Park, T. v Enercon Pty Ltd

[1990] FCA 435

JUDGMENT No. ........ ........ . . 4351 So . , , , , , . .

IN THE FEDERAL COURT OF AUSTRALIA	)
OUEENSLAND DISTRICT REGISTRY	) QLD NO. G57 of 1988
GENERAL DIVISION	)

BETWEEN: THOMPSON PARK

Applicant

AND: ENERCON PTY LTD

First Respondent

AND: GREGORY WHEAT

Second Respondent

MINUTES OF ORDER

JUDGE MAKING ORDER:	SPENDER J.
DATE OF ORDER:	20 JULY 1990
WHERE MADE:	BRISBANE
THE COURT ORDERS THAT:

(1)	The application by the respondents for an oral examination of the applicant is declined.
(2)	The respondents are given leave to appeal against this decision.

REGISTRY

NOTE: Settlement and entry of orders is dealt with in Order

36 of the Federai Court Rules.

RECEIVED

FEDERAL COURT OF

AUSTRALIA PRINCIPAL

IN THE FEDERAL COURT OF AUSTRALIA	)
QUEENSLAND DISTRICT REGISTRY	) Nb QG 57 of 1988
GENERAL DIVISION	)

BETWEEN: THOMPSON PARK

Applicant

AND: ENERCON PTY LTD

First Respondent

AND: GREGORY WHEAT

Second Respondent

SPENDER J.

BRISBANE

2 0 JULY 1990.

EX TEMPORE REASONS FOR JUDGMENT

This is a notice of motion filed on 18 July 1990 by Enercon Pty Ltd and Gregory Wheat ('the respondentsr), who are the respondents to an appeal brought by the applicant, M r Thompson Park ( 'the applicant') from a judgment of Einfeld J. given on 1 June 1990. The notice of motion seeks, inter alia, an order that Mr Park "attend before the Registrar of the Federal Court at such time and place as he may appoint to be

orally examined as to whether any and what debts are owing to	the applicant and whether the applicant has any and what other
property or means of satisfying the judgment".

M r Justice Einfeld on 1 June 1990 ordered that the

application by Mr Park, being application G57 of 1988, be
dismissed, and, as to costs, ordered in the following terms:

'l The Applicant is to pay the costs ot the Respondent as set out

hereunder.

(a)	Three quzirters of the costs i~icrlrred in defending the matter arising out of the thrce forged documents and dealing with the forgeries be paid on a solicitorlclient basis and;
(b)	In other respects the Applicant is to pay the Respondent's costs on a partylparty basis.

Costs shall include reserved costs.

'I'he money paid into Court by the Applicant, pursuant to the

security for costs order be paid to the Respondent. "

I t i s a p p a r e n t from t h e f o r c e f u l terms o f t h e r e a s o n s

f o r judgment o f E i n f e l d J. t h a t h i s Honour h a s formed a n

a d v e r s e	v i e w	o f	M r P a r k	and	h i s	c o n d u c t .	E i n f e l d	J.	f u r t h e r
o r d e r e d :

" The Registrar is to transmit to and draw to the attention of the

Director of Public Prosecutions the evidence and judgment in this matter to consider the question of forgery, colispiracy to forge three identified documents and any conspiracy to commit perjury in the course of this hearing in relation thereto. "

The basis o f t h e a p p l i c a t i o n f o r ora l e x a m i n a t i o n i s

t h e o r d e r	f o r costs.
The o r d e r f o r c o s t s h a s n o t been t a x e d and t h e

amount	p a y a b l e	by	M r P a r k	t o	t h e	r e s p o n d e n t s	p u r s u a n t	t o	t h e
o r d e r s	f o r	costs	made	by	E i n f e l d	J.	are	u n a s c e r t a i n e d .	They

w i l l , on t a x a t i o n , be c o n s i d e r a b l e as t h e t r i a l o c c u p i e d more

t h a n n i n e s i t t i n g d a y s . The a f f i d a v i t e v i d e n c e i n d i c a t e s t h a t

Mr	Wheat	h a s	p a i d	t o h i s s o l i c i t o r s more	t h a n	$55,000.00	by
way	o f	c o s t s	,	and M r Wheat	s w e a r s	t h a t h e	i s c u r r e n t l y u n a b l e

to pay the full amount of his solicitor's invoices except by instalments, and that he does not have sufficient funds, notwithstanding his obtaining judgment against Mr Clark, to arrange for his costs to be taxed. Mr Bennetts, the solicitor for the respondents, has indicated he has estimated the costs of taxation will be of the order of $5000.00.

My difficulty is whether the order for costs, not having been the subject of taxation, can properly form the basis for an order for oral examination.

In my opinion, I have no power pursuant to 0. 47 r.

