defendant against whom an order in default of defence has been made to seek a re-hearing.[43] Mr Vella did not seek re-hearing under this section. A default order is made without hearing on the merits. In Kinex Exploration Pty Ltd v Tasco Pty Ltd[44] (‘Kinex’) Batt J held that s 110 also applies to a hearing on the merits where the defendant did not appear.[45] In that case, a director of the appellant company had sought leave to appear for the company, then the defendant in the Magistrates’ Court, and leave was refused. The hearing then proceeded on the merits without the company being heard. The company sought a re-hearing pursuant to s 110 which was refused. The company then sought to appeal the refusal of re-hearing to the Supreme Court under s 109. The issue before the Court was whether the order made under s 110 was a ‘final order’, in which case the appeal was incompetent.
[43]Kinex Exploration Pty Ltd v Tasco Pty Ltd (‘Kinex’)[1995] 2 VR 318 at 320-321. The rules referred to in that case at 320 are now rr 46.08 and 46.09 of the Magistrates’ Court General Civil Procedure Rules 2010.
[44][1995] 2 VR 318.
[45]Kinex at 322.
Batt J held that the order refusing the re-hearing was not a ‘final order’. He held that the expression is used ‘as the antonym of the expression “interlocutory order”’. Batt J relied on Carr v Finance Corporation of Australia Ltd (No 1)[46] (‘Carr’) in which the High Court held that the distinction between a ‘final’ and an ‘interlocutory’ order turns on whether the order finally disposes of the rights of the parties as a matter of law, not merely as a matter of practice. In that case, the High Court held that an order refusing to set aside a default judgment was interlocutory because it was open to the disappointed defendant to apply again to have the judgment set aside, even if, as a matter of practical reality, such a further application would in most cases be unsuccessful.
[46](1981) 147 CLR 246.
In neither Carr nor Kinex was it necessary for the Court to express a view as to whether or not the original order, in respect of which an application for re-hearing or to set it aside could be made, was or was not a ‘final order’ in the sense of finally disposing of the rights of the parties as a matter of law. However, Batt J in Kinex expressed the view in passing that the order made by the magistrate on the complaint after refusing leave to the director to appear for the defendant in respect of which the defendant sought a re-hearing was ‘certainly a final order within the meaning of s 110(1)’.[47] Batt J held that nothing turned on whether or not the original hearing at which the defendant did not appear was, or was not, on the merits. On this reasoning, a default order made without hearing on the merits, such as the order made in this case on 24 June 2013, is also a ‘final order’.
[47]Kinex at 320.
The issue before me is not the characterisation of the order made 24 June 2013, however, but whether the subsequent order sought to be appealed made 6 June 2014 is a ‘final order’. In my view, it is not.
As noted, neither party referred me to any authority on meaning of ‘final order’, including any authority on the proper characterisation of an order for enforcement, as final or interlocutory. In addition to the line of High Court authority culminating in Carr, the Court of Appeal has considered this issue on many occasions,[48] because until recently it was critical in determining whether or not a party had a right of appeal to that Court. Prior to the recent amendments to the Supreme Court Act 1986 (Vic) (‘Supreme Court Act’)[49] by which leave to appeal must be sought for all civil appeals, a party to a civil judgment in the County or Supreme Courts had a right of appeal to the Court of Appeal, unless the order was interlocutory, in which case leave to appeal was required.
[48]See the summary of this line of authority in Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority (2009) 25 VR 290.
[49]S 14A.
The essential difference between an interlocutory and a final decision is fairly stated in the commentary to Civil Procedure Victoria to be that the term ‘interlocutory’ is used to refer to a direction of the court in relation to the conduct of a proceeding, whereas ‘final’ is used to refer to the determination by which the court grants or refuses to grant to the plaintiff relief in redress of the grievance for which the proceeding was brought.[50] Numerous examples of orders that have been held to be interlocutory, as opposed to final, are given in the commentary. Most of those examples relate to procedural directions or determinations given or made prior to the final relief being ordered. However, some of the examples given are instances or orders made after the determination of final relief.
[50]I 64.01.420 at p 5688.84.
In Deputy Commissioner of Taxation (Vic) v Yosemite Afforestation Pty Ltd[51] the Full Court held that an order granting a stay of execution on a judgement was an interlocutory order. In Kowal v Zoccoli[52] the Court of Appeal held that while an order that costs be paid by one party to another at the conclusion of the proceeding was a final order, subsequent orders taxing the quantum of those costs were interlocutory. Phillips JA, with whom Winneke P and Ormiston JA agreed, noted that ‘(a)n interlocutory order may be made either before or after judgment in the main proceeding…Both the taxation of the costs and an order varying the result of the taxation are orders giving effect to what otherwise is a final order or judgment, but in themselves they are not final but interlocutory’.[53]
[51](1988) 19 ATR 1326.
[52](2002) 4 VR 399.
[53]At [5].
The reasoning in Carr also leads to the conclusion that the last order made in time may be interlocutory, if the rights of the parties in respect of the transaction or events the subject of the original complaint have already been determined. That case held that an application to set aside default judgment was interlocutory.
In this case, the order that determined the rights of the parties in relation to the respondent’s claim for specific performance of the contract for sale was the order made on the complaint, the default judgment of 24 June 2013. All the subsequent orders were further procedural orders made by way of enforcement of that order. The appellant was given two opportunities by those further orders, on 19 November 2013 and 11 December 2013, to complete the contract himself. These orders effectively extended the time for compliance with the initial order of 24 June 2013, but did not change the determination that the respondent was entitled to have the contract performed. The last order, which is the subject of appeal, varied the mode of enforcement, to provide for completion of the contract without the involvement of the appellant, but again did not depart from the determination that the respondent was entitled to performance of the contract.
I conclude that the order sought to be appealed is not a ‘final order’. The order may have been challengeable by request for re-hearing under s 110 of the Magistrates Court Act (as Mr Vella was not present) or by application for judicial review (in relation to the jurisdictional arguments now put), but not pursuant to s 109. This alone is sufficient to determine the appeal in favour of the respondent. As the other issues were fully argued, however, and in the interests of completeness I will also express my conclusions in relation to them.
Questions of Law in the Notice of Appeal
I will first discuss the questions that go to whether or not the Magistrate exceeded his jurisdiction.
Questions of Law 2.2-2.5
These Questions in the Notice of Appeal are as follows:
2.2Whether Magistrate Courts of Vic. do not have Jurisdiction over the Transfer of Land Act?
2.3Whether Magistrate Connellan abuse his power giving orders beyond his jurisdiction?
2.4Whether Magistrate Connellan had no power to order the Registrar of the Magistrate Court to execute the transfer of Land?
