Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst (No 2)
[2021] FedCFamC2G 166
•20 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Scott, the Trustee of the Property of Hurst, a Bankrupt v Hurst (No 2) [2021] FedCFamC2G 166
File number(s): SYG 1242 of 2021 Judgment of: JUDGE MANOUSARIDIS Date of judgment: 20 October 2021 Catchwords: BANKRUPTCY – COURTS AND JUDICIAL SYSTEM – writ for possession of land (Writ) issued pursuant to order made by the Federal Circuit and Family Court of Australia (Division 2) (FCFC Court) – request made by applicant to the Deputy Sheriff of the FCFC Court (FCFC Deputy Sheriff) to delegate to the New South Wales (NSW) Sheriff’s office power to execute Writ – FCFC Deputy Sheriff does not pass on Writ to NSW Sheriff’s office because the NSW Crown Solicitor’s Office has apparently advised there is no power by which an officer of the NSW Sheriff’s office can be authorised to execute writs issued by the FCFC Court – whether it is reasonably arguable that the Sheriff of the FCFC Court (FCFC Sheriff) can delegate to a NSW sheriff’s officer the functions the NSW Sheriff has to execute writs for possession issued by the NSW Supreme Court for the purpose of authorising a NSW sheriff’s officer to execute a writ issued by the FCFC Court – orders made for the purpose of determining whether the FCFC Court has jurisdiction to determine whether the FCFC Sheriff can delegate to a NSW sheriff’s officer the functions the NSW Sheriff has to execute writs for possession issued by the NSW Supreme Court for the purpose of authorising a NSW sheriff’s officer to execute a writ issued by the FCFC Court and, if the FCFC Court does have jurisdiction, determine whether the FCFC Sheriff can delegate such functions to a NSW sheriff’s officer Legislation: Australian Constitution s 51(xxxix)
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss 7, 213, 217, 259(1), 268(1)
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) r 25.11
Federal Circuit Court of Australia Act 1999 (Cth) s 108
Civil Procedure Act 2005 (NSW) ss 20, 92, 104(1)
Sheriff Act 2005 (NSW) ss 3, 4(2), 5, 18
Uniform Civil Procedure Rules 2005 (NSW) rr 39.1, 39.3(2)
Cases cited: Abigroup Ltd v Abignano [1992] FCA 567
Austin v The Commonwealth of Australia [2003] HCA 3
Johnson, Ex parte; Re MacMillan (1946) 47 SR (NSW) 16
Melbourne Corporation v Commonwealth (1947) 74 CLR 31
Spence v Queensland [2019] HCA 15
Division: Division 2 General Federal Law Number of paragraphs: 50 Date of hearing: 5 October 2021 Place: Sydney Solicitor for the Applicant: Mr A Edmonds of CLH Lawyers, by telephone The Respondent: No appearance by, or on behalf of, the respondent ORDERS
SYG 1242 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
IN THE MATTER OF THE BANKRUPT ESTATE OF MICHAEL JOHN HURST
BETWEEN: ANDREW JOHN SCOTT, THE TRUSTEE OF THE PROPERTY OF MICHAEL JOHN HURST, A BANKRUPT
Applicant
AND: RHONDA CAROLINE HURST
Respondent
ORDER MADE BY:
JUDGE MANOUSARIDIS
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.The proceeding be listed before Judge Manousaridis at 9:30 am on 5 November 2021 for the purpose of making directions for the determination of the following questions:
(a)Does the Federal Circuit and Family Court of Australia (Division 2) (FCFC Court) have jurisdiction to determine the questions referred to in (b) and (c)?
(b)If (a) is answered in the affirmative, can the Sheriff of the FCFC Court (FCFC Sheriff) delegate to a “sheriff’s officer”, as defined in s 3 of the Sheriff Act 2005 (NSW) (NSW Sheriff Act), the functions the “Sheriff” (Sheriff), as defined in s 3 of the NSW Sheriff Act, has to execute writs issued by the Supreme Court of New South Wales, but for the purpose of the sheriff’s officer executing a writ issued by the FCFC Court?
(c)If (b) is answered in the negative, should the FCFC Court issue a writ of mandamus directed to the FCFC Sheriff to execute the writ of possession issued pursuant to the orders made by the FCFC Court on 30 July 2021?
2.By 22 October 2021 the applicant serve on the Sheriff and on the FCFC Sheriff these orders together with the reasons for judgment to be published on the pronouncement of these orders.
3.The applicant have liberty to renew any application he may be advised to make in connection with the order for possession made by the FCFC Court on 30 July 2021.
THE COURT NOTES THAT:
4.These are orders of the Federal Circuit and Family Court of Australia (Division 2).
