Holmes v DILLON
[2010] FMCA 398
•13 May 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HOLMES v DILLON & ORS | [2010] FMCA 398 |
| BANKRUPTCY – Practice and procedure – request for an adjournment – adjournment refused. |
| Judicial Review Act 1991 (Qld), ss.4, 12 |
| Stubberfield v Webster [1996] 2 QdR 211 Stubberfield v Kilner [1997] 1 Qd R 668 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 |
| Applicant: | LILLE HOLMES |
| Respondent: | R.S. DILLON & RAYMOND SHANE DILLON |
| File Number: | BRG 513 of 2006 |
| Applicant: | LILLE HOLMES |
| Respondent: | R.S. DILLON & RAYMOND SHANE DILLON |
| File Number: | BRG 932 of 2006 |
| Applicant: | LILLE HOLMES |
| Respondent: | P. D. SWEENEY PRINCIPAL, SV PARTNERS COURT APPOINTED TRUSTEES |
| File Number: | BRG 73 of 2010 |
| Judgment of: | Jarrett FM |
| Hearing date: | 13 May 2010 |
| Date of Last Submission: | 13 May 2010 |
| Delivered at: | Brisbane |
| Delivered on: | 13 May 2010 |
REPRESENTATION
| Counsel for the Applicant: | N/A |
| Solicitors for the Applicant: | In person |
| Counsel for the Respondent: | Mr Young |
| Solicitors for the Respondent: | Bennett & Philip Lawyers |
ORDERS
BRG 513 of 2006
The applicant’s oral application for adjournment be dismissed.
BRG 932 of 2006
The applicant’s oral application for adjournment be dismissed.
BRG 73 of 2010
The applicant’s oral application for adjournment be dismissed.
And
The application filed on 29 January 2010 be dismissed.
The Applicant deliver up vacant possession of the property at 29 Plantation Road, Tamborine in the State of Queensland and described as Lot 7 on Registered Plan 208247, Count of Ward, Parish of Tamborine with the title reference 17005019 (“the property”) to the Respondent and Terry Grant Van Der Velde (“the Trustees”) and John Gerrard Holmes (“the Co-Owner”) within seven (7) days of the date of this Order.
In the event that the Applicant fails to deliver up vacant possession of the Property in accordance with Order 2 above, that an Enforcement Warrant for Possession of the Property be issued forthwith in favour of the Trustees and the Co-Owner.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRG 513 of 2006
| LILLE HOLMES |
Applicant
And
| RAYMOND SHANE DILLON |
Respondent
BRG 932 of 2006
| LILLE HOLMES |
Applicant
And
| RAYMOND SHANE DILLON |
Respondent
BRG 73 of 2010
| LILLE HOLMES |
Applicant
And
| P. D. SWEENEY PRINCIPAL, SV PARTNERS COURT APPOINTED TRUSTEES |
Respondent
REASONS FOR JUDGMENT
Ex tempore
This is an application for adjournment of a number of applications that are presently pending before me. These reasons relate to all three proceedings.
There is one, matter number 513 of 2006, which is an application to review a decision of Registrar Reynolds to refuse to set aside a bankruptcy notice. That decision was given some time ago - in 2006.
The second application bears number 932 of 2006, which is an application to review a decision of Registrar Ramsay. That decision was made in 2007 and granted a sequestration order against the estate of the now applicant before me.
The third application, file number 73 of 2010, seeks to review the decisions made by the applicant's trustee in bankruptcy to sell the home in which she lives. On that application, there are cross-applications by the trustee in bankruptcy for an order for delivery up of vacant possession of the relevant property and an order for sale.
Each of those applications, Ms Holmes says, should now be adjourned pending the outcome of some proceedings that she has recently commenced in the Supreme Court of Queensland. The effect of those proceedings, if they were to succeed in the way in which Ms Holmes hopes they might, would be to see two decisions of the Queensland Magistrates’ Court at Beenleigh set aside. The first is a decision of Magistrate Webber, which was a decision to allow substituted service of the originating process in that court on the applicant. The second was a decision of the registrar of the Magistrates’ Court to enter judgment in default of appearance against Ms Holmes.
Ms Holmes’ argument is that if one or both of those orders are made, then the judgment will be set aside, and if the judgment is set aside, the bankruptcy notice which relied upon her failure to meet that judgment as the relevant act of bankruptcy could not then have founded the making of the sequestration order, which she ultimately seeks to be set aside.
The proceedings in the Supreme Court are proceedings, on their face, for an order for review. That is what the application says, and that is what is repeated in the affidavit filed in support of the application: see in particular paragraph 5(vii) of the affidavit of the applicant, filed in the Supreme Court, which is, itself, annexed to her affidavit filed in BRG 73 of 2010, on 7 May, 2010. The significance of that will become apparent shortly.
