MR PD BURKE No. SCCIV-01-494

IN THE MATTER OF AN APPLICATION BY PHILIP DAMIAN BURKE PURSUANT TO RULE 107.03 OF THE SUPREME COURT RULES
FILE NO 494 OF 2001
[2001] SASC 205

JUDGE BURLEY. The applicant (Mr PD Burke) originally filed an interlocutory application in Action No 1420 of 1995 seeking a review of:
“(1)the ‘directions’ given to the defendant by the Acting Registrar in letters of 17.10.00, 25.10.00 and 1.11.00 and confirmed in a subsequent one dated 16.02.01 received on 19 or 20.02.01;
and
(2)the failure and implicit refusal of the Sheriff to provide information (about the actions of his staff) requested most recently on Thu 22.02.01, with an extension of time for applying if needed.”
In the document filed, the applicant has referred to himself as the defendant because he was the defendant in Action No 1420 of 1995.
I am prepared to deal with this application on the papers forwarded by the applicant. He has been supplied with a copy of my memo of 6 March 2001 to the Acting Chief Clerk. In that memo I set out the procedures to be followed by the applicant and the basis upon which the application would be dealt.
Rule 107.03 is as follows:
“107.03(1)Every decision, direction, certificate or act made or done by an officer of the Court is subject to review by the Court.
(2)Unless the Court otherwise directs such a review is to be carried out by a Master.
(3)Such a review is to be initiated by an application taken out under Rule 67 within 7 days of the decision, direction, certificate or act complained of and is to be disposed of in chambers.
(4)Upon the review the Court in its discretion may receive further evidence, and in matters involving the exercise of a discretion may exercise its own discretion without regard to the manner in which the discretion has been exercised by the officer of the Court.”
Both the Registrar and the Sheriff are officers of the court and, consequently, their actions may be subject to review pursuant to Rule 107.03.
The applicant filed two versions of the application. Each sought the review quoted above. One of them gave particulars in relation to the application for review of the Sheriff’s actions. These particulars are as follows:
“In particular - in relation to the Sheriff’s continuing refusal to supply information about the 1994 decisions: (a) not to apply to the SC for directions under SCR 88A.14; (b) to sell the defendant’s block of land to satisfy the Staff Association’s costs order instead of attacking as requested the residue (after the SC’s garnishee order of 1992 to satisfy the UoA’s costs order) of my UoA superannuation fund, despite the provisions of the Enforcement of Judgements Act 1991 s.7(5)(b) and (c); and (c) to deny me a hearing on these matters or inform me of the ostensible basis for proceeding as in (a) and (b) declarations are now sought on review
(i)that these decisions were void for denial of natural justice
(ii)that the super residue should have been attacked instead of selling the block of land
and in consequence an order: (i) that the Sheriff proceed now as he should have done then to take possession of the fund residue; and (ii) that he turn that residue over to the applicant.”
Mr Burke took the opportunity subsequently, by letter dated 16 March 2001 to the Acting Chief Clerk, to clarify his complaints in relation to the Acting Registrar. That letter is Exhibit A to his affidavit sworn on 16 March 2001.
The applicant supported his application by his affidavit of 28 February 2001 to which was exhibited a series of correspondence. Exhibit A commences with the letter from the Acting Registrar, Mr P Washington, dated 17 October 2000. Mr Washington enclosed a copy of the Supreme Court Library Rules and informed the applicant that Library users are expected to:
“. conform to acceptable standards of behaviour;
.comply with the direction of the Librarian or other library staff;
.conduct themselves in a manner that does not disturb other library users; and
.specifically remain out of all staff areas.”
The Acting Registrar then raised two matters as follows:
“Searching through Reference Desk Drawers
On Tuesday 26/9/00 you informed a staff member that you had been searching through the Reference Desk drawers for a pair of scissors - this is unacceptable behaviour.
Library users are only permitted in public areas where texts, reports, journals & references are located, and in designated study areas. Users are not permitted in Staff Only areas of the Library (such as the Library Workroom, staff offices and directly behind the Reference Desk).
After Hours presence in Library Building
On Wednesday 27/9/00 at 5:10pm the Deputy Registrar encountered you climbing the Library Building stairs. When he queried your presence you became argumentative and continued to climb. When previously queried you have commented that you ‘climb the stairs for exercise’. You have been subsequently warned to refrain from using the stairs unless you (a) have a legitimate business reason; or (b) are exiting the building in the event of an emergency.
I therefore advise that if you do not have a legitimate business reason for going beyond the Library on the 2nd floor, you are to refrain from using the stairs (or lift) in that building.”