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
INTRODUCTION
In these reasons for judgment I identify a number of questions that have arisen in the attempted enforcement of an order for possession I made on 30 July 2021, and consider the procedural orders I should make to hear submissions on those questions.
It will be convenient if I first set out the facts out of which the questions arise.
BACKGROUND
On 30 July 2021 I made an order requiring the respondent to deliver up possession to the applicant (Trustee) of a property situated in South Grafton (Property) within 56 days after the day on which I made the order. I also ordered that a writ of possession of the Property be issued, but execution of the writ be stayed for 56 days.
On 6 August 2021 a Registrar of this Court (FCFC Court) issued a writ of possession. The writ is substantially in the form prescribed by the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). On 9 August 2021 Mr Edmonds, the lawyer for the Trustee, sent an email to Mr Holland, the Deputy Sheriff of the FCFC Court. Mr Edmonds referred to the orders I made on 30 July 2021, noting that the “stay on the Writ is lifted on 24 September 2021”, and he attached the sealed writ. Mr Edmonds further stated:
In the above regard we respectfully seek in accordance with subsection 18P(4) of the Federal Court of Australia Act 1976 to authorise and delegate your power to the appropriate Sheriff’s Office of the state [sic] of New South Wales.
Mr Holland replied by email sent on 11 August 2021 in which he invited Mr Edmonds to call him “regarding this matter”.
The respondent did not deliver up possession of the Property to the Trustee within the time required by my orders, and she remains in possession of the Property. On 24 September 2021 Mr Edmonds sent the following email to Mr Holland:
We have received correspondence from the Respondent advising that she will not be providing vacant possession of the Property to the Trustees today as required by the Orders made 30 July 2021 by Judge Manousaridis.
The Orders contemplated non-compliance by the Respondent and in that regard His Honour made consequential orders for the issue of a Writ of Possession ‐ which historically would be executed by the NSW Sheriff’s Office.
Following my original email to you (below), you have advised our office that the NSW Sheriff’s Office has a moratorium on the execution of Writs. On 2 September 2021 you were kind enough to provide our office a brief backdrop so that we could advise our client of the issue, specifically:
With regard to the moratorium on executing warrants imposed by the NSW Sheriff’s Office, I am unable to provide the full correspondence exchange between the NSW Sheriff’s Office and the Court. I can however provide a precis of the main issues raised:
• Under sections 38P(4), Family Law Act,[1] s. 18P(4) of the Federal Court of Australia Act and s. 108 of Federal Circuit Court Act (hereafter ‘Commonwealth laws’) a Deputy Sheriff/Marshall [sic] of those courts can authorise a person to ‘assist’ in the exercise of specific functions of the Deputy Sheriff/Marshall [sic];
• The NSW Crown Solicitors [sic] Office raised concerns about the scope of authorisation to delegate enforcement functions to Sheriff’s Officers;
• The Commonwealth laws only authorise a person to ‘assist’ in the exercise of any of the Marshal/Deputy Marshal’s [sic] powers, which is distinct from authorisation to delegate those functions;
• NSW cannot permit a delegation of Commonwealth powers and functions that was not permitted by the Commonwealth laws which conferred those in the first place (s5(2) of the Sheriff Act 2005 (NSW) and s109 of the Constitution of Australia);
• As such, Sheriff Officers in NSW may not exercise those functions under the Commonwealth laws as under delegation because that authority does not clearly exist.
We are presently in conversation with the Attorney Generals Department with regard to the position put forward by the NSW Sheriff’s Office and how this issue may be resolved.
We have had further discussions with you since you [sic] since that date whereby you informed us that in the eyes of the NSW Sheriff’s Office the amalgamation of the Federal Circuit Court of Australia and the Family Court of Australia and their consequential Rules, Act’s and Regulations provided no further clarification to the issue, including the updated sections 268 and 269 of the Federal Circuit and Family Court of Australia Act 2021.
We understand this moratorium has existed now for over 12 months and that the issue has never been ventilated before the Court.
You advised that new legislation is currently being drafted, however there does not appear to be a clear timeframe for this to be approved or implemented, leaving our client in a difficult situation noting the statutory obligations (both as the Trustee in Bankruptcy as well as the Statutory Trustee for Sale).
Given the above and in circumstances where the Respondent is now in contempt of Court Orders and our client can no longer rely on the writ as an enforcement option, we have been instructed to approach the Court for further Directions regarding the matter and this issue.
On this basis, we kindly request written confirmation that:
1. Your Office has either:
a.Prior to 1 September 2021, under s108 of the Federal Circuit Court Act 1999, or
b. Post 1 September 2021, under s268.269 of the Federal Circuit and Family Court of Australia Act 2021,
issued the NSW Sheriff’ [sic] Office an instruction and associated delegation to execute the Writ the subject of the Orders.
2. The NSW Sheriff has refused to execute the Writ the subject of the relevant Proceeding on the grounds noted and discussed above.
