Tweed Shire Council v Whitlock, Ronald
[1997] FCA 1375
•10 DECEMBER 1997
FEDERAL COURT OF AUSTRALIA
BANKRUPTCY - Creditor’s Petition - Whether Court can go behind the judgment - Principles to be applied - Whether the judgments on which bankruptcy notice is based should be questioned
Bankruptcy act 1966 (Cth) s 52
Corney v Brien (1951) 84 CLR 343, appl.
In Re Fraser; Ex parte Central Bank of London [1892] 2 QB 633, appl.
Wren v Mahony (1972) 126 CLR 212, appl.
Wilkinson v Osborne (1915) 21 CLR 89, cons.
TWEED SHIRE COUNCIL v RONALD WHITLOCK
NG 8146 of 1997
EMMETT J
SYDNEY
10 DECEMBER 1997
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 8146 of 1997
BETWEEN:
TWEED SHIRE COUNCIL
ApplicantAND:
RONALD WHITLOCK
Respondent
JUDGE:
EMMETT J
DATE:
10 DECEMBER 1997
PLACE:
SYDNEY
REASONS FOR JUDGMENT
HIS HONOUR: There is before the Court a petition brought by Tweed Shire Council (“the Council”) seeking an order for the sequestration of the estate of Ronald Whitlock (“Mr Whitlock”). The petition is opposed. The petition is based on an act of bankruptcy which was committed on 12 August 1997 when Mr Whitlock failed to comply with the requirements of a bankruptcy notice. The bankruptcy notice was served on 17 June 1997 and required payment within 21 days of a debt of $24,015.29. The debt was made up as follows:
Judgment debt in the Local Court at Murwillumbah: $23,462.40 Fee for certificate of judgment: $11.00 Interest on the judgment: $541.89 TOTAL: $24,015.29
The judgment in the Local Court arose out of proceedings in which Mr Whitlock was alleged to have aided and abetted contraventions of Ordinance 30 made under the Local Government Act 1919 (NSW).
Section 52 of the Bankruptcy Act 1966 (Cth) requires that, on the hearing of a petition, the Court be satisfied with proof of various matters including the fact that the debt or debts on which the petitioning creditor relies is or are still owing. For almost all purposes, a judgment is conclusive evidence, as between the parties, of the existence of the obligation which it creates. However, it has been settled for many years that in a Court of Bankruptcy, a judgment does not have such conclusive effect and the Court has power to “go behind” the judgment and enquire into the existence of the debt upon which it is said to be founded.
The general power of the Court to investigate the foundation of a judgment has been described as “unquestioned and unquestionable” (per Fullager J in Corney v Brien (1951) 84 CLR 343 at 354). In Corney v Brien, Fullager J referred to the observations of Lord Esher MR In Re Fraser; Ex Parte Central Bank of London [1892] 2 QB 633 at 636, 637 to the effect that in making a sequestration order, the Court is not dealing simply with the petitioning creditor and the debtor but is interfering with the rights of other creditors who, if an order is made, will not be able to sue the debtor for their debts. The Court ought not to exercise that extraordinary power unless it is satisfied that there is a good debt due to the petitioning creditor.
In Wren v Mahony (1972) 126 CLR 212, Barwick CJ (with whom Windeyer and Owen JJ agreed) said (at 224-5):
The judgment is never conclusive in bankruptcy. It does not always represent itself as the relevant debt of the petitioning creditor, even though under the general law, the prior existing debt has merged in a judgment. But the Bankruptcy Court may accept the judgment as satisfactory proof of the petitioning creditor’s debt. In that sense that court has a discretion. It may or may not so accept the judgment. But it has been made quite clear by the decisions of the past that where reason is shown for questioning whether behind the judgment or as it is said, as the consideration for it, there was in truth and reality a debt due to the petitioning creditor, the Court of Bankruptcy can no longer accept the judgment as such satisfactory proof. It must then exercise its power, or if you will, its discretion to look at what is behind the judgment: to what is its consideration. It is not the law, in my opinion, that whether in any case the Court of Bankruptcy will consider whether there is satisfactory proof of the petitioning creditor’s debt is a mere matter of its own discretion. Nothing in Corney v Brien lends support for such a view. Rather the emphasis is upon the paramount need to have satisfactory proof of the petitioning creditor’s debt. The Court’s discretion in my opinion is a discretion to accept the judgment as satisfactory proof of that debt. That discretion is not well exercised where substantial reasons are given for questioning whether behind that judgment there was in truth and reality a debt due to the petitioner.