3 3 of the Rules of the Su~reme Court to order the oral

examination sought by the notice of motion. There is an old authority - not necessarily bad for its age - of Hood J. in Wilkie v. Wilkie and McCalla (No. 2 1 [l9051 VLR 104, where his Honour held that an order under the Victorian Rules of Supreme Court 0. XLVII r. 32 may be made against a person who has been ordered to pay costs, although these costs have not yet been taxed. He held that costs, though untaxed, are nevertheless a

debt within the rule. That rule is in similar terms to 0. 47
r. 33 of the Rules of the Supreme Court of Queensland.	The
Victorian rule provided:

" Where a judgment or order is for the recovery or payment of

money the party entitled to enforce it may apply to the Court or a Judge For an order that the debtor liable under such judgment or order ... be orally exanlined as to whether any and what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order before a Judge or before an officer of the Court as the Court or a Judge may appoint; and the Court may make an order for the attendar~ce and exarn~nation ot such dcbtor or of any other person, and for the production of any books or documents. "

S e c t i o n 53 o f t h e F e d e r a l C o u r t o f A u s t r a l i a A c t 1 9 7 6

p r o v i d e s :

Subject to the Rules of Court, a person in whose favour a judgment of the Court is given is entitled to the same remedies for ellforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of

"	( 3 )
the Supreme Court of that State or Terr~tory is given.
(2) This sectiori does not affect the operatiori of any provision made by or under any other Act or by the Rules of Court for the
execution and er~forcement of judgments of the Court. "

Order 4 7 o f t h e R u l e s o f t h e Supreme C o u r t deals w i t h

e x e c u t i o n o f judgments . The r u l e m o s t d i r e c t l y rel ied o n i s

0. 4 7 r . 33, b u t it is u s e f u l t o r e f e r , b e f o r e s e t t i n g o u t

t h a t r u l e ,	t o some earlier r u l e s o f	t h e Order.	Order 4 7 r.	1
p r o v i d e s :

" When any person 1s by any judgment or order directed to pay any

money, whether by way of debt, costs, damages, or otherwise, or to

not be necessary to make any demand of performance of the judgment	deliver up or transfer any property real or personal to another, it shall
or order, but the person so directed shall be bound to obey such judgment or order upon being duly served wit11 the same without demand. "

And 0. 4 7 r . 3 p r o v i d e s :

" A judgment or order for the payment of money to any person, whether

by way of debt, damages, costs, or otlierwise, Inay be enforced by writ of fieri facias or writ of elegit, or, in cases in which that writ is by law allowed, by writ of capias ad satisfaciendum, or, in the cases hereinafter mentioned, by the appointn~ent of a receiver of any moneys payable to

the person against whom the juclgr~~ent is given. "

And t h e n 0. 4 7 r . 33 i s i n t h e s e t e r m s :

" When a judgment or order is given o~ made for the payment of

money, the party entitled to enforce it may apply ex Darte to the Court or a Judgc for an order that the debtor liable under such judgment or order, or, in the case of a corporation or company, or other body of persons empowered by lt~w to sue or be sued, whether in its own name or in the name of any officer or other person, that any officer thereof be orally examined before a Judge or an officer of the Court as the Court or Judge may appoint, as to whether any artd what debts are owing to the debtor, and whether the debtor has any and what other property or means of satisfying the judgment or order; and the Court or Judge may make an order for the attendance and the examination of such debtor, or of such officer, and for the production by him of any books or documents. "

O r d e r 4 7 r. 33 i s t o be found i n a s e c t i o n o f t h e r u l e s u n d e r

Order 4 7 which a p p e a r u n d e r t h e r u b r i c " D i s c o v e r y i n A i d of

E x e c u t i o n " .

M r J u s t i c e Hood sa id a t page 106 o f W i l k i e ' s case t o

which I have r e f e r r e d :

" An ol>jection was taken that in the present case the defendant, ... is not a debtor, inasmuch as the clain~ of plaintiff is for costs which have not yet been taxed. I do not agree with that contention. The rule says that where the judgment or order is for the recovery or payment of a sum of money - which this clearly is - then the debtor is liable to be examined. Costs are undoubtedly a debt. "

L a t e r i n t h e same page ,	h i s Honour	r e f e r r e d t o Westham Union v
S t Matthew [l8961 A.C.	4 7 7 and s a i d o f	t h a t case:

" In Westham Union v. St Matthew [l8961 A.C. 477 it is decided

that no debt or l~ability existed in respect of costs before taxation

that could have been enforced by legal process - so that any legal
process taken to enforce them would have been premature. "

In my respectful view the case establishes the proposition quoted by his Honour, but in my opinion, the consequence is that the inability to enforce the order for costs means that an essential precondition to the making of an order for an oral examination is missing.

Order 47 r. 33, requires two things which, in my opinion, do not appear in the present case. The judgment or order has to be "for the payment of money", and an order for costs in general terms, or an order for costs to be taxed does not satisfy the description that it is a judgment or order given or made for the payment of money. Secondly, it is necessary that the party be "entitled to enforce it".

