Maley, Leo v New South Wales Department of Housing
[1998] FCA 374
•17 APRIL 1998
FEDERAL COURT OF AUSTRALIA
BANKRUPTCY - Validity of bankruptcy notice - notice issued in respect of costs order made following judgment in Local Court - whether respondent a creditor with entitlement to petition for bankruptcy - whether respondent a person or body entitled by or under an Act to receive payment of costs awarded against an informant - whether a Government Department can be such a person or body.
Constitution Act 1902 (NSW)
Justices Act 1902 (NSW) ss 89G, 125
Local Courts (Civil Claims) Act s 31
Public Sector Management Act 1988 (NSW)
Residential Tenancies Act 1987 (NSW) ss 117A, 117B, 118, 119, 129
LEO MALEY v NEW SOUTH WALES DEPARTMENT OF HOUSING
NG 8438 of 1997
DAVIES J
17 APRIL 1998
SYDNEY
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 8438 of 1997
BETWEEN:
LEO MALEY
APPLICANT
AND:
NEW SOUTH WALES DEPARTMENT OF HOUSING
RESPONDENT
JUDGE:
DAVIES J
DATE OF ORDER:
17 APRIL 1998
WHERE MADE:
SYDNEY
MINUTES OF ORDER
THE COURT ORDERS THAT:
The decision of the Deputy Registrar be set aside and in lieu thereof it be ordered that the bankruptcy notice be set aside.
The parties abide their own costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 8438 of 1997
BETWEEN:
LEO MALEY
APPLICANT
AND:
NEW SOUTH WALES DEPARTMENT OF HOUSING
RESPONDENT
JUDGE:
DAVIES J
DATE:
17 APRIL 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
This is a review of a decision of a Deputy Registrar refusing to set aside a bankruptcy notice served on the debtor, Mr Leo Maley.
A certificate dated 9 December 1993, purporting to be a certificate of a judgment of the Local Court Newcastle, read as follows:
"JUDGMENT CREDITOR: DEPARTMENT OF HOUSING
JUDGMENT DEBTOR: LEO MALEY
It is this day adjudged that:
1.In respect of a conviction by Magistrate Colin Elliot Esq at the Local Court at Newcastle on 24 July, 1991 that:
(a) The Judgment Debtor pay the Judgment Creditor:
(i) professional costs in the sum of $7,861.20;
(ii) witness expenses of $1,318.00;
(iii) interpreter fees of $1,398.00;
(iv) disbursements of $250.00;
Totalling $10,827.20"
Subsequently, a bankruptcy notice was served upon Mr Maley containing the following information, inter alia:
New South Wales Department of Housing
(the `creditor')of: 21 - 23 Moore Street, Liverpool NSW 2170
claims you owe the creditor a debt of $18,680.75, as shown in the Schedule.
The creditor claims that the debt is due and payable by you. A copy of the judgment or order relied upon by the creditor is attached. At the time of applying for this Notice, execution of the judgment or order has not been stayed.
You are required, within 21 days after service on you of this Bankruptcy Notice:
(a)to pay to the creditor the amount of the debt; or
(b)to make an arrangement to the creditor's satisfaction for settlement of the debt.
Payment of the debt can be made to:
New South Wales Department of Housing
of:21 - 23 Moore Street Liverpool NSW 2170
(Ref: C Valacos)"
Mr Maley applied to have the bankruptcy notice set aside on the ground that he disputed the claim and, furthermore, that he had written offering to settle the claim and that the financial adviser at the Newcastle office of the Department of Housing of New South Wales had both consented to the offer and had agreed to send it on to their Liverpool main office for completion and attention. He further submitted that the Court should go behind the judgment as it was based on false and fake evidence.
The Deputy Registrar rejected Mr Maley's application. In the present proceedings, Mr Maley reiterated his claims.
Like the Deputy Registrar, I am satisfied that no settlement was reached as to the amount due. In cross-examination, Mr Maley conceded that the officers to whom he spoke at the Newcastle office of the Department of Housing said that it was not for them to sign the proposal which he tendered but a matter for the head office of the Department of Housing. As no officer of the Department of Housing accepted Mr Maley's offer, the amount of any judgment debt remains due in accordance with the terms of the judgment.
The next matter that was put was that the judgment, which represented costs, was a judgment based on false accusations and false evidence.
Mr Maley had been the landlord of certain premises coming within the purview of the Residential Tenancies Act 1987 (NSW). A Mr Anthony Hutchins, an investigating officer with the Tenancy Commissioner's office, laid informations against Mr Maley alleging breaches of the Residential Tenancies Act by virtue of interference with the reasonable peace and privacy of the tenants, of taking of unlawful possession of premises, of failing to give a copy of a residential tenancy agreement to a tenant and so on. Eight offences were alleged. The charges were heard in the Local Court of Newcastle on 24 July 1991 and, in each case, Mr Maley was convicted and it was ordered that Mr Maley pay to the Clerk of the Local Court a specified sum of professional costs and witnesses' and interpreters' expenses.
