Blackman v Leppard (No.2)
[2015] FCCA 2344
•31 August 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| BLACKMAN v LEPPARD (No.2) | [2015] FCCA 2344 |
| Catchwords: PRACTICE AND PROCEDURE – Extension of time – Property Seizure and Sale Order. PRACTICE AND PROCEDURE – Whether interpleader claim specific. WORDS AND PHRASES – “insufficient” – “specify”. |
| Legislation: Civil Judgments Enforcement Act 2004 (WA), Part 4 Division 6, ss.59, 83(2) and (3), 102 |
| Ample Source International Limited v Bonython Metals Group Pty Limited; In the Matter of Bonython Metals Group Pty Limited (No.6) [2011] FCA 1484; (2011) 285 ALR 488 The Concise Oxford Dictionary of Current English (6th Edn) (Oxford: Clarendon Press, 1980), page 1101 |
| Applicant: | MICHAEL DAMIEN BLACKMAN |
| Respondent: | BRENDAN RAYMOND LEPPARD |
| Claimant: | NICHOLAS ROY MITCHELL |
| Interpleader: | SHERIFF OF WESTERN AUSTRALIA |
| File Number: | PEG 40 of 2014 |
| Judgment of: | Judge Antoni Lucev |
| Hearing date: | 3 August 2015 and on the papers |
| Date of Last Submission: | 3 August 2015 |
| Delivered at: | Perth |
| Delivered on: | 31 August 2015 |
REPRESENTATION
| For the Applicant: | In person |
| For the Respondent: | In person |
| For the Sheriff: | Ms E Berry |
| For Mr N Mitchell the claimant by interpleader: | In person |
ORDERS
Pursuant to s.102(4) of the Civil Judgments Enforcement Act 2004 (WA) the operation of the Property (Seizure and Sale) Order issued by a Registrar of this Court on 1 September 2014 have its operation extended until 31 August 2016.
The claim by Nicholas Roy Mitchell by way of Interpleader for relief in these proceedings is dismissed.
That the affidavit of Brendan Raymond Leppard sworn 28 August 2015 be removed from the Court record and returned to Mr Leppard.
There be no order as to costs.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PERTH |
PEG 40 of 2014
| MICHAEL DAMIEN BLACKMAN |
Applicant
And
| BRENDAN RAYMOND LEPPARD |
Respondent
NICHOLAS ROY MITCHELL
Claimant
SHERIFF OF WESTERN AUSTRALIA
Interpleader
REASONS FOR JUDGMENT
Introduction
By application filed on 27 May 2015 the Sheriff makes application for relief by Interpleader (“Interpleader Application”) under Part 4 Division 6 of the Civil Judgments Enforcement Act 2004 (WA) (“Enforcement Act”). The Interpleader Application is supported by an affidavit of the Deputy Sheriff of the Federal Court, District Registry, Perth, Mr John Antoni Klarich, sworn 8 April 2015 (but not filed until 27 May 2015) (“Deputy Sheriff’s Affidavit”).
Litigation history
It is convenient to set out the history of this matter before dealing with the Interpleader Application.
On 12 February 2014 Mr Blackman, who is the applicant in the substantive proceedings, made a claim in the small claims list in this Court’s jurisdiction under the Fair Work Act 2009 (Cth) (“FW Act”). Following mediation, at which the respondent, Mr Leppard, made no appearance, the matter went to hearing, at which Mr Leppard also made no appearance. On 7 July 2014 the Court made an order that Mr Leppard pay Mr Blackman unpaid wages in the sum of $2,937 by 21 July 2014. There was no order as to costs: see Blackman v Leppard [2014] FCCA 1444.
Mr Blackman was not paid the money that the Court ordered Mr Leppard to pay him. On 1 September 2014 Mr Blackman applied to the Court for a Property Seizure and Sale Order (“PSSO”) under s.59 of the Enforcement Act. On 4 September 2014 a Registrar of this Court made a PSSO authorising and commanding the seizure and sale of the saleable interest in the property of Mr Leppard to wholly or partially satisfy the judgment debt which with interest and enforcement costs was now said to be $3,293.22.