2.5Whether Magistrate Connellan had no power to order the Registrar of Titles to remove the caveat from the Land and to register the Transfer of Land?
In various formulations, they assert that the Magistrate lacked jurisdiction to make the orders.
The appellant makes a number of submissions in support of his proposition that the Magistrate lacked jurisdiction to make the orders of 6 June 2014. First, in material filed prior to the hearing, the appellant submits on the basis of the definition of ‘Court’ in s 3 of the Property Law Act 1958 (Vic) (‘Property Law Act’) that only the County or Supreme Courts, and not the Magistrates’ Court, has the power to make an order in relation to property. The appellant asserts that that definition provides that ‘Court’ means ‘(a) in relation to property or an estate or interest in property the value of which does not exceed the jurisdictional limit of the County Court, the Supreme Court or the County Court; and (b) in any other case, the Supreme Court.’
This argument is misconceived. The starting point for the determination of the jurisdiction of the Magistrates’ Court is the Magistrates’ Court Act, and the transfer of this land is governed not by the Property Law Act but by the Transfer of Land Act 1958 (Vic) (‘Transfer of Land Act’).
Jurisdiction is conferred on the Magistrates’ Court by s 100 of the Magistrates’ Court Act which relevantly provides as follows:
100 Extent of jurisdiction
(1)The Court has jurisdiction, subject to subsection (2)—
(b)to hear and determine any claim for equitable relief if the value of the relief sought is within the jurisdictional limit;
There are various exceptions to this jurisdiction pursuant to s 100(2) and extensions by other sub-sections. The appellant in his submissions in reply[54] submits that the exception to jurisdiction contained within s100(2)(a) here applies. That provision is as follows:
[54]Dated 1 December 2014 and filed 4 December 2014.
(2)The Court does not have jurisdiction in any cause of action—
(a)in which the effect of, or the validity or invalidity of, any act, matter or thing done or omitted to be done by any person or body whatsoever in the exercise or purported exercise of any power or duty conferred or imposed on that person or body or purportedly conferred or imposed on that person or body by or under—
(i)any royal prerogative; or
(ii)any statute—
is sought to be determined or declared; or
(b)in the nature of a proceeding for a prerogative writ; or
(c)brought on a judgment of the Supreme Court or the County Court.
The appellant’s submission is that the exception applies because the matter here in question concerns the invalidity of the contract of sale on the basis that it was not accompanied by a s 32 certificate. This submission fails for a number of reasons.
First, the question of the invalidity of the contract of sale because of the absence of a s 32 certificate does not arise in this appeal. It is a matter that should have been ventilated, if it was to be, by way of defence to the complaint in the Magistrates’ Court. It was not raised in that way. No defence was filed. The appellant did refer to the absence of a s 32 certificate in his appearance before the Magistrate on 19 November 2013, but that reference, in the absence of raising it by way of defence, is not sufficient to make it a matter on which he could now appeal. Further, he did not raise it in his Notice of Appeal.
Finally, even if the question did properly arise in this appeal, it does not engage the exception to jurisdiction in s 100(2)(a). That exception relates to determination of the validity of an act done in the exercise of a power conferred by statute or the royal prerogative. It is not engaged in the ordinary case of determination of the validity of a commercial contract, such as the one here in question. None of the exceptions to jurisdiction provided for in s 100(2) here apply.
The complaint sought specific performance of a contract for the sale of land.[55] That is a claim for equitable relief. The order made 24 June 2013 was for specific performance. Accordingly, the Magistrate had jurisdiction to make that order provided that the value of the relief was within the jurisdictional limit of the Magistrates’ Court. ‘Jurisdictional limit’ is defined in s 3(1)(b) of the Act. It is now, and has been since 2005, $100,000. The contract price for the land was well within that limit. Accordingly, the order made 24 June 2013 was within the jurisdiction of the Magistrate. The relevant determinant for the jurisdictional limit is the monetary value of the contract. The argument of the appellant that the value of the land exceeded the jurisdictional limit of the Magistrates’ Court because it has value to him other than a monetary one[56] is fallacious.
[55]Exhibit 1.
[56]Put in various places, for example, Charter Notice page 4.
If there was any doubt as to the power of the Magistrates’ Court to grant equitable relief such as an order for specific performance, it is put to rest by s 31(1)(a) of the Supreme Court Act which provides as follows:
31 Power of inferior courts with equity jurisdiction
Every inferior court which has jurisdiction in equity or at law and in equity—
(a)has as regards all causes of action within its jurisdiction, power to grant in any proceedings before that court such relief, redress or remedy or combination of remedies, either absolute or conditional, as the Court has power to grant in the like case…[57]
[57]Considered in Tuohey v Tuohey [2002] VSC 180 at [41]-[44].
As discussed earlier, the orders made after 24 June 2013 including the order sought to be appealed were in the nature of enforcement of that order. The source of jurisdiction of the Magistrates’ Court to make orders by way of enforcement for non-money orders is s 135 of the Magistrates’ Court Act which provides as follows:
135 Enforcement of orders not for the payment of money
(1)If by or under this or any other Act a power (whether or not expressed as a power to make an order) is given to the Court—
(a)of requiring any person to do or abstain from doing any act or thing, other than the payment of money; or
(b)of requiring any act or thing, other than the payment of money, to be done or left undone—
the Court may exercise the power by an order or orders.
(2)If the Court makes an order under subsection (1), it may—
(a)attach to the order conditions as to time or mode of action which are authorised by or under any Act or which the Court thinks just; and
(b)suspend or rescind the order on any undertaking being given or condition being performed that the Court thinks just; and
(c)generally make any arrangement for carrying into effect the power that the Court thinks just.
(3)Subject to subsection (4), a person who defaults in complying with an order made under subsection (1) is for the default liable—
(a)to pay a fine of not more than 1 penalty unit for every day during which the default continues; or
(b)to be imprisoned for so long as the default continues.
(4)A person is not liable under this section to—
(a)imprisonment for a period or periods amounting in the aggregate to more than 2 months; or
(b)the payment of any sums exceeding in the aggregate 40 penalty units—
for non-compliance with the requirement of the Court (whether made by one or more orders) to do or abstain from doing any act or thing.
As I will discuss in more detail when I set out my conclusions on listening to the recordings of the various hearings before the Magistrate, there was considerable discussion between counsel for the plaintiff and the Magistrate on 6 June 2014 as to the extent of the powers conferred by s 135. The plaintiff submitted on that date that the earlier orders made, which required Mr Vella to complete the contract of sale, fell within s 135(1). I consider that correct. On the first two occasions for enforcement, on 19 November 2013 and 11 December 2013, the Magistrate ordered Mr Vella to complete the contract himself. On 11 December 2013 he added a penalty for non-compliance with the order of 19 November 2013, as an exercise of the power conferred on him by s 135(3).
