Martinek v Evans

FEDERAL COURT OF AUSTRALIA

Martinek v Evans [2004] FCA 1269

PRACTICE AND PROCEDURE – judgment – enforcement – failure to comply with costs orders – whether Court should grant summons seeking oral examination of and production of documents by judgment debtor – reliance on enforcement procedures of Supreme Court of the State or Territory in which judgment to be enforced – whether clear that judgment to be enforced in Victoria – whether other methods of execution should be attempted first – whether bankruptcy notice more appropriate than summons with non-attendance punishable as contempt of court

Federal Court Rules O 37 r 1, O 37 r 7
Supreme Court (General Civil Procedure) Rules 1996 (Vic) O 67

Martinek v Evans [2002] FCA 1584 referred to
Martinek v Evans [2003] FCA 1403 referred to

MARY-ANN MARTINEK v MARK EVANS AND CHIEF OF ARMY
V 7 of 2002
V 373 of 2002

GRAY J
13 SEPTEMBER 2004
MELBOURNE

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7 of 2002 V 373 of 2002

BETWEEN:

MARY-ANN MARTINEK
APPLICANT

AND:

MARK EVANS
FIRST RESPONDENT

CHIEF OF ARMY
SECOND RESPONDENT

JUDGE:

GRAY J

DATE OF ORDER:

13 SEPTEMBER 2004

WHERE MADE:

MELBOURNE

THE COURT ORDERS THAT:

1.The respondents have leave to file in Court the affidavits of Lynn Charles St John sworn on 10 September 2004, Naomi Rose Miller sworn on 10 September 2004, Angela Barnett sworn on 10 September 2004 and Lieselotta Rosa Siebel sworn on 3 September 2004 and the exhibits to those affidavits.

2.The motions the subject of the notice of motion filed on 26 August 2004 be dismissed.

3.        There be no order as to the costs of the motions.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY	V 7 of 2002 V 373 of 2002

BETWEEN:

MARY-ANN MARTINEK
APPLICANT

AND:

MARK EVANS
FIRST RESPONDENT

CHIEF OF ARMY
SECOND RESPONDENT

JUDGE:	GRAY J
DATE:	13 SEPTEMBER 2004
PLACE:	MELBOURNE

REASONS FOR JUDGMENT

1. By notice of motion filed on 26 August 2004, the respondents in two completed proceedings in this Court seek orders in the following terms:

   ‘1That the Applicant be orally examined as to any matter related to her financial circumstances generally and her means and ability to satisfy judgments against her in favour of the Respondents, dated 18 December 2002 and 24 November 2003, under which judgment for $42,067.00 is owing.

   2That the Applicant produce to the Court for examination those documents as specified in the Summons for Oral Examination dated 20 August 2004.

   3That the Applicant be required to attend at any time, date and place to which the examination is adjourned if the Applicant has been given written notice of that time, date and place.

   4 That the Applicant pay the Respondents’ costs of and incidental to this Notice of Motion.’

2. Attached to the notice of motion is a draft summons, calling upon the applicant in…