Gould, Stephen v Day, Julian - [1998] FCA 116

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG8221 of 1997

BETWEEN:

STEPHEN GOULD
Applicant

AND:

JULIAN DAY
Respondent

JUDGE:

WILCOX J

DATE:

20 FEBRUARY 1998

PLACE:

SYDNEY

EXTEMPORE REASONS FOR JUDGMENT

WILCOX J: This is an application by Notice of Motion to set aside a bankruptcy notice issued by Julian Day against Stephen Gould. Both parties appear in person before me today. They also appeared before me on 29 January 1998, when there was a question about certain subpoenas. On that occasion there was discussion about the current motion and I fixed it for hearing today.

The bankruptcy notice seeks payment of the sum of $2,202, together with interest, this being the amount of an order for witness’ expenses made against Mr Gould in favour of Mr Day by a magistrate in the St James Local Court on 8 February 1994. The magistrate had just heard an information alleging an offence by Mr Gould. Mr Day was a witness at that hearing.

The application to set aside the bankruptcy notice is based on two grounds. First, Mr Gould disputes the quantum of the order made by the magistrate; he has put on a deal of evidence intended to support the view that the amount fixed for witness’ expenses was excessive. Secondly, Mr Gould says he has a cross-demand or counter-claim against Mr Day exceeding the amount of the sum payable under the magistrate's order that he could not have set up in the proceeding in which that order was obtained.

Dealing with the first matter, I pointed out to Mr Gould on 29 January that it was not appropriate for me to go behind the magistrate’s order and consider for myself what was a proper allowance for witness’ expenses. The magistrate dealt with that matter. It appears from the material before me that the quantum of witnesses’ expenses was a matter of debate before the magistrate. At the end of that debate, she fixed a sum of $2,202 in respect of Mr Day. I have no basis for saying this sum was excessive. At the same time, I emphasise I have no idea whether I, myself, would have fixed that sum. I have not investigated the magistrate’s computation of quantum or considered for myself the matters relating to quantum that Mr Gould put before the magistrate. The reason for this, as I explained to Mr Gould on 29 January, is that the order of the magistrate is an order of a court; while it stands, it binds him and he is obliged to comply with it. I say “while it stands” because Mr Gould attempted to challenge the order by two separate proceedings; one, an appeal to the District Court of New South Wales, the other, an application to the Supreme Court. The District Court appeal was dismissed on the basis the District Court had been deprived of jurisdiction by the filing of the application to the Supreme Court. The Supreme Court application was dismissed by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] FCA 116
Decision Date: 20 FEBRUARY 1998

CaseChat Overview and Summary

The Federal Court of Australia, in the New South Wales District Registry, heard an application by Stephen Gould to set aside a bankruptcy notice issued by Julian Day. The notice sought payment of $2,202, including interest, which was the amount of a magistrate's order for witness expenses made in favour of Day after a criminal hearing involving Gould. Gould contested the notice on two grounds: he argued that the quantum of the order was excessive and that he had a cross-demand or counter-claim against Day exceeding the amount of the order, which he could not have set up in the original proceeding.

The court considered the first ground, which related to the quantum of the magistrate's order. The court emphasised that it was not appropriate to review the magistrate's decision on witness expenses. The order was final and binding, and Gould had unsuccessfully challenged it through appeal and application to the Supreme Court. The court noted that the order stood, and Gould was bound by it. The second ground, concerning Gould's cross-demand, also failed because there was no evidence before the court that Gould had such a claim against Day. All that was known was that Gould had made a claim and it had been dismissed in the District Court. Gould's appeal against that decision had yet to be heard.

The court dismissed the application to set aside the bankruptcy notice but granted an extension of time for Gould to pay the amount claimed to avoid committing an act of bankruptcy. The court extended the period of the bankruptcy notice by 21 days, to 13 March 1998. If the amount was not paid by then, Day could take further action by filing a petition for a sequestration order.

Orders