On 6 June 2014, the plaintiff submitted that the Magistrate had the power pursuant to s 135(2)(c) and r 66.11 of Magistrates’ Court General Civil Procedure Rules 2010 (‘Magistrates’ Court Rules’) to make orders to carry into effect the default order for specific performance of the contract for sale of the land by way of orders directing the solicitors for the plaintiff and the registrar of the Magistrates’ Court to take the necessary steps to complete the contract in lieu of Mr Vella. The Magistrate was persuaded that this is correct, and I do not consider that he erred in law in that conclusion for the following reasons.
First, the power conferred by s 135(2)(c) to make ‘any arrangement’ for the ‘carrying into effect’ of the relevant ‘power’ under s 135(1), here the power to order specific performance of the contract conferred by s 100(1) of the Act, is a very broad one. On its face, it seems to me sufficiently broad to encompass orders requiring someone else to comply with an obligation primarily cast on a party, when that party has failed to comply with that obligation.
Next, the power to order substituted performance is specifically conferred by r 66.11. That rule provides as follows:
66.11 Substituted performance
(1)If an order that has been made against a person requires the person to do an act and the person does not do the act, the Court may—
(a)direct that the act be done by a person appointed by the Court; and
(b)order the person against whom the order has been made to pay any costs and expenses occasioned by the default.
(2)Paragraph (1) does not affect the power of the Court to punish for contempt.
Viewed alone, this rule plainly would permit the Court to direct the registrar of the Court to sign the transfer, Mr Vella having failed to comply with previous orders to do so, and to direct that the plaintiff attend to the other matters required for settlement, including payment to the caveator to obtain the withdrawal of caveat Mr Vella had been ordered to obtain, but had not.
As counsel for the plaintiff properly identified to the Magistrate on 6 June 2014, there is a difficulty in the application of r 66.11 to enforcement of an order for specific performance of a contract for the sale of land, that arises from the definition of ‘order’ in r 66.01. That definition is:
In this Order—
order means an order made by the Court—
(a)for the payment of money with or without costs; or
(b)for the payment of costs alone; or
(c)for the delivery of goods; or
(d)for the delivery of goods or the payment of their assessed value.
On its face, this definition is exhaustive, and would exclude an order for specific performance of a contract for the sale of land. Counsel for the plaintiff put to the Magistrate on 6 June 2014 that the definition should not be read as exhaustive, however, because it was inconsistent with other rules within that Order. He referred in particular to rr 66.07 and 66.10. The Magistrate accepted this argument. In my view, particular weight is given to the argument by the content of rules 66.10, 14 and 16.
Rule 66.10 essentially requires personal service of an order under s 135 of the Act, the provisions of which I have set out earlier. Section 135 applies only to the enforcement of orders other than for the payment of money, but there is nothing in it, or the definition of ‘order’ in the Act, to confine the non-money orders to which it applies to the delivery of goods. It would not seem sensible to require personal service of an order under s 135 requiring compliance with an order for the delivery of goods, but not for other, potentially more significant, non-money orders. A similar argument arises from rules 66.14 and 66.16, which confer power to stay execution of an order. Again, there would seem no reason to confine this power to only to the orders specified in r 66.01.
Further, rules made pursuant to an Act are only valid if consistent with the Act. In my view, it is sufficiently plain that r 66.11 is intended to implement s 135 of the Magistrates’ Court Act. For that reason, it cannot be confined to orders as defined in r 66.01, but must extend to any order that can be made under s 135.
The Magistrate was referred on 6 June 2014 to Australian Competition & Consumer Commission v Purple Harmony Plates Pty Limited (No 3)[58] (‘Purple Harmony Plates’) and to Leach v Leach,[59] to which I have also been taken, as illustrations of the exercise of a similar power to that conferred by r 66.11.
[58][2002] FCA 1487.
[59][1965] VR 599.
Purple Harmony Plates is an example of the exercise of the discretion under parallel rules of the Federal Court to order that a person appointed by the court perform an obligation of a party if that party does not do so. In that case, the Federal Court ordered that if the defendant company did not within 7 days transfer its domain name to the plaintiff, for the purpose of corrective advertising, then the plaintiff was authorised to take all necessary steps to have the domain name transferred to it.[60]
[60][2002] FCA 1487 at [38]-[41].
Leach v Leach concerned the power at that time conferred on the Supreme Court by s 88 of the Matrimonial Causes Act 1959 (Cth) to appoint an officer of the court or other person to execute a deed or instrument, in lieu of a person required to execute the document who had failed to do so. The order was resisted on the basis that the transfer of land there in question was a war service home, and a transfer of such a home could be only effected with the consent of the Director of War Service Homes, who could only give his consent if satisfied that the transfer was in the interests of the transferor. Barry J held that a transfer signed by an officer of the Court appointed under s 88 had the same force and validity as if executed by the transferor himself, and given that it arose from a court determination of a just and equitable property settlement on divorce, must be taken as being in the interests of the transferor[61].
[61][1965] VR 599 at 606.
The Magistrate also found an alternative basis for his jurisdiction to order a registrar of the court to complete the transfer and the plaintiff to undertake the other steps to complete that Mr Vella had been ordered, but failed, to undertake, in Grassby v R[62] (‘Grassby’). The issue in that case was whether a magistrate had power to permanently stay a criminal committal for abuse of process, in the absence of an express power to do so. Dawson J, with whom Mason CJ and Brennan and Toohey JJ agreed, held that a magistrates’ court being a creature of statute does not have inherent jurisdiction, as does the Supreme Court of a state. He held, however, that the express powers conferred on a statutory court by legislation include the implied power to do everything necessary for the exercise of the express power:
However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise…Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is…fundamental.[63]
[62](1989) 168 CLR 1.
[63]Dawson J at 16.
The Court held that such an implied power could extend to the ordering of a stay in some circumstances, but the particular statutory provisions there in question did not imply the power to dispose of the proceedings by the imposition of a permanent stay.[64]
[64]Dawson J at 17,19.
The respondent has not sought to rely on Grassby before me, but I consider that it is helpful. I agree with the Magistrate[65] that it provides an additional basis for the conferral of power on him to order substituted performance of Mr Vella’s obligations under the previous specific performance orders.
[65]At approximately the 22nd minute and following of the recording of 6 June 2014.
For these reasons I conclude that the Magistrate acted within power in making orders 1-5 of 6 June 2014. There is no challenge to the exercise of his discretion in doing so, and given that Mr Vella had been given multiple opportunities to comply with the order to complete the contract himself and had failed to do so, any such challenge would likely have limited prospects of success.
