McKellar v Jetstar Airways Pty Ltd

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MCKELLAR v JETSTAR AIRWAYS PTY LTD [2011] FMCA 68

PRACTICE & PROCEDURE – Enforcement of judgments – application for instalment orders – where application if granted, would not result in any diminution of principal amount.

Federal Court Rules, O.37, r.7
Uniform Civil Procedure Rules 2005, Reg 37.2
Queensland Consolidated Uniform Civil Procedure Rules 1999, s.869

Hellier Capital Pty Limited v Richard Albarran [2009] NSWSC 403
Red Lea Chickens Pty Limited v Tansey unreported NSWCA 17 July 1995

Applicant: ANTHONY MCKELLAR

Respondent: JETSTAR AIRWAYS PTY LTD

File Number: SYG 2210 of 2009

Judgment of: Raphael FM

Hearing date: 27 January 2011

Date of Last Submission: 27 January 2011

Delivered at: Sydney

Delivered on: 27 January 2011

REPRESENTATION

Solicitors for the Applicant: Australian and International Pilots Association

Solicitors for the Respondent: Freehills

ORDERS

1. Application dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG 2210 of 2009

ANTHONY MCKELLAR

Applicant

And

JETSTAR AIRWAYS PTY LTD

Respondent

REASONS FOR JUDGMENT

1. On 9 August 2010 I gave judgment in a industrial law application made by Mr McKellar. The result of that application was that Mr McKellar was ordered to pay to Jetstar Airways Pty Ltd a sum of money which, together with interest up to the date of the application that is currently before me, is agreed to be $18,150.40. The application which is before me seeks an order from this court for payment of the judgment sum by way of instalments of $100.00 per month. It is accepted by the parties that this court can utilise the provisions of O.37 r.7 of the Federal Court Rules 1979 (the “Rules”) in regard to the enforcement of judgments. Order 37 r.7 is in the following form:

   “Enforcement as in State and Territory Supreme Courts

   (1)   Subject to the Rules, and without limiting any other means of enforcement which may be available, the Court may, in order to enforce a judgment or order of the Court, make any order, issue any writ or take any other step that could be made, issued or taken, by the Supreme Court of the State or Territory in which the judgment or order is to be enforced if the judgment or order had been made by that Supreme Court.

   (2)  The modes of procedure and forms of process of the Supreme Court of the State or Territory in which the judgment or order is sought to be enforced shall be available and followed in the Court so far as is practicable mutatis mutandis for the enforcement of orders of the Court.

   (3)   The Sheriff when executing the orders of the Court, shall be authorized to act in the same manner and to the same extent as the Sheriff or like officer of the Supreme Court of the State or Territory in which the order is being executed, is entitled to act.

   (4)   Where it is desired to enforce an order in more than one State or Territory:

   (a)    it shall not be necessary…