We would appreciate a reply as soon as possible and preferably prior to 29 September 2021. We will write to the Court shortly to have our client’s matter relisted in the hopes of securing new orders for enforcement.
Mr Holland responded by email sent on 28 September 2021 as follows:
With regard to your enquiry below I can advise that the writ was not forwarded to the NSW Sheriff’s Office. On the basis of our having been advised of the moratorium some time previously, the writ was not formally referred to the NSW Sheriff.
As Mr Edmonds foreshadowed in his email of 24 September 2021, the Trustee applied to relist the matter, and the matter came before me on 5 October 2021. Mr Edmonds appeared at the hearing, but the respondent did not. Mr Edmonds read an affidavit in which he annexed the email correspondence with Mr Holland to which I have referred; and he submitted that a potential solution to the difficulties revealed by the correspondence would be for me to make another order requiring the respondent to vacate the premises, but attach a notice to the order to the effect that the respondent may be liable to contempt proceedings if she does not comply with the order.
QUESTIONS
The following questions arise:
1.Is it reasonably arguable that, contrary to the advice apparently given by the New South Wales Crown Solicitor’s Office (CSO), a delegate of the Sheriff (NSW Sheriff), within the meaning of s 5(2) of the Sheriff Act 2005 (NSW) (NSW Sheriff Act), can be authorised to execute a writ for possession issued by the FCFC Court?
2.Assuming (a) is answered in the affirmative, and assuming the FCFC Court has jurisdiction to determine the question referred to in (a), by what procedure could that question be finally determined?
3.However (a) is answered, should I make another order requiring the respondent to give vacant possession of the Property on the basis that the respondent may become liable to contempt proceedings if she fails to comply with such order?
I will proceed as follows. First, I will identify the relevant statutory provisions that deal with the enforcement of judgments and orders of the FCFC Court. As will appear, whether the CSO’s apparent opinion is correct may turn on the proper construction of a particular string of statutory text, viewed in context. Second, I will examine how those provisions arguably apply in the circumstances of this case. I will then address each of the three questions I have identified in paragraph 9.
THE ENFORCEMENT OF JUDGMENTS OF THE FCFC COURT
I begin with s 213(2) of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFC Act), which provides:
A person in whose favour a judgment of the Federal Circuit and Family Court of Australia (Division 2) is given is entitled to the same remedies for enforcement 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 the Supreme Court of that State or Territory is given.
Subsection 213(3) of the FCFC Act provides that s 213(2) “has effect subject to the Rules of Court”. That is a reference to the rules of court made pursuant to s 217 of the FCFC Act, and these are to be found in the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth) (GFL Rules). The relevant rule is r 25.11 of the GFL Rules, which provides:
(1)A party may apply to the Court to issue a writ, order or any other means of enforcement of a judgment or order that can be issued or taken in the Supreme Court of the State or Territory in which the judgment or order was made, as if it were a judgment or order of that Supreme Court.
(2)An order made under subrule (1) authorises the Sheriff, when executing the orders of the Court, to act in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act.
(3)A party who wants to enforce an order in more than one State or Territory may adopt the procedures and forms of process of the Supreme Court of the State or Territory in which the judgment or order was made.
The “Sheriff” referred to in r 25.11 of the GFL Rules is one of the officers appointed by or pursuant to s 259(1)(c) of the FCFC Act (FCFC Sheriff). As with all the other officers identified in s 259(1) of the FCFC Act (except the Chief Executive Officer), the FCFC Sheriff has such duties, powers, and functions as are given to the FCFC Sheriff under, among other things, Chapter 4 and Chapter 5 of the FCFC Act, and the GFL Rules. Section 260 of the FCFC Act identifies the duties imposed on the FCFC Sheriff by Chapter 4 of the FCFC Act as follows:
(2) The Sheriff of the Federal Circuit and Family Court of Australia (Division 2) is responsible for the service and execution of all process of the Court directed to the Sheriff.
(3) The Sheriff of the Federal Circuit and Family Court of Australia (Division 2) is also responsible for dealing, on behalf of the Court, with:
(a) the Australian Federal Police; and
(b) the police forces of the States and Territories;
in relation to the service and execution of process of the Court directed to members of any of those police forces.
Also relevant is s 268(1) of the FCFC Act which provides that the FCFC Sheriff “may authorise persons to assist the Sheriff in exercising powers or performing functions as the Sheriff”.
There are a number of observations that may be made about these provisions.
