Park, T. v Enercon Pty Ltd

In the Federal Court of Australia, Thompson Park, the applicant, filed a notice of motion against Enercon Pty Ltd and Gregory Wheat, the respondents. The motion follows a previous judgment by Einfeld J. on 1 June 1990, which the applicant is appealing. The respondents' notice of motion seeks an order for an oral examination of Mr. Park to determine if any debts are owed to him and if he has any means of satisfying the judgment. The primary legal issue in this case is whether the court has the authority to order an oral examination under Order 47 r. 33 of the Rules of the Supreme Court, given that the costs ordered by Einfeld J. have not yet been taxed. The court must determine if an untaxed order for costs can form the basis for such an examination.

The court found that Order 47 r. 33 of the Rules of the Supreme Court requires two conditions to be met for an oral examination order: the judgment or order must be for the payment of money, and the party must be entitled to enforce it. The court ruled that an order for costs, which has not been taxed, does not satisfy these conditions. The court relied on the judgment of the House of Lords in Westham Union v. St Matthew, which held that an order for the payment of costs without specifying the amount does not constitute a debt until it is certified. Therefore, until taxation, the order for costs is not a judgment or order for the payment of money, and the respondents are not entitled to enforce it. Consequently, the court declined to make the order sought by the respondents for an oral examination and granted leave for an appeal against this decision.