Fallon v NSW Government Office of State Revenue State Debt Recovery Office
[2013] FCA 270
FEDERAL COURT OF AUSTRALIA
Fallon v NSW Government Office of State Revenue State Debt Recovery Office [2013] FCA 270
Citation: Fallon v NSW Government Office of State Revenue State Debt Recovery Office [2013] FCA 270 Parties: LEONARD RUSSELL FALLON v NSW GOVERNMENT OFFICE OF STATE REVENUE STATE DEBT RECOVERY OFFICE
ABN 77 456 270 638File number(s): NSD 1928 of 2012 Judge: FARRELL J Date of judgment: 27 March 2013 Legislation: Bills of Exchange Act 1909 (Cth) ss 10, 25 Date of hearing: 14 February 2013, 27 March 2013 Place: Sydney Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 17 Counsel for the Prospective Applicant: The Prospective Applicant appeared in person on 14 February 2013 and did not appear on 27 March 2013 Solicitor for the Prospective Respondent: New South Wales Crown Solicitor's Office
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1928 of 2012
BETWEEN: LEONARD RUSSELL FALLON
Prospective ApplicantAND: NSW GOVERNMENT OFFICE OF STATE REVENUE STATE DEBT RECOVERY OFFICE ABN 77 456 270 638
Prospective Respondent
JUDGE:
FARRELL J
DATE OF ORDER:
27 MARCH 2013
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
1.The urgent application before the start of a proceeding filed on 27 November 2012 is dismissed.
2.There be no order as to costs.
Note:Entry of orders is dealt with in r 39.32 of the Federal Court Rules 2011
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
NSD 1928 of 2012
BETWEEN: LEONARD RUSSELL FALLON
Prospective ApplicantAND: NSW GOVERNMENT OFFICE OF STATE REVENUE STATE DEBT RECOVERY OFFICE ABN 77 456 270 638
Prospective Respondent
JUDGE:
FARRELL J
DATE:
27 MARCH 2013
PLACE:
SYDNEY
REASONS FOR JUDGMENT
By an “Urgent Application Before the Start of a Proceeding” filed on 27 November 2012, the prospective applicant (hereafter referred to for convenience as the applicant) sought a “permanent, prohibitory injunction” ordering the prospective respondent (hereafter the respondent) to direct the Roads and Maritime Service (RMS) of New South Wales to lift a suspension on, and reinstate, the applicant’s driver’s licence. He also sought that the RMS be directed to “reconduct business” with him including in relation to the registration of a vehicle, the reissue of trader’s plates, processing of a number-plate exchange, reservation of a particular number-plate or a particular design of number-plate, retesting for eligibility for a driver’s licence, booking for a driving test and re-issuance of a driving instructor’s licence.
The hearing of this application commenced on 7 February 2013 and was adjourned to 14 February 2013. However, the applicant was not able to attend that or subsequent dates when this matter was set down for further hearing due to his hospitalisation. He has not appeared at the hearing today. He has not notified the Court that he was not able to attend.
The applicant has provided copious material to the Court in connection with his application and appears anxious for final determination of this matter. On that basis, I now provide reasons for decision.
On 23 April 2012, the respondent issued to “LEONARD RUSSELL FALLON” an enforcement order, which purported to be for a fine issued by the Lismore Local Court in relation to a speeding offence which had not been paid (Enforcement Order). The Enforcement Order was for an amount of $500.20. The original penalty was $450.20.
In summary:
(1)The applicant says that Leonard Russell Fallon, LEONARD RUSSELL FALLON, Mr Fallon, FALLON, RUSSELL LEONARD and other variants are all different legal entities.
(2)He says that he “legitimately converted the Enforcement Order into a bill of exchange under the authority derived from s 25 of the Commonwealth Bills of Exchange Act, 1909”. The applicant says that his “conversion” of the Enforcement Order into a bill of exchange is “in accord, compliance and complete satisfaction” of “s.4, s.8 (1–4 (c)), s.13, s.14 (1) (2), s.21 (a) (b), s.25 (1) (2), s.26, s.28, s.32, s.37(f), s.44 (1) (2) (4), s.47, s.50(h), s.56, s.59(a), s.60(a), s.69(2), s.73(7), s.78(1), s.97 (1) (2) and s.100, Second Schedule of the Bills of Exchange Act 1909 (Cth)”.
(3)He argues that the Enforcement Order was an “inchoate” bill of exchange which he was entitled to complete. There were a range of endorsements made by the applicant on the Enforcement Order including:
INCHOATE ACCOUNTING INSTRUMENT ACCEPTED FOR VALUE
MISSING PARTICULARS COMPLETED RETURNED COMPLETE
Pay the sum certain of ONE AUSTRALIAN DOLLAR EXACTLY.
PAYABLE AT: [an address in Katoomba]
at 16:00 hours without delay on Monday
the seventh day of May AD 2012
(4)The document was also endorsed with a purported bill of exchange number, endorsements concerning negotiability and transferability and the following:
FALLON, LEONARD RUSSELL
; State Debt Recovery Enforcement Order Number 311535530
PAY TO THE ORDER OF: THE STATE DEBT RECOVERY OFFICETHE SUM CERTAIN OF: ONE AUSTRALIAN DOLLAR EXACTLY. BEING SUFFICIENT VALUABLE CONSIDERATION FOR ANY BILL OF EXCHANGE IN ORDER TO CONSTITUTE AND SUPPORT A SIMPLE CONTRACT BETWEEN THE PARTIES : FALLON, LEONARD RUSSELL & OFFICE OF STATE REVENUE – STATE DEBT RECOVERY
This endorsement was signed by Leonard Russell Fallon and a postage stamp was attached and struck through.