It appears that Mr Maley did not attend during the hearing of those charges. According to his evidence, he sought that the Magistrate disqualify himself. When this application was refused, he left the Court. Subsequently, Mr Maley appealed to the District Court but, again, he did not appear at the hearing and the appeal was dismissed and he was ordered to pay costs. He later lodged an application with the Court of Appeal of New South Wales for leave to appeal out of time but that application was rejected.
The evidence given by Mr Maley does not show a prima facie case of fraud. His evidence amounts to no more than an unparticularised and unsubstantiated accusation that the evidence given was false. The charges against Mr Maley were heard in open court. Witnesses gave oral evidence. The Magistrate determined the matter on the evidence before him. In these circumstances, there is no basis for going behind the judgment of the learned Magistrate.
I therefore agree with the Deputy Registrar with respect to all the grounds which were raised by Mr Maley.
However, as during the hearing of this review, I did not understand how the convictions on informations brought by Mr Anthony Hutchins and the orders made requiring sums for costs, witnesses' and interpreters' expenses to be paid to the Clerk of Courts at the Local Court Newcastle became converted into a civil judgment in favour of the Department of Housing of New South Wales, I asked counsel who appeared for the Department of Housing to obtain further instructions about the matter and to let me have written submissions. These submissions have since been received.
Section 89G of the Justices Act 1902 (NSW) provides, inter alia:
"(1)This section applies to a person or body entitled, by or under an Act, to receive payment of compensation, costs awarded against an informant (being an informant not acting in his or her private capacity) or costs awarded in favour of an informant (being an informant acting in his or her private capacity), by virtue of:
(a)a conviction or order in proceedings before a Local Court or Children's Court, or
(b) an enforcement order under Division 2 of Part 4B.
(2)Payment of any such amount may, except as provided by this section, be enforced by a person or body to whom or to which this section applies as though it were an amount payable by virtue of a judgment for the payment of that amount under the Local Courts (Civil Claims) Act 1970.
...
(4)A person or body to whom this section applies may not take action under subsection (2) unless, within 3 months after the last day for payment of the amount concerned, the person or body has lodged with a Local Court a certificate under section 178 (Convictions, acquittals and other judicial proceedings) of the Evidence Act 1995 in respect of the payment concerned.
...
(5)The remedy conferred by this section on a person or body to whom or to which this section applies is not in any way limited by the provisions of any other Act."
As can be seen, on the lodgment of a certificate under s 178 of the Evidence Act 1995 (NSW) in respect of the payment concerned, the person or body entitled to the payment of costs awarded in favour of an informant acting in his or her private capacity may enforce the order as if the amount were an amount payable by virtue of a judgment under the Local Courts (Civil Claims) Act 1970 (NSW). What is to be recorded for the purposes of the Local Courts (Civil Claims) Act is the judgment, a certificate of which is given under s 178 of the Evidence Act.
Section 31 of the Local Courts (Civil Claims) Act then operates. It provides:
"The entry of a judgment in the records of a court shall be the record of that judgment, and that entry or a copy thereof, certified to be true copy under the hand of the registrar, shall be received as evidence of that judgment."
The document dated 9 December 1993 was a certificate under s 31 of the Local Court Civil Claims Act issued by the Registrar of the Local Court.
One immediate problem with the certificate, which purports to be a judgment in respect of the eight convictions and orders of the Magistrate on 24 July 1991, is that it is in fact a summation of the orders with respect to costs and fees made by the District Court of New South Wales on 22 April 1992 when it dismissed the appeals. In the District Court, the learned trial Judge dismissed the appeals, confirmed the convictions and imposed fines and orders as to costs identical to the orders made by the learned Magistrate and, in addition, imposed additional orders for costs and fees totalling $3,418. The learned Judge allowed three months from 22 April 1992 to pay all the moneys.
Section 125 of the Justices Act provides that the order of the learned Judge of the District Court on appeal "shall have the same effect and shall be enforced in the same manner as if it had been made by such Justice or Justices." However, the section did not say or imply that the orders of the District Court are deemed to be orders of the Local Court.
The certificate of 9 December 1993 misdescribed the orders made by referring to orders made by the learned Magistrate on 24 July 1991 whereas the sums and their total were payable pursuant to the orders made in the District Court on 22 April 1992.
Another and more significant issue is that, although s 89G of the Justices Act refers to "a person or body entitled, by or under an Act, to receive payment of ... costs awarded against an informant (being an informant acting in his or her private capacity) ...", if one assumes that Mr Hutchins was an informant acting in his private capacity, about which I have received no submission, then it is necessary to determine who is the person or body entitled to enforce the judgment and whether that person is entitled to do so "by or under an Act".