Order 6 made 6 June 2014 is directed to the Registrar of Titles. It provides that on receipt of the transfer executed pursuant to earlier paragraphs, the discharge of mortgage and the certificate of title, the Registrar is to remove the caveat and register the transfer. Presumably in relation to this order, the appellant has referred to the definition of ‘Court’ in the Property Law Act in support of his argument. This is misconceived. The transfer of Torrens Title property such as the land in question is regulated by the Transfer of Land Act. Section 103(1) of that Act provides as follows:
103 General provision as to correction of errors etc.
(1)In any proceeding in a court relating to any land or any instrument or dealing in respect thereof if the court directs the Registrar to make any amendments to the Register or otherwise to do any act or make any recordings necessary to give effect to any judgment decree or order of the court the Registrar shall obey such direction.
The appellant submits that the power conferred by s 103 can only be exercised by the Supreme Court. This is incorrect. In s 4(1) of the Transfer of Land Act, ‘court’ is defined to mean ‘court of competent jurisdiction’. As the respondent has noted in its submissions, originally the power to direct the Registrar to make amendments to the Register under this section was confined by the definition of ‘court’ in the Act to the Supreme Court, but the definition was later extended to include the County Court, and then, in 2009, to include any court of competent jurisdiction. Accordingly, as at the date of all the orders in this proceeding, including the order the subject of appeal made 6 June 2014, the Magistrate had power to order as he did in paragraph 6 of the orders made that day.
The exercise of the power conferred by s 103 was considered by this Court in Marchesi v Registrar of Titles[66] (‘Marchesi’). In that case, the Court was asked to make an order that the Registrar of Titles cancel an existing certificate of title, issue a new certificate of title in the name of the current registered proprietor, record the trustee in bankruptcy of that person as the registered proprietor of the land, and issue him with the new certificate of title. The registered proprietor had refused to supply the certificate of title to his trustee in bankruptcy because he contended that the beneficial interest in the land was owned by another, and not him, notwithstanding that another court had already determined this issue against him.
[66][2010] VSC 524.
Marchesi is an example of the exercise of the discretion to make orders under s 103(1). No question of jurisdiction arose in that case. Ferguson J, as she then was, considered previous authority on the making of orders under s 103(1) in which courts had considered that it should only be used as a last resort. She distinguished those cases, and held that ‘(w)hilst caution must be taken in making such orders, I do not think that it is necessary to exhaust every other avenue if doing so would not serve any practical purpose but rather would only serve to delay an inevitable application under the section at a later time’.[67] She held that in the exceptional circumstances of that case it was appropriate to make the orders sought.
[67]Marchesi at [19].
There is no challenge to the exercise of the Magistrate’s discretion to make the order under s 103 of the Transfer of Land Act, in this case, but to his power to do so. As noted, I conclude that he did have power.
By order 4 made 6 June 2014, the caveator rather than Mr Vella was to receive the balance proceeds of sale, less costs previously ordered against Mr Vella, and by order 6 the Registrar of Titles is directed to remove the caveat. The caveat in question, the loan agreement creating or purporting to create the interest in land in respect of which it was lodged, and the amount secured are not in evidence before me. I do not know if they were before the Magistrate. The effect of the order is to assume the validity of the interest in the land claimed by the caveator and that the debt owed to him was equal or greater than the balance proceeds of sale. I express no further view on the appropriateness of this order, as Mr Vella has not made any complaint about it in the Notice of Appeal and there is no evidence of any complaint from the caveator.
The updated certificate of title provided to me at my request just before delivery of these reasons shows that the caveat has not been removed. If the caveator contends that the debt secured by the loan agreement was not fully paid out by the amount paid to him pursuant to the orders, he may still have rights directly against Mr Vella.
In summary, I conclude that the Magistrate had power to make the orders of 6 June 2014. If the appeal was competent, I would refuse relief on Questions of Law 2.2- 2.5.
Questions of Law 2.1 and 2.9
These Questions in the Notice of Appeal read as follows :
2.1 Whether denial of natural Justice by denial of procedural fairness & legal rights to the appellant & his legal attorney to be heard?
2.9Whether Magistrate Connellan demonstrated an actual bias?
I have grouped these Questions together for consideration because they both relate to aspects of natural justice in the conduct of the hearing or hearings in the Magistrates’ Court. The appellant’s precise contentions in respect of these Questions are not set out in his written material. The appellant has not articulated at what hearing is it alleged that he was not afforded procedural fairness or the Magistrate exhibited bias, and in what respect. The only order appealed is that made on 6 June 2014, but as the Magistrate’s conduct of that hearing may have been influenced by what occurred at the earlier hearings, it is not inconceivable that the earlier hearings may also be relevant to these Questions.
The usual course where an allegation of breach of natural justice in the conduct of a hearing is made in an appeal is that the appellant is required to provide authorised transcription of that hearing. I made orders to that effect on 13 August 2014. The appellant has not complied with those orders, which he says is for lack of funds, and instead has exhibited the audio recording of each of the three hearings on 19 November 2013, 11 December 2013 and 6 June 2014. I infer that he relies on the conduct of each of these hearings to support his case on this and other Questions.
I caused a portion of the hearing on 19 November 2013, identified by the appellant as relating to Question of Law 2.6, to be transcribed by a Court secretary who is also a sworn Court reporter, and made that available to the parties on the day of hearing. I made arrangements that they could listen to any portion of the three recordings in the lunch hour on a Court laptop computer, and inform me of any particular passages on which they relied, and the appellant utilised that opportunity. I also told the parties that I would also listen to the whole of the recordings after the hearing, and I have now done so. I summarise what transpired at the hearings and the inferences I draw from the recordings below.
Hearing on 19 November 2013
After hearing first from the plaintiff on its summons, the Magistrate gave Mr Vella a number of opportunities to explain his position in response. The Magistrate first sought clear responses from Mr Vella as to whether or not he agreed that he was the sole registered proprietor of the land, had signed the contract for sale, and not completed the sale, all of which Mr Vella agreed to be correct. The Magistrate then gave Mr Vella the opportunity to explain why he had not completed the contract, and there was considerable discussion between the Magistrate and Mr Vella in this regard.
Mr Vella made the same factual assertions to the Magistrate that he asserts in this appeal, including that Mr Giza jointly owned the land the subject of the contract of sale; that the sale of Factory 15 was flawed or mismanaged with the consequence that he and Mr Giza did not receive the surplus proceeds that they were expecting; that he and Mr Giza were pressured into signing the Deed and he the contract for sale because there were goods of theirs and the company’s still in Factory 15; that the plaintiff did not allow them sufficient time to remove the goods; and that the plaintiff wrongly interfered with their goods. The Magistrate read a bundle of documents that Mr Vella handed up (which may be the same emails between Mr Giza and a police officer Walters relating to alleged unauthorised interference by the then plaintiff with goods at Factory 15 that are exhibited in this appeal), showed by his summary of those documents that he appreciated the case asserted by Mr Vella, and retained those on the Court file at Mr Vella’s request.
