Klewer v Walton

[2005] HCATrans 522

[2005] HCATrans 522

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S24 of 2005

B e t w e e n -

LUCY KLEWER

Applicant

and

IAN WALTON

Respondent

Application for special leave to appeal

Publication of reasons and pronouncement of orders

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 5 AUGUST 2005, AT 8.55 AM

Copyright in the High Court of Australia

McHUGH J: The applicant applied to the Federal Court of Australia to set aside a Bankruptcy Notice on the ground that the creditor had not taken all the necessary steps to entitle him to payment of the debt. The Notice specified the debt owing as a judgment debt of $10,504.00, which is the amount of an order for costs that was made against the applicant as a prosecutor under s 81(1A) of the Justices Act 1902 (NSW). That costs order is an “ancillary money order” under s 109 of the Fines Act 1996 (NSW), which s 110 makes enforceable “as if it were a judgment for the payment of that amount” under the Local Courts (Civil Claims) Act 1970 (NSW). The Federal Court dismissed the application because it was satisfied that the costs order had been entered in the Local Court as recorded in the Certificate of Conviction and was therefore enforceable as an order on the Court record. The Court rejected the applicant’s submission that the order was in favour of the Registrar of the Local Court and not in favour of the respondent, and held that the respondent had a right of immediate execution of the judgment debt.

The Full Court of the Federal Court dismissed the applicant’s appeal on the grounds that a costs order is not distinguishable from an order under s 70 of the Local Courts (Civil Claims) Act because s 110 of the Fines Act and s 58 of the Local Courts (Civil Claims) Act entitled the respondent to issue a writ of execution in respect of the costs order as if it were a judgment of the Local Court.  The Court also held that the applicant could not raise for the first time on appeal the factual issue as to whether evidence had been tendered to show that a “certificate of the order” had been filed with the Registrar of the Local Court of Coffs Harbour before the Bankruptcy Notice was issued, and that the applicant had failed to discharge the onus of showing that there was no evidence that the certificate had not been filed.

The applicant’s special leave application complained that the Full Court had erred in law in finding that the respondent was entitled to issue execution of the costs order made by a Local Court Magistrate in criminal proceedings under the Justices Act, that an order made by a Local Court Magistrate exercising jurisdiction under the Justices Act could be treated as an order made by a Local Court Magistrate exercising jurisdiction under the Local Courts (Civil Claims) Act, and that the evidential burden of proof fell on the applicant to show that the certificate had not been filed.  However, these issues were resolved by the Federal Court and the Full Federal Court and their decisions are not attended with doubt.

An appeal has no prospects of success and does not raise a question of law of public importance.

The application is dismissed.

Under the power conferred by r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing this application.  I publish our joint reasons.

AT 8.54 AM THE MATTER WAS CONCLUDED