The existence of the judgment is prima facie evidence of the debt but is not more than that. Accordingly, the Court will often look at a judgment entered by default. Further, if it can be shown that a judgment was obtained through fraud, that would be a reason for a Court exercising bankruptcy jurisdiction to conclude that there is in truth no debt as between petitioner and debtor. By his opposition to the petition, Mr Whitlock asked that the Court go behind the judgment of the Local Court.
THE JUDGMENT DEBT
On 3 March 1993, several informations were laid by Mr Terence Brian Lintern, an ordinance inspector employed by the Council. It was alleged that on various dates several persons did, without permission of the Council, engage in the hawking of seafood from a trailer on a public road and that Mr Whitlock did aid, abet, counsel and procure those persons in the commission of that offence. On 16 March 1993, two further informations were laid alleging the same offences against those persons on different occasions. The persons charged with the offences and the relevant dates were as follows:
Wayne Bryant: 14 November 1992, 28 November 1992 and 24 December 1992
Lee O’Connor: 7 November 1992
Janine Risson: 27 December 1992, 28 December 1992 and 9 January 1993
Codi Smith: 17 January 1993
The summonses issued pursuant to the informations initially came before the Local Court at Murwillumbah on 23 April 1993. Subsequently, on 5 August 1993 and 9 September 1993, Mr B.J. Bright SM heard the charges against Wayne Bryant and Mr Whitlock. He adjourned the hearing to 23 September 1993 for decision.
On 23 September 1993, Mr Bright dismissed the information summonses relating to the alleged offences on 28 November 1992 and 24 December 1992. However, he found that the offence as to 14 November 1992 was proven and convicted Mr Bryant and Mr Whitlock and fined them each $100. He also ordered payment of court costs of $45 and professional costs of $380.10.
Mr Whitlock appealed from that decision to the District Court and that appeal was heard by Judge Downs sitting in Murwillumbah on 2 and 3 November 1995. On 27 November 1995 Judge Downs dismissed the appeals by Mr Whitlock and confirmed the convictions. His Honour also confirmed penalties, court costs and professional costs ordered to be paid by Mr Bright. His Honour ordered that those sums, which amounted to $2,665.50 be paid to the clerk of the Local Court Murwillumbah within three months. His Honour also ordered Mr Whitlock to pay the Council’s costs of the appeal including counsel’s fees. He ordered that the costs of the appeal be assessed or, failing agreement, taxed and that, when assessed or taxed as the case may be, that sum be included in the order. He ordered that the costs be paid by Mr Whitlock within three months of assessment or taxation.
On 24 October 1996, the costs of Mr Whitlock’s appeal to the District Court were taxed in the sum of $23,411.40. On 14 November 1996 Judge Downs ordered that Mr Whitlock pay that amount within three months of 24 October 1996. A certificate of the Registrar of the District Court as to the orders made by Judge Downs was registered in the Local Court at Murwillumbah. As a result, on 19 February 1997 judgment was entered in the Local Court in favour of the Council against Mr Whitlock in the sum of $23,462.40.
THE LEGISLATIVE FRAMEWORK OF THE CHARGES
Clause 12(a) of Ordinance 30 made under the Local Government Act 1919 (NSW) provided as follows:
Except with the permission of the Council, a person shall not in any road set up or use any basket, box, stall, stand, or standing vehicle for the purpose of offering for sale any article, or for the pursuit of any business, calling, or employment.
Clause 81 provides that any person other than the Council offending against any provision of that Ordinance was, where no other penalty was provided, to be liable to a penalty not exceeding $100, nor less than $1.
Section 100 of the Justices Act 1902 (NSW) provided as follows:
(1) Every person who aids, abets, counsels or procures the commission of any offence, now or hereafter made punishable on summary conviction, may be proceeded against and convicted, together with or before or after the conviction of the principal offender.
(2) On conviction such a person shall be liable to the penalty and punishment to which the principal offender is liable.
Mr Bryant was charged with contravention of clause 12(a) of Ordinance 30. Mr Whitlock was charged under section 100 of the Justices Act. As I understood Mr Whitlock’s contentions and submissions, they were limited to asserting that no offence was committed by Mr Bryant under clause 12(a) of Ordinance 30. He did not advance any argument that, if such an offence was properly proved and a conviction properly entered against Mr Bryant, he, Mr Whitlock was not then guilty of aiding and abetting.
