Re Court Funds Regulation 2009

[2011] QDC 93

[2011] QDC 93

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 961 of 2011

COURT FUNDS REGULATION 2009

and

CONSOLIDATED REVENUE TRANSFER

and

REGISTRAR

Applicants

BRISBANE

..DATE 19/05/2011

ORDER

CATCHWORDS

Court Fund Regulation 2009, s 30, 31, s32, s33

Court declines to order payment to the Consolidated Fund of moneys lying idle in court - a claimant plaintiff responded to notification the order would be sought by posting in an application and affidavit - on available evidence, entitlement to the moneys remains disputed - claimant failed to turn up on the return date of his application (when no order was made) - time for pursuit of his application to finality still running - court fixes early date for a new hearing, giving directions calculated to involve the claimant.

HIS HONOUR:  This is an application emanating from the registry to have moneys that have been sitting idle in court for a long time dealt with. 

The effect of the Court Funds Regulation 2009 is that in the absence of a claim emerging following advertisement of the intention to apply to the court for an order transferring funds in court to the Consolidated Fund such an order will be made.

The Registrar of the court is obliged by section 30 of the regulation to prepare a list of inactive accounts on or before the 1st of April each year, file a list in court, display the notice in the registry and advertise in respect of any amount of more than $1,000.  Notice is to be displayed for at least 42 days.  It must specifically identify in a list the inactive accounts.

Under current arrangements the Supreme Court and the District Court are served by the same Registrar, who prepared a single notice containing four items, two of which are District Court matters.

In respect of item 3 an application was made to the court on the 28th of April 2011 by being posted in by Mr Hickey, the first plaintiff in BD1187 of 2004, supported by an affidavit of his.

The proceeding referred to concerned a claim for moneys owing for work done against the first defendant and a claim for damages against the other defendants.

$9060.16 was paid into court in association with an affidavit of David Michael Hill of the firm of Sykes Pearson and Miller, Noosa Heads, in May 2004.  Mr Hill's affidavit deposes that the funds had been received on the 6th of August 2003 in the firm's trust account from the defendant under an agreement made between the parties to the proceedings, which required the funds to be held by the firm pending resolution of a dispute between the parties.

The affidavit says, "At the time of payment we acted for the plaintiffs in these proceedings, but these proceedings had not been commenced. We no longer act for the plaintiffs." The affidavit goes on to record receipt of formal notice under section 12(4) of the Trust Accounts Act that ownership of the moneys was in dispute and that Sykes Pearson and Miller were required to continue to hold the moneys pending resolution of it. Under the section mentioned, the firm made payment into court of the funds.

There's no suggestion that the dispute has ever been resolved.  Mr Hickey's affidavit deposes that his company ran out of money to pursue the claim and it withered on the vine, so to speak.  His application mentioned above was listed for hearing before Judge McGill on the 9th of May 2011.  However, there were no appearances according to the associate's endorsement on the court order sheet and no orders were made.

The Registrar's application has been put off from day to day through this week in the expectation that something might be done by Mr Hickey, but nothing has been done.

In those circumstances Mr Leonard, presenting the application, suggested that the court ought to make the consolidated fund order under section 32 which is sought and appropriate if no application for a payment and order for money in court mentioned in a list of inactive accounts is made within the period allowed.

If such an order were made, although it would not close the door against Mr Hickey, provision being made in section 33 for a transfer back order, I am uneasy at the prospect of making things more difficult for Mr Hickey, who one must presume is pursuing a genuine claim.

There is a regrettable appearance about sending the funds in court to the Consolidated Fund when there is a realistic possibility of a proper claim.  He may well be labouring under a false impression that by posting his application and affidavit in to the court he had done what is required.

In any event, section 31(6) allows an applicant such as him three months to pursue the application to finality with the possibility of the court allowing a further time.  In my opinion that ought to happen. 

For administrative and accounting reasons, Mr Leonard asked that, rather than adjourn the matter in respect of item 3 to the 29th of July when the three month period will have elapsed, the court do what it can to procure a resolution before the end of the financial year.

In those circumstances I determine to adjourn the application so far as it relates to item 3 to the 17th of June 2011.  I've also made an order in 1187 of 2004 that it be mentioned on the same day with an appearance required.

I direct that the Registrar communicate with Mr Hickey to advise that his application and affidavit are an insufficient basis for the court to order payment out to him of the moneys, that the court has indicated today that no such order will be made unless he is able to establish a just claim to the amount given and that on information available to the court to this point entitlement to it is in dispute.

He also ought to be advised that, although the court made an order transferring moneys in court in other files to the Consolidated Fund, consideration of the item relevant to him has been adjourned to 17th of June 2011 and that as well as providing additional evidence supporting a claim to the moneys in court he must, if he wishes to be heard, arrange to be represented on that date.  He ought to be told of the possibility of arranging an appearance by telephone and of appropriate means of contacting the judge's associate in that regard.

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