Donnelly and Anor. v Tenterfield S.C

[1999] NSWLEC 142

Land and Environment Court

of New South Wales

CITATION:	Donnelly and Anor. -V- Tenterfield S.C. and Ors. [1999] NSWLEC 142
PARTIES	APPLICANTS: Donnelly and Anor.
RESPONDENTS: Tenterfield S.C. and Ors.
NUMBER:	40295 of 1997
CORAM:	Bignold J
KEY ISSUES:	Practice & Procedure :- Order for examination of judgment debtors.
LEGISLATION CITED:	Supreme Court Rules Pt 43 r 1
DATES OF HEARING:	04/29/1999
EX TEMPORE JUDGMENT DATE:	04/29/1999
LEGAL REPRESENTATIVES:	APPLICANTS: Nil SOLICITORS: N/A FIRST RESPONDENT: Nil SOLICITORS N/A SECOND AND THIRD RESPONDENTS: Mr C. Ireland, Solicitor SOLICITORS: Blake Dawson Waldron FOURTH RESPONDENT: Nil SOLICITORS: N/A

JUDGMENT:

IN THE LAND AND Matter No.: 40295 of 1997

ENVIRONMENT COURT OF Coram: Bignold J.

NEW SOUTH WALES 29 April 1999

ANDREW DONNELLY AND DAVID MUNDINE

Applicants

v.

TENTERFIELD SHIRE COUNCIL

First Respondent

ROSS MINING N/L

Second Respondent

CAPRICORNIA PROSPECTING PTY LTD

Third Respondent

MINISTER FOR MINERAL RESOURCES

Fourth Respondent

JUDGMENT

Bignold J:

1. This is a Motion by the second and third Respondents seeking an order pursuant to Pt 43, r 1 of the Supreme Court Rules as adopted by Pt 6, r 1 of the Land and Environment Court Rules for the examination of David Mundine and Andrew Donnelly, Applicants in the class 4 proceedings which are before the Court.

2. The purpose of the examination is in aid of the enforcement of a judgment debt that has arisen in recent times by virtue of the filing in the Court of a Certificate of Determination of Costs by the costs assessor appointed under the Legal Profession Act 1987.

3. According to the affidavit evidence filed in support of the Motion, the cost certificate was filed in this Court on 22 April 1999, just one week ago. The certificate is dated 16 April, 1999 and the sum assessed is $87,504. That is the assessment of costs in respect of an order for costs made by Talbot J in these class 4 proceedings on 9 July, 1998.

4. Neither Mr Donnelly nor Mr Mundine have appeared today in answer to the Motion or to speak against the Motion. The Motion was served on the solicitors on the record for Mr Donnelly and Mr Mundine, Craddock Murray and Neumann. A copy was also sent to Mr Alan Oshlack who has been the representative of Mr Donnelly and Mr Mundine in other pending proceedings in this Court. As it happens, Mr Oshlack, is in Court today because the next matter in my list involves proceedings 40164/98 in which Mr Donnelly and Mr Mundine are the Applicants and Ross Mining and related companies are the Respondents.

5. However, in relation to the proceedings presently before me, Mr Oshlack advised the Court that he had no instructions to appear for Mr Donnelly or Mr Mundine and that he did not appear as their agent pursuant to s63 of the Land and Environment Court Act 1979, being the capacity in which he has represented the same gentlemen in the other proceedings that I have referred to.

6. Accordingly, the Motion was heard ex parte. In the course of the presentation of the case, on behalf of Ross Mining, Mr Oshlack interrupted as it were to ask that the matter be adjourned in order that he might obtain instructions. This course appeared to me to be irregular and the request was refused. Accordingly, the Motion was heard as I have said on an ex parte basis.

7. As has been pointed out in the course of the presentation of the case, Pt 43, r 3, does not necessarily require a person moving the Court for an order to have first filed a Notice of Motion. However, in the present case, a Notice of Motion has been filed and it has been regularly served by service upon the solicitor on the record acting for Mr Donnelly and Mr Mundine.

8. In the course of the presentation of the case, I put to Mr Ireland on behalf of the moving party that it would appear appropriate to appoint a date for examination (I being satisfied that his client was relevantly a person entitled to enforce a judgment and therefore prima facie entitled to bring the Motion and to succeed upon it) more distant than 5 May 1999 which is the date nominated in the form of order annexed to the Motion.

9. This suggestion of one month's postponement instead of one week, for the examination appointment date, was vigorously opposed on the grounds that it would cause Ross Mining prejudice. This assertion was not elaborated upon or substantiated save for the fact that it was pointed out that Talbot J’s costs order is now some nine months old and that Ross Mining, being entitled to the judgment debt created by the assessment of costs pursuant to the Legal Profession Act 1987 wishes to execute that judgment with alacrity.

10. It was pointed out in an aside, as it were, that Ross Mining is presently subjected to extensive litigation brought in this Court by Mr Donnelly and Mr Mundine and no doubt it is incurring considerable costs in that process, and it was put that it was fully entitled to enforce the judgment against the very persons who are maintaining the present actions against Ross Mining.

11. In my opinion, no injustice will be visited on Ross Mining if the time set for the examination is one month hence rather than one week as sought.

12. The judgment debt was only created on 22 April 1999, i.e. a week ago, that being the culmination of an assessment of costs in respect of the order made by Talbot J on 9 July 1998, where the parties have not reached agreement. In these circumstances, it appears to me to be fair and reasonable that the parties bound by the costs assessment, have an opportunity to satisfy the judgment debt without requiring the judgment creditor to resort to enforcement processes available in this Court or in other places. It is to be noted that a demand for the payment of the debt was only made on 22 April this year, i.e. a week ago, being the day when the costs assessor issued his Certificate of Determination of Costs.

13. In the circumstances, the order sought is made, however, in lieu of 5 May 1999, I appoint Wednesday, 26 May 1999 at 11am as the time for that examination to be conducted.

14. In the course of considering the Motion I raised with the moving party, the question whether conduct money ought to be required in the circumstance of this case. Rule 4, Pt 43, of course, provides that no sum need be paid or tendered to meet the expenses of persons ordered to attend under r 1, but I would not understand that rule to preclude a requirement for the giving of conduct money. However, in view of the vigorous resistance of the suggestion that there should be an order for conduct money in this case, it may be preferable if I leave that question open in the sense of not requiring conduct money to be tendered but leaving it to Mr Donnelly and Mr Mundine if they are so minded to move the Court on a subsequent occasion (but before the time fixed for the examination) to seek an order for conduct money to be tendered in the circumstances of this case.