HAYNES v Thring

[2008] SASC 65

Supreme Court of South Australia

(Magistrates Appeals: Civil)

HAYNES v THRING

[2008] SASC 65

Judgment of The Honourable Justice Debelle (ex tempore)

5 March 2008

PROCEDURE - JUDGMENTS AND ORDERS - ENFORCEMENT OF JUDGMENTS AND ORDERS

Registration and enforcement of judgment of Industrial Relations Court in Magistrates Court – whether magistrate had discretion to register judgment more than 6 years old – leave to register judgment not required – Rule 121(1) of Magistrates Court Rules invalid – appeal allowed – direct Registrar of Magistrates Court to register judgment and issue enforcement process.

Industrial & Employee Relations Act 1994 s 230; Limitation of Actions Act 1936 s 34; Magistrates Court Rules 1992 R 121, referred to.

HAYNES v THRING
[2008] SASC 65

Civil

1. DEBELLE J:        This is an appeal from a decision of a magistrate refusing to register a judgment of the Industrial Relations Court.

2. For reasons which were published on 15 February 2001 an order was made in the Industrial Relations Court on 7 March 2000 ordering the respondent, John Thring trading as John Thring Building and Civil Contractor, to pay a total of $6028.40 to the appellant Mark William Haynes.  The appellant seeks to enforce that judgment. He obtained a certificate from the Registrar of the Industrial Relations Court dated 24 January 2007.  He then applied to file it in the Adelaide Magistrates Court.  It appears that the Registrar of the Adelaide Magistrates Court referred the application to a magistrate.  The application was heard on 13 August 2007.

3. The magistrate proceeded on the footing that he had a discretion whether to register a judgment which was more than six years old.  The magistrate applied Rule 121 of the Magistrates Court Rules 1992. It is necessary to refer only to Rule 121(1) which provides:

   The Registrar must not issue an enforcement process in respect of a judgment that is more than six years old, except with leave of the Court, which must only be given if the judgment creditor establishes proper reasons to explain the delay in enforcement.

   The magistrate considered whether it was not appropriate to grant leave and on 24 October 2007 concluded that it was not and dismissed the application.  For the reasons which follow the magistrate erred in reaching that conclusion.

4. Section 230 of the Industrial & Employee Relations Act 1994 (now called “The Fair Work Act 1994”) provides the means by which an order of the Industrial Relations Court made in 2000 is enforced. It provides:

   230(1)     If the Court or the Commission makes an order for the payment of a    monetary sum, the Registrar may issue a certificate under the seal of the        Court or the Commission, certifying the amount payable and the persons by   whom and to whom it is to be paid. 

   (2)     The certificate may be filed in a court that has civil jurisdiction up to, or exceeding, the amount of the certificate and it will then be enforceable as a judgment of that court.

   Shortly stated, a person who has a benefit of a judgment in the Industrial Relations Court may obtain a certificate specifying the amount payable pursuant to that judgment and file the certificate in any court of competent jurisdiction. In this case the appropriate court was the Magistrates Court. Upon the judgment being filed in the Magistrates Court, the judgment is enforceable as if it were a judgment of the Magistrates Court.

5. The terms of s 230 do not provide that the enforceability of such a judgment is subject to the leave of the court in which the judgment is to be enforced. It is necessary to consider also s 34 of the Limitation of Actions Act 1936 which provides a time limit of 15 years to enforce a judgment. Rule 121 upon which the magistrate relied purports to qualify the operation of both s 230 and of s 34. A rule of court cannot qualify the operation of a statute. It follows that the Rule 121 is invalid to the extent that it qualifies the operation of s 230 and s 34. It also follows that the magistrate erred in concluding that it was necessary to obtain leave to file the judgment. The appellant is entitled to file the certificate of the Industrial Relations Court certifying the orders made in that court and then seek to enforce those orders in the Magistrates Court.

6. It is apparent from the reasons of the magistrate that there is a dispute between the appellant and the respondent as to what is due by the respondent to the appellant. That is a matter which will have to be examined in the Adelaide Magistrates Court once the judgment has been filed in that court and the Registrar of that Court issues an enforcement process.

7. For these reasons I will allow the appeal.  The order of the magistrate made on 24 October 2007 will be set aside and in lieu thereof there will be an order directing that the Registrar of the Adelaide Magistrates Court file or register the certificate of the judgment from the Industrial Relations Court. 

8. This matter must be remitted to the Adelaide Magistrates Court for the hearing of the enforcement process.  Given that the magistrate appealed from has considered some aspects of the merits of the matter, the interests of procedural fairness require that another magistrate hear the enforcement process.  The parties have filed some affidavit evidence.  They should be at liberty to use that evidence again but should also have leave to file such further affidavit evidence or adduce such other evidence on which they seek to rely.  

9. The orders of the court will therefore be:

   1Appeal allowed.

   2Set aside the order of the Magistrate made herein on 24 October 2007.

   3Direct the Registrar of the Adelaide Magistrates Court to register the certificate of judgment from the Industrial Relations Court dated 24 January 2007 and issue enforcement process. 

   4Direct that the enforcement process be heard by a different magistrate from the magistrate from whom this appeal was brought.