Howlin v Clarence City Council and Sheriff for the State of Tasmania - [2014] TASSC 20

[2014] TASSC 20

COURT: SUPREME COURT OF TASMANIA

CITATION: Howlin v Clarence City Council and Sheriff for the State of Tasmania [2014] TASSC 20

PARTIES: HOWLIN, Darryl Robert

v
CLARENCE CITY COUNCIL
SHERIFF FOR THE STATE OF TASMANIA

FILE NOS:  523/2005, 279/2009, 548/2010 and 586/2012
DELIVERED ON:  11 April 2014
DELIVERED AT:  Hobart
HEARING DATE/S:  7 and 8 April 2014
JUDGMENT OF:  Tennent J

CATCHWORDS:

Procedure – Supreme Court procedure – Tasmania – Jurisdiction and generally – Stay of execution – Principles governing exercise of discretion to grant stay pursuant to Supreme Court Rules2000, r887.

National Foods Milk Limited v Smith (No 2) [2006] TASSC 70; Collins v R (1975) 133 CLR 120, followed.
Howlin v Clarence City Council [2013] TASFC 7, referred to.
Supreme Court Rules2000 (Tas), rr502, 508, 887 and 906.
Appeal Costs Fund Act 1968 (Tas), ss8 and 9.
Civil Process Act 1870 (Tas), s5.
Judiciary Act 1903 (Cth).
High Court Rules 2004.
Supreme Court Civil Procedure Act 1932 (Tas), s51(1).
Land Titles Act 1980 (Tas), s61.
Aust Dig Procedure [265]

REPRESENTATION:

Counsel:
             Applicant:                In person
             Clarence City Council:  S B McElwaine SC
             Sheriff for the State of Tasmania:           P Turner
Solicitors:
             Applicant:  N/A
             Clarence City Council:  Shaun McElwaine + Associates
             Sheriff for the State of Tasmania:           Director of Public Prosecutions
Judgment Number:  [2014] TASSC 20
Number of paragraphs:  76

Serial No 20/2014
File Nos 523/05, 279/09, 548/10 and 586/12

DARRYL ROBERT HOWLIN v CLARENCE CITY COUNCIL, SHERIFF FOR THE STATE OF TASMANIA

REASONS FOR JUDGMENT TENNENT J

11 April 2014

On the afternoon of 8 April 2014, I gave some short oral reasons to dispose of an application which needed to be dealt with prior to 10 April. For the reasons I gave, I dismissed the application before the Court. I indicated that I would publish detailed written reasons to deal with the issues raised by the parties. These are those reasons.
In a long-running dispute about whether or not a street known as Marsh Street at Opossum Bay is a public street maintainable by the Clarence City Council ("the Council"), Darryl Howlin ("the applicant") has engaged in numerous sets of proceedings in this Court. Until a point in time the applicant's then wife, Helen Howlin, was also a party to the proceedings. As a consequence of an ultimate lack of success in almost all of the proceedings, the applicant has been ordered, on a number of occasions, to pay the costs of the Council. The Council has sought to enforce its orders for costs. Various steps have been taken by the Council to give effect to that enforcement process. They have resulted in the issue of Writs of Fieri Facias by the Court, and culminated ultimately in arrangements for an auction of the applicant's property at Spitfarm Road, Opossum Bay. The auction was to be held on 10 April 2014.
On 31 March 2014, the applicant filed an interlocutory application by which he sought the following orders:
"(1) A restraint order against the Clarence City Council and the Registrar of the Supreme Court Hobart from exercising Warrant No's 1, 59, 60, 61 & 75 of 2013 in the scheduled 10 April 2014 auction of the Applicants property known as 'Highbury' 33 Spitfarm Road Opossum Bay;
(2) An enforcement order for compliance with counsel for the Clarence City Council, Mr McElwaines undertaking in the 27 July 2011 proceedings before HH AJ Holt to not pursue costs awarded in the matter of TAFSC 279 of 2009 (CCC v Howlin[2010] TASFC 2 & 10) until the ultimate appeal to 548 of 2010 has been exhausted.
That in the alternative:
(3) The Clarence City Council and the Registrar of the Supreme Court Hobart be ordered to enter into alternative financial settlement arrangements with the Applicant that will not require the auction of 'Highbury' 33 Spitfarm Road Opossum Bay on 10 April 2010 to satisfy Warrant No's 1, 59, 60, 61 & 75 of 2013."
The parties sought to be affected by the orders were the Council and "the Registrar of the Supreme Court Hobart". What the applicant effectively wanted to do was bring a halt to the process by which the Council was seeking to enforce the costs orders it had the benefit of, and stop the auction arranged for 10 April. In seeking orders against the Registrar of this Court, the applicant has misunderstood the nature of various statutory roles. The Registrar of this Court is Mr James Andrew Connolly. He is also the Sheriff for the State of Tasmania. The roles are different, and it is Mr Connolly's role as Sheriff which is one of the subjects of this application. The applicant knows that Mr Connolly is the Registrar of the Court, and has had numerous dealings with him in that capacity. He has also had numerous dealings with him in relation to the enforcement process, the subject of this application, and has, quite obviously, not realised the distinctions between the two roles.
Counsel appeared for Mr Connolly. He pointed out, in the applicant's presence, the distinction between the two roles, and sought that Mr Connolly be joined to the proceedings in his capacity as Sheriff. That was clearly appropriate and was done. However, at no stage did the applicant seek to amend his application to reflect that, in part, any orders he sought should bind the Sheriff and not the Registrar.
In support of his application, the applicant filed two affidavits, one sworn on 31 March 2014 and one sworn on 7 April 2014. An affidavit was also sworn by Mr Connolly on 7 April 2014. The applicant sought to read his affidavits into evidence. Counsel for Mr Connolly did not seek to be heard about that process. However, counsel for the Council objected to the admissibility of almost the entirety of both affidavits. In part, the objections were made by reference to the Supreme Court Rules 2000 ("the Rules"), r508. Generally, the objections were that, for the most part, the affidavits contained no relevant facts which were material to the application before the Court, and most paragraphs contained material which was argumentative or scandalous, or both. Because of the limited time available to complete the hearing in this matter, such as to allow a decision prior to the planned auction on 10 April, I suggested the material be taken de bene esse, and that issues of admissibility be determined as part of my overall decision. That was the basis upon which the affidavits of the applicant were taken in. Had it not occurred, it is unlikely the hearing could have been completed in time.
The Council did not seek to rely on any affidavit material. Counsel for Mr Connolly sought to read Mr Connolly's affidavit into evidence. The applicant was asked if he had any objection. He indicated that he had not had sufficient time to consider the affidavit, and simply could not say if he had any objections or not. Mr Connolly's affidavit was therefore taken in on the same basis as those of the applicant. Both the applicant and Mr Connolly were cross-examined.
The application before the Court was styled an interlocutory application. However, there were no pending proceedings before this Court in which such an application might be made. It seemed to me that, in substance, it must be considered as an application for a stay of execution pursuant to the Rules, r887, and the inherent jurisdiction of the Court. That is how I have dealt with the matter. No issue was taken by counsel for the Council or the Sheriff with the form of the application or the manner in which I proposed it be considered. Rule 887 provides that:
"1.A party against whom judgment is given or an order is made may apply to the Court or a judge for a stay of execution or other relief against the judgment or order on the ground of a matter occurring after judgment.
2. The Court or a judge may give relief on any terms as may be just."
The applicant is not unfamiliar with such an application. He made one in proceedings numbered 279/2009 in May 2011.
Because of the way in which the various affidavits relied on by the parties were dealt with, it followed that the submissions made by the parties were made in part by reference to that material. I have tried to ensure that I have had regard to only that material which was admissible by reference to my determination as to admissibility of affidavit material dealt with later in these reasons. However, for the purpose of identifying the issues raised by the applicant as bases upon which he submitted this Court should grant the stay he sought, I have had regard to the affidavit material generally to identify those bases.

