Wong v Carter & Ors [2000] VSCA 53

9. The factual background to the dispute is this. Between 1987 and 14 June 1994 over 150 parking infringement notices were issued in respect of the vehicle addressed to John D. Young, none of which were paid, with the result that over the period penalties in respect of those infringements were registered under Schedule 7 of the Magistrates' Court Act. The penalties and costs totalled over $24,000. Warrants were issued to the Sheriff of the Supreme Court of Victoria in relation to the enforcement of all or most of the penalties. Each warrant was directed to John D. Young.

12. On 19 April 1995 the first respondent, an officer of the second respondent who was then the Sheriff, seized the vehicle in the execution of one of the warrants. The third respondent is the current holder of the office of Sheriff. On 2 May 1995 the Sheriff wrote to the appellant's then solicitors informing them (inter alia) that he seized the vehicle on the basis that John D. Young and the appellant were one and the same person.

15. Not long thereafter the vehicle was conditionally released into the custody of the appellant, but on 18 December 1995 the Victorian Government Solicitor wrote to the appellant's then solicitors informing them that, having carried out extensive investigations into the relationship between the appellant and John D. Young, the Sheriff had concluded that the appellant had at the relevant time used the alias John D. Young to evade enforcement proceedings. Consequently, it was said that on the expiration of 21 days from the date of the letter the Sheriff proposed to take the vehicle and sell it in part satisfaction of the amount "owed by John D. Young pursuant to 153 penalty infringement warrants". The solicitors were also advised that, if the appellant were to issue proceedings against the Sheriff in relation to such proposed conduct, the Victorian Government Solicitor would accept service on his behalf.

18. On 29 February 1996 the appellant filed a complaint in the Magistrates' Court against the respondents alleging (inter alia) that the appellant had been the owner of the vehicle only since about 15 June 1994, and that the respondents wrongfully seized the vehicle thereby committing trespass to goods and claiming against the respondents damages, including exemplary and aggravated damages and other relief.

21. In their defence, the respondents alleged (inter alia) that the appellant had been the owner of the vehicle since about 31 January 1985 and had used the name of John D. Young in connection with the exercise by the appellant of his rights of ownership and possession of the vehicle since prior to June 1994. There were other allegations in the defence to the like effect. Thus, the defence squarely raised the contention of the respondents that the appellant was the owner of the vehicle during the relevant period and that he used the name John D. Young as an alias throughout this time. No fraud was alleged in the defence. The Magistrate heard the matter between 23 and 27 June 1997 and reserved his decision.

24. On 30 June 1997 his Worship delivered written reasons for his conclusion that the appellant became the owner of the vehicle at some point in time between 30 January 1985 and 30 June 1985, that he had allowed the name John D. Young to remain as the registered owner of the vehicle and that he used that name as an alias. Consequently, he held the Sheriff had been entitled to seize the vehicle under the relevant warrant or warrants and therefore, no trespass was committed by the respondents in relation to it. The complaint was dismissed with costs.

27. In the context of the appeal process which the appellant instituted in relation to the Magistrate's decision, the Master ordered that seven questions of law "be decided" in the appeal. As I have mentioned previously, her Honour dismissed the appeal and the appellant now appeals against that decision on five stated grounds. In the event, ground 2 was not pursued.

30. Although it is not necessary to go into detail about the matter, in my view, most, if not all, of the questions that the Master articulated and ordered to be decided were not questions of law at all; they were essentially concerned with the exercise by the Magistrate of his discretion on matters of practice and procedure and most of them opened up for re-argument the very matters that were the subject of the Magistrate's discretionary decisions.

33. At the hearing of the appeal, Ms Lieder, who appeared for the appellant, sought to elevate the grounds of appeal to the status of grounds that raised questions of law, by arguing essentially that the following errors made by the Magistrate resulted in a miscarriage of justice and that her Honour should have so held.

(a) The Magistrate erred in refusing to order that the appellant be permitted to "split" his case (ground 1);

(b) The Magistrate erred in refusing the appellant's application to adjourn the case so that he could produce evidence on the issue of (inter alia) whether John D. Young was in Australia after May 1986 (ground 3 and part of ground 5);

(c) The Magistrate failed to apply the appropriate standard of proof in resolving the issue of the ownership of the car (ground 4);

(d) It was not open to the Magistrate on the evidence to make the ultimate finding that he made as to the ownership of the vehicle and, in particular, that the appellant allowed the name of John D. Young to remain on the register of car owners as an alias (ground 5).