(5)The applicant posted the Enforcement Order, with these endorsements, to the respondent on Monday, 30 April 2012.
(6)The applicant claims that on Monday, 7 May 2012 at 16:00 hours, the respondent dishonoured the bill of exchange. Certificate of protest documentation was sent to the respondent on 9 May 2012.
(7)The applicant says that the respondent has refused payment “supra protest” and therefore the respondent has lost its recourse against him.
(8)In early September 2012 the applicant received a “suspension of licence” notification from the respondent. In early October 2012 the applicant received notice that his driver’s licence had been suspended. On 18 January 2013 the applicant received a “cancellation of vehicle registration” notice.
The applicant has, on many occasions, sent letters to the respondent concerning these matters. In that correspondence he has protested the suspension of his driver’s licence and the cancellation of his vehicle registration. The applicant claims that these actions by the RMS are unlawful because his obligations were satisfied by the conversion of the Enforcement Order into a bill of exchange which the respondent should have treated as cash or a cash equivalent.
INTERLOCUTORY RELIEF
The nature of the interlocutory relief sought by the applicant is essentially a mandatory, restorative injunction. If the relief were granted in the terms sought it would have a permanent effect and in effect be a final order.
Mandatory injunctions are granted on the same general basis and principles as prohibitory injunctions, although the jurisdiction to order a mandatory injunction is exercised cautiously. Nonetheless, it is essentially a matter of discretion so as to do justice in the circumstances of the particular case.
Before granting an interlocutory injunction, the Court must be satisfied that:
(a)the applicant has made out a prima facie case in the sense of a serious question to be tried;
(b)the balance of convenience favours the grant rather than the refusal of the injunction;
(c)the applicant will suffer irreparable injury for which damages are not an adequate remedy if the injunction is not granted; and
(d) there are no discretionary factors which disentitle the applicant to relief.
Prima facie case
The applicant has not demonstrated that there is a serious question to be tried. I do not consider that the applicant has any prospects of success in an application for final relief. Although the applicant has provided many pages of affidavit and other material to the Court none of it discloses a cause of action.
The applicant’s argument that the Enforcement Order was an inchoate bill of exchange which he was entitled to complete under s 25 of the Bills of Exchange Act 1909 (Cth) (Bills of Exchange Act) is simply wrong. All arguments which then proceed from this premise must also be wrong.
Taking the applicant’s argument at its highest, the endorsement which I have set out at a paragraph [4(4)] above may be sufficient to create a document which the respondent is entitled to treat as a bill of exchange or promissory note (at its option) for the sum of one dollar under s 10(2) of the Bills of Exchange Act. Despite the applicant’s argument that his name written in different fashions creates different legal entities, at best the applicant has acted as drawer and drawee.
The respondent has no obligation to accept a bill of exchange or promissory note for one dollar in satisfaction of the Enforcement Order. Bills of exchange (other than cheques) and promissory notes are not listed as an acceptable method for payment of the penalty referred to in the Enforcement Order. All of the methods specified in the Enforcement Order are ready cash equivalents involving payments by recognised banks and the public policy for this approach is readily understandable. Further, the payment of one dollar, even in cash, would not satisfy the Enforcement Order.
Conclusion
As the applicant has not made out a prima facie case, I must refuse to grant him the relief which he has sought. I therefore do not need to consider the other matters of which I would need to be satisfied before granting an interlocutory injunction. However, if it were necessary to go further, I would be influenced in the exercise of my discretion by the facts that:
(a)The Enforcement Order followed the failure of the applicant to pay a fine imposed by the Lismore Local Court. The applicant would have had opportunities to dispute the basis on which that fine was imposed.
(b)There were opportunities referred to in the Enforcement Order to apply to the respondent for time to pay or to have the order reviewed. Either of these courses would have been appropriate if the applicant did not have the funds to pay the penalty or if he wished it to be reviewed. There is no evidence that the applicant has ever taken either course.
(c)By paying the amounts which are claimed by the respondent, the applicant can take steps towards reinstatement of his driver’s licence and the re-registration of the vehicle referred to in his application.
OTHER MATTERS
In the course of the many communications which the applicant has made to the Court, there are a number of occasions on which he has impugned the integrity of members of the Court Registry, the respondent, the solicitor who has appeared for the respondent and the Court. I have not responded previously to the matters which the applicant has raised because I believe that they are a product of the illness which has caused his hospitalisation. He has produced no evidence for the allegations. In those circumstances the allegations are completely inappropriate and are without foundation.
ORDERS
I decline to make the orders sought by the applicant.
Although the respondent’s representative formally sought costs, he acknowledged that as model litigant the respondent would not oppose the court finding that the applicant’s circumstances justified departure from the ordinary rule that costs follow the event. Accordingly I make no order as to costs.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Farrell. Associate:
Dated: 27 March 2013
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