An application pursuant to the Rules, r887

In National Foods Milk Limited v Smith (No 2) [2006] TASSC 70, I dealt with an application pursuant to r887. I said at [17] – [25] about such applications:
"17 Where r887 is invoked, the party applying must first satisfy the court that a matter has occurred after judgment. In the present case, that matter is said to be an application for special leave to appeal to the High Court. Ironically there was nothing in any affidavit or the oral evidence of the respondent which said such an application had been filed and on what date it was filed. There were simply references to intending that one should be made and submissions which appeared to be predicated on the basis one had been. The point was not taken at the hearing and I will proceed on the basis an application has been made. However, it is apparent from the material filed in respect of this application that advice had already been taken from Melbourne counsel about such an application prior to the order of 1 May 2006 and that subject to that advice being confirmed in writing, the application would be made. The situation appears to be that the actual filing had not occurred as at the date of the order the execution of which is sought to be stayed, but the respondent and his solicitors were well aware at the time that such filing would shortly occur.
18 Neither counsel addressed the question of whether r887 contemplated that the filing of an appeal or an application for a grant of special leave to appeal would be considered as 'a matter occurring after judgment' in the context of that rule. I am not necessarily persuaded that could be the intention of the rule given the existence of rule 676 and I make no finding as such that it does. Both parties have proceeded on the basis that it does constitute such an event such as to trigger the operation of the rule and I will proceed on that basis. Both counsel addressed instead the test to be applied by a judge when exercising his or her discretion under the rule.
19 Neither counsel could refer the court to any authority specifically dealing with r887. The cases each referred to dealt with various rules, all of which were in the words the same as, or similar to, r676. Counsel for the respondent, however, submitted that the authorities to which she referred were the more appropriate to have regard to because they dealt with stays of execution as opposed to stays of proceedings generally. It may also have been that in both cases the court did not use the test later expounded by the High Court in The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Limited (No 1) [1986] HCA 13; (1986) 160 CLR 220, a test which at face value is quite a stringent test and one the respondent may not have been able to meet.
20 In that case, the Commissioner of Taxation had been ordered to issue an amended notice of assessment against the respondent company. The Commissioner appealed that decision unsuccessfully and then sought and was granted special leave to appeal to the High Court. The Commissioner sought a stay of the order requiring him to issue the amended notice. Dawson J said at 222:
'It is well established by authority that the discretion which it confers to order a stay of proceedings is only to be exercised where special circumstances exist which justify departure from the ordinary rule that a successful litigant is entitled to the fruits of his litigation pending the determination of any appeal. See, eg, The Annot Lyle (1886) 11 PD 114, at p116; Scarborough v Lew's Junction Stores Pty Limited [1963] VicRp 20; (1963) VR 129, at p130. Special circumstances justifying a stay will exist where it is necessary to prevent the appeal, if successful, from being nugatory. See Wilson v Church (No 2) (1879) 12 Ch D 454, at p458; Klinker Knitting Mills Pty Ltd. v L'Union Fire Accident and General Insurance Co Ltd [1937] VicLawRp 28; (1937) VLR 142. Generally that will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will, I think, exist where for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed. See McBride v Sandland (No 2) [1918] HCA 59; (1918) 25 CLR 369, at p375.'
The court there found there were exceptional circumstances and granted the stay.
21 In Townsend v Balmer 113/1997, Slicer J quoted some of the words from the reasons of Dawson J in the Myer Emporium case quoted above. The case he was dealing with involved an appeal by an employer against a decision of the Workers Rehabilitation and Compensation Tribunal. The employer sought a stay of the tribunal's order pending appeal. It was unsuccessful.
22 Slicer J said at 2 - 3:
'The test in determining whether or not a stay should be granted on the above basis was stated by Dawson J in The Commissioner of Taxation of the Commonwealth of Australia v The Myer Emporium Limited [No 1] [1986] HCA 13; (1986) 160 CLR 220 at 223, that:
"... there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed ...".
That test was applied by Wright J in Firewood and Scantling Pty Ltd v R L Newman Pty Ltd B24/1989, and more recently approved by McHugh J in Advanced Building Systems and Anor v Ramset Fasteners (Aust) Pty Ltd [1997] HCA 24; (1997) 145 ALR 121. The applicants have not established that there is a real, as distinct from arguable, risk. Further, it is necessary to identify what is sought to be preserved. In this case, the subject matter is the right of appeal (Sali v SPC Ltd (1993) 67 ALJR 515) such right being unaffected by the continuation of payments.'
23 In Joskovitz v Bonnick [1964] VicRp 83; [1964] VR 654, a stay of execution in respect of orders for costs made against a litigant was sought by her until some other proceedings were finalised in the Supreme Court. By reference to a rule not dissimilar to our r676, Herring CJ said, at 656:
'... I have ... a wide discretion which requires me to take into account all the circumstances of the case. I think I should say at once the decisions on other sets of facts do not bind me, nor is assistance to be derived from cases which are not really concerned with exactly the same problem as I am concerned with.'
24 In Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685, the corporation sought a stay of execution in relation to a huge judgment obtained against it. The relevant rule was in similar terms to our r676. The court, at 693 and 694, discussed the principles relating to stays and said:
