I’ve been a little swamped, so… not too many posts lately.
But here’s a case note on Vella v Waybecca Pty Ltd (No 2)  VSC 678, which I’ll call Vella.
Caveats, McKenzie friends, pro bono advocacy from the gallery, misconceived appeals, the spectre of imprisonment… I honestly think it’s a must-read for anyone in civil practice in the Magistrate’s Court.
Let’s face it, it’s always a good day when an appellate decision on the Magistrates’ Court’s powers and procedures is published. Such a day was 30 November 2015, when the decision in Vella was handed down by Associate Justice Lansdowne of the Supreme Court.
The case began with a complaint in the Magistrates’ Court at Dandenong, seeking specific performance of a contract for the sale of some real property – an “accessory unit” (well, a parking space) on an estate in Keysborough. No defence was filed, and orders were made in June 2013 that the defendant Mr Vella complete settlement the next month. He didn’t, and a further order was made (this time with Mr Vella appearing) for specific performance of the contract in December 2013.
Again, Mr Vella didn’t do as required, and so fresh orders were made, Magistrate Connellan undoubtedly (and understandably) growing impatient with the defendant: a further order for specific performance and a fine of one penalty unit per day for a maximum of 40 days.
And then more orders: in June 2014, Magistrate Connellan made orders allowing solicitors for the plaintiff to draw a transfer, and requiring a registrar of the Magistrates’ Court to execute it on the defendant’s behalf. There were also orders for the plaintiff to make payments to a mortgagee and caveator, and for the Registrar of Titles to remove the caveat, register the discharge of mortgage, and register the transfer of the property to the plaintiff.
By now you are thinking: can a magistrate actually do that? Order a caveat removed? Enforce specific performance of a contract for the sale of land? Have a registrar sign a transfer of title for a defendant?
And the answer is: yep! on all counts. The subsequent decision on appeal does indeed confirm that the Magistrates’ Court has the power to make such orders.
But there is a lot more to the decision than that, because the proceeding had all the elements of a lawyer’s nightmare: a defendant who was not merely self-represented, but the subject of attempted representation both by a McKenzie friend armed with a power of attorney (who later tried to be joined as a party), and by a “pro bono paralegal”, Stanislawa Bahonko, in relation to whom I had better just refer you to the relevant Google search.
Just for kicks, there was also a Notice of Constitutional Matter filed, purporting to give notice of constitutional matters arising in the appeal, and a “Notice to the Attorney-General/the Victorian Equal Opportunity and Human Rights Commission” which gave notice of “questions of law arising in the appeal under the Charter of Human Rights and Responsibilities Act 2006”, and was mailed to the court along with an application for adjournment.
And because it got bumped up for an interlocutory appeal under the title Vella v Wybecca Pty Ltd  VSC 443 (yes, Wybecca. Not Waybecca. As this matter demanded, at least one stage of the proceeding is forever to be misspelled.) This decision is, by the way, useful on the question of McKenzie friends.
On the final hearing day of the Vella appeal, before Associate Justice Lansdowne, her Honour “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” which I feel sure is exactly how her Honour likes things to go in her courtroom.
So, sure, a bit of a circus, at least partly driven by a vexatious litigant offering pro bono “help”… but it has yielded a decision that I do expect to find useful in the future.
Appeals from the Magistrates’ Court
For civil matters, section 109 of the Magistrates’ Court Act 1989 provides for appeals to the Supreme Court from orders of the Magistrates’ Court. Although it’s nothing new, Vella is a good reminder that s109 permits appeals on questions of law, not on the facts and not on the merits of a magistrate’s decision.
It’s also necessary for such an appeal to be made against a final order of a magistrate. What’s a final order? That’s not defined in the legislation, but has been the subject of considerable case law which is helpfully rounded up here. The distinction to be drawn is between a final decision and an interlocutory one. An interlocutory decision refers 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.”
Importantly, it does not mean the last order in time. In the present case, the “final order” for the purposes of the appeal was the default judgment of June 2013, where the rights of the parties were determined. The subsequent orders were for enforcement, and therefore were interlocutory and not final in nature.