PROCEEDINGS IN THE FEDERAL COURT
On 1 July 1997, Mr Whitlock applied to this Court for an order that the bankruptcy notice be set aside. On 3 July 1997, the time for compliance with the requirements of the bankruptcy notice was extended to 29 July 1997. On that day, the time for compliance was extended up to and including 12 August 1997. On 12 August 1997, the application to set aside the bankruptcy notice came before Lindgren J who dismissed the application and ordered Mr Whitlock to pay the Council’s costs of that proceeding.
The petition was filed on 29 September 1997 and was served in Sydney on 7 October 1997. On 23 October 1997, Mr Whitlock filed a notice of intention to oppose the petition. Three grounds were specified as follows:
The respondent is in the process of taking out an action against the applicants, which would place the applicants in debt to the respondent far in excess of that claimed by the applicant.
That the applicants obtained the judgment that is behind their petition by deceitful means (unlawfully).
To have the Court go behind the applicants judgment to see how the applicants have used false evidence to obtain judgment behind their petition.
The petition first came before me on 3 November 1997 when Mr Whitlock sought an adjournment of the hearing of the petition and an order transferring the proceedings to Brisbane for hearing. The reason advanced for transfer of the proceedings to Brisbane was that Mr Whitlock wished to call witnesses who were resident in Murwillumbah and that it would be a hardship for him to have to bear the costs of bringing them to Sydney to give evidence.
That application was heard by video link on that day and on the following days, 4 and 5 November 1997. I indicated to Mr Whitlock that before I would consider transferring the hearing to Brisbane, I would require him to satisfy me that there was some prospect that his grounds of opposition may be made out. Mr Whitlock thereupon embarked upon the task of demonstrating that there was some substance in his grounds of opposition
After 4.30 pm on 5 November, I intimated to the parties that I considered that the appropriate course would be for me to embark on a hearing of the petition by video link with Brisbane and fix the hearing of the petition before me on 20 November 1997. I also gave directions for the issue of subpoenas and gave directions for the filing and serving by Mr Whitlock of any affidavits on which he wished to rely in addition to the material which he had tendered on the hearing of the adjournment application. Mr Whitlock was to file and serve any affidavits on or before 12 November 1997 and the Council was to file any affidavits in response no later than 10 November 1997.
Subpoenas were in fact issued by Mr Whitlock and on 17 November 1997 I heard an application to set aside certain of those subpoenas. I ordered that two of the subpoenas be set aside and gave directions concerning the payment of conduct money and attendance money by Mr Whitlock. I shall return to those orders later.
Mr Whitlock advanced nothing in support of the first ground. Mr Whitlock’s argument, as I understand it, is that the conviction was unsound and, therefore, the Court should not rely on the judgment debt which resulted from such a conviction. The obligation which underlies the judgment debt in the Local Court is the order made by Downs DCJ that Mr Whitlock pay the Council’s costs of his appeal. Mr Whitlock has, in substance, invited this Court to go back one step further to look behind the order of Downs DCJ, contending that that order ought never to have been made because the conviction by the magistrate was unsound.
In Wilkinson v Osborne (1915) 21 CLR 89, the High Court held that a contract which became the basis for a judgment was contrary to public policy and void. The High Court therefore held that the judgment could not be relied on as a foundation for bankruptcy proceedings. In other words, the High Court went behind the judgment and determined that “there is, therefore, behind the judgment nothing which the law can recognise as a legal foundation, and consequently there is no debt which can form the basis of the bankruptcy notice” (see per Isaacs J at 105).
Of course, a court exercising jurisdiction in bankruptcy has no power to set aside a judgment but only to dismiss a petition if not satisfied with the proof of the petitioning creditor’s debt (see Re Victoria; Ex parte Victoria [1894] 2 QB 387; King v Henderson [1898] AC 720). That is one of the difficulties with Mr Whitlock’s position. He has not taken any steps to overturn the judgment of Downs DCJ which was the basis for the judgment debt.
There are two broad bases upon which Mr Whitlock contends that the conviction was unsound. First, he says that the convictions were based on evidence given on behalf of the Council which was false. He also asserts that Ordinance 30, under which Mr Bryant was convicted, was invalid. I shall deal with each of those contentions separately.
THE COUNCIL’S EVIDENCE
Proceedings before Bright SM
Mr Lintern was the principal witness called by the Council in support of the charges both before Bright SM and Downs DCJ. The Council relied on a statement made by Mr Lintern dated 5 August 1993 which was read onto the record before Bright SM. The statement was also tendered before me and relevantly provided as follows:
1.On Saturday 14 November 1992 at 1.55pm, in response to a complaint, I travelled to Hastings Point where I observed a man trading seafood from the roadside of Coast Road, Hastings Point.