The certificate describes the judgment creditor as "Department of Housing". However, I cannot accept that a Government Department is a relevant "person or body". The Constitution Act 1902 (NSW) provides for the establishment of the Executive, including for the appointment and for the functions of Ministers of the Crown. The Public Sector Management Act 1988 (NSW) provides for the Public Service of New South Wales and for its administrative division into Departments of Government each to be headed by a Department Head. One such department is the Department of Housing. His Excellency the Governor and the Executive Council vest the administration of the Acts of New South Wales in nominated Ministers. The Government Gazette of 5 April 1995 specified the Acts which were then, inter alia, allocated to the responsibility of the Minister for Housing. These included the Residential Tenancies Act. I assume that, at all relevant times, the Minister for Housing had the responsibility for the administration of the Residential Tenancies Act and that, in performing that task, he was assisted by the Director-General of Housing, who is the permanent head of the Department, and by the staff of the Department of Housing. The Department of Housing itself, however, was not a relevant person or body. It was merely the name of a Government Department to which a Director-General and staff who were officers of the Crown had been allocated.
The Residential Tenancies Act provides by s 117A for a Tenancy Commissioner who shall be employed under the Public Sector Management Act 1988. The Tenancy Commissioner has the functions conferred or imposed on him by or under the Residential Tenancies Act or any other Act. Section 117B provides that such staff as may be necessary to enable the Tenancy Commissioner to exercise his or her functions shall also be employed under the Public Sector Management Act. Section 117B also provides that the Tenancy Commissioner may, with the approval of the Minister, arrange for the use of the services of any staff or facilities of a Government Department. Section 119 provides that the Tenancy Commissioner may delegate to a person the exercise of any the Commissioner's functions under the Act. Section 129 of the Residential Tenancies Act provides that the costs of the administration of the Act shall, so far as practicable, not exceed the amount of contributions paid for that purpose into the Residential Tenancies Program Account. The Act does not say who had control of that account but, presumably, it was the Tenancy Commissioner.
Mr Anthony Hutchins was said, in the submissions I have received, to be employed by the Department of Housing. However, he was not employed by the Department. Apparently, he was an employee of the Crown who, for administrative purposes, had been allocated to the Department of Housing. Mr Hutchins may have been a member of staff of the Department and the Tenancy Commissioner may have arranged for his use. He held a general delegation from the Tenancy Commissioner under s 119.
Section 118 confers power upon the Tenancy Commissioner to institute prosecutions for offences under the Act. Section 118 provides, inter alia:
"The Tenancy Commissioner has, in addition to any other functions conferred or imposed on the Commissioner, the following functions:
...
(b)to investigate and attempt to resolve complaints by landlords and tenants and to take such action, including prosecution, as the Commissioner thinks appropriate;
..".
Accordingly, it was the function of the Tenancy Commissioner to institute prosecutions.
As the Tenancy Commissioner was authorised to take action by way of prosecution and as Mr Hutchins instituted the prosecutions in his capacity as delegate of the Tenancy Commissioner, it is difficult to see why the Tenancy Commissioner was not the proper person to enforce the orders made for costs and the like. The Tenancy Commissioner was a statutory office holder. He carried out these functions "by or under an Act" and he was presumably the person who administered relevant funds including the Residential Tenancies Program Account. I do not hold that he was the proper person to do so for the submissions before me do not disclose how these moneys would be treated when received and whether what would be done would occur by or under an Act. It is conceivable that the State of New South Wales would be the proper person or body to enforce the subject orders. However, there is nothing before me which indicates that the Department of Housing was a relevant person or body and, being merely an administrative division of public servants, I infer that it was not.
For these reasons, I am of the view that the bankruptcy notice should be set aside and I shall so order. The grounds on which I find the bankruptcy notice to be invalid were not raised by Mr Maley. However, as he acted on his own behalf and as the issues I have mentioned raise points of law, I think it is a proper case for the Court to act upon its own view as to the legality of the bankruptcy notice. I should perhaps add that the Residential Tenancy Commissioner and perhaps the Director of Housing, may have a right to petition for the bankruptcy of Mr Maley but I would not accept that the Department of Housing is a creditor with an entitlement to petition for bankruptcy. The parties should abide their own costs of this review and of the proceedings before the Deputy Registrar.
I certify that this and the preceding seven (7) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Davies
Associate:
Dated: 17 April 1998
The applicant appeared in person. Counsel for the Respondent: G.L. Turner Solicitor for the Respondent: Sparke Helmore Date of Hearing: 17 February 1998 Date of Judgment: 17 April 1998
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