The applicant was then warned to adhere to the Library Rules and not to use the Library Building stairs or lift except for the purpose of attending a legitimate business appointment or accessing the Supreme Court Library. Mr Washington stated:
“If you break the Library Rules, I will have t [sic] consider excluding you from the Library.”
Apparently the applicant had a conversation with the Acting Registrar on 25 October 2000. The Registrar wrote to Mr Burke by letter dated the same day confirming the requirements not to go into staff areas and not to use the Library Building stairs other than for a legitimate business reason.
Then follows correspondence relating to a written complaint made to the Librarian by letter dated 18 January 2000. This correspondence is not material to the complaints now pursued by the applicant.
The next letter in Exhibit A to the affidavit of the applicant of 28 February 2001 is the applicant’s letter of 30 January 2001 which responds to the letter of the Acting Registrar dated 17 October 2000. The applicant has thus taken three and a half months to provide a written response to the Acting Registrar’s original letter. This raises the question of whether or not (assuming there is power to review) an extension of time should be granted to the applicant in which to pursue the application for review under Rule 107.03.
The rule requires the application to be taken out within seven days of the actions complained of. In my memorandum of 6 March 2001 I referred to the need on the part of the applicant to obtain an extension of time because his application dated 28 February 2001 was well out of time. The applicant provided a document called “Draft Outline of Submission re Time Extension for Review of Sheriff’s Decisions”. The submission is as follows:
“1.The decisions of the (previous) Sheriff in 1994 as spelt out in the application of 28.02.01 and later (presumably) to harass me via Messrs Strickland, Skinner and Schmerl of his staff - as documented via the affidavit of the same date - breached natural justice and were invalid in denying me a hearing and explanation beforehand and in continuing to withhold the explanation since. Hence I have a right ex debito justitiae to have those decisions declared void which it is submitted should be sufficient to obviate the need for an extension (or at least, alternatively, to justify it under SCR 3.04(d)).
2.Further, the refusals to provide the information sought (after an initial indication that it would be) where there is an inherent right to its provision never waived by me arguably should not incur a time limitation for applying in the context of a continuing refusal.”
There has been no submission put as to why an extension of time should be granted in relation to the application concerning the actions of the Registrar.
In the absence of the submissions as to why an extension of time for the making of the application in relation to the Registrar should be granted, there does not appear to me to be any basis for the granting of the application. I have considered what the applicant has said generally in relation to his complaints concerning the conduct of the Registrar to see whether or not some basis for an extension of time might be established. None is apparent. In his letter of 17 October 2000 the Registrar gave two directions to the applicant. One was in relation to his use of Library facilities and the other was related to his use of the stairs in the Library Building for exercise purposes. With the former, he has admitted to opening a drawer forming part of the Library furniture in a search for scissors, without permission. With the latter, he has not denied that he has in the past used the stairway in the Library building for exercise purposes. Even if it is assumed that Rule 107.03 enabled a review of such directions on the part of the Registrar, no useful purpose is served by re-opening the matter some three and a half months after the events have occurred and, consequently, to the extent that Rule 107.03 applies, I would not grant the extension of time sought by the applicant to 28 February 2001.
There is an additional reason why an extension of time is not warranted. This relates to the purpose of Rule 107.03. It is “[e]very decision, direction, certificate or act” of the relevant officer which is subject to review. That does not mean that everything the Registrar or Sheriff does is subject to review by the Court. For example, matters of work conditions and industrial relations would not come within the rule.
In my view, the matters which the applicant seeks to have reviewed do not come within the rule. The Registrar of the Court has two functions: first, as an officer of the Court, to ensure that the Court’s procedures are implemented in furtherance of the judicial process; and, second, the Registrar is the senior public servant having the responsibility for the administrative staff of the Supreme Court and the buildings in which they work. In this latter capacity, the Registrar also has the function of ensuring that the Court buildings are used only for the purposes of the Court. Rule 107.03 has no application to the latter functions of the Registrar and as such I do not think that the applicant is able to maintain an application pursuant to Rule 107.03 in respect of the matters raised in the Registrar’s letter of 17 October 2000.
In any event, I agree with the stance taken by the Registrar in his letter of 17 October 2000, despite the protestations to the contrary by the applicant in his affidavits and the correspondence annexed thereto.
The applicant’s application insofar as it relates to the Registrar is refused.