On 27 May 2015 the Interpleader Application was filed. In it the Sheriff indicated that he had taken or intended to take in seizure under the PSSO the following:
(1)Black and yellow Komatsu forklift unregistered with no gas cylinder fitted no chassis number sighted and
(2)Genox plastic/wood/cardboard shredding machine
(“Property”).
A claim to the Property or to the proceeds of sale of the Property was made by Nicholas Roy Mitchell (“Mr Mitchell”) whose address for service was Nick Mitchell’s Autos, 7/212 Gnangara Road, Landsdale, WA 6065. Mr Blackman did not admit Mr Mitchell’s claim, and the Sheriff applied for relief by way of Interpleader.
The Interpleader Application was supported by the Deputy Sheriff’s Affidavit which indicated that:
a)on 6 November 2014 and 2 February 2015 he caused to be taken in execution at Gnangara the Property pursuant to the PSSO issued by this Court, and was holding the goods at Gnangara: Deputy Sheriff’s Affidavit at [2]-[4];
b)written notice had been received by him on 4 February 2015 from Mr Mitchell claiming the Property, and that written notice of the claim had been given to Mr Blackman on 17 February 2015, and Mr Blackman had neither admitted nor disputed the claim: Deputy Sheriff’s Affidavit at [5]-[7]; and
c)the PSSO expires on 31 August 2015: Deputy Sheriff’s Affidavit at [8].
On 12 June 2015 a Registrar of this Court made the following orders:
1. In relation to the interlocutory application by Interpleader filed 27 May 2015:
a) by 26 June 2015, Nicholas Mitchell (the “Claimant” referred to therein) is to file and serve any affidavit together with any submissions in support of his claim to the goods referred to in the affidavit of John Antoni Klarich filed on 27 May 2015;
b) by 10 July 2015, the Applicant is to file and serve any affidavit together with any submissions in reply; and
c) by 10 July 2015, the Respondent is to file and serve any affidavit together with any submissions in reply.
2. The Deputy Sheriff be excused from further attendance.
3. Costs of today be reserved.
4. The ruling on the interlocutory application by Interpleader be made on the papers, unless the Court otherwise orders.
5. There be liberty to apply.
6. At the expiration of 28 days from 12 June 2015, the ruling on the interlocutory application by Interpleader be reserved.
Pursuant to the Registrar’s orders of 12 June 2015 Mr Mitchell, whose occupation is said to be mechanic/salesman, of 7/212 Gnangara Road, Landsdale in the State of Western Australia, swore an affidavit on 26 June 2015 (“Mr Mitchell’s Affidavit”) the terms of which are, in whole, as follows:
I have submitted a claim regarding the storage of a forklift and granulator machine at our premises. I am owed a substantial amount of money by Brendon [Brendan] Leppard and if the equipment is to be removed from our premise I would like [to] recover monies owed to me in part as submitted to the Sherrifs [Sheriff’s] Department.
On 10 July 2015 Mr Blackman filed an affidavit, the exact entire terms of which are as follows:
The Forklift and Genox plastic/wood cardboard shredding Machine is Solely owned by Brendan Raymond Leppard.
On 16 July 2015 a Registrar of this Court made an order that the Interpleader Application be referred to a Judge of the Court for determination.
The matter came before the Court on 3 August 2015 where the Court indicated that the matter had been called on because the Registrar having reserved the matter for a ruling on the Interpleader Application on the papers, and then subsequently having reserved the matter for determination by a Judge of the Court, the Court wished to ensure that before any ruling was made, the parties were content with the material presently before the Court and that from the parties’ perspective there was no necessity for further material to be put before the Court.
Aside from requesting an extension of time for the PSSO (which was due to expire on 31 August 2015), Mr Blackman did not have any further material to put before the Court, and nor did Mr Mitchell or the Sheriff. Mr Leppard raised an issue with respect to the ownership of the plant and equipment, but indicated to the Court that he had filed no affidavits in that regard. Given that he had filed no further affidavits in accordance with the Registrar’s orders, Mr Leppard was told that if any affidavits were to be filed he would need to make an application seeking leave to do so. The parties were advised on 27 August 2015 by email that judgment was to be delivered at 4.30pm on 31 August 2015.