(a)First, s 213 of the FCFC Act and r 25.11 of the GFL Rules distinguish between, on the one hand, a judgment or order, and, on the other hand, “remedies for enforcement of the judgment” and “a writ, order or any other means of enforcement of a judgment or order”. The word “judgment” is defined in s 7 of the FCFC Act to mean, among other things, a “judgment, decree or order, whether final or interlocutory”. In short, the distinction is between, on the one hand, forms of words that constitute an adjudication by the FCFC Court of a claim for a legal or equitable remedy, and, on the other hand, processes for the enforcement of what the FCFC Court’s words require or necessarily imply.
(b)Second, the only judgments or orders of the FCFC Court to which s 213 of the FCFC Act and r 25.11 of the GFL Rules can apply are judgments or orders of the sort that a State or Territory Supreme Court can make. That follows from s 213 of the FCFC Act and r 25.11 of the GFL Rules only permitting such writs, orders, and enforcement proceedings as are available to enforce judgments or orders of a State or Territory Supreme Court.
(c)Third, the writs, orders, or other means of enforcement of a judgment that can be issued or taken under s 213 of the FCFC Act and r 25.11 of the GFL Rules are restricted to those that can be issued or taken under the relevant provisions that regulate the powers and practice of the relevant State or Territory Supreme Court. From this it follows that, when issuing writs or orders, or when taking other means to enforce a judgment of the FCFC Court under s 213 of the FCFC Act and r 25.11 of the GFL Rules, the FCFC Court must follow or, at the very least, must take into account, the rules that apply to the relevant State or Territory Supreme Court when that Supreme Court issues writs or other process.
The fourth observation relates to the effect of r 25.11(2) of the GFL Rules. That subrule applies when the FCFC Court makes an “order . . . under” r 25.11(1) of the GFL Rules; that is, after the FCFC Court makes an order for the issue of a writ, or the making of any other order for the enforcement of a judgment that can be issued or taken in the relevant State or Territory Supreme Court. When this occurs, the FCFC Sheriff is authorised, when executing the orders of the FCFC Court, “to act in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act”.
In any given case, then, where the FCFC Court has made an order under r 25.11(1) of the GFL Rules, the following questions may need to be addressed:
(a)What writ or process for the enforcement of its judgment or order did the FCFC Court order be issued or executed?
(b)Is the writ or process the FCFC Court ordered one that the State or Territory Supreme Court in which the writ or process is to be executed one that the State or Territory Supreme Court can order be issued or executed?
(c)If (b) is answered in the affirmative, what officer or officers of the State or Territory Supreme Court would have authority to execute the writ or process, and what is the basis of that authority?
(d)What is the nature of the authority r 25.11(2) of the GFL Rules confers on the FCFC Sheriff?
For reasons that will appear later, it will also be necessary to consider whether, on its proper construction, r 25.11(2) of the GFL Rules is valid.
ENFORCEMENT OF ORDERS FOR ISSUE OF WRIT OF POSSESSION
I will examine these questions in relation to the order I made authorising the issue of a writ of possession of the Property.
Nature of writ of possession
There can be no question that an order authorising a writ of possession of land is an order the Supreme Court of New South Wales (SCNSW) can make. Section 20 of the Civil Procedure Act 2005 (NSW) (CPA) provides as follows:
A claim for judgment for possession of land takes the place of a claim in an action for ejectment that could have been brought under the practice of the Supreme Court as it was immediately before 1 July 1972.
The nature of a claim for possession of land referred to in s 20 of the CPA is indirectly, and only partially, explained in s 92 of the CPA, which provides:
Judgment for possession of land takes the place of, and, subject to the uniform rules, has the same effect as, a judgment for the claimant in ejectment given under the practice of the Supreme Court as it was immediately before 1 July 1972.
The form of judgment in ejectment was “it is considered, that the said John Doe do recover against the said C.D. his said term yet to come of and in the tenements aforesaid with the appurtenances”.[1] The form of the words of a judgment for possession of land pronounced by the SCNSW is simply “judgment for possession of the land”. Once a judgment in this form is pronounced, s 104(1) of the CPA provides that such judgment “may be enforced by a writ of possession”. The writ of possession is a prescribed form. It is an order directing the Sheriff to enter the land described in the writ and “cause the person entitled to execution of judgment to have possession of it”.[2]
[1] Tidd, William Practical Forms & Entries of Proceedings in the Courts of Queen’s Bench, Common Pleas and Exchequer of Pleas 8th ed. London 1840.
[2] UCPR approved Form 60
Under r 39.1 of the UCPR, a writ for the possession of land (which, for the purposes of Part 39 of the UCPR, falls within the class of writs of execution in general) may not be issued except by leave of the SCNSW. Such leave may be sought in the notice of motion that must be filed under r 39.1(2) of the UCPR when a party applies for a writ of execution. Subrule 39.3(2) of the UCPR specifies the affidavit evidence that must support an application for a writ for the possession of land. The evidence identified in r 39.3(2) of the UCPR is also contained in Form 59, being the prescribed form of notice of motion and supporting affidavit that a person applying for a writ for the possession of land may file.
