Genovese v BGC Construction Pty Ltd
[2007] FMCA 71
•29 January 2007
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| GENOVESE v BGC CONSTRUCTION PTY LTD | [2007] FMCA 71 |
| BANKRUPTCY – Application to set aside – jurisdiction and power of Magistrates Court of Western Australia to issue order of former Local Court – whether action pending – hearing and determination of action – application dismissed. |
| Bankruptcy Act, 1966 (Cth), ss.306(1), 40(1)(g), and 41(1) & (2) Bankruptcy Regulations, 1996 (Cth), regs.1.03(1), 4.01 and 4.02 Courts Legislation Amendment and Repeal Act, 2004 (WA), ss.4, 7, 10, 143, 144, 145 and 146 Interpretation Act, 1984 (WA), s.37(1) & (2) Local Courts Act, 1904 (WA), Local Court Rules, 1961 (WA), O.23 rr.2, and 4(2) Magistrates Court Act, 2004 (WA), ss.4(3) Magistrates Court (Civil Proceedings) Act, 2004 (WA) Magistrates Court (Civil Proceedings) Rules, 2005 (WA), r.78 |
| Airservices Australia v Monarch Airlines Ltd (1998) 152 ALR 656 Cavanagh v Bank of New Zealand (1990) 22 FCR 124 Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441; [1999] FCA 143 Esber v Commonwealth (1992) 174 CLR 430 Franklins v Richards [2002] NSWCC 2 Genovese v BGC Constructions Pty Ltd [2006] FCA 105 Lee v Secretary, Department of Social Security (1996) 68 FCR 491 Norcal Pty Ltd v D’Amato (1988) 15 NSWLR 376 Proposch v Anne French Investments Pty Ltd [2006] WADC 47 R v Ferguson; ex parte Attorney-General (1991) 1 Qd R 35 at 38 Re Peat Resources of Australia Pty Ltd; ex parte Pollock [2004] WASCA 122 Salt v Cooper (1880) 16 Ch D 544 St. George Bank v Klintworth (1988) 86 FCR 40 Stroud’s Judicial Dictionary of Words and Phrases (6th Edition) Victims Compensation Fund Corporation v Brown and Others (2003) 201 ALR 260; [2003] HCA 54 D.C. Pearce and R. Geddes, Statutory Interpretation in Australia (6th Edition) (Sydney, LexisNexis, 2006) P.W Nichols (Ed) Civil Procedure Western Australia – Magistrates Court (LexisNexis Butterworths, 2005) |
| Applicant: | HERCOLE PIETRO GENOVESE |
| Respondent: | BGC CONSTRUCTION PTY LTD |
| File Number: | PEG 121 of 2006 |
| Judgment of: | Lucev FM |
| Hearing date: | 29 September 2006 |
| Date of Last Written Submission: | 28 November 2006 |
| Delivered at: | Perth |
| Delivered on: | 29 January 2007 |
REPRESENTATION
| Counsel for the Applicant: | Mr. C. McIntosh |
| Counsel for the Respondent: | Mr. J. Thomson |
| Solicitors for the Respondent: | Hotchkin Hanly |
ORDERS
That the Applicant’s application to set aside the Bankruptcy Notice be dismissed.
That the Applicant pay the Respondent’s costs, to be agreed, and if not agreed, taxed on the Federal Court scale under O.62.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 121 OF 2006
| HERCOLE PIETRO GENOVESE |
Applicant
And
| BGC CONSTRUCTION PTY LTD |
Respondent
REASONS FOR JUDGMENT
An application to set aside
The Applicant seeks by an amended application (“the Amended Application”) dated 17 July 2006 to set aside a bankruptcy notice (“the Bankruptcy Notice”) issued 27 February 2006.
The Applicant’s proposition
A seemingly startling proposition is posited by the Applicant.