Mr Leppard filed no application. The Court was advised that there was an attempt to file affidavits by sending them to the presiding judge’s associate’s email box, but that Mr Leppard was advised that that was not an appropriate means of filing with the Court. The Court notes that there was no leave for Mr Leppard to file further affidavits. The Court’s presiding judge has not seen the affidavits that Mr Leppard endeavoured to file by email to the associate’s email box.
Just prior to midday today the Registry apparently accepted for filing an affidavit from Mr Leppard. As indicated above, there was no leave granted for further affidavits to be filed in this matter, either by the Registrar of the Court once his orders had been complied with, or by the Court arising from the hearing on 3 August 2015. Additionally, no application has been made to re-open the case to accept further evidence. If such an application had been made it would need to set out the grounds for re-opening, and those grounds would need to satisfy the relevant test for the grant of leave to re-open: Londish & Ors v Gulf Pacific Pty Limited (1993) 45 FCR 128; (1993) 117 ALR 361; FCR at 139 per Neaves, Burchett and Ryan JJ; Ample Source International Limited v Bonython Metals Group Pty Limited; In the Matter of Bonython Metals Group Pty Limited (No.6) [2011] FCA 1484; (2011) 285 ALR 488 at [355] per Robertson J. In the absence of an application setting out grounds for leave to re-open the affidavit cannot be read by the Court. The gratuitous, because it was not the subject of any grant of leave, addition of an affidavit after the Court hearing is also unsatisfactory. Albeit that the cases related to the filing of submissions, the relevant principles are set out in NT Power Generation Pty Ltd v Power and Water Authority [2004] HCA 48; (2004) 219 CLR 90; (2004) 79 ALJR 1; (2004) 210 ALR 312; [2004] ATPR 42-021 at [192] per McHugh ACJ, Gummow, Callinan and Heydon JJ, and Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for the Sustainability, Environment, Water, Population and Communities [2013] FCA 782 at [2]-[4] per Logan J. There is no indication, by way of an affidavit of service, that the affidavit accepted for filing by the Registry has been served on the other parties, and it would be unfair to them to read the affidavit accepted for filing by the Registry just prior to midday today.
In circumstances where no leave has been granted to file further affidavit evidence, no application has been made to re-open the case to accept further evidence, there is no evidence that the other parties have been served with the affidavit, and the affidavit was “filed” late on the morning that judgment was to be delivered, all in circumstances where Mr Leppard was told at hearing that he would need to make an application seeking leave to file any further affidavits, the Court does not consider it appropriate to read the affidavit of Mr Leppard. The Court has, therefore, not read the affidavit. The proper course in the circumstances is for the affidavit to be removed from the file by the Registry and returned to Mr Leppard. There will be an order accordingly.
The Court notes that any prejudice to Mr Leppard is not irredeemable: until such time as the Property is sold it is still open to him to make any appropriate application in the appropriate form.
Two issues now arise for consideration, namely, whether the PSSO ought to be extended as to time, and how the Interpleader Application ought to be determined.
Extension of time
Under s.102(1)(b) of the Enforcement Act a PSSO operates for 12 months after the day on which it is made or issued. The PSSO in these proceedings expires on 31 August 2015, that is, not before midnight tonight: Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421; (1972) 46 ALJR 701; [1972-73] ALR 1303; Segal v Young [2001] NSWCA 141 at [19] per Ipp AJA (with whom Giles JA and Rolfe AJA agreed). Under s.102(2) of the Enforcement Act a person in whose favour a PSSO operates may from time to time apply to the Court for the operation of the PSSO to be extended. On such an application, the Court may extend the operation of the PSSO for a period set by the Court that is not longer than 12 months. Mr Blackman made such an application, orally, at the hearing on 3 August 2015.
The Enforcement Act specifies no criteria pursuant to which an extension of time might be granted. Ultimately, the matter is within the discretion of the Court, acting judicially and exercising its discretion on a rational basis.