Officer authorised to execute writ of possession
It is apparent from the form of the writ of possession that it is the NSW Sheriff who is required to execute it. The NSW Sheriff is the person identified as “Sheriff” in the NSW Sheriff Act. Section 3 of that Act defines “Sheriff” to mean “the person employed in the Public Service as Sheriff”. Section 4 of the NSW Sheriff Act provides:
(1) The Sheriff has and may exercise such functions as are conferred or imposed on the Sheriff by or under this or any other Act or law.
(2) The Sheriff also has and may exercise functions conferred or imposed on the Sheriff by or under an Act or law of the Commonwealth, another State or a Territory (including functions conferred by way of delegation).
Subsection 4(2) of the NSW Sheriff Act contemplates that a function may be conferred or imposed on the NSW Sheriff either by or under an Act or law of the Commonwealth, another State or a Territory (non-NSW law), or “by way of delegation”. That implies some non-NSW law that confers a function on a specified power repository coupled with a power to delegate the function to a person or class of persons who in turn may subdelegate the function.
Section 5 of the NSW Sheriff Act provides:
(1) The Sheriff may delegate any of the Sheriff's functions, other than this power of delegation -
(a) to any sheriff's officer, or
(b) to any person employed in the Department of Justice, or
(c) to any person prescribed by the regulations or belonging to a class so prescribed.
(2) Despite subsection (1), the Sheriff may delegate a function conferred or imposed on, or delegated to, the Sheriff by or under an Act or law of the Commonwealth, another State or a Territory, only if -
(a) the Act or law conferring or imposing the function on the Sheriff allows the Sheriff to delegate the function, or
(b) in relation to a function that is delegated--the delegation conferring the function on the Sheriff allows the Sheriff to subdelegate the function.
Subsection 5(2) of the NSW Sheriff Act, therefore, provides that the Sheriff may delegate any function conferred or imposed on the Sheriff to the persons identified in s 5(1). Where, however, a function has been conferred or imposed on the NSW Sheriff by or under a non-NSW law, including by way of delegation given under a non-NSW law, the Sheriff can delegate such function, but only if the non-NSW law or delegation given under such law allows the NSW Sheriff to delegate or subdelegate that function, as the case may be.
The extent and nature of the office of Sheriff is not exhaustively defined in the NSW Sheriff Act. That is apparent from s 18 of the NSW Sheriff Act, which provides:
(1) Such of the provisions of the Charter of Justice as provide for the appointment of persons to the office of Sheriff, or to the appointment of Sheriff's deputies, cease to have effect.
(2) Subsection (1) does not limit or otherwise affect any function exercisable by the Sheriff under or by virtue of the Charter of Justice .
The “Charter of Justice” is defined in s 3 of the NSW Sheriff Act to mean the “letters patent issued on 13 October 1823 pursuant to the Imperial Act 4 Geo IV c 96”. The effect of s 18 of the NSW Sheriff Act is that the provisions of the Charter of Justice, as they relate to the office of Sheriff continue to apply to the NSW Sheriff except to the extent the Charter of Justice provides for the appointment of persons to the office of Sheriff. To a large extent, therefore, the nature and range of the NSW Sheriff’s duties and functions derive from the Charter of Justice. Section 11 of the Charter of Justice provides:[3]
The said Sheriff and his successors shall, by themselves or their sufficient deputies . . . execute, and the said Sheriff and his said deputies are hereby authorized to execute, and the Sheriff and his said deputies are hereby authorized to execute all Writs, Summonses, Rules, Orders, warrants, Commands, and Process of the said Supreme Court of New South Wales, and make return of same, together with the manner of the execution thereof, to the Supreme Court of New South Wales; and to receive and detain in prison all such persons as shall be committed to the custody of such Sheriff by the said Supreme Court . . . of by the Chief Justice of the said Court.
[3] Bennett, J M --- “The Office of Sheriff-Historical Notes on its Evolution in New South Wales” [1976] SydLawRw 3; (1976) 7(3) Sydney Law Review 360, at page 365
The NSW Sheriff Act does not expressly state that the NSW Sheriff is an officer of the SCNSW. That, however, does not mean the NSW Sheriff is not an “officer of the Supreme Court” as that expression is used in r 25.11(2) of the GFL Rules. “Office” means a position or post to which certain duties are attached.[4] It is “a dutie of attendance upon a charge”,[5] a “Duty, and in the next Place the Charge of such Duty”.[6] In the words of Sir Edward Coke, “[o]ffices are duties, so called, to put the Officer in minde of his duty”.[7] An “officer” is the person who holds such office and who therefore is bound to perform the duties attached to the office. Given the NSW Sheriff holds the office of Sheriff, and such office includes the duty to execute all writs and process of the SCNSW, the NSW Sheriff may properly be characterised as an officer of the SCNSW.