I turn to the question of the complaint in relation to the Sheriff and his officers. As far as I can ascertain from the material provided by the applicant, the plaintiff complains of the manner in which the Sheriff and his officers assisted with the execution of a judgment obtained against the applicant. As I understand it, the Sheriff, by his officers, levied execution in respect of that judgment by way of a warrant for the sale of real property. Apparently it was the applicant’s contention to the Sheriff that execution in respect of the judgment should not proceed in that way. Rather, superannuation funds said to be due to the applicant should be garnisheed in lieu of the sale of the real property. (I ask the question, as did the Sheriff: if funds could be garnisheed, why did the applicant not use the funds himself to meet the judgment debt?) These are matters which may be reviewed pursuant to Rule 107.03 because they are actions of an officer of the Court in pursuance of a judgment of the Court. It is therefore necessary to consider whether or not an application for an extension of time for the review should be granted.
The correspondence relating to the applicant’s complaint against the Sheriff is contained in Exhibit B to his affidavit of 28 February 2001. The first letter in time is one dated 7 December 1998 addressed to the Sheriff which deals with what the applicant has described as a complaint by a Judge’s Associate against the applicant. The applicant sought from the Sheriff details of the complaint. The Sheriff wrote on 11 January 1999 in reply and informed the applicant that as “it was not intended to take any further action in relation to this matter, I am not prepared to provide any further information in addition to that already provided to you verbally by Mr Schmerl”.
The next letter in Exhibit B on this topic is a letter dated 28 May 1999 from the applicant to the Sheriff. It raises the request for further information made in the letter of 7 December 1998. For the reasons already given, it is not open to me to review the complaint initially made in the letter of 7 December 1998 and referred to in the letter of 28 May 1999 because it is not within the purview of the rule.
The next letter in the exhibit is a copy of a letter of 8 July 1994 to Messrs Marrone & Co, solicitors. I infer from that letter that that firm acted for a judgment creditor against the applicant, who was the judgment debtor. In that letter the applicant stated, among other things, that there was no reason why the judgment creditor could not levy execution on the judgment in respect of funds from the superannuation scheme referred to by the applicant.
In the letter of 28 May 1999, the applicant also raises the question of the sale of real property belonging to him in satisfaction of a judgment debt. He said:
“(2)In 1994 I sent you a copy of my letter of 8 July to a Mr R M Marrone, legal practitioner, with an annotation drawing your attention to certain ‘asterisked’ items. (See further copy enclosed). I was concerned about the fact that seizure and sale of my block of land at Bellevue Heights might proceed (as it did soon after) without the possibility of attacking instead the ‘incontrovertible residue’ (as I saw it) of funds of mine in a University of Adelaide superannuation scheme being formally investigated either by Mr Marrone or by yourself, exercising your powers to seek a Sup Ct direction etc under SCR 88A.14 in the context of ss. 5(b) and 6 inter alia of the Enforcement of Judgements Act, 1991.
I never received even an acknowledgement of that letter from you; and a letter from your Office to me, dated 14 Nov 1994, also ignored it completely.
But I would still like to understand the basis of that decision on your part and to learn of any relevant authorities in the context of the SC Rules and the EoJ Act etc. I would therefore be grateful for any such information which you can now supply.”
Given that execution took place in 1994, it is now far too late for the applicant to have the conduct of the Sheriff in the execution of the judgment now reviewed. The submissions put in support of the application for an extension of time do not justify that extension. Apart from anything else, the Sheriff cannot undo the sale of the applicant’s block of land. There would be no point in granting the extension of time.
At the time that the judgment was enforced in 1994, the Sheriff was Mr Carr. The current Sheriff, Mr Goodes, has reported to me in relation to the complaints made by the applicant. In that report he said:
“In conclusion I would point out that Mr Burke’s applications are significantly out of the time set by the rules and this, in combination with the staff changes referred to above, compromises the position of present staff in trying to explain or comment on the finer points of decisions made some years ago. Indeed it is not possible to do anymore than to simply recite what the sometimes brief or scant written records reveal.
On the basis of my perusal of the files it seems the warrant of sale was executed in accordance with the law and the judgment debt has now been settled for some years. A review now of decisions made at the time cannot alter that position.”
I think that statement in the Sheriff’s report to me adequately sums up the futility of now granting an extension of time to the applicant so that he may pursue his complaints in respect of the Sheriff. This is particularly so where he pursues a request for information about “the relevant authorities” relating to execution on judgments.
Again, in any event, it is clear from the Sheriff’s report that the applicant was given every opportunity to satisfy the judgment debt other than by way of sale of real property at Bellevue Heights and as such the Sheriff’s conduct should not be reviewed.
For the above reasons, I order that the applications for an extension of time be refused; I dismiss the application for review of the Acting Registrar’s actions because such actions are not subject to review; the application in respect of the Sheriff is dismissed because it is out of time.

[2001] SASC 205

18 June 2001