The Applicant contents that judgments and orders made by the former Local Court of Western Australia (“Local Court”) not extracted before 2 May 2005 (“Transition Date”) (when the Local Court became the Magistrates Court of Western Australia (“Magistrates Court”)) cannot be relied upon in bankruptcy proceedings because any judgment or orders extracted after the Transition Date are judgments or orders of the Magistrates Court, not the Local Court. Further, the Applicant contends that a judgment or orders obtained from the Magistrates Court is not a judgment or orders of the “court” for the purposes of regulation 1.03(1) under the Bankruptcy Regulations, 1996 (Cth) (“Bankruptcy Regulations”).
The issue arises because the Courts Legislation Amendment and Repeal Act 2004 (WA) (“the Courts Legislation Act”) repealed the Local Courts Act, 1904 (WA)[1], thereby abolishing the Local Court.
[1] Courts Legislation Act, s.4.
The Local Court, and other courts, were replaced by the Magistrates Court, established under the Magistrates Court Act, 2004 (WA)[2]. Relevantly, the Magistrates Court (Civil Proceedings) Act, 2004 (WA) gives the Magistrates Court the former civil jurisdiction of the Local Court.
[2] Magistrates Court Act, s.4(1).
The date of the commencement of the Magistrates Court and its civil jurisdiction, and the abolition of the Local Court and the repeal of its civil jurisdiction was the Transition Date.
Bankruptcy Notice – judgments and orders
The orders attached to the Bankruptcy Notice challenged by the Applicant are all in common form.
They are headed:
MAGISTRATES COURT OF WESTERN AUSTRALIA
(CIVIL JURISDICTION)
GENERAL ORDER
FORM 25
Each order bears a case number (18423 of 2001) being the original plaint number in the Local Court.
Each order goes on to provide that it was “BEFORE THE COURT ON” and then are set out various dates in 2003, and each order says it was “before” a “Stipendiary Magistrate”, whose name then appears, “in chambers”.
Each order is then date stamped “3 JAN 2006” and sealed with the seal of the Magistrates Court under the signature of a person purporting to be a Registrar of the Magistrates Court.[3] It is not in issue that the orders were not extracted until 3 January 2006, that is more than two years after they were orally pronounced by the Local Court, and some eight months after the abolition of the Local Court and the repeal of its civil jurisdiction.
[3] The Bankruptcy Notice is attached to the Applicant’s Affidavit sworn 12 May 2006.
The jurisdiction point – Applicant’s submissions
The Applicant submits that the Magistrates Court has no jurisdiction to issue any judgments or orders “for and on behalf of” the former Local Court.[4]
[4] Applicant’s Outline of Submissions filed 24 October 2006, para.1 (“Applicants 24 October Submissions”).
Section 7 of the Courts Legislation Act provides that:
If immediately before commencement an action or matter (as defined in the Local Courts Act 1904) is pending before a Local Court, then on commencement the action or maters –
(a) is to be taken to be a case pending before the Magistrates Court; and
(b)shall be heard and determined under the Magistrates Court (Civil Proceedings) Act 2004 as if it is within the civil jurisdiction of the Magistrates Court.
The Applicant says that on a proper construction of s.7 of the Courts Legislation Act Local Court matters “that are pending are remitted to the Magistrates Court for the purpose of being ‘heard and determined’”.[5] The Applicant argues that “shall be heard and determined” in s.7(b) of the Courts Legislation Act indicates that “the matter pending” is one which “requires” a “hearing and determination” and that as “judgment was obtained in 2003 no further hearing is actually required.”[6]
[5] Applicant’s 24 October Submissions, para.7.
[6] Applicant’s 24 October Submissions, para.4.
The determination referred to is said to mean “the determination of the action or matter (as defined in the Local Courts Act, 1904)” and that that means “judicially determined” and it is “not … appropriate for the … matter to be referred to the Magistrates Court to be ‘heard and determined’ again.”[7]
[7] Applicant’s 24 October Submissions, para.5.
The Applicant then submits, somewhat diffidently, that “it may follow”:
a)that the matter was never properly before the Magistrates Court; and
b)that the Magistrates Court did not have jurisdiction to make orders for and on behalf of the Local Court.[8]
[8] Applicant’s 24 October Submissions, para.6.