[4] Oxford English Dictionary
[5] Henry Finch, Law or a Discourse Thereof, 162 (London: 1627) quoted by Hamburger, P. Law and Judicial Duty, 104 (Harvard University Press: 2008)
[6] Matthew Bacon, A New Abridgment of the Law, 3: 718 (London: 1778) quoted by Hamburger, P. Law and Judicial Duty, 105 (Harvard University Press: 2008)
[7] Coke, Institutes, 3:185, quoted by Hamburger, P. Law and Judicial Duty, 104 (Harvard University Press: 2008)
Thus, for the purposes of r 25.11(2) of the GFL Rules, the NSW Sheriff is the officer of the SCNSW who has authority to execute the writ of possession pursuant to the orders I made on 30 July 2021; and the authority r 25.11(2) of the GFL Rules confers on the FCFC Sheriff when executing a writ of possession issued by the FCFC Court is to act in the same manner as the Sheriff is entitled to act when executing a writ of possession issued by the SCNSW.
Nature of authority conferred by r 25.11(2) of the GFL Rules
Subrule 25.11(2) of the GFL Rules does not purport to vest any function or authority in any person other than in the FCFC Sheriff; r 25.11(2) of the GFL Rules is not, therefore, a law that falls within s 4(2) of the NSW Sheriff Act, because it does not purport to confer or impose a function on the NSW Sheriff. What, then, does r 25.11(2) of the GFL Rules do?
The central word in r 25.11(2) is “authorises”; r 25.11(2) of the GFL Rules “authorises” the FCFC Sheriff to do something. The word “authorise” “according to its natural meaning, signifies the conferring upon a person of a right to do something which, apart from the authorization, he does not possess”.[8] Thus, r 25.11(2) confers on the FCFC Sheriff a right to do something that, apart from r 25.11(2), the FCFC Sheriff would not possess.
[8] Johnson, Ex parte; Re MacMillan (1946) 47 SR (NSW) 16, at page 18
The next step is to identify that which r 25.11(2) authorises the FCFC Sheriff to do. There are three things. The first is to “act”; the second is to act in particular circumstances, namely, “when executing the orders of the” FCFC Court; and the third is to act in a particular “manner”, namely, “in the same manner as a similar officer of the Supreme Court of the State or Territory in which the order is being executed is entitled to act”. Here “entitled to act” may be taken to mean being authorised, or having the right, to act. That directs attention to statutory provisions, such as those contained in the NSW Sheriff Act and the UCPR, that confer power on the NSW Sheriff, and the common law powers associated with the office of the NSW Sheriff.
In light of these observations, it is open to conclude that, in executing a writ of possession issued by the FCFC Court in relation to land in New South Wales (FCFC writ), r 25.11(2) of the GFL Rules authorises the FCFC Sheriff to do all that the NSW Sheriff is entitled to do under any Act or any law when executing a writ of possession of land issued by the SCNSW (SCNSW writ). That would include the FCFC Sheriff doing that which s 5(1) of the NSW Sheriff Act authorises the NSW Sheriff to do, namely, to delegate to a “sheriff’s officer” (among others) that which the NSW Sheriff is entitled to do in relation to the execution of a SCNSW writ, but for the purpose of executing the FCFC writ. In other words, r 25.11(2) of the GFL Rules, a Commonwealth law, would authorise a Commonwealth officer (the FCFC Sheriff) to delegate to a State officer (a sheriff’s officer) functions in relation to the execution of a FCFC writ that a State Act confers on another State officer (the NSW Sheriff) in relation to the execution of a SCNSW writ.
Validity of r 25.11(2) of the GFL Rules
Assuming this construction of r 25.11(2) of the GFL Rules is correct, would it be valid? More particularly, would the FCFC Sheriff’s purporting to delegate to, say, a “sheriff’s officer”, functions that a State Act confers on the NSW Sheriff in relation to the execution of a SCNSW writ for the purpose of executing a FCFC writ constitute the lawful conferral of authority on the sheriff’s officer to execute the FCFC writ?
It is reasonably arguable that r 25.11(2) of the GFL Rules may be supported by s 51(xxxix) of the Constitution which relevantly provides that Parliament has power to make laws “with respect to . . . matters incidental to the execution of any power vested by this Constitution . . . in the Federal Judicature”. Assuming that is correct, another question arises, and that is whether r 25.11(2) of the GFL Rules would offend the principles of intergovernmental immunities as stated in Melbourne Corporation v Commonwealth.[9]
[9] Melbourne Corporation v Commonwealth (1947) 74 CLR 31
The relevant principles were stated by the plurality in Spence v Queensland as follows:[10]
In a passage in the Melbourne Corporation Case to which partial reference has already been made, Dixon J said:
“The foundation of the Constitution is the conception of a central government and a number of State governments separately organized. The Constitution predicates their continued existence as independent entities.”