39. Under cover of ground 5, the appellant also contended that the Magistrate made errors in respect of a number of specific findings to which I will refer later.

42. I mention for completeness that the claim that the Magistrate was not entitled to compare the relevant handwritings for the purpose of resolving the issues before him was not pressed by Ms Lieder.

45. I turn to consider ground 1. As I understand it, it was contended that the Magistrate should have permitted the appellant to "split" the case; that is to say, allow the appellant to defer calling evidence on the question whether he used the name John D. Young as an alias in connection with the registration of the vehicle until after the respondents had led their evidence on this issue.

48. Ms Lieder argued that the respondents' contention that the appellant used the name John D. Young as an alias amounted to an allegation of deceit or fraud on the part of the appellant, particularly since their principal case was that, at least at the outset, John D. Young did not exist and that therefore the appellant was using a fictitious name for registration purposes.

51. Consequently, it was argued, the respondents bore the onus of proof on this issue and should have been required to lead their evidence in relation to it with the appellant being entitled to lead rebutting evidence. It was submitted, in effect, that the appellant's position on this issue was similar to that of the insured in Protean (Holdings) Ltd (Receivers and Managers appointed) v. American Home Assurance Co [1985] VicRp 18; [1985] V.R. 187.

54. Moreover, it was said that her Honour erred in holding that the Magistrate's decision to refuse the appellant the right so to split its case was a discretionary decision on a matter of practice and procedure. Ms Lieder claimed that the decision determined what she called substantive rights and therefore the usual rule that appellate courts exercise particular caution in reviewing discretionary decisions relating to practice and procedure did not apply.

57. Turning first to the last matter mentioned, it is clear that a decision of a trial judge on the question of whether the plaintiff can defer the calling of its evidence on an issue until after the defendant has presented its evidence on it, and thereby split its case, is a discretionary decision on a matter of practice and procedure and not one which deals with substantive rights; Protean at 191; Re Hardiman dec'd [1967] VicRp 63; [1967] V.R. 577 at 580; and Beevis v. Dawson [1957] 1 Q.B. 195 at 204 per Singleton, L.J. and at 215 per Jenkins, L.J. Moreover, other than in exceptional circumstances, the judge's decision on the matter is final; Beevis v. Dawson at 204 per Singleton, L.J.. In this case, no such exceptional circumstances have been made out and there is, therefore, no basis for interfering with the decision of the Magistrate.

60. In my view, there was, in any event, no scope in this case for permitting the appellant to defer calling further evidence on the ownership issue until after the respondents' evidence on it was concluded. A party in the position of the appellant might be permitted relevantly to divide its case in relation to an issue in respect of which the other party carries the legal onus of proof. Thus, in Protean the defendant insurer carried the legal onus of establishing fraud on the part of the insured. Similarly, in Re Hardiman dec'd the caveator carried the onus of establishing lack of testamentary capacity. In a defamation case where justification is set up as a defence, it is for the defendant to make out his plea of justification before the plaintiff is called upon to give evidence in rebuttal of that plea; Beevis at 204 per Singleton, L.J. and 215 per Jenkins, L.J.

63. In those circumstances, there is a proper basis on which the court can consider whether it would be appropriate to permit the plaintiff to lead evidence on the relevant issue by way of rebuttal. No such circumstances, however, arise in this case if for no other reason than that the issue whether the appellant had acted fraudulently was not before the court. Fraud was not pleaded, as I have said, or otherwise alleged by the respondents, and the Magistrate did not find fraud on the part of the appellant.

66. The appellant alleged trespass and, in the circumstances of this case, he carried the legal onus of establishing that he was not the owner of the vehicle at all relevant times. It was for the appellant to call evidence to make good that claim.

69. As part of their defence, the respondents alleged that the vehicle was owned by the appellant and the name of John D. Young was used as an alias. In my view, that is not an allegation of fraud. It is clear that the Magistrate found as a fact that the appellant acquired ownership of the vehicle in the first half of 1985 and, as I have said earlier, this finding has nothing to do with fraud.