2.I approached the man and said words to the following effect “My name is Terry Lintern, I am and [sic] Ordinance Inspector with Tweed Shire Council. It is illegal to trade from the roadside without permission from the Council. What is your name?”. He said words to the following effect “My name is Wayne Bryant”.
3.I said “Council has not give [sic] permission for you to trade by the roadside. If you continue to trade, you may be prosecuted”.
4. I observed Wayne Bryant continuing to trade on the said day.
5.On Saturday 28 November 1992 at 10.40am I observed Wayne Bryant, trading seafood from the roadside of Coast Road, Pottsville.
6.I approached Wayne Bryant and said words to the following effect “Mr Bryant, I have advised you before that trading on the roadside is illegal without the permission of the Council. If you continue to trade you may be prosecuted”.
7. I observed Mr Bryant continuing to trade on the day.
8.On Thursday 24 December 1992 at 1.10pm I observed Wayne Bryant trading seafood from the roadside of Coast Road, Hastings Point. I again said words to the following effect to him “If you continue to trade on the roadside without permission of Tweed Shire Council you may be prosecuted”.
9. I observed him to continuing to [sic] trade on the said day.
Mr Lintern was then asked some questions by the solicitor for the Council concerning the precise location of the incidents covered by the statement. He was also asked to describe the trailer used on each of those occasions. Mr Lintern was then cross-examined by Mr Whitlock. The cross-examination related to the question of whether or not the incidents occurred on a public road.
Mr Lintern was recalled and a further statement was read in relation to the charges against Mr Whitlock. That statement included the following:
...On 14 November 1992 at 1.55pm I observed a person who I now know to be Wayne Bryant trading seafood from the roadside at Coast Road, Pottsville. I said words to the following effect to him “Is this your trailer?”. He said “I lease it from Ron Whitlock. I said “Do you know Mr Whitlock’s address”. He said “64 Henely Street, Coopers Plain”. I observed that the trailer had signs displayed on it and signs were also displayed on the roadside. On Sunday 15 November 1992 at Hastings Point, I was approached by Ronald Whitlock whilst I was removing seafood signs from the roadside. Mr Whitlock told me words to the following effect “Wayne didn’t get time to take the signs in yesterday”.
The statement also referred to three photographs which Mr Lintern said were taken by him of the trailer trading at Hastings Point. In the statement he said that Mr Whitlock was clearly visible in one of the photographs. Mr Lintern was further cross-examined by Mr Whitlock concerning the status of the land on which the offences were said to have occurred.
Mr Whitlock also asked Mr Lintern questions concerning the photographs. Mr Lintern said that he could not recall the date he took the photographs but that they were taken “on the days in question”. He said that one of the photographs depicted Wayne Bryant serving from the trailer. When it was put to him that Wayne Bryant was not in the photographs, he said that he was sure that Wayne Bryant was at the back of the trailer in one of the photographs.
In the course of his submissions to Bright SM on 9 September 1993, Mr Whitlock made reference to the photographs. He relevantly said as follows (pp 13-14):
...when Mr Lintern found out that he would have to prove set up, he produced the only photo he had that would show set up. But you see, the photo didn’t show any of the accused.
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A bad photo was put before the Court. A bad photo that could not properly identify the accused. At this time I challenge this Court to put this photo before a professional and I have on record, that I have asked for this photo to be put before a professional so I may present a blown-up photo in this Court today. Indeed, Mr Bryant was not even there, he was not in the photo... well Ranger Lintern said he took the photo. He said he took it. Now if he took it he should know who was there. Now, he says Wayne Bryant was there, Wayne Bryant is not present in the photo. Mr Lintern was not taking photos because Mr Lintern couldn’t get Mr Bryant in a set up position. Now, Mr Lintern took another photo, no one can identify who it is at that trailer, I can prove it here today, but I’ve been denied that. But still no one can accept that that is Wayne Bryant in that photo. He got this photo, this photo showed this van on its own.
........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ ........ .
When Mr Lintern found out that he would have to prove set up he produced the only photo he had that would show set up, but you see that photo didn’t show any of the accused so to present it he had to do one of the things that we all dread of a public servant, he had to lie. To satisfy his council he had to lie. And he has. It has been established for this court that Ranger Lintern lied in my opinion by this photo. Again I challenge this photo be blown up.