The doctrine of inter-governmental immunities expounded in the Melbourne Corporation Case is a structural implication built on that conception. The implication is captured in the proposition articulated by Starke J in that case that “neither federal nor State governments may destroy the other nor curtail in any substantial manner the exercise of its powers or ‘obviously interfere with one another’s operations’”. His Honour explained that “[i]t is a practical question, whether legislation or executive action thereunder on the part of a Commonwealth or of a State destroys, curtails or interferes with the operations of the other”. The essentially practical nature of the enquiry involved in determining whether a law of one polity impermissibly interferes with the operations of government of another is borne out by subsequent cases in which Commonwealth legislation has been held to contravene that structural implication.
[10] Spence v Queensland [2019] HCA 15, at [99] – [100] (footnotes omitted)
These principles are engaged only in relation to laws that purport to interfere with the operations of the government of a State. This was emphasised by Kirby J in Austin v The Commonwealth of Australia:[11]
… It is not uncommon for federal laws, in their operation, to have consequences for State officials. Thus, the constitutional power to vest federal jurisdiction in State courts necessarily has many consequences for State officials, quite apart from State judicial officers. For example, such consequences affect the duties of court reporters, sheriffs’ officers, registry staff, administrative personnel of the State Attorney-General's office and so on. If there be federal power . . . incidental duties will commonly be cast on many persons, including State public servants. What is impermissible, under the implication derived from the Constitution, is interference in:
“the [State] government's right to determine the number and identity of the persons whom it wishes to employ, the term of appointment of such persons and, as well, the number and identity of the persons whom it wishes to dismiss with or without notice from its employment on redundancy grounds”.
In relation to the “higher levels of government”, the Federal Parliament may not interfere with the State’s capacity to determine the persons it employs, their terms and conditions of employment and the normal duties they are required to perform.
[11] Austin v The Commonwealth of Australia [2003] HCA 3, at [270]-[271] (footnotes omitted)
Subrule 25.11(2) of the GFL Rules, as I would construe it, goes no further than permitting the FCFC Sheriff to delegate to sheriff’s officers the functions the NSW Sheriff has to execute a SCNSW writ, but for the purpose of those officers enforcing an FCFC writ. It would therefore not offend the principles of intergovernmental immunities as stated in Melbourne Corporation. It is therefore reasonably arguable that r 25.11(2) of the GFL Rules authorises the FCFC Sheriff to delegate to, say, a sheriff’s officer, the functions the NSW Sheriff has to execute a SCNSW writ, but for the purpose of the sheriff’s officer executing a FCFC writ; and by such delegation the sheriff’s officer would have legal authority to execute the FCFC writ.
I now address the three questions I identified earlier in these reasons.
CAN THE FCFC SHERIFF DELEGATE FUNCTIONS TO SHERIFF’S OFFICERS?
The question the CSO apparently addressed is whether s 108 of the Federal Circuit Court of Australia Act1999 (Cth) (FCC Act) (being the equivalent provision to s 268 of the FCFC Act) authorised the Sheriff appointed by the FCC Act (FCC Sheriff) to delegate the functions conferred on that officer by the FCC Act. The CSO appears to have answered that question in the negative because s 108 of the FCC Act went no further than permitting the FCC Sheriff to authorise a person to assist the FCC Sheriff in the exercise of any of his or her powers, or in the performance of any of his or her functions; and the power to authorise assistance is not a power to delegate.
That opinion appears to be correct. Under s 4(2) of the NSW Sheriff Act, a non-NSW law may confer or impose a function on the NSW Sheriff, whether by an Act or by some other law; and the function may be conferred or imposed by way of delegation. Subsection 5(2) of the NSW Sheriff Act permits the Sheriff to delegate functions conferred or imposed on him or her under a non-NSW law, and it also permits the Sheriff to subdelegate functions conferred or imposed on the NSW Sheriff by a delegation made under a non-NSW law; but the NSW Sheriff may only delegate or subdelegate functions conferred or imposed by a non-NSW law or by delegation only if the non-NSW law authorises the NSW Sheriff to delegate or, where the function is conferred or imposed by delegation, the delegation permits the NSW Sheriff to subdelegate the function.
That, however, does not necessarily mean that none of the classes of persons identified in s 5(2) of the NSW Sheriff Act cannot acquire legal authority to execute the FCFC writ. As I have concluded, it is reasonably arguable that r 25.11(2) of the GFL Rules authorises the FCFC Sheriff to delegate to, say, a sheriff’s officer, the functions the NSW Sheriff has to execute a SCNSW writ, but for the purpose of the sheriff’s officer executing a FCFC writ; and by so delegating the sheriff’s officer would have legal authority to execute the FCFC writ.