Section 4(3) of the Magistrates Court Act, which reads (in part) as follows:
The Court is to have as many seals as are necessary for the transactions of its business,
is said to be consistent with a conclusion of no jurisdiction to make orders for and on behalf of the Local Court.[9] The extracted portion of s.4(3) however does no more than beg the question: What is the Magistrates Court business, and does it include the issuance of signed and/or sealed copies of orders orally made by the former Local Court? It is unnecessary to further consider s.4(3).
[9] Applicant’s 24 October Submissions, para.7
The Applicant also submits that s.7 of the Courts Legislation Act is prospective not retrospective in operation, and that “Parliament did not intend to give its imprimatur to … extend the operation of s.7 to deal with matters that had already happened in 2003 in the Local Court”.[10]
[10] Applicant’s 24 October Submissions, para.7.
The Applicant asserts that “as a matter of fact” the orders were not orders of the Magistrates Court, and cannot be treated as such, because they were in fact orders of the Local Court.[11] The Applicant also asserts that the orders can be enforced by reason of s.144 of the Courts Legislation Act. Section 144 provides that:
If immediately before commencement a judgment of the Supreme Court, District Court or Local Court is unsatisfied, then on commencement:
(a) if proceedings to enforce the judgment are pending or any process for the enforcement of the judgment is in force, section 145 applies; and
(b) otherwise, the judgment may be enforced under and subject to the Civil Judgments Enforcement Act 2004.
[11] Applicant’s Outline of Submissions, 28 September 2006 (“Applicant’s 28 September Submissions”), paras.3 and 4.
However, the Applicant further says that for the purposes of bankruptcy proceedings, and in particular the attachment of orders to the Bankruptcy Notice, the Respondent was required to extract the orders, as orders of the Local Court, prior to the Transition Date. Otherwise, any orders were not orders of “the court” (as defined in reg.1.03(1) of the Bankruptcy Regulations) for the purposes of reg.4.01(1)(b) of the Bankruptcy Regulations.[12]
[12] Applicant’s 28 September Submissions, paras.2, 3, 5, 9, 10 and 13.
Regulation 4.01 of the Bankruptcy Regulations relevantly provides as follows:
(1)In order to apply for the issue of a bankruptcy notice, a person must lodge with the Official Receiver:
(a) a duly completed draft bankruptcy notice; and
(b) one of the following documents in respect of the final judgment or final order specified by the person on the approved form:
(i)a sealed or certified copy of the judgment or order;
(ii)a certificate of the judgment or order sealed by the court or signed by an officer of the court;
(iii)a copy of the entry of the judgment or order certified as a true copy of that entry and sealed by the court or signed by an officer of the court.
Regulation 1.03(1) of the Bankruptcy Regulations defines “the court” as follows:
in relation to a judgment or order, means the court by which the judgment was given or the order was made.
The Applicant asserts that if it is correct as to the nature of the orders, and the orders of the Magistrates Court are not the correct orders for attachment to the Bankruptcy Notice, then the provisions of the Bankruptcy Act have not been strictly complied with, and the orders cannot be saved as being merely formal defects or irregularities under s.306(1) of the Bankruptcy Act.[13]
[13] Applicant’s 28 September Submissions, para.12.
The jurisdiction point – Respondent’s submissions
The Respondent submits that by reason of section 7 of the Courts Legislation Act the case was pending in the Local Court, and is therefore a case taken to be a case pending before, and able to be heard and determined by, the Magistrates Court.[14]
[14] Respondent’s Outline of Submission, filed 3 November 2006 (“Respondent’s 3 November Submissions”), paras.9 and 14-15, citing Proposch v Anne French Investments Pty Ltd [2006] WADC 47 at para.[20] per McCann DCJ (“Proposch”); Respondent’s Further Outline of Submissions filed 28 November 2006 (“Respondent’s 28 November Submissions”), paras.22-23.