'In order to consider whether a stay should be granted in the present case, it is appropriate to refer to the principles, suggested by earlier cases, concerning the granting of a stay pending appeal. In a number of cases, including recent pronouncements of this Court, it has been said that a judgment creditor is entitled to the "fruits of his victory" unless the appellant can show "special" or "exceptional" circumstances which warrant the imposition of a stay. This principle is often traced to the case of The Annot Lyle (1886) 11 PD 114. It has been expressed in many cases, including recently in this Court and in the Full Court of the Supreme Court of Victoria: see Monk v Bartram [1891] 1 QB 346; Klinker Knitting Mills Pty Ltd v L 'Union Fire Accident & General Insurance Co Ltd [1937] VicLawRp 28; [1937] VLR 142; Scarborough v Lew's Junction Stores Pty Ltd [1963] VicRp 20; [1963] VR 129; Bridges v Australian Consolidated Press Ltd (Court of Appeal, 16 June 1970, unreported); Trlin v Marac Finance Australia Ltd; cf Noulikas Holdings Pty Ltd v State Insurance Office (Full Court, Supreme Court of Victoria, 22 March 1985, unreported).
There are three reasons why it is appropriate to reconsider this formulation of the test for the grant of stays pending appeal. First, there is no suggestion in the rule that "special" or "exceptional" circumstances must be established before the discretion conferred upon the Court will be exercised. This is significant because, where the Act or the rules contemplate the need for special or exceptional circumstances to warrant a particular course they generally say so. For example the very next rule (Pt 51, r 11) dealing with security for costs of an appeal says, in terms, that such an order may be made "in special circumstances". No such limitation appears in Pt 51, r 10: cf also Supreme Court Act 1970, s75A. If it had been contemplated that "special circumstances" were required or that "exceptional circumstances" should be established to attract the discretion to grant a stay pending appeal, it might have been supposed that the legislature would have said so in terms. The absence of such a provision implies, at least in the practice of this Court, that no such requirement exists.
Secondly, the principle and the like expression of it in Barker v Lavery (1885) 14 QBD 769 and in Monk v Bartram first appear in decisions of the courts when the facility of appeal (which was not generally available at common law) was still relatively novel. In these circumstances the courts might more readily look upon appeals as an exceptional process. Today this is not the case. Far from being exceptional, appeals are common. Particularly is this so in commercial matters, where large sums are at stake. Appeal courts are enjoined, statute apart, to weigh competing inferences from the proved or accepted facts, and even where the credibility of witnesses is involved, to consider whether the advantages of the trial court may not be outweighed by compelling inferences to be drawn from the evidence proved: Voulis v Kozary [1975] HCA 44; (1975) 50 ALJR 59; 7 ALR 126. Where facts are undisputed or, though disputed, are established by the finding of the trial judge, the appellate court is said to be in as good a position as the trial judge to decide the proper inferences to be drawn from those facts. Though the appeal court will give respect and weight to the conclusion of the trial judge, once having reached its own conclusion, it must not shrink from giving effect to it. This principle was established immediately after the introduction of the facility of appeal by the Supreme Court of Judicature Act 1873 (Imp): see eg The Glannibanta (1876) 1 PD 283 at 287 - 288. Although it was for a time eclipsed (see eg Watt v Thomas [1947] AC 484 at 487 and Edwards v Noble [1971] HCA 54; (1971) 125 CLR 296), it was seen re-established in England (see Benmax v Austin Motor Co Ltd [1955] AC 370 at 376) and later in Australia: see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551; Taylor v Johnson [1983] HCA 5; (1983) 151 CLR 422 at 426. These modern duties of appellate courts, or at least of this Court, involve an historic change in the facility of appeal, particularly when compared to the position in the late 19th century when such facility was doubtless still considered by some judges to be novel, so that they were reluctant to interfere with verdicts by granting stays.
Thirdly, recent decisions of this Court, reflecting the language of the rules and the frequency and nature of appeals, have expressed the approach to be taken without reference to the need for "special" or "exceptional" circumstances to justify a stay. Thus in Waller v Todorovic (at 3) the court merely pointed to the need for the party seeking a stay to establish a reason therefor. To like effect is the judgment of Mahoney JA (with whom Moffitt P and Glass JA agreed) in Re Middle Harbour Investments Ltd (In Liq) (Court of Appeal, I5 December 1976, unreported). In that case, Mahoney JA said this (at 2):
"Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in the state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party."
Although it is true that, in a number of more recent decisions of the Court, reference has been made to the requirement of "exceptional" and "special" circumstances, and although the same requirement appears still to be observed in Victoria, the general practice of the Court conforms more closely to that stated by Mahoney JA. In our opinion it is not necessary for the grant of a stay that special or exceptional circumstances should be made out. It is sufficient that the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of discretion in his favour.'
By reference to their specific rules the court found that:
'(2) The Court may grant a stay of proceedings where the applicant for the stay demonstrates a reason or an appropriate case to warrant the exercise of the discretion in his favour; it is not necessary that special or exceptional circumstances should be made out.'
Conclusion
25 It is not in my view necessary to determine precisely which is the appropriate test because I am satisfied that, having considered all the circumstances of this case, the respondent would not be able to satisfy even what might be described as the lesser standard contended for. "

In the present case, there is no pending appeal against any of the costs orders which the Council seeks to enforce. The application must be approached on the basis that a successful party, in this case the Council, is entitled to the benefit of the judgments it has obtained, and is entitled to proceed on the basis those judgments are correct. While each application of this nature must be considered on its merits, the applicant cannot rely on speculation or argument to underpin his application. There must be facts sufficient to justify the grant of a stay.

