Transport Accident Commission v Kunkel

[1998] VSCA 105

SUPREME COURT OF VICTORIA

COURT OF APPEAL	Not Restricted
No. 4624 of 1998

TRANSPORT ACCIDENT COMMISSION

Appellant

v

FRANCISCUS KUNKEL

Respondent

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JUDGES:	TADGELL, CALLAWAY and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 October 1998
DATE OF JUDGMENT:	27 October 1998
MEDIA NEUTRAL CITATION:	[1998] VSCA 105

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JUDGMENTS AND ORDERS - Execution - Whether attachment of earnings order may be made when interest accruing exceeds available earnings - Cahill v. Howe [1986] V.R. 630 distinguished.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A.G. Uren, Q.C. and	Wisewoulds
Mr M.J. Corrigan
For the Respondent	In person

TADGELL, J.A.:

1. I invite Callaway, J.A. to deliver the first judgment.

CALLAWAY, J.A.:

1. On 1st December 1995 judgment was entered in the County Court in favour of the appellant against the respondent. The judgment was in the sum of $68,640.65.

2. An attachment of earnings summons was filed on behalf of the appellant on 16th December 1997. It was then said that, in addition to the judgment debt, there were due and unpaid $811 costs of attempted execution and $16,872.93 interest calculated from 1st December 1995 to 12th December 1997. It appears, however, from an affidavit filed in support of the application for leave to appeal that the sum of $138.01 had probably been paid pursuant to a garnishee order made on 18th March 1996. The application for attachment of earnings was dismissed on 29th January 1998.

3. The only record of the learned County Court judge's reasons is the following note prepared by the appellant's solicitors and settled by the judge:

   "His Honour read the Affidavit in Support of the Application for an Attachment of Earnings and the figures provided to him. He then stated that he was unable to make an Order to attach the Judgment Debtor's earnings as the weekly interest calculated on the debt was greater than 20% of the Judgment Debtor's net earnings. His Honour said that there was a Supreme Court decision he was aware of which prevented him from making an Order in circumstances where payments would not reduce the debt. He proceeded to dismiss the Application and make no Order as to costs."

4. It is thought that the decision referred to is Cahill v. Howe [1986] V.R. 630. If so, His Honour's discretion miscarried or, perhaps more accurately, was not exercised at all.

5. Cahill v. Howe was an application by a debtor for an order that he be permitted to pay the judgment debt by instalments. The decision turned on the language and purposes of the Judgment Debt Recovery Act 1984 as well as the facts of the case. See especially page 634 of the judgment of the learned Chief Justice. The application here was, by contrast, an application by a creditor seeking to recover some at least of the debt that had been adjudged to it. Cahill v. Howe was, with respect, not in point. That makes it unnecessary for us to express any view on an alternative argument foreshadowed in the appellant's outline of submissions that Cahill v. Howe was wrongly decided.

6. Leave was granted to the appellant to appeal against the dismissal of its application. When the appeal was called on this morning Mr Uren, Q.C. appeared with Mr Corrigan for the appellant. The respondent appeared in person.

7. There was evidence before the County Court in January 1998 that the respondent was employed by Messrs Baulderstone Hornibrook and that his net earnings averaged $669 per week. The respondent has informed us that on 4th September 1998 he was made redundant and that, although he is looking for work, he has not yet found fresh employment.

8. The notice of appeal asks that we should make an attachment of earnings order in terms of the summons filed on 16th December 1997 or, alternatively, that the summons be returned to the learned primary judge to be dealt with in accordance with law. Mr Uren did not press for a special direction to displace the prima facie operation of s.74(3) of the County Court Act 1958, nor would I have been disposed to give such a direction. If the matter proceeds, it should come on before the County Court judge charged with the disposition of this kind of business at the relevant time. I do not think that we should deal with the summons ourselves. An inquiry may or may not be required or desirable under Rule 72.04, but there is no reason to doubt that circumstances have materially changed.

9. Accordingly I would simply allow the appeal, set aside the order made on 29th January 1998 and direct that the application be reheard before the County Court.

TADGELL, J.A.:

1. I agree.

CHERNOV, J.A.:

1. I also agree.

TADGELL, J.A.:

1. The judgment of the court will be in accordance with the following minutes:

   1.          Appeal allowed with costs.

   2.          Order below set aside.

   3.          Order that the application by way of attachment of earnings summons in which the appellant is plaintiff and the respondent is defendant filed in the County Court on 16 December 1997 be heard and determined afresh.

2. The Court orders that the respondent have a certificate pursuant to s.13 of the

   Appeal Costs Act.