The Respondent says that in this case the orders had to be extracted as failure to extract the orders and serve them as part of the Bankruptcy Notice might be a fatal fundamental defect (under s.306(1) of the Bankruptcy Act).[15]
[15] Respondent’s 3 November Submissions, paras.10 and 11, and citing O.23 r.2 and r.4(2) of the Local Court Rules, 1961 (WA); St. George Bank v Klintworth (1988) 86 FCR 40 (“Klintworth”); Commonwealth Bank of Australia v Horvath (Junior) (1999) 161 ALR 441 at 444 and 445 per Finkelstein J, [1999] FCA 143 at paras.[14] and [22] per Finkelstein J (“Horvath (Junior)”); Genovese v BGC Constructions Pty Ltd [2006] FCA 105 at para.11 per Lee J (“Genovese”).
The Respondent also says that the necessity for extracted orders means that the action was not complete[16], but that in any event:
a)oral pronouncement of a judgement is only provisionally effective until judgment is drawn up and sealed;[17] and
b)a cause is still pending even where final judgment has been given, if the judgment remains unsatisfied.[18]
[16] Respondent’s 3 November Submissions, para.12.
[17] Respondent’s 3 November Submissions, para.13, citing Cavanagh v Bank of New Zealand (1990) 22 FCR 124 at 126 per von Doussa J (“Cavanagh”).
[18] Respondent’s 3 November Submissions, citing Salt v Cooper (1880) 16 Ch D 544 at 551 per Jessel MR (“Cooper”).
The Respondent says that there is no retrospective effect in the process of extraction of an order from the Magistrates Court for the purposes of bankruptcy proceedings.[19]
[19] Respondent’s 3 November Submissions, para.16.
The Respondent says that the creation of the Magistrates Court and the repeal of the Local Courts Act, and with it the Local Court, did:
a)not invalidate any judgment issued out of the Local Court;[20] and
b)not evince a legislative intention to abolish rights established under the Local Courts Act, citing section 10 of the Courts Legislation Act.[21]
Section 10 of the Courts Legislation Act provides as follows:
[20] Respondent’s 3 November Submissions, para.17.
[21] Respondent’s 26 September Submissions, paras.43-44; Respondent’s 3 November Submissions, paras.18-19, citing P.W. Nichols (Ed), Civil Procedure Western Australia – Magistrates Court (LexisNexis Butterworths, 2005), paras.1010.10 and 1080.
10. References to ‘Local Court’ to be read as references to the ‘Magistrates Court’
A reference in a written law or book, document or writing to a Local Court is, unless the contrary intention appears, to be construed as if it had been amended to be a reference to the Magistrates Court.
Section 9 of the Courts Legislation Act should also be noted. It provides as follows:
9. References to Local Courts Act 1904 to be read as references to Magistrates Court (Civil Proceedings) Act 2004
A reference in a written law or book, document or writing to the Local Courts Act 1904 is, unless the contrary intention appears, to be construed as if it had been amended to be a reference to the Magistrates Court (Civil Proceedings) Act 2004.
The Respondent says that by reason of s.37(1) of the Interpretation Act, 1984 (WA) (“Interpretation Act”) its right to enforce judgment, including by way of bankruptcy proceedings, is not affected by the repeal of the Local Courts Act.[22]
[22] Respondent’s 3 November Submissions, paras.20-21.
Section 37(1) of the Interpretation Act provides as follows:
37. General savings on repeal
(1) Where a written law repeals an enactment, the repeal does not, unless the contrary intention appears ¾
(a) revive anything not in force or existing at the time at which the repeal takes effect;
(b) affect the previous operation of the enactment repealed or anything duly done or suffered under that enactment;
(c) affect any right, interest, title, power or privilege created, acquired, accrued, established or exercisable or any status or capacity existing prior to the repeal;
(d) affect any duty, obligation, liability, or burden of proof imposed, created, or incurred prior to the repeal;
(e) subject to section 11 of The Criminal Code and section 10 of the Sentencing Act 1995, affect any penalty or forfeiture incurred or liable to be incurred in respect of an offence committed against that enactment;
(f) affect any investigation, legal proceeding or remedy in respect of any such right, interest, title, power, privilege, status, capacity, duty, obligation, liability, burden of proof, penalty or forfeiture,
and any such investigation, legal proceeding or remedy may be instituted, continued, or enforced, and any such penalty or forfeiture may be imposed and enforced as if the repealing written law had not been passed or made.