It is accepted by the solicitor for the respondents that neither Enercon Pty Limited nor Mr Wheat would be entitled to enforce the order for costs made by Einfeld 3. before

taxation.

As to whether the order for costs is an order for judgment for the payment of money, it is to be noted that a judgment or order for payment into court is not an order to pay money to a person in the sense of 0. 47 r. 3: In re Greer [l8951 2 Ch. 217. However, Order 47 r. 3 speaks of an order for the payment of money "to any person, whether by way of debt, damages, costs, or otherwise" and indicates that such an order may be enforced by writ of fieri facias, or writ of elegit, or, in some circumstances, by writ of capias ad satisfaciendum, or in cases later identified, by the appointment of receiver. There are other methods of enforcement of such an order. By 0. 49, r. 1, attachment is available. A charging order pursuant to 0. 50 r. 1 might be made. It is clear that a writ of fieri facias is not available prior to taxation. A charging order similarly cannot be made in respect of an untaxed order for costs. So much was accepted by Hodges J. in the first of the Wilkie Cases - Wilkie v Wilkie and McCalla [l9051 V.L.R. 80 - where his Honour followed the judgment of the Court of Appeal in Widaery v. Tepper (1877) 6 Ch. D. 364.

None of the methods ordinarily applicable for the enforcement of a judgment or order is available, in my opinion, and the respondents, the beneficiaries of the order for costs, are not persons who "are entitled to enforce it". It was accepted that execution could not be levied in respect

of such an order, and in my respectful opinion, discovery in	aid of execution such as afforded by provisions of 0. 47, r.
33, must necessarily be denied.
It seems to me that the judgment of the House of Lords in the Westham Union Case (supra) makes it plain that in the absence of taxation there is no judgment or order for the payment of money. In that case, the House of Lords had made an order for the payment of costs of an appeal without
specifying the amount. It was held that that order did not
constitute " 'a debt, claim or demand lawfully incurred or
become due' within the meaning of the Poor Law (Payment of Debts) Act 1859 until the amount has been certified by the Clerk of the Parliaments under the Standing Orders, and it was further held that the time for payment limited by that Act ran from the date of the certificate and not from the date of the
order.

Lord Herschell said, at page 484-5:

" The argument of the appellants, however, that the order for the

payment of costs was not complete until the amount was certified by the Clerk of the Parliaments, appears to me more substantial than it was thought to be by the Courts below. In former times the amount to be paid for costs was named by this House at the time whcn the judgment was pronounced. The matter is now regulated by the tenth of the Standing Orders relating to appeals. It provides for the appointment of a taxing officer by the Clerk of the Parliaments in all cases in which this House orders the paymcnt of costs without specifying the amount, and for a certificate by the Clerk of the Parl~aments of such costs, and provides that 'the amount in money certified by him in such certificate shall be the sum to be demanded and paid under or by virtue of such order as atoresaid for payment of costs.'

Accordingly the judgment of this House, which is now in	question, ordered the payment of the costs, the amount of such
costs 'to be certified by the Clerk of the Parliaments.' I am not satisfied that before the amount was so certified any debt or liability existed in respect of the costs which could have been enforced by legal process, or that any legal proceedings taken to enforce it would not have been premature. "

And Lord MacNaughten, at 487, said:

"

... the only question in this case, as it seems to me, is whether the order of this House, dated March 20, 1894, disposing of the costs of the appeal then before the House, constituted a 'debt, claim, or demand' incurred by or due from the churchwardens and guardians of Bethnal Grcen, within the meaning of the Poor JAW (Payment of Debts) Act, 1859, before the amount of such costs

was certified by the Clerk of the Parliaments.

Wrth all deference to tlie Court of Appeal, I cannot but thlnk that tlie question must be answered in the negative. The order of this House without the certificate of the Clerk of the Parliaments created a liability, but a liability only inchoate, and one which the guardians could not have discharged by payment. It is not easy to understand how that can be a 'debt' within the meaning of the Act of 1859 which is neither an ascertained sum nor a sum capable of being ascertained by ordinary process of

law. "

And on the following page he said:

"

It seems to me that the certificate of the Clerk of the Parliaments must be a condition precedent to an action at law for the recovery of costs in the House of Lords. "

My opinion is that the order of Einfield J. as to costs creates a liability in Mr. Park that is only inchoate. It is a liability which cannot be discharged by payment. Until taxation, Mr. Park is not a debtor. The order is not presently to be characterised as an order for the payment of

money, and is not an order which either respondent is entitled	to enforce, the order being one which is presently incapable
of enforcement by legal process.
The view I take of 0. 47 r. 33 is that there is no power to order an oral examination in respect of a judgment or order for costs before the ascertainment by taxation of the amount of those costs. I therefore decline to make the order sought in the Notice of Motion.

I grant leave to the respondents to appeal against

this decision.