Admissibility of affidavit material

The Rules, r502, provides that the hearsay rule does not apply to evidence in an affidavit used in an interlocutory application if the party who adduces the evidence also adduces evidence of its source. Counsel for the Council accepted that hearsay evidence could be used in the applicant's affidavits. For evidence in any court proceedings to be admissible, it must, above all, be relevant to the application before the court. The material in the applicant's affidavits must therefore be relevant to his application now before the Court. The affidavits should also contain facts, and should not contain argument or scandalous material. Rule 508 provides that a judge may strike out any scandalous material in an affidavit.

Affidavit of applicant sworn 31 March 2014

Counsel for the Council submitted that almost the entirety of this affidavit should be struck out on the bases variously that the material in it was irrelevant to the issue before the Court, it contained argument, not relevant facts, and that it was scandalous. In determining the objections, I have made allowance for the fact that the affidavit has been prepared by an unrepresented litigant. However I have also taken into account that the applicant has had extensive experience in this Court and on a number of occasions issues have arisen of his attempting to use material irrelevant to the matter before the Court, and he has been told he could not do so.
The issue before the Court now is whether or not an order should be made staying execution in respect of costs orders against the applicant such as to prevent an auction of his property arranged for 10 April. It is not an opportunity for the applicant to re-argue the subject matter of the various cases which have resulted in the costs orders against him. It is not an application for a stay pending the outcome of an appeal, because there is no appeal pending. I am approaching the issue of admissibility against that background.
It was submitted that par4 of the affidavit was irrelevant. That last sentence may be so because it is simply a repeat of an expression of opinion by a third party. Given the nature of one of the applicant's arguments the first part may be relevant. I will allow the first part but strike out that second part of the paragraph commencing with the words, "The Deputy Registrar".
Counsel for the Council did not object to pars 5 or 35. However I have included them in my reasons. Paragraphs 5 to 39 may conveniently be dealt with together. They contain extracts from a number of judgments and transcripts, and statements and argument by the applicant as to why, in that material and otherwise, the various judges, lawyers and others quoted, were wrong. Paragraph 16 simply attaches a number of documents in further support of the arguments. The material is a re-argument of the matters raised by the applicant in previous proceedings. The applicant purports to use this material to demonstrate that there are exceptional circumstances which would justify his being allowed to pursue a fresh application for special leave to appeal to the High Court. That is not a matter for this Court to determine. It is a matter for the High Court.
The material is almost entirely argument and raises nothing which has occurred since what might be considered the last judgment as between the applicant and the Council. Paragraphs 5 to 39 are struck out.
As to par 40, again it contains no relevant fact, simply argument. It is also potentially scandalous in that it contains speculation suggesting mala fides on the part of unnamed members of the legal profession and judges of this Court. It is struck out.
As to pars 41 to 48 inclusive, the material contained in those paragraphs is irrelevant to the application before the Court. Insofar as it unnecessarily impugns the character of a number of persons, it is also scandalous. These paragraphs are struck out.
As to par 49, the first two sentences may be relevant. The rest is argument and is struck out. As to par 50, it contains some relevant facts. It also contains opinion and argument. Since it is a tedious process to explain what material is in each category, I propose to leave the paragraph in, but will ignore opinions expressed by the applicant and argument.
Subject to the excisions of the material struck out, the affidavit is admitted into evidence.

Affidavit of applicant sworn 7 April 2014

No objections were made by counsel to pars 1 to 9 and 15 of this affidavit.
As to par 10, its contents are opinion and inadmissible. Paragraph 11 is argument and irrelevant to this application. As to par 12, it is opinion and inadmissible. Paragraph 13 is argument. Paragraph 14 is opinion and argument, and is inadmissible. Paragraph 16 is irrelevant. Paragraphs 17 to 22 contain argument and opinion, and generally material which is irrelevant to the argument now before the Court.
In the circumstances, pars 10, 11, 12, 13, 14 and 16 to 22 are struck out. The affidavit subject to those excisions is admitted into evidence.

Mr Connolly's affidavit

The applicant did not seek, even after an overnight adjournment, to make any submissions as to the admissibility or otherwise of any part of this affidavit. Nevertheless I have reviewed the affidavit. I am satisfied it contains material relevant to relevant issues raised by the applicant, that it does not contain material which is argumentative or scandalous, and that, where hearsay evidence is given, the source of the facts stated is disclosed. The affidavit will be admitted into evidence in its entirety.