More generally, the Respondent submits that the Applicant’s interpretation is untenable, could not be what the legislature intended, and is directly inconsistent with s.37(1) of the Interpretation Act.[23]
[23] Respondent’s 28 November Submissions, para.27; Respondent’s 3 November Submissions, para.24.
Positively, the Respondent says it was clearly the legislative intention for the Magistrates Court to have jurisdiction to adopt, enforce and deal with Local Court decisions. The Respondent points to[24]:
[24] Respondent’s 26 September Submissions, paras.44-48; Respondent’s 3 November Submissions, para.25; Respondent’s 28 November Submissions, para.28.
a)the Second Reading Speech by the State Attorney-General pointing to the establishment of a Magistrates Court, amalgamating, amongst others, the Local Court;
b)the automatic transfer of Local Court office holders to the Magistrates Court, and the transfer of matters in the Local Court to the Magistrates Court;
c)the preservation of rights of enforcement of judgments of the Local Court by the Magistrates Court under ss.143-146 of the Courts Legislation Act; and
d)the ability to apply to the Magistrates Court for a certificate of judgment under rule 78 of the Magistrates Court (Civil Proceedings) Rules 2005, which provides that:
78. Requests for certificate of judgment
If a party wants a certificate of a judgment, the party must lodge a request for the judgment in an approved form.
The Respondent also points to certain actions brought by the parties on or in relation to the Local Court judgment. The Court has not considered these points as what actions the parties take cannot be indicative or persuasive as to the proper interpretation of statutory provisions.
The Respondent also submits that there is no defect or irregularity with the judgments attached to the Bankruptcy Notice, but if there is, it is curable under s.306(1) of the Bankruptcy Act.[25]
[25] Respondent’s 3 November 2006, paras.27-28.
Section 7 – Courts Legislation Act
Pivotal to the answer to the preliminary point is the proper interpretation of s.7 of the Courts Legislation Act.
The orders issued arise from an “action”, that being defined in the former Local Courts Act to include “a civil proceeding commenced as prescribed by plaint”. The action on which the judgment debt is founded was a civil proceeding commenced by plaint.
The failure to attach the Local Court’s orders or the Magistrates Court’s orders would be a fatal fundamental defect, not a merely formal defect capable of being saved by s.306(1) of the Bankruptcy Act.[26]
[26] Klintworth, Horvath (Junior), Genovese.
Was the “action” “pending before a Local Court” where judgment had been orally pronounced, but no written order extracted?
The etymology of “pending” is discussed in Franklins v Richards[27], and traced to its origin “as a technical legal word”. Reference is made to Stroud’s Judicial Dictionary of Words and Phrases (6th Edition), where the primary meaning of “pending” is given as:
A legal proceeding is ‘pending’ as soon as commenced (on which see 5 Rep. 47, 48; 7 Rep. 30), and until it is concluded, ie. so long as the court and (sic) [having] original cognisance of it can make an order on the matters in issue or to be dealt with, therein.
[27] [2002] NSWCC 2 at paras.[4]-[5] per Neilson J. Note also Norcal Pty Ltd v D’Amato (1988)
There can be no doubt that up to the time of commencement of the Courts Legislation Act the action was pending as defined above, because the Local Court could have extracted a written order in relation to the action.[28] In particular, it could have extracted such an order, upon application, for the purposes of the Respondent attaching the order to a bankruptcy notice.
15 NSWLR 376, where the meaning of “pending” is also discussed, but where the outcome was determined by the very particular statutory provisions there in issue.
