Purins, A v Alpine Constructions Pty Ltd

[1991] FCA 455

NOT FOR CIRCULATION

THE FEDERAL COURT OF AUSTRALIA ) )

S	RICT REGISTRY	)
) No. SN 362 of 1991

DIVISION	)
I

BANKRUPTCY DISTRICT OF THE STATE	)
)

Re : ARTHUR PURINS

Judgment Debtor

Ex Parte: ALPINE CONSTRUCTIONS

PTY LTD

Judgment Creditor

EX TEMPORE REASONS FOR JUDGMENT

m: von Doussa J.
m: 29 July 1991

The judgment debtor, Mr Purins, seeks to satisfy the court that he has a counter-claim, set-off or cross demand which equals or exceeds the amount of the judgment debt which founds the bankruptcy notice served on him on or about 4 June 1991.

creditor").

This application is another episode in a very long running battle which has been waged by Mr Purins who seems genuinely to hold a grievance about what he says occurred to him in the course of his employment on 20 September 1978. There has been much litigation since then between him and his then employer Alpine Constructions Pty Limited (the "judgment

As a result of certain unsuccessful matters pursued by M r Purins against the judgment creditor in the Industrial Court of South Australia in its workers compensation jurisdiction orders for costs were made against him. These orders were consolidated at the request of the judgment creditor in a certificate of the Industrial Registrar dated 13 February 1991. In accordance with the provisions of the Workers com~ensation Act 1971 (S.A.) that certificate was then registered in the Local Court of Adelaide and upon registration became an enforceable judgment of that court. Upon that judgment, a bankruptcy notice was then issued in this court on 17 May 1991 for an amount, including fees, of $6,842.05.

When the bankruptcy notice was served on Mr Purins, his response, made within the time limited for compliance, was to file in this Court documents, including an affidavit, asserting a counter-claim, set-off or cross demand equal to or exceeding the amount of the judgment debt: para.40(l)(g) of

whether the information filed is sufficient to satisfy the the w u ~ t c v Rules a registrar has referred to the court the question Act 1966. Pursuant to r.10 of the Bankruptcy court that Mr Purins has such a counter-claim, set-off or cross demand. If he does, that will effectively defeat the bankruptcy notice. If he does not, the bankruptcy notice remains in force and in the event of non-payment an act of bankruptcy will occur which may later be the foundation for a creditors petition.

The matters which M r Purins now seeks to rely on have been the subject of proceedings pursued at length on several occasions in the courts, and in each instance the proceedings have resulted in judgments or orders adverse to Mr Purins. I n special cases this court has jurisdiction to go behind judgments or orders of another court to determine whether in truth and justice, the debt asserted by the judgment creditor really exists. As the matters on which Mr Purins now seeks to rely have already been agitated in other courts, one of the matters which I will have to consider is whether it is appropriate once again to go into their merits.

The affidavit filed by Mr Purins sets up two matters in
answer to the judgment creditor's claim: firstly, that there

are a number of sums due and payable to him under provisions

of the kerWor S in respect of injuries,

incapacity and accrued leave totalling $220,000; secondly, that a sum in the order of $155,400 for superannuation benefits is owing to him by the judgment creditor. I say that

the amount for superannuation is in the order of $155,400

because Mr Purins acknowledges that there is a small margin of

overlap between the two claims. If he makes out the first claim in full, the second claim will require a downward adjustment. However, that is immaterial for present purposes.

Outside the affidavit, but in other documents filed, it is apparent that Mr Purins asserts yet a third ground upon which he says he has a counter-claim, set-off or cross demand against the judgment creditor, and that is in respect of an order for costs which was made in his favour: in Industrial Court proceedings between the parties at the end of 1989 when a trial was adjourned shortly before the set date to a new date early in 1990. On that occasion an order for costs thrown away by reason of the adjournment was made and it would appear, on the face of the document at least, that those costs have not yet been quantified, and that no attempt has been made to recover them by Mr Purins.

I shall take these three matters in turn. The first concerns the workers compensation claims. These arise out of the alleged work incident on 20 September 1978. Proceedings were first commenced in the Industrial Court on 5 March 1981. A trial commenced that went for many days. The transcript records that on 27 August 1981 the parties reached an agreement under which certain payments of compensation were to be made to Mr Purins. The transcript reveals that M r Justice Olsson, who was hearing the matter, explained at some length

claims that he might have to payments under the Workers to Mr Purins that the agreement would finally settle all

ensation Act. Mr Purins said he understood that. The

terms of a consent order were dictated into the record.

Mr Purins raises an issue today as to whether that order was sealed promptly at the time. I have not been able to resolve that on the papers before me, but in my view that is an immaterial consideration. The fact is that there was an

order made. It was an operative order. At some stage it was
sealed.

On 18 September 1984 Mr Purins issued another application in the Industrial Court against the judgment creditor. The substance of the application was again a claim for compensation arising out of the incident on 20 September 1978. The proceedings followed a most stormy passage. They were dismissed peremptorily by one judge. That order was set aside on appeal. They came on for trial again, before his Honour, Judge Russell, who delivered lengthy reasons on 18 March 1987 in which he dismissed the application. In those reasons he explains that there was no ground to set aside the consent order that had earlier been made which stood in the way of any further claim for compensation.

Notwithstanding that setback, which should have been accepted by Mr Purins as final, as it was as a matter of law, he issued yet another set of proceedings on 12 April 1989 in the Industrial Court again seeking to pursue claims arising

out of the work incident on 20 September 1978.

After several applications those proceedings were dismissed by Mr Justice Stanley on 23 April 1990. The proceedings could not be maintained in the face of the earlier orders which remained extant in the Industrial Court.