72. Ms Lieder agreed (properly, I think) that unless the respondents' case could be characterised as raising an allegation of fraud against the appellant, the question of whether the appellant can split his case cannot arise. Since, in my view, the respondents' case did not raise the issue of fraudulent conduct on the part of appellant, there was no basis on which the appellant could have properly sought to have deferred calling evidence on the issue of ownership of the vehicle.

75. Another reason why such a division of the appellant's case would not be permissible is that the application to split the case was made after the appellant had led some evidence on the issue of ownership of the vehicle. In those circumstances it could not properly seek to call the balance of its evidence after the respondents had led their evidence on that matter; Re Hardiman at 580. Thus, in my view, her Honour made no reviewable error in relation to this issue and therefore ground 1 must fail.

78. I now turn to consider ground 3 and part of ground 5, namely, the appellant's contention that her Honour erred in not concluding that the Magistrate wrongfully refused to grant the adjournment sought.

81. It was submitted by Ms Lieder that no reasonable Magistrate would have refused to grant the adjournment having regard to the circumstances in which it was applied for. Ms Lieder claimed, in effect, that the appellant was either misled or lulled into assuming that the respondents' case was based essentially, if not almost exclusively, on the contention that John D. Young did not exist and that the appellant had provided a fictitious name for the purpose of registering ownership of the vehicle. Ms Lieder argued that it was only near the end of the appellant's case that the respondents made it clear that they were no longer pursuing this line but were confining their case to the allegation that the appellant merely used John D. Young as an alias. This, said Ms Lieder, was a "dramatic" shift in the respondents' case or in its emphasis and, in effect, caught the appellant by surprise. Consequently, it was contended, the appellant required the opportunity to seek out and adduce further evidence to establish that John D. Young was the true owner of the vehicle. To that end, the appellant sought the opportunity (inter alia) to call evidence to rebut the material from the Immigration Department that John D. Young had left Australia for the last time on 6 May 1986 and had not returned.

84. In my view, however, the abandonment by the respondents of their contention that there was no such person as John D Young did not constitute a relevant change in their case or in its emphasis. It is clear from the correspondence between the parties that preceded the issue of the proceedings, the respondents' defence, and their conduct of the case, that they made it known to the appellant that their claim was that he was the owner of the vehicle at all relevant times and that he used the name John D. Young as an alias and that, if he existed, he has not been in Australia since early May 1986.

87. That John D. Young was a fictitious name, was only one aspect of their case and their abandonment of that assertion did not constitute "a dramatic" or a material shift in it or in its emphasis. The appellant could not have been in any doubt that at all relevant times the respondents maintained that the appellant used Young's name as an alias and that he had been absent from this country since early May 1986.

90. There was, therefore, no basis for the appellant's claim that was made to the Magistrate that the abandonment by the respondents of the assertion that John D. Young did not exist caught them by surprise and made them realise for the first time that they would have to lead evidence directed at (inter alia) establishing that Young was present in Australia after May 1986.

93. It should be borne in mind also that the appellant had available to him almost from the commencement of the hearing, the documents that were subpoenaed from the Department of Immigration which showed that John D. Young left Australia in early May 1986 and had not returned. The appellant therefore knew from the outset of the hearing that the respondents were going to lead that evidence, yet did not suggest to the Magistrate at that time that this would embarrass him and that as a consequence he required an adjournment. Ultimately, of course, these records were put into evidence and, not surprisingly, the Magistrate (properly, in my view) had regard to them for the purposes of his findings.

96. In any event, the Magistrate allowed the appellant to be recalled on one of the so-called new matters that were sought to be established. In those circumstances, in my view, it could not be sensibly said that it was not reasonably open to the Magistrate in the administration of the case before him and having regard to the interests of both parties, to refuse the adjournment sought.

99. In my opinion, no miscarriage of justice arose from the Magistrate's decision to refuse the adjournment. It follows that ground 3 and the relevant part of ground 5 should also fail.

102. Ms Lieder submitted in support of ground 5 that her Honour erred in not holding that the Magistrate's ultimate decision was not open to him having regard to all the evidence. She contended, in particular, that her Honour overstated the extent to which the credibility of witnesses was relevant to the Magistrate's decision and the benefit that he necessarily gained from seeing and hearing them in the witness box. It was submitted, in effect, that her Honour did not sufficiently analyse all the material. Had she done so, she would have drawn inferences from it which established that the Magistrate's decision was not open to him.