Background to the application

The execution process sought to be stayed relates to the costs orders made against the applicant and his former wife. They are as follows:
1.        Orders made (3) by the Full Court on 22 December 2010 in proceedings numbered 279/2009.
2.        Order made by Evans J on 20 July 2012 in proceedings numbered 548/2010.
3.        Order made by Holt AsJ on 6 September 2012 in proceedings numbered 548/2010.
4.Order made by Blow J (as he then was) on 12 December 2012 in proceedings numbered 548/2010.
5.Order made by Holt AsJ on 24 April 2013 in proceedings numbered 548/2010.
6.Order made by the Full Court on 26 July 2013 in proceedings numbered 586/2012.
The orders numbered 2 to 6 were made against the applicant alone. The orders numbered 1 were made against the applicant and his former wife, and they are jointly and severally liable in respect of those orders. The total amount now owing in respect of the various orders, including fees and interest, is about $200,000.
There were three matters covered by the costs orders made by the Full Court on 22 December 2010. The first was the costs associated with a successful appeal by the Council against an order made by a judge at first instance that it pay the costs associated with proceedings commenced by the applicant and Mrs Howlin against a Mrs Brinkman, that is the appeal against a third party costs order. The second was an order, made as a consequence of that successful appeal, that the applicant and Mrs Howlin pay the Council's costs of the application by them for third party costs (that was in the form of an interlocutory application in proceedings numbered 523/2005). The third was the costs associated with an unsuccessful application to re-open the appeal just prior to judgment. The Full Court, as part of the various costs orders made 22 December 2010, also ordered that the applicant and Mrs Howlin have an indemnity certificate pursuant to the Appeal Costs Fund Act 1968 ("the ACF Act"), s8, but only in respect of the costs associated with the appeal.
The taxed costs of the appeal amounted to $26,193.40. The ACF Act, s9, provides for the effect of an indemnity certificate. In substance, the certificate entitles the applicant and Mrs Howlin to be paid from the Appeal Costs Fund an amount equal to the Council's costs of the appeal in respect of which the certificate was granted "being costs ordered to be paid and actually paid by or on behalf of the respondent". In certain circumstances, where such costs are not paid by the persons with the benefit of the certificate, the appellant beneficiary of the costs order may call on the fund to meet the costs. In any event, the maximum amount payable under an indemnity certificate is $11,500. To date there has been no application by the applicant and/or Mrs Howlin under the ACF Act.
There are no pending appeals against any of the costs orders identified in par[27].

Writs of Fieri Facias ("Fi Fa") and associated processes

At the request of the Council, the Court caused writs of Fi Fa to issue to the Sheriff over a period of time in respect of the various costs orders. These are the formal writs issued with a direction to the Sheriff to levy execution against assets of a debtor to satisfy the debt. Where they are sought to be issued for the purpose of recovering costs ordered to be paid, they will follow a taxation of costs pursuant to an order, and the issue of a Certificate of Taxation. In this case, five such writs were issued. The first was issued on 24 December 2012 which related to the 20 July 2012 costs order. Three further writs were issued on 28 August 2013. These related to the costs orders made on 22 December 2010, 6 September 2012, 12 December 2012 and 24 April 2013. The final writ was issued on 30 October 2013 which related to a costs order made on 26 July 2013.
In this case, Mr Connolly indicated that he believed one of the writs issued on 28 August 2013 contained an error in that it referred to proceedings numbered 523/2005 when it should have referred to proceedings numbered 279/2009. Having reviewed the writs and the orders to which they relate, while the order which gave rise to the relevant debt was made by the Full Court in proceedings numbered 279/2009, the costs were in fact the costs associated with proceedings at first instance in action number 523/2005. The Certificate of Taxation attached to the writ was therefore correctly issued by reference to proceedings 523/2005. It would therefore appear there was no error.
Following the issue of writs of Fi Fa to the Sheriff, warrants of execution were prepared in his office for the bailiffs. Each warrant of execution was allocated a number and these numbers appear in handwriting on the writs to which they relate. The warrant numbers are those to which the applicant referred in his application. They may be summarised as follows:
·     Warrant number 1/13         -          relates to costs order made 20 July 2012. The costs were   taxed at about $79,000.
·     Warrant number 59/13       -          relates to costs orders made 6 September 2012, 12 December        2012 and 24 April 2013. These costs were taxed at $5,569.50   (not $5,419.50 as set in par 8 of Mr Connolly's affidavit).
·     Warrant number 60/13       -          relates to two of the 22 December 2010 costs orders. These   were taxed at $30,650.45.
·     Warrant number 61/13       -          relates to the third costs order made 22 December 2010. The   costs were taxed at $26,125.80.
·     Warrant number 75/13       -          relates to the costs order made 26 July 2013. These costs   were taxed at $33,035.61.
There is no legislative requirement that writs of Fi Fa be served on a debtor.
The Sheriff's role is to investigate what assets may be available to satisfy the warrants. Those investigations revealed that the applicant had interests in real property and a number of boats and cars. Forms of levy notices were then issued, and attached to various items of property. Those notices were notice to the debtor that the Sheriff had taken possession of the item, the subject of the notice, for the purpose of satisfying debts owed. The forms of levy notices are not contained in any rules. I have been unable to find any legislative requirement as to the contents of such forms, as to service of such forms, or as to whether a levy referred to in such a form has effect for a certain period.
The Civil Process Act 1870, s5, provides that the Sheriff is, within 28 days of making a levy under a writ, to cause notice of that levy to be published. It does not follow that that limits the period for which a levy may operate.
Notices of levy were issued in respect of a number of boats and related motors and trailers owned by the applicant and situated at his Opossum Bay property. The Sheriff obtained a valuation of those items. That valuation was in total between $53,350 and $58,400. The Sheriff identified that there was another boat, a 12 metre motor cruiser moored at Kings Pier marina. A "kerbside" valuation of that, by the same valuer who had valued the other items, was $100,000. The Sheriff sought instructions from the Council as to whether it wished him to sell the boats. By email, the applicant objected to the sale of the boats and indicated that the Council had lodged caveats against real property to secure its costs, and that property was sufficient to cover any debt he owed.
On 13 September 2013, a sheriff's officer attended at the applicant's premises at Spitfarm Road. The applicant informed the officer that:
·he had transferred the 12 metre motor cruiser and a Stabicraft boat into his wife's name,
·he had sold another boat and also sold a twin axle boat trailer.
The wife referred to was the applicant's present and not former wife. An enquiry with MAST established the motor cruiser had been transferred to the applicant's wife on 31 July 2013. The steps taken by the applicant in relation to the boats and trailers prevented the Sheriff from proceeding to sell those items. The items disposed of formed the bulk of the value of that category of assets.
During the course of his cross-examination of Mr Connolly, the applicant asked questions about why Mr Connolly had not taken steps to sell what I infer must be the 12 metre motor cruiser referred to above. The inference from the questions was that the boat had a value in excess of $100,000 and could largely satisfy the applicant's indebtedness. The reasons for the questions became apparent in closing submissions. During the course of those, the applicant informed the Court that, despite his having transferred various items to his wife, he still had the power to dispose of them. However, in the circumstances which existed at September 2013, the Sheriff formed the view that what remained of the boat related assets was then wholly insufficient to satisfy the debts then the subject of writs.
The Sheriff's enquiries also revealed that there were three items of real property in the State in which the applicant had an interest. These were the property at 33 Spitfarm Road, Opossum Bay, a property at 2 Regal Court, Seven Mile Beach and a block of land described as Marsh Street. Each of those properties was then, and remains, registered in the joint names of the applicant and his former wife. Enquiries were made as to the state of any mortgages on these properties and other matters for the purpose of determining whether they could be sold. The title to Spitfarm Road was unencumbered. The title to Regal Court was subject to a significant mortgage, and the land at Marsh Street was a small piece of land subject to a number of rights of way. There was no government valuation for that property. An informal valuation suggested it might be worth about $1,000. Because of the value of it and the state of its title, the Sheriff took the view that any sale could be difficult and, in any event, would yield little of use in satisfying the debts.
As to Regal Court, the government valuation was $430,000 and it was found to be subject to a mortgage of $345,998. At best, any sale would yield approximately $84,000. It would of course yield much less after sale costs. The Sheriff formed the view that any net proceeds of a sale of that property would be insufficient to satisfy the relevant debts. The Sheriff then looked to 33 Spitfarm Road. The government valuation for that property was, as at October 2013, $500,000 and there was no mortgage. A determination was made, given the lack of other assets, the sale of which might be likely to meet the entirety of the debt, that Spitfarm Road was the property to be sold.
At a time after the above matters were considered, the terms of a binding financial agreement which the applicant and his former had entered into in March 2012 came to the attention of the Sheriff. That agreement was registered in the Federal Circuit Court. Pursuant to that agreement, the applicant was entitled to become the sole registered proprietor of the Spitfarm Road property. Both the applicant and his former wife had independent legal advice about the appropriateness of entering into that agreement. The agreement further provides that the former Mrs Howlin will take on the Regal Court property subject to its debt. The agreement deals with the costs obligations under consideration here. The applicant has, it appears, made application to set that agreement aside, although that application has not yet resulted in any determination.