The Supreme Court can make an order for review in the nature of an order for certiorari, prohibition or mandamus, pursuant to the Judicial Review Act 1991 (Qld). And on its face, it is pursuant to that Act that the applicant applies for relief in the Supreme Court. Her argument developed in oral submissions, however, seemed to take a slightly different path. Relying upon a recent decision of the High Court of Australia in Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1, it was suggested that the passage of the Judicial Review Act 1991 (Qld) was beyond the legislative competence of the Queensland Parliament in that it sought to remove from the Supreme Court of Queensland, a court of general jurisdiction, the right to make supervisory orders or issue prerogative writs of certiorari, prohibition, and mandamus against inferior courts.
Those writs were abolished by the Judicial Review Act 1991 (Qld) and replaced with orders for review in the same form as writs of certiorari, prohibition, and mandamus - see s.42 of that Act. And so the oral argument as developed by the applicant is somewhat inconsistent with the documents that she filed and the jurisdiction she seeks to invoke in the Supreme Court.
Be that as it may, it seems to me that I need to approach the matter on the basis that the Judicial Review Act 1991 (Qld) is still valid legislation of the State of Queensland, and this court, being a Commonwealth court, should take the view that until there is a determination by a court of competent jurisdiction, that that piece of legislation is unconstitutional in the sense used in Kirk, I should give it full faith and credit.
The Judicial Review Act 1991 (Qld) applies to certain types of decisions. The types of decisions to which the Act applies is prescribed by s.4 of the Act in the definition of the phrase “decision to which this Act applies”. That phrase means either a decision of an administrative character made, proposed to be made, or required to be made under an enactment; or a decision of an administrative character made, or proposed to be made by, or by an officer or employee of the state or a state authority or local Government authority under a non-statutory scheme or program involving funds that are provided or obtained out of amounts appropriated by parliament, or from a tax, charge, fee, or levy authorised by or under an enactment.
I do not think s.4(b), the second limb of the definition, has much to do with this case. But the first limb does, and it raises for consideration whether the decisions made by Magistrate Webber and the registrar are decisions of an administrative character.
In respect of the decision made by Magistrate Webber, I think the answer clearly is that it is not a decision of an administrative character. It is a decision made by a judicial officer in the course of exercising powers and functions granted to him by the rules of the Magistrates Court, the UCPR in this case, and the powers and jurisdictions conferred upon him by the Magistrates Courts Act 1921 (Qld).
The decision of the registrar, however, who is not a judicial officer, may be different. It may be a decision of an administrative character. Registrars and registry officials are administrative officers rather than judicial officers, although there are circumstances in which decisions that they make take on a judicial character. But, taking a benevolent view of the matter for the purposes of determining this application brought by the applicant, I am content to assume that the registrar's decision to enter the judgment by default was a decision of an administrative character, and thereby, comes within the purview of the Judicial Review Act 1991 (Qld).
Section 12, however, of the Judicial Review Act, is in this form:
Despite section 10, but without limiting section 48, the court may dismiss an application under section 20 to 22, or 43 [that is, an application for an order to review] that was made to the court in relation to a reviewable matter because:
(a) The applicant has sought a review of the matter by the court or another court otherwise than under this Act; or
(b) Adequate provision is made by a law other than this Act under which the applicant is entitled to seek a review of the matter by the court or another court.
The first thing to remark is that the evidence, and in particular, the affidavit deposed by Mr Young and filed in application 73 of 2010, demonstrates that there was an application to set aside the judgment by default. That is, the applicant had sought a review of the matter by another court otherwise than under the Judicial Review Act. And so, on its face, the first limb of section 12 of the Judicial Review Act is engaged. But more than that, in Stubberfield v Webster (1996) 2 QR 211, Thomas J held that ordinarily where an appeal mechanism is available, and in particular an appeal to the District Court prerogative orders, such as orders for review in the nature of certiorari, prohibition, or mandamus would not generally be seen to be a substitute for that appellate process.
Put in, perhaps, plainer language if one has a right of appeal, then one ought to exercise it. There is no suggestion in this case that that has happened. There is a right of appeal from a decision of a registrar to enter a judgment by default, and there is a right of appeal, perhaps limited by considerations of leave, in respect of the decision of Magistrate Webber. Similar conclusions were reached in Stubberfield v Kilner [1997] 1 Qd R 668 a decision of Byrne J who also applied s.12 of the Judicial Review Act and determined that challenges to judgments and orders in Magistrates court litigation involving more than $5,000 should ordinarily be pursued in a district court, the Tribunal specifically chosen by Parliament for the purpose.
Ultimately, the question for me is whether I should adjourn these proceedings to allow the proceedings in the Supreme Court to run their course. Having regard to the matters to which I have just referred, in my view, the prospects of success in the Supreme Court proceedings are so limited that granting an adjournment in these proceedings would be a waste of time.
And so the applications for adjournment are refused.
I certify that the preceding nineteen (19) paragraphs are a true copy of the reasons for judgment of Jarrett FM
Associate: Lauryn French
Date: 8 June 2010
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