Prior to the Transition Date the Respondent would have been able to rely on O.23 r.4(2) of the Local Courts Rules to extract an order. O.23 r.4(2) reads as follows:
Except where a judgment or order is required to be served on the opposite party, it shall not be necessary to draw up any formal judgment or order to warrant further proceedings on such judgment or order, but the entry of judgment or order by the clerk in the minute book shall be sufficient to warrant any further proceedings.
In this case the order was required to be served on the opposite party[29], albeit as an attachment to the Bankruptcy Notice. Because the order was required to be served it was necessary that it be drawn up formally.
[29] Bankruptcy Act, s.41(2); Bankruptcy Regulations, r.4.01(1)(b) and 4.02(1) and Form 1.
Prior to the Transition Date the form of order to be drawn up was prescribed by O.23 r.2 of the Local Court Rules, and there was nothing which either party has pointed to, or of which the Court has become aware, which would have prevented pre-Transition Date extraction of the orders.
In the circumstances set out above, the action was pending, and the effect of s.7(a) of the Courts Legislation Act is that the action “is to be taken to be a case pending before the Magistrates Court”. Thus, the Courts Legislation Act mandates that the action pending before the Local Court becomes an action pending before the Magistrates Court where, up to the time of commencement of the Courts Legislation Act, a written order could have been extracted.
Section 7(b) of the Court Legislation Act then provides that the action is to heard and determined by the Magistrates Court as if it is within the Magistrates Court’s civil proceedings jurisdiction. Within that civil proceedings jurisdiction the Magistrates Court is then able to extract an order or produce a certificate of judgment upon request by a party.[30]
[30] Magistrates Court (Civil Proceedings) Rules, 2005, r.78.
By a process of straight forward statutory interpretation and application it can be seen that the Magistrates Court had jurisdiction and power to issue the orders.
The Court agrees with the views expressed by McCann DCJ in the District Court of Western Australia in Proposch:
a)“Parliament’s intention was to wholly repeal and extinguish all rights under the Local Courts Act in pending cases in the Local Court … the implied legislative intention was to repeal or exclude the operation of s.37(1) of the Interpretation Act 1984”[31];
b)“s.7 … is not a saving provision in respect of pending actions or matters; rather it is a deeming provision that replaces former rights with new rights, thereby excluding the operation of s.37(2) of the Interpretation Act 1984”[32]; and
c)“the word “pending” in s.7 should be given its widest possible meaning so as to ensure that all or any extant matters that were before, or which could have come before, the Local Court for any reason but for the repeal of the Local Courts Act is to be taken to be a case in the Magistrates Court and is to be heard and determined under the Civil Proceedings Act.”[33]
[31] Proposch at para.19 per McCann DCJ.
[32] Proposch at para.19 per McCann DCJ.
[33] Proposch at para.20 per McCann DCJ.
In this case, the action was still extant before the Local Court because the Respondent could, until the Transition Date, have applied to extract a written order in respect of plaint number 18423 of 2001, and it was therefore a matter which could have come before the Local Court, but for the repeal of the Local Courts Act. It is therefore taken to be an action in the Magistrates Court’s civil proceedings jurisdiction.[34] It matters not that the extraction of the written order was not sought before the Transition Date, what matters is that it could have been.
[34] Proposch at para.20 per McCann DCJ.
The Applicant’s argument that the matter was not one requiring a hearing and determination because judgment was obtained in 2003 and therefore it was not a pending action because no further argument is required, approaches the matter wrongly. As indicated above, the question to be asked is whether the Local Court could have issued an extracted judgment or order on this action immediately before the Transition Date, and if the answer is yes, the action is a pending action, able to be heard and determined in the Magistrates Court.
The Applicant seems to assert that this action must be able to be both “heard and determined” by the Magistrates Court to fall within s.7 of the Courts Legislation Act. The use of “and” is ordinarily conjunctive.[35] However, sometimes two separate obligations are imposed by the use of “and”[36], but in any event its ordinary meaning or use may be departed from, having regard to context and purpose.[37]
[35] Victims Compensation Fund Corporation v Brown & Ors (2003) 201 ALR 260 at 263 per Heydon J; [2003] HCA 54 at para.13 per Heydon J.