Bases for the applicant's application

The matters relied upon by the applicant as supporting the grant of a stay were:
·     He retains a right to make a further application for special leave to appeal to the High Court in respect of the judgment of the Full Court in July 2013, provided he can demonstrate exceptional circumstances.
·     The Sheriff has, each 28 days since last October, left a document at the Spitfarm Road property entitled "Levy Form". The last of such documents was left on 27 February 2014. I infer that the applicant's position is that the Sheriff has an obligation to leave such a form every 28 days, and that, because he has not done so since the end of February, he has no right to proceed with arrangements for an auction.
·     That he has not been served with any Writ of Fi Fa.
· That the Sheriff has not complied with the Rules, r906.
·     That Mrs Helen Howlin has accepted that she is responsible for one half of the costs ordered in respect of proceedings numbered 279/2009 and that Mrs Howlin's legal representative has made an offer to settle her obligations.
·     That the judgments the subject of proceedings in 279/2009 and 548/2010 were affected by deceit and that by reference to the Supreme Court Civil Procedure Act 1932, s51, any judgment obtained by fraud may be set aside.
·     There is an undertaking given by counsel for the Council to the Court on 27 July 2011 which should preclude the Council from enforcing certain costs orders.
·     The Registrar of the Court (I infer he means Mr Connolly and I will deal with the matter on the basis it is in his capacity as Sheriff) has declined to discuss with him alternative arrangements for securing the payment of the costs ordered to be paid.
·     The judgment in proceedings numbered 548/2010 (and I infer 279/2009) was affected by chronic deceit and the costs incurred in this Court have seriously diminished his capacity to deal with the Council's negligent misstatements.
·     The sale of the applicant's property at Spitfarm Road will expose the Government to a claim for commercial damages in excess of $5,000,000.

The arguments by the Council

Before dealing with the bases upon which the applicant says there are reasons why this Court should order a stay, I need to make reference to matters raised by the Council because, had it succeeded in relation to those, there may have been no need to deal with the applicant's grounds for a stay.

Counsel for the Council submitted that the first order sought by the applicant required that the Council and the Registrar be restrained "from exercising" the warrants in the scheduled auction. He submitted that there was no warrant issued to the Council, and the Council performed no functions pursuant to a warrant. He submitted that the application for the first order must therefore fail. He also submitted that a restraining order directed to the Registrar must also fail because such an order would not affect the obligations and responsibilities of the Sheriff.
There is no question that, at a technical level, counsel is correct. However I raise the following matters. Firstly, it was the clear intention of the application to prevent the auction of the property at Spitfarm Road on 10 April. While the Council performed no function as far as executing the warrants of execution was concerned, and therefore there was nothing in that context to restrain it from doing, the Council clearly had the power to instruct the Sheriff to refrain from executing a warrant issued pursuant to a writ it had applied for. As to the issue relating to the Sheriff, par 1 of the application as it stands is clearly directed to the Registrar and, if anything, should be directed to the Sheriff. The Sheriff was joined to the proceedings for that very reason. I would be disinclined to dismiss the application because the applicant failed to formally amend his application when the intent behind the proceedings was clear.
Counsel for the Council was well aware that I proposed to deal with this matter on the basis it was an application for a stay pursuant to r887 and the inherent jurisdiction of the Court, and not strictly speaking as an injunctive application. He did not demur as to that course of action when I indicated that was how I intended to proceed. I accept that, had this matter been dealt with as an application for an injunction, he might have had more success with these arguments.
Counsel for the Council also submitted that there was no basis to suggest his client's undertaking given to Holt AsJ on 27 July 2011 had not been complied with, and therefore that application should fail. I will deal with that issue under a discrete heading.
As to the third order sought, counsel for the Council submitted that the Court had no power to direct the Registrar (or indeed the Sheriff) to enter into "alternative financial arrangements" with the applicant so as to avoid the sale of Spitfarm Road. With respect, I agree.
I will return to dealing with the bases upon which the applicant argued there should be a stay of execution.