PROCEDURAL STEPS
Given that the difficulties in relation to the enforcement in New South Wales of this Court’s writs have crystallised in the attempted enforcement of orders I made on 30 July 2021, it would appear that, subject to any contrary submissions, I would have jurisdiction to determine in this proceeding all issues relevant to whether the FCFC Sheriff can delegate to sheriff’s officers the functions the NSW Sheriff has to execute SCNSW writs, for the purpose of such officers executing FCFC writs. The basis of that jurisdiction would be order 15 of the orders I made on 30 July 2021, which is as follows:
The applicant has liberty to apply on such notice as the circumstances warrant in relation to any question that may arise in connection with the interpretation, implementation, or variation of these orders.
The principles in relation to the usual scope of liberty to apply were stated by the Full Federal Court in Abigroup Ltd v Abignano:[12]
The reservation of liberty to all parties to apply to a court is a provision directed essentially to questions of machinery which may arise from the implementation of a court’s orders. They include cases where a court may need to supervise the enforcement of orders after they have been made. They relate essentially to orders (not often to declarations) in practice in our experience. We agree with the submission of counsel for the appellant that orders of this kind relate to enforcement and not to statements of the rights of the parties. Historically orders reserving liberty to apply are for limited purposes. . . . Historically the reservation by the Court of Chancery of further consideration of a decree was intended to cover the circumstance where following the pronouncement of the decree (a final decree) a further hearing was necessary for the court to deal with some outstanding issue sometimes requiring taking further evidence and making further declarations or orders. But this did not detract from the initial orders as being final orders. Rather it was a mechanism designed by the Court of Chancery to obviate the necessity of a further suit being instituted to deal with matters that were essentially consequential upon the making of the initial final decree. This demonstrates that there is no inconsistency between the making of final decrees, judgments or orders or declarations and subsequent orders of the court. It all depends upon the circumstances of the case and the particular orders or decrees formulated by the court. See generally the discussion with respect to liberty to apply and further consideration in Ritchie’s Supreme Court Procedure New South Wales, paras 42.12.2 and 42.12.3.
[12] Abigroup Ltd v Abignano [1992] FCA 567, at [55] (Lockhart, Morling & Gummow JJ)
The NSW Sheriff and the FCFC Sheriff would have an interest in the determination of these issues. It would therefore be necessary to give each of the NSW Sheriff and the FCFC Sheriff an opportunity to make submissions if I were to determine that it would be appropriate for me to determine those issues. The question that arises, then, is whether it would be appropriate for me to determine those issues or instead make another order requiring the respondent to vacate the Property and attaching to the order a penal notice to the effect that if the respondent does not comply with the order she will be liable to contempt proceedings.
As matters currently stand, I am of the view that the appropriate course would be for me to make procedural orders with a view to determining the issues relevant to whether the FCFC Sheriff can delegate to sheriff’s officers the functions the NSW Sheriff has to execute SCNSW writs, for the purpose of such officers executing FCFC writs. First, it would be in the interests of litigants before the FCFC Court to have determined what is an important question relating to the enforceability of the FCFC Court’s writs in New South Wales and, perhaps, in other parts of Australia. Second, I would not be satisfied, without further submissions, that it would be open or at least appropriate to enforce by way of a mandatory injunction what is a common law remedy for possession of land.
DISPOSITION
In these circumstances I propose to make the following orders:
(a)The proceeding be listed before me at 9:30 am on 5 November 2021 for the purpose of making directions for the determination of the following questions:
(i)Does the FCFC Court have jurisdiction to determine the questions referred to in (ii) and (iii)?
(ii)If (i) is answered in the affirmative, can the FCFC Sheriff delegate to a sheriff’s officer the functions the NSW Sheriff has to execute SCNSW writs, but for the purpose of such officers executing FCFC writs?
(iii)If (ii) is answered in the negative, should the FCFC Court issue a writ of mandamus directed to the FCFC Sheriff to execute the writ of possession issued pursuant to the orders I made on 30 July 2021?
(b)By 22 October 2021 the Trustee serve on the NSW Sheriff and on the FCFC Sheriff the orders I propose to make together with these reasons for judgment.
(c)The Trustee have liberty to renew any application he may be advised to make in connection with the order for possession of the Property I made on 30 July 2021.
I will also note that the orders I propose to make are orders of the Federal Circuit and Family Court of Australia (Division 2). That is necessary because the seal of this Court that will be affixed to the orders I propose to make only includes the words “Federal Circuit and Family Court of Australia”. The Federal Circuit and Family Court of Australia Act 2021 (Cth), however, does not constitute any court by the name of the “Federal Circuit and Family Court of Australia”.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Manousaridis. Dated: 20 October 2021
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