[36] D.C. Pearce and R. Geddes, Statutory Interpretation in Australia (6th Edition) (Sydney, LexisNexis, 2006), p.147 [para.4.35]; Airservices Australia v Monarch Airlines Ltd (1998) 152 ALR 656 at 679-680 per Beaumont J.
[37] Victims Compensation Fund ALR at 263-264 per Heydon J, HCA at paras.[14] and [17]; Re Peat Resources of Australia Pty Ltd; ex parte Pollock [2004] WASCA 122 at [23] and [54] per Malcolm CJ; [98]-[99] and [101] per Steytler J; [112]-115] per McKechnie J.
This is a case where context and purpose require “and” in “hearing and determination” in s.7(b) of the Courts Legislation Act to be interpreted disjunctively. On the Applicant’s submission cases part heard, or heard and not yet determined, in the former Local Court would not be pending (even if they were otherwise pending under s.7 of the Courts Legislation Act), and the conjunctive interpretation urged by the Applicant would, in any event, require the Magistrates Court to both hear and determine a pending action. This would be a nonsense, especially where the matter was already part heard or heard by the Local Court.
The Court considers on a proper interpretation that “hearing and determination” means that an action initiated by plaint, but which the former Local Court had, at the Transition Date:
a)not yet commenced to hear, is an action which can be heard and determined by the Magistrates Court;
b)commenced to hear, but not finished hearing, is an action to be further heard and determined by the Magistrates Court;
c)heard, but not yet determined, is an action which may be determined by the Magistrates Court; and
d)heard and orally determined, is an action which, where it is necessary for the judgment or order to be served on the other party, is an action which may be further or finally determined by the Magistrates Court extracting the judgment or orders.
For reasons set out above, the course outlined in paragraph (d) of the preceding paragraph was the correct course of action in relation to the action in this matter. Subject to what is said below concerning arguments raised by the Applicant as to alleged issues of res judicata and proper authority to issue the extracted orders, the Magistrates Court had jurisdiction and power to issue the orders on 3 January 2006.
The reasons set out above are premised on s.37 of the Interpretation Act not being applicable. If that view is wrong, and s.37 applies, what is the outcome? The Court considers that the ultimate outcome remains the same, for the following reasons (which are expressed shortly given the primary conclusion reached above):
a)following the orders pronounced orally on various dates in 2003, the Respondent had a right to seek the issuance of a formal order under O.23 rr.2 and 4(2) of the Local Court Rules;
b)the Respondent had a right, following the orders pronounced orally on various dates in 2003, and subject to the issuance of a formal order, to seek the issuance of a bankruptcy notice;[38]
c)no contrary intention appearing in the Courts Legislation Act, the rights referred to in (a) and (b) above were, by reason of s.37(1)(c) and/or (f) of the Interpretation Act, rights unaffected by the repeal of the Local Courts Act;[39] and
d)for the reasons set out above, and because no final written order had issued in any event and the judgment remains unsatisfied[40], the action as at the Transition Date was pending for the purposes of s.7 of the Courts Legislation Act.
[38] Bankruptcy Act, ss.40(1)(g) and 41(1) and (2).
[39] Esber v Commonwealth (1992) 174 CLR 430; Lee v Secretary, Department of Social Security (1996) 68 FCR 491 at 505 and 507-508 per Cooper J and 515-518 per Moore J.
[40] Cavanagh at 126 per von Doussa J; Cooper at 551 per Jessel MR (referred to without disapproval in R v Ferguson; ex parte Attorney-General (1991) 1 Qd R 35 at 38 per Connolly J).
For the above reasons, the Applicant’s argument on the jurisdiction point is dismissed.