The issue relating to special leave

The last set of proceedings which resulted in a costs order was an appeal (file number 586/2012) against a decision of Evans J (file number 548/2010). The applicant failed in that appeal, and judgment was delivered to that effect on 26 July 2013: Howlin v Clarence City Council [2013] TASFC 7. The applicant applied to the High Court for special leave to appeal that decision. His application for special leave was refused by order of the High Court on 12 February 2014. The applicant said at par 4 of his affidavit sworn 31 March 2014:
"4. By email dated 28 February 2014 the Deputy Registrar of the High Court, confirmed my right to file a second Application for Special Leave to Appeal the judgment in Howlin v CCC [2012] TASFC 7 on the grounds of exceptional circumstances."
As I understood the applicant's position, it was that he retained a right to either make a further application for special leave to appeal or to reopen that which was unsuccessful and that, because that right existed, there remained a real likelihood that he would succeed in an appeal to the High Court and that some or all of the costs orders now sought to be enforced might be set aside. Therefore, this Court should stay execution in respect of those orders.
The applicant has made no second application to the High Court for special leave, nor has he made an application to re-open consideration of that application which has been refused. In any event, an application for special leave is not in itself an appeal. It is a process whereby an applicant seeks permission of the High Court to appeal and no more: (see Collins v R (1975) 133 CLR 120 at 122).
Further, neither the Judiciary Act 1903 nor the High Court Rules 2004 make specific provision for a subsequent application for special leave to appeal in respect of the same judgment where an initial application has been refused. The effect of the refusal of an application for leave to appeal was considered most recently in Lodhi v Attorney-General of New South Wales [2013] NSWCA 433. Basten JA, with whom Bathurst CJ and Beazley P agreed, said at [42]:
"Unlike the rejection of the appeal to the Court of Criminal Appeal, the refusal of the applicant's request for special leave to appeal to the High Court was not a final order in a proceeding inter partes and would not prevent the renewal of the application: Collins (alias Hass) v The Queen [1975] HCA 60; 133 CLR 120 at 122; Coulter v The Queen [1988] HCA 3; 164 CLR 350 at 356 (Mason CJ, Wilson and Brennan JJ) and at 360 (Deane and Gaudron JJ, dissenting, but not on this point). However, as a practical matter, the likelihood of the court granting an application to reopen is slight. As stated by Brennan J (for a Court comprising himself, Deane and McHugh JJ) in Cachia v St George Bank Ltd (1993) 68 ALJR 124, it is 'generally not appropriate for this Court to permit an applicant to have two opportunities to argue his case, the second on an application to reopen an earlier decision to refuse special leave'."
In Cachia (above), an applicant who had been refused special leave by the High Court, made an application to that court to re-open his application for special leave. He was unrepresented at the time of his original application. It was held that:
"... when special leave is refused, the applicant will not usually be permitted to reopen the case. That principle applies where an applicant representing himself fails adequately to raise an argument on the first application but seeks to pursue it through counsel on a second application."
While, therefore, in this matter it may be said that, as far as an appeal to the High Court against the decision of the Full Court in July 2013 is concerned, the door is not completely closed, it must be considered virtually shut. The applicant is now well out of time to make an application for special leave. The last application was refused almost two months ago, and no fresh application has been attempted. All the applicant has done is suggest his rights remain open. He has not sought to act on them.
It is not a matter for this Court to make a determination that there are exceptional circumstances such that a second or renewed application for special leave to appeal may be filed and might be successful. In any event, an appeal against an order does not generally act as a stay, and the fact that a possible appeal might have merit is not enough to justify a stay. It seems that it is only in the face of an imminent auction that the applicant now says he has the right to re-apply to the High Court, and that while he retains that right the proceedings have not been finally determined.
While the refusal of special leave might be a matter which has occurred since judgment, it does not, in the circumstances of this case, justify the stay of execution sought.

The levy forms

The applicant has not referred to any legislative or other requirement pursuant to which the Sheriff is required to serve "levy notices" every 28 days. I am not satisfied, having regard to the material contained in Mr Connolly's affidavit and his counsel's submissions, that any such requirement exists. It would appear that the applicant may have become confused by the provision of the Civil Process Act, s5, previously referred to. That does not provide that a levy automatically expires 28 days after a levy form is attached to property.

The service of a Writ of Fieri Facias issue

The applicant has not referred to any legislative or other requirement pursuant to which the Sheriff is required to serve Writs of Fi Fa. I am not satisfied any such requirement exists.

Rule 906

The Rules, r906(2), (3) and (4), provided:
"(2) Subject to subrules (3) and (4), if it appears to the Sheriff that property subject to levy under a writ is more than sufficient to satisfy the amount to be levied, the Sheriff is to take or sell so much of the property as appears to be sufficient.
(3)   Subject to subrule (4), the Sheriff is to take or sell property –
(a)   in the order as appears best for the prompt execution of the writ without undue expense; and
(b)   subject to paragraph (a), in the order the debtor directs in writing; and
(c)   subject to paragraphs (a) and (b), in the order as seems to the Sheriff best for minimising hardship to the debtor or other persons.
(4)   Unless the debtor otherwise directs in writing, land is not to be put up for sale under the writ until all other property liable to sale under the writ has been sold."
The applicant asserts that neither he nor his former wife have given any direction in writing authorizing the sale of Spitfarm Road, and that, as a consequence, r906 has not been complied with. Mr Connolly does not dispute that he does not have their written direction as to sale. Rule 906(4) had the effect in this matter of preventing the sale of "land" until all other property liable to sale under a writ had been sold. The situation faced by the Sheriff was that there was no other property of any value which could be sold, given the actions of the applicant in relation to boats. I am of the view that the Sheriff was not prohibited by r906 in these circumstances from deciding to sell "land" and it was within his power to decide to sell Spitfarm Road, given the level of debt, the equity in that property, and that the equity in the Regal Court property would have been insufficient to satisfy the outstanding debts.