Mr Purins now seeks to raise again aspects of the issues between him and his employer arising under the Workers ~om~ensation Act. The matter has been more than fully aired already in the Industrial Court. There are no special reasons which would justify this court in seeking to go behind the judgments of the Industrial Court. The orders of the Industrial Court have resolved the claims now pursued by Mr Purins under the Workers Com~ensation Act against him. It follows that he has no counter-claim, set-off or cross demand arising out of those matters.

I turn now to the superannuation claim. The facts surrounding that claim, and the various assertions made by Mr

Purins about it, are, to say the least, complex. They have their origins in an assertion that from between 1986 to 1988 when he was employed by the judgment creditor he worked overtime and became entitled as a matter of Award right to certain payments in respect of that overtime. He says the arrangement with the judgment creditor was that the overtime payments would be appropriated to a superannuation fund into which he had been accepted as a member. Those entitlements he

time the incident at work occurred on 20 September 1978 he had	says amounted to approximately $4,000 per year, so that by the
accrued employee contribution benefits in the fund of approximately $9,500. That sum, he says, has never been paid to him. He also asserts that there are many other benefits associated with the superannuation scheme to which he is entitled, hence the amount of approximately $155,400 mentioned in the affidavit.
The papers before the Court reveal that this matter has also been the subject of extensive litigation. First, there was an application in 1979 before an Industrial Magistrate, Mr Shillabeer, where an alleged underpayment of Award rates was pursued under para.l5(l)(d) of the Industrial Conciliation and ubitration Act 1972 (S.A.).
The allegations of underpayment for the most part failed. There was an order for the payment to Mr Purins of a relatively small amount of money ($321.57) made by Mr Shillabeer on 26 November 1979. There was an appeal by Mr Purins against the order, which failed. Subsequently, he proceeded yet again with a fresh summons under para.l5(l)(d), and sought to re-litigate the alleged underpayment. The
summons was dismissed, as was an attempt to appeal from the order for dismissal.
Undeterred by these forensic disasters, Mr Purins then brought proceedings, in 1983, in the District Court of
Adelaide against the judgment creditor, pursuing the matters relating to superannuation and the non-payment thereof, which are the subject of the counterclaim now sought to be raised in
this Court. The District Court proceedings were litigated. The claims were dismissed.
Mr Purins then sought to litigate the claims again in another action commenced on 13 May 1987. That action was also dismissed.

On 20 November 1989, Mr Purins commenced Action No. 2591 of 1989 in the Supreme Court of South Australia. On this occasion he sued not only the judgment creditor, but two directors of that company as well, who were the trustees of the superannuation fund. Those proceedings were summarily dismissed under Supreme Court Rule 25 by Master Burley on 2 November 1990.

During argument today I called for, and received from the parties, the papers that were before Master Burley. Those papers contain extensive affidavits filed on the one hand by the debtor and on the other hand by the judgment creditor. The affidavits canvass at length the matters which Mr Purins seeks to raise now by way of the counter-claim, set-off or cross demand, and those matters are addressed in the reasons for judgment by Master Burley. Mr Purins sought to appeal to the Full Court of South Australia from the dismissal of his action by Master Burley. The appeal was struck out as incompetent by Mr Justice Legoe on 4 April 1991.

It is clear on the papers that the claim alleged by Mr

Purins regarding superannuation has been aired in one way or another before several tribunals on several occasions. The claim has been unsuccessful. There is no reason which justifies this Court going behind the judgments of the courts which have already been entered in those matters. In relation to the alleged superannuation claim no counterclaim, set-off or cross-demand has been established.

That leaves the matter indirectly raised regarding the order for costs in the Industrial Court made in November 1989. What happened on that occasion is that proceedings commenced by Mr Purins had gone through their interlocutory stages and were listed for trial. An application was made by the judgment creditor's solicitor shortly before the trial date to have the hearing adjourned on the ground that they were unable to arrange counsel. The matter was adjourned for that and for other reasons which appear in the transcript. Mr Purins was acting for himself in the proceedings. The order of the court

reads, relevantly :

"Having regard to the fact that a need for the adjournment is occasioned by default on the part of the respondent's solicitors I order that Mr Purins have his costs and disbursements thrown away as a result of the adjournment, taxed and paid to him by the employer."

As I said earlier, there is nothing in the papers to suggest that any attempt has been made by Mr Purins to enforce that order, although it has been on foot since 7 November 1989. The papers fail to establish what, if anything, might be	payable to him pursuant to that order. He asserts in one of	the documents filed in this Court that on 13 February 1991 his
financial losses in connection with the proceedings exceed the sum of $13,685. No basis for that calculation is put forward, and clearly it is not a claim confined to costs, let alone costs thrown away by reason of the adjournment in 1989.
I find it difficult to imagine that there would be more than minimal costs due to Mr Purins pursuant to the order. The costs thrown away by reason of the adjournment in his case would probably be very small as he was not instructing solicitors or counsel. One can say with certainty that costs would not equal or exceed the amount of the claim of the judgment creditor.

The counter-claim, set-off or cross demand asserted by Mr

Purins has not been established. I therefore declare that the debtor has not satisfied the court that he has a counter- claim, set-off or cross demand for the purposes of

para.40(l)(g) of the Bankru~tcv Act.

There will be an order that the debtor pay the petitioning creditor's costs of today.

I certify that this and the

true copy of the Reasons q preceding pages are a for Judgment of Mr Justice

von Doussa 7 ,

Associate:

Counsel for the Judgment Debtor	: Appeared in person
Counsel for the Judgment Creditor	: Mr S H Milazzo
Solicitor for the Judgment Creditor	: Rose & McCarthy
Date of hearing	: 29 July 1991