Construction point – Applicant’s submissions
The gist of the Applicant’s submissions is that:
a)the relevant judgment would be a judgment styled and entitled as a Local Court judgment and an order made under a Magistrates Court header is not a “copy” of a Local Court order; and
b)“the court” can only be the Local Court because judgment takes effect from the time it was made.[41]
[41] Applicant’s 24 October Submissions, paras.10 and 11.
Construction point – Respondent’s submission
The Respondent did not make distinctly separate submissions on this point.
Construction Point – Conclusions
It follows from the Court’s reasoning on the jurisdiction point that “the court by which the … order was made” was the Magistrates Court, and that it was within jurisdiction and power in so doing. Therefore, the Applicant cannot succeed on the Construction point, and the application on that point must be dismissed.
The Applicant’s Contributory Affidavit
Following the hearing of this matter on 28 September 2006, and the filing of final written submissions by both parties (the final submission being received on 3 November 2006), the Court made the following orders:
a)The Applicant have leave to file further written submissions in relation to Proposch by 4.00 pm on 20 November 2006.
b)The Respondent have leave to file further written submissions in reply by 4.00 pm on 27 November 2006.
The scope of the orders was specifically limited. It was so limited because the earlier argument and submissions were specifically limited to the preliminary point raised by the Applicant, being the “only point that needs to be argued”.[42]
[42] Applicant’s Outline of Submissions in Reply (tendered at the hearing on 28 September 2006); and also Transcript, 28 September 2006, p.2.
At the hearing on 29 September 2006, the Applicant’s Counsel specifically “elected to rest the case on the submissions made”, subject to the filing of further written submissions in relation to the points on which the submissions had already been made.[43] That election was made following an adjournment specifically granted for the purpose of considering whether the Applicant would make that election.[44] It stands in contrast to the position earlier in the hearing when Counsel indicated that the point was probably just a preliminary one.[45]
[43] Transcript, 29 September 2006, p.35.
[44] Transcript, 29 September 2006, pp.34-35.
[45] Transcript, 28 September 2006, p.9.
On 20 November 2006 the Applicant filed a further affidavit. Why this was done is unclear given the orders made. In the circumstances the Court will not admit the affidavit into evidence or have regard to it as it was:
a)not filed in compliance with any order of the Court;
b)went further than what the orders on 10 November 2006 required; and
c)sought to lead evidence about the authority of an officer of the Magistrates Court to sign the judgment or orders extracted on 3 January 2006, a matter which was not argued, not the subject of evidence and beyond the scope of the case on which the Applicant elected to rest his case.
Further, the evidence sought to be lead appears to be entirely hearsay, and would, in any event, be inadmissible.
The “Applicant’s Submission in Relation to Proposch” also go further than the orders of the Court required. Again, additional matters are raised (eg. as to the “Alleged Orders”, their signing and a matter said to be res judicata) beyond the scope of the argument upon which the Applicant through Counsel, specifically elected to rest his case. The Court has not had regard to the submissions, other than in respect to the Proposch matter.
If these matters were to have been raised they ought to have been raised by Counsel at hearing on 28 and 29 September 2006, and appropriate evidence led, and submissions made, at that time.
It is not appropriate, a considered election having been made by Counsel, to raise difference issues and evidence in circumstances where there was no application to the Court to do so, no leave of the Court to do so, and where the issue (namely, the Proposch decision) on which further submissions only had been sought, was a very narrow one, within the scope of the election made. In the Court’s view the Applicant, not having applied to do otherwise, is bound by its conduct in the case, and specifically the considered election made, through Counsel. The Applicant cannot now raise these further issues.
Orders
The Court makes the following orders:
a)That the Applicant’s application to set aside the Bankruptcy Notice be dismissed.
b)That the Applicant pay the Respondent’s costs, to be agreed, and if not agreed, taxed on the Federal Court scale under O.62.
I certify that the preceding sixty-seven (67) paragraphs are a true copy of the reasons for judgment of Lucev FM
Associate:
Date:
[28] Local Court Rules, O.23 r.4(2).
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