In this case, steps have been taken consequent upon the refusal of Mr Leppard to comply with the Court’s orders for payment to Mr Blackman, to seize the Property, said to belong to Mr Leppard, for sale. The Court’s accepts that that has taken some time, and has now been further delayed by the Interpleader Application. Thus, the necessity for an order extending time for the operation of the PSSO is readily explicable. Further, if time is not extended the opportunity for the Property to be sold to facilitate payment to Mr Blackman of the amount which the Court has ordered to be paid by Mr Leppard, but which Mr Leppard has not paid to Mr Blackman might be lost. Furthermore, Mr Leppard ought not benefit from his failure to comply with an order of this Court, which would be the effect if the PSSO was not extended, and therefore lapsed. In short, time should be extended to facilitate compliance with an order of this Court.
The Court will therefore make an order extending the time of operation of the PSSO by a further 12 months until 31 August 2016.
The Interpleader Application
The Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”) do not contain rules about Interpleader claims. The Federal Court Rules 2011 (Cth) (“FC Rules”) do; specifically rr.18.11, 18.12, 18.13 and 18.14. The FC Rules can apply to these proceedings by reason of r.1.05(2) of the FCC Rules, which provide for the FC Rules to apply where the FCC Rules are “insufficient”. Where there are no relevant rules under the FCC Rules, the FCC Rules are obviously “insufficient” to deal with the matter before it. It is unnecessary for the Court to determine whether there has been absolute compliance with the requirements of the relevant FC Rules, or s.83(2) and (3) of the Enforcement Act, for the purposes of bringing the parties and interested persons to Court, as it is apparent that the substantive applicant, Mr Blackman, the substantive respondent, Mr Leppard, the claimant, Mr Mitchell, and the Interpleader, the Sheriff, all appear before the Court and that the issue with respect to the claim by Mr Mitchell, is joined. The Sheriff, properly, took no part in submissions on the merits of the Interpleader Application.
The issue, then, is whether Mr Mitchell has made out a claim to the Property, or the proceeds of the Property if sold by the Sheriff.
Section 83(2)(b) and (c) of the Enforcement Act provides for a claim in an Interpleader action to “describe the property or interest that is claimed” and “state the basis for the claim”. Under r.18.11(2)(b) of the FC Rules a claimant is required to “specify the claim”. To “specify” is to “[n]ame expressly, mention definitely (items, details … etc …): The Concise Oxford Dictionary of Current English (6th Edn) (Oxford: Clarendon Press, 1980), page 1101.
The question arises then as to whether Mr Mitchell’s Affidavit, which for these purposes constitutes his claim, described the property or interest claimed and states the basis for the claim, or specifies the claim.
Mr Mitchell says that he is “owed a substantial amount of money” by Mr Leppard. Mr Mitchell says nothing, however, about:
a)the basis for that claim;
b)how much money he says that he is owed;
c)whether other endeavours have been made to recover that money, and if so what occurred in relation to them.
In short, whilst Mr Mitchell has made a claim for monies owed to him by Mr Leppard, he has not specified the basis for that claim or the amount claimed, or how the claim is calculated. In those circumstances the Court does not consider that the basis for the claim has been stated as required by s.83(2)(c) of the Enforcement Act, nor specified as required by r.18.11(2)(b) of the FC Rules.
In all of the above circumstances, the Court is of the view that the claim for relief in the Interpleader Application has not been made out, and the Interpleader Application must be dismissed.
In the circumstances, there will be orders as follows:
a)pursuant to s.102(4) of the Civil Judgments Enforcement Act 2004 (WA) the operation of the Property (Seizure and Sale) Order issued by a Registrar of this Court on 1 September 2014 have its operation extended until 31 August 2016; and
b)the claim by Nicholas Roy Mitchell by way of Interpleader for relief in these proceedings is dismissed.
In circumstances where each of the applicant, the respondent, and the claimant were self-represented, and the Sheriff was represented by Counsel, but only as a courtesy to the Court (which is appreciated), there will be no order as to costs, and there will be a further order to that effect.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of Judge Antoni Lucev
Associate:
Date: 31 August 2015
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