In his reasons for decision given on 23 September 1993, Bright SM said (at 1-3), inter alia, the following:
...I do hold as a fact... that the van utilised for sale of seafood, on the evidence, was a standing vehicle. As to Ordinance 30 clause 12, I accept from the evidence available in these proceedings that the sale of seafood from the standing vehicle falls within the description of a business calling or employment...
The prosecution case relies upon the evidence of various witnesses called. The two defendants have elected not to give evidence themselves, but that is their right and no adverse comment nor inference may be drawn...
As to the question of standing vehicle and my finding of fact in that regard, I rely upon the evidence of Mr Lintern, the Ordinance Inspector. In my view his credibility was not affected by cross-examination, I rely upon the photographic evidence and the testimony of Sergeant Clarke and it follows as a matter of common sense for transactions to occur, that is the sale of seafood to the public...
...The evidence of Mr Lintern in respect of these proceedings, together with the photographic evidence, shows clearly that notwithstanding the van is located some distance from the sealed surface of the road, members of the public are able to approach the seaford [sic] sale site in their motor vehicles and leave by the same means. In my view the van is situation on a public road.
Mr Bryant is confronted with three allegations of trading contrary to the provisions of ordinance 30 clause 12, two allegations relate to the Hastings Point locality on 14 November 1992 and 24 December 1992. The offence of 28 November 1992 relates to Pottsville. Mr Lintern spoke to Mr Bryant on 14 November 1992 at 1.55pm. Photographs have been tendered in evidence as part of exhibit 2 exhibiting the location of the van. It is unknown when those photographs were taken, however, according to the evidence of Lintern the van on each occasion it was sighted at Hastings Point was in the same location, that is on 14 November 1992 and 24 December 1992.
In my opinion, and bearing in mind people other than the defendant, Bryant, traded during this period, the evidence is insufficient to establish trading by the defendant, Bryant, on 28 November 1992 and 24 December 1992.
I do, however, accept the testimony of Mr Lintern that on 14 November 1992 at 1.55 p.m. he observed the defendant, Bryant, trading seafood from the roadside on the Coast Road at Pottsville and at that time a conversation occurred between the two men. I accept Mr Lintern’s account of that conversation. I find the offence as to 14 November 1992 proven.
The remaining two informations summons cases 4 and 5 are dismissed and accordingly summonses cases 9 and 11 which relate to Mr Whitlock, aiding and abetting suffer the same fate.
Proceedings before Downs DCJ
In the proceedings before Downs DCJ, Mr Whitlock agreed that the evidence that was given before Bright SM could be read by Downs DCJ and could constitute part of the evidence on the appeal. Mr Lintern was also called and was cross-examined by Mr Whitlock extensively. In particular, Mr Whitlock asked questions about the photographs. He agreed that he produced no photographs that showed a seafood vending trailer operating at Pottsville. He also agreed that the photographs in evidence were not taken on the same day as the offences and that they were taken afterwards. He was also asked about where he stood when the photographs were taken.
Mr Whitlock also called Mr Julio Muino, a ranger employed by the Council. Mr Muino said that he had taken about six photographs of people selling seafood in the Tweed Shire. He also said that on different occasions, as part of his job, he had spoken to people who were selling seafood on the side of the road. He said he had no recollection of 14 November 1992 and said that he did not go out as a team with Mr Lintern on that day.
Mr Muino said that the photographs he took were given to the Council. When shown the photographs identified by Mr Lintern, Mr Muino said that he did not take those photographs and that those photographs were not part of the six which he had given to the Council. He said that the photographs he took were in the custody of the Council and they were not of the area shown in the photographs produced by Mr Lintern but were of Pottsville. He said that Pottsville and Hastings Point are about 20 km apart.
Mr Whitlock also called his wife to give evidence. He showed her three photographs and asked her to identify certain of the people in the photographs. One of them was Scott Bryant, the brother of Wayne Bryant. Mrs Whitlock was then shown other photographs. Mrs Whitlock said that all three photographs shown to her incorporated a car with three surfboards on the top. She identified the man closest to the seafood trailer shown in a fourth photograph as Scott Bryant and she identified one of the persons standing in that photograph as Mr Julio Muino. It is not clear from the transcript of the proceedings before Downs DCJ precisely which photographs were involved.