Mr Vella told the Magistrate that he could not read or write, but his answers and comments in the discussion between them suggest to me that he nevertheless had a businessman’s understanding of the leverage afforded him by the fact that he still owned the car park after sale of Factory 15, in counterpoint to the leverage the plaintiff had by reason of the company’s goods still being in the Factory.
The Magistrate explained to Mr Vella that the matters he raised may have amounted to a defence, or given rights to sue others, but that the application before him was for enforcement of the default judgment. Mr Vella acknowledged that he had not filed a defence and the Magistrate noted that there was no application before him to set aside the default judgment. The Magistrate said that if there was, given the lapse of time since June when the default order was made, he would have to think carefully about where the balance of justice now lay. He also commented that generally the motive for entry into a contract (conceded by Mr Vella to be obtaining a key to the Factory to retrieve the goods) is irrelevant to the validity of the contract. These comments in my view were fairly made by way of assistance to an unrepresented person.
The thrust of the Magistrate’s explanation to Mr Vella was that in the absence of defence or timely application to set aside the judgment, the Court was required to enforce the default judgment. The Magistrate explained to Mr Vella the possible consequences of fine or imprisonment under s 135, but made it plain that he was giving him a further opportunity to complete the contract first. The Magistrate explained in detail to Mr Vella what he was required to do to complete the contract. The inference I draw from hearing Mr Vella on the recording, is that he understood what he was being told, although he said that he could not complete the contract unless Mr Giza agreed, as he was his 50/50 business partner. The Magistrate reiterated that this may have been relevant to a defence, but ‘we are past that’.
The Magistrate also discussed with the solicitor for the plaintiff whether or not he could make orders directing registration of the transfer and removal of the caveat. I will return to that discussion later in relation to Question of Law 2.6.
After hearing from Mr Vella, the Magistrate also gave Mr Giza, who was present in Court, a brief opportunity to address him. Mr Giza had no right of audience, not being a party to the proceeding, and so giving him this opportunity went beyond what the Magistrate was required to do. Mr Giza asserted, as he sought to do in this appeal, that he was a 50% owner of the land, although he conceded that Mr Vella was the sole registered proprietor ‘on paper’. Mr Giza otherwise repeated what Mr Vella had said as to duress. He, although not Mr Vella, asked for time to prepare a ‘legal defence’. The Magistrate did not expressly respond to this request. I do not consider that he was required to do so. It was not made by the defendant himself, and as it transpired in any event, Mr Vella was given further time before further sanction as the enforcement summons was adjourned to 11 December 2013. There is no evidence that any application to set aside the judgment was made during that time.
In conclusion, I do not consider that the conduct of this hearing by the Magistrate demonstrates any breach of procedural fairness or bias. Indeed to the contrary- the conduct of the hearing by the Magistrate was in my view entirely appropriate, and in allowing Mr Giza to address him went beyond what was required of him.
Hearing on 11 December 2013
This was the adjourned hearing on the summons for enforcement pursuant to s 135 of the Magistrates’ Court Act. Mr Vella and Mr Giza both attended. The representative for the plaintiff informed the Court that the settlement did not take place and the Magistrate confirmed with him that the plaintiff now sought orders ‘to finalise the matter in this jurisdiction’ by way of imprisonment or fine. The reference to ‘in this jurisdiction’ is a reference back to discussion between them on the greater jurisdiction of the Supreme Court to enforce completion of the contract, which I will discuss in relation to Question of Law 2.6.
In my view, the Magistrate complied in this hearing with the requirements of procedural fairness. He gave Mr Vella an opportunity to disagree with the statement by the plaintiff that he had not complied with the order to complete. Mr Vella agreed that he had not so complied. The Magistrate then gave Mr Vella an opportunity to say anything in opposition to imprisonment or fine, making it plain that he was not considering imprisonment. The plaintiff did not press for imprisonment. The Magistrate drafted orders requiring compliance and imposing a fine in default (essentially in the form in which the orders were later made), read them out to the parties and gave Mr Vella a further opportunity to comment, indicating that he would also hear from Mr Giza. When Mr Vella and later Mr Giza reiterated concerns they had expressed on the last occasion the Magistrate told them firmly that he had heard those matters before, and that they were ‘water under the bridge’ given that no defence had been filed and no application made to set aside the default judgment. In particular, he said that the contention that Mr Giza was a part owner should have been dealt with in a defence. There was brief reference by Mr Giza to possible challenge or appeal- that they would have to take the matter ‘elsewhere’; the Magistrate saying in response that they would have the right to do so. The Magistrate then pronounced the orders and heard a costs application by the plaintiff, giving Mr Vella an opportunity to respond.
The hearing on 11 December 2013 was very brief (in the order of 16 minutes), the Magistrate did not allow Mr Vella or Mr Giza to comment for long, and his tone throughout was rather terse. Considered in isolation from the earlier hearing, the recording of the hearing could suggest that the Magistrate, although formally complying with the requirements of procedural fairness, was unwilling to listen to what Mr Vella and Mr Giza wished to say by way of explanation for not completing the contract. It is unrealistic and unfair, however, to view this hearing in isolation from the earlier one. On 19 November 2013 the Magistrate explained at length, and in a calm tone, why the concerns expressed by Mr Vella and Mr Giza in relation to the Deed and contract were no longer legally relevant. It was not, in my view, unfair to Mr Vella or any indication of bias for the Magistrate to firmly control Mr Vella’s attempts and those of Mr Giza at this hearing to reiterate those concerns. The Magistrate had also explained in detail on 19 November 2013 the likelihood of at least a fine, and possibly imprisonment, if Mr Vella did not complete the contract. The fact that he then did impose a fine is no indication of bias or unfairness. Further, it was plain from the whole of what Mr Vella said that he did not intend to complete the contract. A fine was entirely within the discretion of the Magistrate in those circumstances.
For these reasons, I do not think that the Magistrate exhibited any bias or lack of procedural fairness at this hearing. Indeed, as on the previous occasion, the Magistrate went beyond what was required in giving Mr Giza an opportunity to speak for Mr Vella, as well as hearing from Mr Vella himself.