Mrs Helen Howlin's costs obligations

I am unsure precisely what the applicant's position in relation to this was. Mrs Helen Howlin, through her solicitors, has accepted that she is responsible for one half of the costs ordered in respect of proceedings numbered 279/2009, and has made an offer to settle her obligations. Any offer she made, if accepted, could only reduce the overall debt by a relatively small portion of the total. I am unaware whether that offer has been accepted. However, if it has, it seems to me that does not, in any way, invalidate the execution process. While it appears from correspondence attached to Mr Connolly's affidavit that the acceptance of responsibility and offer by Mrs Howlin may have occurred since judgment, because of the impact on the overall debt, it does not seem to me to be a factor which could justify a stay.
Otherwise, save for suggesting that, until the issue of precisely what Mrs Howlin was going to contribute to costs was determined, he did not know precisely what his obligations were, the applicant did not identify what it was that might justify a stay of execution. It is of note in this regard that the applicant appears in any event to have overlooked the fact that, as he and his former wife are jointly and severally liable for the particular costs orders, the Council could, if it wished, proceed wholly against the applicant to recover the entirety of the costs. It is not bound by the provisions of the financial agreement between the applicant and his former wife.

That the judgments the subject of proceedings in 279/2009 and 548/2010 were affected by deceit, and that by reference to the Supreme Court Civil Procedure Act 1932, s51, any judgment obtained by fraud may be set aside

The Supreme Court Civil Procedure Act 1932, s51(1), provides:
"51 Judgment obtained by fraud may be set aside by application for new trial or an action
(1) Subject to the provisions of section 50(2), any verdict, finding, judgment, order, or determination obtained by or affected with fraud may be impeached, either by an application for a new trial or to set aside the verdict, finding, judgment, order, or determination, or by an action instituted for the purpose of having the verdict, finding, judgment, order, or determination set aside."
There is no admissible evidence before the Court to indicate that any application by reference to s51 could be made or, if made, might be successful. No such application has been made.
Even if regard were had to the material in the applicant's affidavit which I have ruled is inadmissible, there is nothing in there which has occurred "after judgment", nor anything which is other than speculation and opinion on the part of the applicant, which might justify a stay.

There is an undertaking given by counsel for the Council to the Court on 27 July 2011 which should preclude the Council from enforcing certain costs orders

On 26 May 2011, the applicant and his former wife made an application pursuant to the Rules, r887, that execution in respect of certain costs orders be stayed pending the hearing and judgment in proceedings by then initiated by the Council against them by action number 548/2010. The orders referred to were the orders made by the Full Court on 22 December 2010 in proceedings numbered 279/2009. The matter came on for hearing before Holt AsJ on 27 July 2011. The application did not proceed to determination, but was adjourned sine die on the basis that the following undertaking was given to the Court by Mr McElwaine SC on behalf of his client, the Clarence City Council:
"Clarence City Council will not enforce the costs order by execution proceedings until the determination of the trial in action 548/10 or the expiry of any appeal period therefrom or if an appeal is lodged the ultimate determination of such appeal whichever is the later."
Action number 548/2010 duly proceeded to trial. A decision was published in May 2012. The Council succeeded in the action. An appeal against that decision by the applicant was dismissed in July 2013. The first point to be made is that the undertaking related to the costs orders made by the Full Court on 22 December 2010. The taxed costs pursuant to those orders amount to about $57,000. These are the costs for which the applicant and his former wife are jointly liable and in respect of which Mrs Howlin has made an offer to settle.
The position of the Council and the Sheriff is that the undertaking expired once the appeal by the applicant failed. The position of the applicant is that that undertaking binds the Council until any possible avenues of appeal connected with the decision in proceedings numbered 548/2010 are exhausted, whether in this Court or otherwise.
The undertaking provided that the Council would not seek to recover the particular costs it related to until the last of three events. The first was the "determination of the trial in action 548/10". The second was "the expiry of any appeal period therefrom". The third was the ultimate determination of any appeal lodged. The first two events can only relate to events in this Court. Effectively the applicant is suggesting that the third event is not restricted to matters in this Court. He does not explain why. In my view, had the Council intended to bind itself by undertaking not to enforce some costs orders until the applicant had unsuccessfully completed a High Court appeal, the undertaking would have said so. It dealt with each other step, but not that. There is of course no remaining avenue of appeal in those proceedings in this Court. Further, the applicant has failed in an application for special leave. In the circumstances, I am of the view the undertaking expired when orders were made by the Full Court in July 2013. Even if I am wrong as to that and it extends to an appeal in another court, there is none.

The Registrar of the Court has declined to discuss with the applicant alternative arrangements for securing the payment of the costs ordered to be paid

Having read the affidavit of Mr Connolly, it is abundantly clear from the various emails and correspondence between him and the applicant that the applicant has had every opportunity to put forward a serious proposal to settle the outstanding claims. He has been invited to do so more than once. He has never done so. Even in his oral evidence before me, the applicant was evasive as to any proposal he might contemplate putting, and did not take the opportunity to do so.

The judgment in proceedings numbered 548/2010 (and I infer 279/2009) was affected by chronic deceit, and that the costs incurred in this Court have seriously diminished the applicant's capacity to deal with the Council's negligent misstatements

Leaving aside the question of deceit, the applicant appears to suggest he will suffer financial hardship if the costs orders are enforced, and suggests his capacity to deal with the Council has been diminished. The applicant has continued with numerous court actions. I accept that he believes he is fully justified in every step he has taken. However the fact of the matter is that he has failed a number of times and has incurred costs. He cannot expect to continue to litigate indefinitely and just ignore the existence of any costs order made against him.
The applicant put no evidence before the Court to justify any claim of hardship. He suggested he had an emotional tie to the property. That may be so. However, with respect, the applicant has had many opportunities to discharge his obligations or put forward proposals to do so. He has not done either of these things, and in fact has disposed of assets since enforcement action was commenced which has frustrated any attempts by the Sheriff to execute against anything other than real property.

The sale of the applicant's property at Spitfarm Road will expose the Government to a claim for commercial damages in excess of $5,000,000

With respect, that assertion does not constitute a basis for supporting a stay application.

Conclusion

The application made by the applicant on 31 March 2014 must fail.