105. In my view, however, there was evidence before the Magistrate on which he could properly find that the appellant was the owner of the vehicle during the relevant period. It is not necessary to go through all this material, but it includes evidence that the appellant treated the car consistently with being the owner of it. Thus, he paid for its repairs, registration, RACV membership and gave his own address for registration purposes. Much of this was not disputed by the appellant, his case being that, although he had custody of the vehicle, it was owned by Young until about mid 1994 when he purchased it from him and not long thereafter transferred its registration into his own name.

108. The Magistrate obviously did not accept that explanation, and it was well open for him to have rejected it. Moreover, it is obvious that the credibility of witnesses was relevant to the resolution of the principal issue in this case and the Magistrate had the benefit of seeing and hearing them in the witness box, something which was obviously not available to her Honour or to this Court.

111. In my view, the Magistrate's finding of the ultimate facts depended to a substantial degree on the credibility of witnesses, including the appellant, and there is no indication that the Magistrate's finding is inconsistent with other facts found by him or with the weight of the evidence.

114. Consequently, in my view, there is no basis for challenging the finding that the appellant was at the relevant time the owner of the vehicle on the basis that the evidence did not permit of such a conclusion.

117. For completeness, I mention that, in my view, the appellant's attack on some of the Magistrate's specific findings is also without merit. Thus, contrary to what is claimed by the appellant, it was open, in my view, to the Magistrate to find that on or about 31 January 1985 the registered address of the vehicle was changed to the appellant's address, and to do so on the basis of Exhibit 34 and not, as was urged by the appellant, having regard to Exhibit 37. Similarly, contrary to the appellant's contention, it was open to the Magistrate not to accept parts of the evidence of Stone or of the appellant.

120. Furthermore, since the respondents' case did not allege fraudulent conduct on the part of the appellant and since no relevant onus lay on the respondents, Briginshaw v. Briginshaw [1938] HCA 34; (1938) 60 C.L.R. 336 had no relevance to the case. Consequently, ground 4 must also fail.

123. For these reasons, in my view, the appeal should be dismissed.

126. I should add I have had the advantage of reading in draft the observation made by Tadgell, J.A. in relation to appeals to the Supreme Court under s.109 of the Magistrates' Court Act 1989, and agree with those observations.

130. I agree that the appeal to this Court fails, but I feel obliged also to say that in my opinion the appeal that was brought to a single judge of the Supreme Court was altogether misconceived.

133. Section 109(1) of the Magistrates' Court Act 1989 confers on a party to a civil proceeding in the Magistrates' Court a right of appeal to the Supreme Court, on a question of law, from a final order of the Magistrates' Court in that proceeding. The nature of an appeal of that character was considered in Transport Accident Commission v. Hoffman [1989] VicRp 18; [1989] V.R. 197, at 199. The Full Court there decided that the right of appeal conferred by s.52 of the Administrative Appeals Tribunal Act 1984 (now repealed) "on a question of law, from a decision of" the Administrative Appeals Tribunal was to be construed as granting a right of appeal "on a question of law which is involved in" the decision. The appeal authorized by s.109 of the Magistrates' Court Act (and by s.92 in criminal cases) is to be similarly construed. So much has been stated time and again when the words I have just quoted from Hoffman's Case have been applied. Nevertheless, as judges in this State have had occasion to say more than once before today, the concept of an appeal "on a question of law which is involved in" a decision appears to be commonly misunderstood. An appeal to the Supreme Court is not authorised by the Magistrates' Court Act unless it is brought on a question of law which is involved in the final order from which the appeal is brought. The existence of a question of law is not only a precondition to the right of appeal but also the subject of the appeal itself; and it follows that the appeal does not operate as a re-hearing of the whole dispute or matter: Roads Corporation v. Dakakis, (unreported, 24 February 1996) per Batt, J. It follows that a decision merely on a question of fact, even though it be involved in a decision of the Magistrates' Court, can not of itself justify the bringing of an appeal. Of course, if a decision on a question of fact produces or conduces to a final order of the court which is erroneous in point of law, the position may be different. Obviously, however, it cannot be said with every decision - whether it be properly classified as one of law, or of fact or of mixed law and fact, or as none of these - that is made in the course of the hearing and determination of the proceeding is one that is involved in the order that is finally made.