Hearing on 6 June 2014
Neither the appellant nor Mr Giza attended the hearing on 6 June 2014. It is not shown in the evidence before me or the recording how this hearing came about i.e. whether by way of fresh summons or relisting, and how notice was given of it to Mr Vella. The plaintiff had filed an affidavit of Marcus Adams sworn 17 April 2014[68] that specified the orders which were then sought at the hearing on 6 June 2014. No complaint is made by Mr Vella that this affidavit was not served on him, and so I infer that it was.
[68]MCA-7 to the affidavit of Marcus Adams sworn 12 August 2014.
It is plain that Mr Giza, and I infer Mr Vella knew of the hearing date. Mr Giza contacted the Magistrates’ Court and the solicitors for the respondent the day before, 5 June 2014 with, amongst other documents, medical certificates for himself and Mr Vella from different general practitioners at the same clinic dated 4 June 2014. The certificate in respect of Mr Vella stated that he was unable to work from 4 June 2014 to 10 June 2014 inclusive. The certificate in respect of Mr Giza stated that he was unable to attend court on 6 June 2014. The covering email from Mr Giza to the solicitors for the respondent sought an indication of a suitable adjourned date for ‘the court case’.[69]
[69]MCA-8 to the affidavit of Marcus Adams sworn 12 August 2014.
Ms Bahonko attended on 6 June 2014 and sought to appear as a McKenzie friend. As is the case with the other hearings, the appellant has not submitted a transcription of what occurred. The respondent has put into evidence a summary of the reasons given by the Magistrate for his orders prepared by counsel who attended for the plaintiff on that day, Mr Paul Bingham.[70] The appellant has confirmed that it is an accurate summary.[71] Having now listened to the recording, I note that Mr Bingham’s summary is accurate in substance, but not a complete transcription. The minor departures from the full recording are not, however, significant for current purposes.
[70]MCA-9 to the affidavit of Marcus Adams sworn 12 August 2014.
[71]Affidavit in a partial fulfilment of the order 6 and 7 given by the Ass Justice Lansdowne on 01/10/14 sworn 28 October 2014 at [2].
In the summary prepared by Mr Bingham, Magistrate Connellan notes that he ‘heard from (Ms Bahonko) briefly’ and that she sought to appear for Mr Vella as a McKenzie friend. In fact, from the recording it seems that she sought to appear for Mr Giza, to which the Magistrate responded that Mr Giza was not a party. There was a later exchange between them in which Ms Bahonko referred to the power of attorney held by Mr Giza from Mr Vella, and the Magistrate replied that it did not entitle the attorney to appear in court. Ms Bahonko referred when announcing her appearance to the medical certificates for both Mr Vella and Mr Giza, and the Magistrate noted that he had seen them. Both at that time, and later in his reasons, the Magistrate noted that the medical certificate for Mr Vella did not say he was unfit to attend court, as opposed to work, and compared that unfavourably to the medical certificate for Mr Giza.
After appearances, the Magistrate heard from counsel for the plaintiff. The Magistrate said to counsel that he would need to be persuaded that he had the power to appoint the registrar of the Court to sign the transfer in lieu of Mr Vella, noting that he had thought it was agreed at the previous hearings that the Magistrates’ Court did not have that power. Counsel for the plaintiff then made the submissions on s 135 of the Magistrates’ Court Act and r 66.11 of the Magistrates’ Court Rules to which I have earlier referred.
After hearing from counsel for the plaintiff, the Magistrate confirmed with Ms Bahonko that Mr Vella sought an adjournment. He gave her an opportunity to convey to him any comments from Mr Vella. Ms Bahonko made brief submissions that the orders sought were oppressive and unjust; that Mr Vella could not complete the contract as he is not the owner of the land; that he was not capable because he could not read or write; and that once he recovers he is entitled to legal aid. To these assertions the Magistrate commented that this had all been gone through before, and that Mr Vella had appeared before him ‘several times’ and he considered him more than capable of presenting his case. After hearing from Ms Bahonko, the Magistrate indicated that he would make the orders for substituted performance as sought, but not imprisonment, in the absence of Mr Vella. After discussion with counsel for the plaintiff about the detail of the orders the Magistrate gave reasons, which as I have indicated are fairly summarised in the document in evidence.
Having listened to the recording of this hearing, including the reasons, I do not consider that any breach of procedural fairness or bias is shown, on the assumption that as well as notice of the hearing date Mr Vella had been given notice of the orders sought. I will return to that issue shortly. Indeed, what the recording and summary of the reasons show is that the Magistrate arguably went beyond what was required by way of natural justice.
Question 2.1 specifically refers to denial of procedural fairness by not hearing from the appellant. Certainly Mr Vella was not present, but his absence did not require the Magistrate to adjourn until he was. It was for Mr Vella to make successful application for adjournment. The application for adjournment was not made formally. It was not made by Mr Vella himself, having been made in writing by Mr Giza, and neither appeared to make the application in Court. Nevertheless, the Magistrate entertained the adjournment application, and did allow Ms Bahonko to speak in support of it, although she had no right of audience.
The determination of the adjournment application by the Magistrate was an exercise of his discretion in a matter of practice and procedure. It could only amount to an error of law in narrow circumstances, for example if the Magistrate took into account an irrelevant consideration or failed to take into account a relevant consideration. There is nothing to show any such error. On the contrary, both the recording and the informal transcription of his reasons shows that the Magistrate read and considered the medical certificates, and properly considered other relevant factors, including the history of the proceeding, the repeated failure by Mr Vella to comply with Court orders, and the prejudice to the plaintiff if there was further delay, in the light of the history of the proceeding. He noted that Mr Vella had not availed himself of opportunities to contest the substantive relief, the judgment being by default and not sought to be set aside or appealed, but had repeatedly failed to comply with the previous orders that required him to complete the contract. The Magistrate’s conclusion that the balance of justice favoured refusing the adjournment because of the prejudice that would be occasioned to the then plaintiff by further delay was clearly open to him.
The Magistrate did not accept Ms Bahonko’s submission that the case should be adjourned, or that the orders were oppressive, but ruling against a party is not evidence of bias, or lack of procedural fairness. Further, the Magistrate did not impose the most serious sanction of imprisonment, noting that he took that course at least in part because Mr Vella was not present.
Question 2.1 in the Notice of Appeal also specifically refers to denial of the ‘legal rights’ of the appellant’s ‘legal attorney’ to be heard. The question as to whether or not Mr Giza could appear for Mr Vella as his attorney did not strictly arise on 6 June 2014 as Mr Giza did not attend on that day either. In any event, the Magistrate had allowed Mr Giza to speak on previous occasions when he did attend, and so presumably would have done so again notwithstanding his ruling that the power of attorney did not confer on Mr Giza a right to be heard. Further, it follows from Waddington v Magistrates’ Court of Victoria & Kha (No 2),[72] and the unsuccessful appeal from that decision,[73] both of which were cited by Hargrave J in his reasons on the dismissal of appeal from my similar ruling in this proceeding, that the Magistrate was correct as a matter of law.[74]
[72][2013] VSC 340.