Jurisdiction “over the Transfer of Land Act”
It seems there’s a suspicion, if not an actual misconception, in the Victorian legal profession that matters to do with land transfers and caveats can only be dealt with in a higher court. In fact, Magistrate Connellan himself seems to have raised this possibility early in the proceeding (in November 2013), and it appeared to be the view of both court and counsel for the plaintiff that the Magistrates’ Court order would need to uplifted to the Supreme Court for enforcement by way of a direction to the Registrar of Titles.
Not so. Vella is clear – and I think uncontroversial – authority that the Magistrates’ Court is a “court” for the purposes of the Transfer of Land Act, with jurisdiction over TLA matters that fall within its monetary jurisdictional limit as set out in s100 of the Magistrates Court Act.
Note, however, that this is in contradistinction to the Property Law Act 1958, where jurisdiction is confined to the County and Supreme Courts.
Jurisdiction to provide equitable relief
That jurisdiction extends to making orders for specific performance, as that’s a form of equitable relief, and s100 of the Magistrates Court Act expressly permits such relief to be ordered, reinforced by s31 of the Supreme Court Act.
Orders for enforcement
And when the straightforward order for specific performance failed to have the desired effect, Magistrate Connellan did indeed have the power to make the somewhat unusual raft of orders that he made, thanks to s135 of the Magistrates’ Court Act. This provision refers to options such as imprisonment (and indeed Mr Vella’s imprisonment was sought by the plaintiff at one stage in the proceeding), a one-penalty-unit-per-day fine during default, the attachment of conditions as to time and mode of action, and “generally mak[ing] any arrangement for carrying into effect” an order.
Importantly, the orders directing solicitors for the plaintiff and the registrar of the Magistrates’ Court to effect performance of the sale contract – in effect standing in for Mr Vella – were found to be underpinned by s135 of the Magistrates Court Act. Note too that Vella supports a view that rule 66.01, which sets out a somewhat limited definition of an “order” of the Magistrates’ Court, must be read as giving effect to the full range of powers set out in s135 including powers related to non-monetary relief such as specific performance. (There’s also a positive reference to Grassby v R, in which it was stated that “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 magistrate’s evolving view of his power
As I noted above, Magistrate Connellan, together with the plaintiff’s representative, initially took the view that a direction to the Registrar of Titles would need to be made by way of uplift to the Supreme Court. His Honour explained this position to Mr Vella on both 19 November 2013 and 11 December 2013. In June 2014, however, more careful consideration of s135 of the Magistrates Court was undertaken and Magistrate Connellan was persuaded that he did have the power to make the orders sought.
At appeal, it was argued that 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’s a fair question, and the answer set out in Vella is: his Honour’s earlier expression of a general view was not a judgment that he subsequently reversed, but rather a “preliminary view, expressed without the benefit of full submissions. With the benefit of full submissions, as put on 6 June 2014, the Magistrate changed his view, as he was entitled to do.”
A friendly reminder: “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.”
Important constitutional questions
What’s a Magistrates’ Court civil matter without the Magna Carta? Ever have a constitutional matter come up in a civil proceeding at the Magistrates’ Court? Needed to refer to the Magna Carta or the English Bill of Rights 1689? Had to lean on the Commonwealth’s defence power to get that land transfer just right? No, I haven’t either. But if I ever should have the need, there’s a bit about all of these things in the Vella decision too. Read the case not only to learn about such notices, but because there’s a much more thorough (some might say cringeworthy) factual narrative than I have given.
Why should the Court of Appeal miss out on all the fun? Just to round things out, there was an appeal. Not by the unsuccessful defendant, of course – by his McKenzie friend, Mr Giza. (It failed.) Was justice served? Presumably not, if only because costs (in time, money, and angst) must surely have outstripped the value of the parking space that was at stake. But next time you want to remove a caveat that’s valued at less than a hundred grand, Vella is the authority you’ll want.