Dyason v Butterworth - [2013] FCCA 2067

ConstantinidisvHatton (2006) 201 FLR 252
KlewervWalton [2004] FCAFC 284
Van derMunnikvStewart [2010] FMCA 116

Applicant:

LINDEN PRESCOTT DYASON

Respondent:

HANNAH BUTTERWORTH

File Number:

SYG 2853 of 2013

Judgment of:

Judge Driver

Hearing date:

3 December 2013

Delivered at:

Sydney

Delivered on:

3 December 2013

REPRESENTATION

The Applicant appeared in person

Counsel for the Respondent:

Mr A Vernier

ORDERS

The application filed on 19 November 2013 in relation to Bankruptcy Notice BN166387 be dismissed.
Pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth), time for compliance with the Bankruptcy Notice be extended up to and including 3 December 2013.
The applicant is to pay the respondent’s costs and disbursements of and incidental to the application, to be taxed in accordance with the Federal Court Rules if not agreed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2853 of 2013

LINDEN PRESCOTT DYASON

Applicant

And

HANNAH BUTTERWOTH

Respondent

REASONS FOR JUDGMENT

(revised from transcript)

I have before me an application filed on 19 November 2013, seeking to set aside Bankruptcy Notice BN166387 served upon the applicant, Mr Dyason. The application is supported by Mr Dyason’s affidavit filed with the application. I received that affidavit subject to certain deletions from the body of it. There are a number of documents annexed to that affidavit which I received. I also received as evidence documents tendered by the solicitor for the respondent, those being a copy of the bankruptcy notice and a bundle of documents relating to the proceedings which led to the judgment debt.
Mr Dyason challenges the bankruptcy notice and also seeks an extension of time to comply with it until such time as the Court has ruled on the validity of the notice. He has a number of concerns, but his principal concerns, as I understand it, are that the judgment debt is a composite amount of costs orders made by the NSW Local Court and by the District Court of NSW in what he regards as an arbitrary fashion, without any assessment, and also that he has been denied the opportunity to obtain an instalment order. If an instalment order had been obtained before the bankruptcy notice was issued and served, then the instalment order could have operated as a stay on the judgment debt, thereby preventing the issuing of the bankruptcy notice.
Counsel for the respondent creditor, Ms Butterworth, took me through the rather complex legislation applicable to the proceedings leading to the judgment debt. Simply put, Ms Butterworth sought an apprehended violence order against Mr Dyason (who is a 78 year old pensioner). That application was made under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The proceedings were, in essence, a private criminal prosecution. Section 99 of that Act provides that a court may, in apprehended violence order proceedings, award costs to the applicant for the order or decision concerned, or the defendant, in accordance with that section. It was an apparent reliance upon that power that the Local Court made an order for costs on 12 June 2013, when Ms Butterworth was granted the apprehended violence order. That order was for the sum of $3,300.
Mr Dyason was dissatisfied and appealed that order to the District Court. It is apparent that the District Court was acting under the Crimes (Appeal and Review) Act 2001 (NSW). The proceedings were a criminal appeal. Mr Dyason was unsuccessful and the District Court made a further order affirming the costs order made in the Local Court, but varying the payment period and adding a further amount in respect of the proceedings in the District Court. That is the judgment debt.
Counsel for Ms Butterworth took me through the Criminal Procedure Act 1986 (NSW) (Criminal Procedure Act) and the Fines Act 1996 (NSW) (Fines Act) in order to establish the true character of the debt flowing from the District Court’s order. It is apparent that the order made was a penalty and as appears from the attachments to Mr Dyason’s affidavit, a penalty notice was issued on 5 August 2013. The amount of the penalty was $5,439.45, being the amount due on the order made by the District Court. Mr Dyason had 28 days to pay. I accept that the costs orders made were consistent with the Criminal Procedure Act. Section 217 of that Act deals with the enforcement of costs orders. It provides that an order made by a court under the relevant division for the payment of costs is taken to be a fine within the meaning of the Fines Act. Section 109 of the Fines Act defines ancillary money orders, of which the District Court order appears to be one.
Section 109A of the Fines Act provides that division 2 of part 2 of that Act applies to the payment of ancillary money orders in the same way as it applies to the payment of fines. However, s.110 of that Act dealing with the enforcement of ancillary money orders provides that, subject to s.109A, an ancillary money order is enforceable as if it were a judgment for the payment of that amount under the Civil Procedure Act 2005 (NSW) (Civil Procedure Act).
The examination of that legislation persuades me that the costs order made by the District Court, once the period for payment had expired pursuant to the penalty notice, was enforceable as a civil debt under the Civil Procedure Act.
Counsel for Ms Butterworth took me to previous decisions of this Court and the Federal Court dealing with costs orders in similar circumstances. In particular, I have had regard to the decision of this court in ConstantinidisvHatton[1], Van derMunnikvStewart[2] and KlewervWalton[3]. These authorities persuade me that a judgment for costs in circumstances such as the present can support a bankruptcy notice.
[1] (2006) 201 FLR 252
[2] [2010] FMCA 116
[3] [2004] FCAFC 284, special leave refused by the High Court on 5 August 2005
To the extent that Mr Dyason is aggrieved by the fact that the costs order made by the District Court, like the earlier costs order made by the Local Court, was made by the presiding judicial officer in the exercise of discretion rather than on the basis of an assessment of costs, he may have a right of appeal available. However, no assessment or taxation of costs was required before the Court could make its order. The circumstances were, as I understand it, that the solicitor for Ms Butterworth suggested an appropriate amount and the Court adopted that suggestion. Once the order was made and the 28 day penalty payment period expired, the order became final.
Mr Dyason may have a grievance in relation to the apparent denial of the opportunity for him to pay by instalments. I understand that he sought that opportunity from the Local Court and was denied. It seems to me that once the debt achieved the status of an ancillary money order enforceable under the Civil Procedure Act as a civil debt, it ought to have been possible for Mr Dyason to apply to the Local Court to pay by instalments. That is a matter he may wish to pursue with that Court.
For present purposes, however, Mr Dyason does not have the benefit of an instalment order and hence, there is no issue of a stay on the judgment debt. Mr Dyason has not to date appealed against the costs order made by the District Court. It is a final judgment or order and properly supports the bankruptcy notice issued. I have concluded that the challenge against the bankruptcy notice made by Mr Dyason fails.
I will, therefore, order that the application filed on 19 November 2013, in relation to bankruptcy notice BN166387 be dismissed. I will, nevertheless, order pursuant to s.41(6A) of the Bankruptcy Act 1966 (Cth) that the time for compliance with that bankruptcy notice be extended up to and including today.
I will further order that the applicant is to pay the respondent’s costs and disbursements of and incidental to the application, to be taxed in accordance with the Federal Court Rules if not agreed.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Driver

Date: 6 December 2013