[73]Waddington v Dandenong Magistrates’ Court & Anor [2014] VSCA 12.
[74]Vella v Wybecca (sic) Pty Ltd [2014] VSC 443 at [18]-[21].
If the appeal was competent, then I would not grant it on these Questions.
I reach this conclusion on the assumption that Mr Vella was on notice of the orders to be sought on 6 June 2014, as well as the hearing date. I think it arguable that express notice of these orders was required, because the Magistrate had previously expressed the view, at the two previous hearings at which Mr Vella was present, that he did not have power to order the Registrar of Titles to register the transfer, and only the Supreme Court had that power. If Mr Vella had not had notice that the plaintiff now sought those orders, then arguably it was a breach of procedural fairness to proceed in his absence.
If Mr Vella was served with the affidavit sworn 17 April 2014 then I consider that he did have sufficient notice, as it contained the orders to be sought, and he was plainly aware of the hearing date. I assume that he was so served, or was otherwise aware of the orders to be sought, because he makes no complaint to the contrary.
The previously expressed view of the Magistrate is the background to Question of Law 2.6, to which I now turn.
Question of Law 2.6
This Question in the Notice of Appeal is as follows:
2.6Whether Magistrate Connellan did not have legal power to change his previous judgment that he had no power to order the transfer of land as only higher jurisdiction upon appeal have such power?
It is correct as the appellant implies that there are limitations on the power of a court to change an earlier judgment. The premise of the error of law asserted by this Question is that Magistrate Connellan changed a previous judgment by the orders he made on 6 June 2014. Having now listened to the recordings of all three hearings, I do not consider this to be a correct interpretation of what occurred.
The Magistrate certainly expressed the view on 19 November 2013 that he did not have power to cause the transfer to be registered by direction to the Registrar of Titles, or to set aside a caveat. Discussion to this effect with Mr Adams for the plaintiff is set out in the portion of the recording of that hearing which I caused to be transcribed. Mr Adams did not demur with that proposition at that time. The apparent view of the Magistrate at that time was that after exhausting enforcement opportunities by way of fine and/or imprisonment, the plaintiff could register the order in the Supreme Court for further enforcement by way of direction to the Registrar of Titles. The Magistrate explained the situation in this way to Mr Vella on 19 November 2013 and repeated this view at the hearing on 11 December 2013.
When the matter came back before him on 6 June 2014, the Magistrate commenced his enquiry of counsel for the plaintiff with the statement that he had thought it was agreed at previous hearings that the Magistrates’ Court did not have power to make the orders then sought to direct the registrar of the court to sign the transfer and the Registrar of Titles to register it. It was at that point that counsel took the Magistrate expressly to s 135 of the Magistrates’ Court Act, including s 135(2)(c), r 66.11 and made the submissions that I have set out earlier. The legal representatives for the plaintiff at the previous hearings had not taken the Magistrate through the legislation and rules and cases in this way.
It is plain from the recording that when taken through this material the Magistrate changed the view he had expressed on the previous occasions about his powers. I do not think that what he had said earlier is properly described as a judgment. It was not necessary for the orders that he made on 19 November and 11 December 2013 for the Magistrate to hold that he could not make other orders. He had power to make those orders whether or not he had power to do more, and the power to do more under s 135(2)(c) could not properly be exercised until Mr Vella had unequivocally failed to obey the earlier orders in any event. I consider that the views he expressed on 19 November 2013 and 11 December 2013 that his powers did not extend to ordering the registrar of the court to sign the transfer and directing the Registrar of Titles to register it and remove the caveat were no more than a preliminary view, expressed without the benefit of full argument. With the benefit of full submissions, as put on 6 June 2014, the Magistrate changed his view, as he was entitled to do.
If the appeal was competent, I would not allow it on this Question.
Questions of Law 2.7 and 2.8
These Questions in the Notice of Appeal are as follows:
2.7Whether Magna Carta 1215 & the English Bill of Rights 1689 gives an absolute protection of rights to Basic Tools of the Trade, therefore, the Appellant & his Legal Attorney cannot be deprived of their “fundamental tools of Trade”, the Land in question?
2.8Whether contract of Sale obtained by duress is invalid?
Question of Law 2.7 appears to assert that the Magna Carta and the English Bill of Rights confer some sort of absolute protection to ‘Basic Tools of Trade’; that the land here in question is such a tool of trade; and accordingly the contract of sale of that land was void. The appellant has not identified the provisions in the Magna Carta or 1689 Bill of Rights upon which he relies, or shown how those provisions form part of the law of Victoria. In any event, it is unlikely in the extreme in my view that any such constitutional or absolute protection exists. Commerce depends on business people being able to obtain finance on the security of land or goods used in their business. If the conditions of those loans are not met, then the lender is usually entitled to enforce the security, even if that means depriving the mortgagor or borrower of his or her ‘tools of trade’. Further, to the extent this Question is an assertion that the contract of sale or Deed were in some way void, the occasion to make that assertion was by way of defence or application to set aside the default judgment. In the absence of such a defence or application, the issue cannot arise on this appeal.
The same applies in respect of Question of Law 2.8. The question there asked relates to the validity of the contract of sale, which was never put in issue in the appropriate way by the appellant in the court below. Accordingly, it cannot arise on this appeal.
If the appeal was competent, I would not allow it on these Questions.
Questions under the Charter
The appellant asserts in his Charter Notice that a number of questions arise in this appeal that relate to the application of the Charter or relate to the interpretation of a statutory provision in the light of the Charter. As noted earlier, neither the Attorney- General for the state of Victoria or the Victorian Equal Opportunity and Human Rights Commission have sought to intervene in respect of these questions.
The starting point for consideration of these matters is that while the Charter sets out certain human rights that Parliament seeks to protect and promote (s 7), the rights conferred by the Charter are not absolute (s8). They may be subject under law to ‘reasonable limits’, taking into account the factors listed in s 8. Further, the Charter does not confer a right to sue for a claimed breach of a human right contained within it. A person only has a right to seek relief or a remedy on the ground of breach of a Charter right in proceedings for relief on the basis of some other cause of action (s 39). Further, while it is unlawful for a public authority to act in a way that is incompatible with a human right, or fail to give proper consideration to a relevant human right (s 38), the definition of ‘public authority’ excludes courts, except in their administrative capacity (s 4). A court is, however, required to interpret statutory provisions in a way that is compatible with human rights, so far as it is possible to do consistently with the purpose of the statutory provision (s 32).