136. A decision upon a matter of practice or procedure - or any other decision that is made in running for the purpose of regulating the conduct of a judicial hearing - is, notoriously, one that is in general left to the good judgment of the presiding judicial officer. For that reason, and almost axiomatically, a successful attack on a decision of that character will rarely be seen on an appeal of any sort. In appeals of the present limited kind under the Magistrates' Court Act, however, the rarity should increase. Such a decision should not be allowed even to become the subject of argument before a judge of the Supreme Court unless the appellant shows to the satisfaction of a Master, on an application under Part 3 of Order 58 of the Rules of Court, a prima facie case for relief. That requires the appellant to show that (at least prima facie) the question which was the subject of the decision was not only a question of law but that it was involved (in the Hoffman sense) in the final order of the Magistrates' Court, rather than merely peripheral or collateral to it. One would expect that a prima facie case of that kind would not usually be easy to make out in relation to such a decision; and if it is not made out the Master should, conformably with Rule 58.09 (2), refuse the application so far as it seeks to attack the decision, with the result provided for by Rule 58.10.

139. There is one other matter I wish to mention with respect to applications under Part 3 of Order 58. Rule 58.09(1)(a) requires that if an appellant shows to the Master a prima facie case for relief, the Master is, among other things, by order, to "state each question of law that the appellant shows to be raised by the appeal." In the present case the Master ordered, presumably as a result of that provision, that "The following questions of law are to be decided:...". There followed a series of interrogative commands, apparently directed to the Court, some minutely phrased as might be done in enquiring of the construction of a will. Many of them begin: "Did the learned Magistrate err in ..." doing or failing to do such and such, etc. That, if I may respectfully say so, is not what Rule 58.09(1)(a) contemplates or requires. The exercise is not to pose a series of questions as though there were before the Supreme Court a series of matters for its opinion upon a case stated, or something akin to what used to be called a construction summons or, indeed, a series of interrogatories. What is required is no more, but no less, than a succinct indication in the Master's order of each question (or point) of law that is involved in the order of the Magistrates' Court from which the appeal is brought. The appellate procedure prescribed by the statute does not include the formulation of questions for the examination of the Supreme Court; and that Court's task in determining the appeal is not to answer questions put to it but, rather, having considered the question or questions of law being the subject of the appeal either to allow the appeal, wholly or in part, or to dismiss it, and to make any appropriate ancillary orders. I venture to suggest that attention to these matters will assist in a consideration of the question whether an appeal from an order of the Magistrates' Court properly lies to the Supreme Court.

142. Most of what I have said in this connection is scarcely new: it is largely an adaptation of what appears in a cognate context in the unreported decisions of Accident Compensation Commission v. C.E. Heath Underwriting and Insurance (Aust) Pty Ltd (unreported, Full Court, 13 December 1991), at 42-5, and Frugtniet v. The Secretary to the Department of Justice (unreported, Court of Appeal, 24 April, 1996), at 6-7.

145. As Chernov, J.A. has shown, neither the Master's order nor the appellant's material or argument in this case reveals any question of law that was involved in the final order of the Magistrates' Court in respect of which an appeal properly lay to the Supreme Court. The appeal should not have been permitted by the Master to proceed. It was bound to fail, as it did, and it follows that the present appeal should also fail.

149. I agree for the reasons given by Chernov, J.A. that this appeal should be dismissed.

152. I also associate myself with the comments that have been made by Tadgell, J.A. relating to the nature of the appeals brought pursuant to ss.92 and 109 of the Magistrates' Court Act to the Supreme Court. For the reasons which his Honour has given, it does, I think, strain credulity to accept that any of the questions of law posed for consideration of the Court were questions of law involved in the Magistrate's decision.

155. The formal order of the court will be that the appeal is dismissed with costs.

159. The Court will order that the moneys paid by the appellant pursuant to orders for providing security for costs be paid to the solicitors for the respondents in such amounts as are necessary to pay the respondents' costs of the appeals, both to the Supreme Court and to the Court of Appeal, and the balance to be returned to the solicitor for the appellant.