Re Lenske; Ex parte Lenske

Re: GARY WILLIAM LENSKE
Ex Parte: GARY WILLIAM LENSKE
No. QLDE85 of 1985
Bankruptcy

COURT

IN THE FEDERAL COURT OF AUSTRALIA

GENERAL DIVISION
BANKRUPTCY DISTRICT OF THE SOUTHERN DISTRICT OF THE STATE OF QUEENSLAND
Pincus J.

CATCHWORDS

Bankruptcy - stealing - order for restitution - order for imprisonment in default - subsequent bankruptcy - whether power to order stay of order for imprisonment - matters relevant to exercise of discretion.

Bankruptcy Act 1966, ss.60(1)(b), 82(3) Criminal Code (Q.), ss.18, 685A

HEARING

BRISBANE

#DATE 4:2:1986

ORDER

The orders of the Magistrates Court at Pomona made on 17 September, 1984 in respect of the applicant Gary William Lenske be permanently stayed, in so far as they require the payment of restitution in respect of eight charges of stealing from B. W. Coles Discount Furnishers and also in so far as they require the imprisonment of the applicant in default of payment of the restitution required.

The Attorney-General of Queensland pay the costs of and incidental to the hearing of the application other than those costs relating to the documents prepared before the Attorney-General's interest in the matter became known.

NOTE: Settlement and entry of orders is dealt with in Order 36

of the Federal Court Rules.

JUDGE1

G. W. Lenske applies pursuant to s.60(1)(b) of the Bankruptcy Act 1966 for an order staying certain proceedings which resulted in his being imprisoned. On 17 September 1984, the applicant pleaded guilty in the Magistrates Court at Pomona to eight charges of stealing as a servant and was convicted and ordered to perform 160 hours community service in respect of each charge. He was further ordered, under s.685A of the Criminal Code (Q.), to pay restitution in respect of each charge in a total sum of $2,347, at the rate of $50 per week. The Magistrates Court also made eight orders for imprisonment in default of payment of the restitution ordered.

1. The applicant did not pay any restitution. On 14 February 1985, he filed his own petition under s.155 and that was accepted by the Registrar. Thereupon, the debtor became bankrupt by force of s.55(3) of the Act.

2. On 13 January 1986, the applicant was arrested under warrants issued in consequence of his failure to pay the restitution ordered. The matter first came before me on Tuesday, 14 January. Mr. Bourke appeared, instructed by the State Crown Solicitor, to oppose the granting of the application and asked for an adjournment. He informed me that he had no objection to the applicant's being released from custody during the period of the adjournment and I adjourned the matter on that basis. When the case was ultimately argued, Mr. Bourke again appeared. No point was taken as to the standing of the State Attorney-General, for whom Mr. Bourke acted.

3. The provisions relied on by the applicant were held to be valid by the High Court in Storey v. Lane (1981) 147 CLR 549. There, the applicant had been convicted under Queensland industrial legislation of having paid a…