With these principles in mind, I now consider the matters raised in the Charter Notice. For the reasons given below, I do not consider that any of the matters there specified raises an arguable breach of a Charter right, or requires any special interpretation of a statutory provision for the provision to be compatible with the Charter.
The first paragraph on the first page and third paragraph on the second page of the Charter Notice ask if there is a breach of the right to a fair hearing conferred by s 24 of the Charter. The facts said to give rise to this question are that I directed that the appellant pay the trial fee for the appeal, and the appellant sought but was refused a fee waiver for that trial fee. In so far as the appellant seeks to challenge my direction, which is the usual direction in an appeal, that could only be by way of appeal. In so far as the appellant seeks to challenge the actions of the Prothonotary, the question falls away because I heard the appeal notwithstanding that the appellant had not paid the trial fee, and no waiver had been granted. I ruled that the non-payment of the trial fee was an administrative matter, and it was in the interests of justice to nevertheless proceed.[75]
[75]T 97, 111.
The matters raised in the remaining paragraphs on page 1 of the Charter Notice all relate to my refusal to allow Mr Giza or Ms Bahonko to appear for Mr Vella. The Charter Notice asks if this refusal is in breach of the right to a fair hearing conferred by s 24; the right to equality before the law conferred by s 8; or protection from torture and cruel, inhuman or degrading treatment conferred by s 10. The same question is raised by the third paragraph on page 3 of the Charter Notice, in relation to all three of Magistrate Connellan, me and Justice Hargrave.
In relation to the correctness of my ruling, it was approved by Hargrave J on appeal. In relation to the correctness of his judgment, he relied on the determination of the Court of Appeal in Waddington v Dandenong Magistrates’ Court and anor.[76]That case arose from the refusal of a magistrate to allow a person holding a power of attorney to represent the donor of the power. Thus, the Court of Appeal has approved the correctness of the approach taken both in this Court and in the Magistrates’ Court.
[76][2014] VSCA 12.
It does not appear that the allegation was made in those cases that limiting a right of appearance to the party in person or a legal practitioner for that party is inconsistent with a Charter right. Accordingly, I will set out my view on that issue.
The limitation of a right of audience in this Court to the party in person or a legal practitioner for that party is reflected in various rules within the Supreme Court (General Civil Procedure) Rules 2015, which in this respect reflect the Rules in place at the time of this hearing. For example, rr 1.17, 1.18, 6.02, 6.06, 6.09, 8.03 and 8.06 all limit the rights of a party to act in a proceeding to the party in person or by a solicitor. This Court is required by s 32 of the Charter to interpret those rules compatibly with the human rights stipulated in the Charter. As noted, however, by s 7 of the Charter, human rights are subject to reasonable limitation. The limitation implied by these Rules is in my view reasonable. It is reasonable having regard to the power of this Court to determine the rights and obligations of persons, to limit the right to participate to the party in person or a legal practitioner, licenced to practice law and subject to the disciplinary control of the Court. Accordingly, I do not consider that any different interpretation of these statutory provisions is required pursuant to s 32 of the Charter.
The matter raised in the first paragraph of page 2 of the Charter Notice asserts a possible breach of s 20 of the Charter, which provides that ‘a person must not be deprived of his or her property other than in accordance with law’. No such question arises in this appeal, because the appeal is limited to the way the matter was run below, and no defence was filed to challenge the right of the then plaintiff to sue on the contract for sale. As the plaintiff sought to enforce in a court of law a contract, it is difficult to see how the plaintiff’s actions, or that suit, could be alleged to be not ‘in accordance with law’ in any event.
The next paragraph of the Charter Notice asserts that there are other rights, not listed in the Charter, here infringed. The ‘rights’ are not identified, nor is it shown how they apply to this appeal. The paragraph does not raise any relevant issue.
The fourth paragraph of page 2 of the Charter Notice asks if the threat of imprisonment to Mr Vella if he did not complete the contract was in breach of Article 11 of the International Covenant on Civil and Political Rights, which provides that ‘No one shall be imprisoned merely on the ground of inability to fulfil a contractual obligation’. The simple answer to this question is that the orders the subject of this appeal did not imprison Mr Vella. Indeed, Magistrate Connellan expressly declined to do so in Mr Vella’s absence. To the extent imprisonment remains a possible means of enforcement, it arises on the ground of failing to comply with a court order, not ‘merely’ on the ground of failing to complete the contract.
The final paragraph of page 2 running over to page 3, and the first full paragraph of page 3 ask if s 100(1) of the Magistrates’ Court Act is in breach of the Charter, or has to be ‘enriched’ to be compatible with the Charter, because the jurisdictional limit is ‘only’ stated in a monetary value, and ‘Magistrates are not Judges but foremost administrators’. No question of possible incompatibility with Charter rights for the purpose of interpretation under s 32 of the Charter arises in my view. The Magistrates’ Court Act allows for re-hearing and appeal; there are other modes of challenge available to an order of a Magistrate, such as judicial review; and the relevant rules allow for transfer to a higher court if required due to complexity.
The fourth paragraph of page 3 of the Charter Notice asks if my refusal to join Mr Giza to the proceeding is a breach of s 24 of the Charter, the right to a fair hearing. To the extent that right here applies, it applies to the parties. Mr Giza is not a party to the appeal, because he was not a party below. If he or Mr Vella wish to contest that ruling, they may explore if avenues of appeal are available.
Conclusion and orders
The appeal fails because it is not competent. The appellant has sought to appeal an interlocutory order, and the right of appeal conferred by s 109 of the Magistrates’ Court Act is from a final order only.
As the parties fully argued the Questions of Law asserted by the Notice of Appeal, I have also set out my conclusions in respect of those Questions. If the appeal were competent, I would not allow it on any of those Questions.
The appellant also asserted that questions arose in the appeal under the Constitution, and under the Charter. I have set out in this judgment my reasons for taking the view on the day of hearing that adjournment was not required under s 78B of the Judiciary Act, because no matter truly arises in this appeal under the Constitution. In any event, no Attorney-General of a State or the Commonwealth sought to intervene. I proceeded with the hearing, but allowed time before judgment for the Victorian Attorney-General and the Victorian Equal Opportunity and Human Rights Commission to intervene in respect of the claimed Charter questions, should they wish to do so, in which event I would have re-opened the hearing. Both subsequently confirmed that they did not seek to intervene. I have considered the claimed Charter questions, and do not consider that any issue arises in this appeal of arguable breach of a Charter right, or that any special interpretation of a statutory provision is required for that provision to be compatible with a Charter right.
I will hear the parties in respect of the appropriate orders to be made.
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