Before Downs DCJ Mr Whitlock sought to tender some photographs in addition to those produced by Mr Lintern. There was no objection so long as they were shown to be relevant. The tender was rejected because, as his Honour said, there was no evidence as to when the photographs were taken. Mr Whitlock then sought leave to recall his wife so that she could show that the photographs were taken on the same day. It is not clear from the evidence what he was intending to say. Mrs Whitlock was recalled. However, there was no evidence before me as to whether or not the photographs were admitted. Mr Whitlock asserted in the course of submissions that they were again rejected by Downs DCJ.
Downs DCJ, in his reasons of 27 November 1995 (at 3-6), said, inter alia, the following:
Briefly stated the relevant facts are, that on 7 November 1992, 14 November 1992, 27 December 1992, 28 December 1992 and 9 January 1993, Terence Lynton [sic] an ordinance inspector with the Tweed Shire Council, saw fish being sold from stationary trailers which were not connected to motor vehicles... On the second occasion, 14 November, he observed Wayne Bryant selling seafood from the same trailer on a sandy gravel surface beside Coast Road Hastings Point...
On 15 November 1992 when Mr Lynton [sic] stopped at Hastings Point, in order to move some signs which were advertising the sale of seafood from a trailer, he was approached by the appellant and told that Wayne, that is Wayne Bryant, had failed to remove them the day before. On 27 December 1992 when Sergeant Clark spoke to the appellant at Hastings Point and asked him who he was, the appellant replied that he was the owner of the business, indicating the business being conducted from the trailer. That, very briefly, summarises the facts.
It was necessary for the Shire to prove the following:
(1) That permission of the council was required... (2) That... Wayne Bryant... sold seafood on the relevant dates... (3) That the goods were sold from a stationary vehicle. Mr Lynton [sic] described the trailer as a vehicle on wheels which did not have a motor. Photographs were tendered. They were taken on 14 November and they showed the trailer to be a two wheeled vehicle with a bar protruding so that it could be connected to a motor vehicle and so be towed. The photographs that were tendered also depicted Seafood for Sale signs. (4) That the appellant owned the vehicles... (5) That there was an offering for sale of an article... (6) That there was a sale pursuant to a business... The appellant did not give evidence either before the magistrate or on appeal. (7) That the stationary vehicle was on a public road...
Finally it remains for me to consider if the evidence established that the appellant did aid, abet, counsel or procure each of the sellers to commit their offences. I have already referred to much of the evidence which established this and so I will only briefly refer to it. The appellant was seen at Hastings Point on 27 December. He was seen moving signs on 15 November. He admitted he owned the trailers... The sellers, as I have already indicated, were convicted on summary conviction...
In his defence the appellant made a number of submissions. He submitted that as the area where the trailers were parked were not dedicated roads, they could not be roads within the meaning of the ordinance... I am satisfied that they were roads within the meaning of the ordinance. He further submitted that section 92 of the Commonwealth Constitution was relevant because sometimes fish was bought in Queensland... Similarly his allegation that the Food Act, the Health Act and the Traffic Act were in some way relevant, were not acceptable.
I turn now to consider penalty. The appellant has not expressed any contrition, indeed he even went so far as to suggest that officers of the Shire had conspired in some way against him.
Mr Whitlock’s Challenge to the Evidence
The three photographs produced by Mr Lintern together with a fourth photograph were in evidence before me. Mrs Whitlock was also called to give evidence before me. She said that she saw Julio Muino take the first three photographs. She said that the fourth photograph was taken by her on the same day and depicted Mr Muino. Mrs Whitlock said before me that the photographs were taken at Pottsville although Mr Whitlock in the course of submission said that they were taken at Hastings Point. That adds to the confusion created by the inconsistency in Mr Lintern’s statements.
The challenge by Mr Whitlock, in so far as it was based on the photographs, is that, having regard to the evidence of Mrs Whitlock, the photographs were not taken by Mr Lintern but were taken by Mr Muino. She was not cross-examined about that by the solicitor who appeared for the Council on the hearing of the petition. The evidence before me leads me to conclude that there may be some doubt as to who took the photographs which were produced by Mr Lintern.
It seems that Downs DCJ had gained a wrong impression concerning the way in which the relevant photographs were taken. The evidence of Mr Lintern before Downs DCJ was that he did not know when they were taken or alternatively, that they were not taken on the days on which the infringement was alleged to have been committed. The question, however, is whether or not the photographs were in any way material for Bright SM in convicting or for Downs DCJ in dismissing the appeal.
Mr Whitlock argued that the only difference in the evidence as the alleged offence on 14 November and the other two offences on 28 November and 24 December 1992 was the photographs. Therefore, it was said, Bright SM must have relied upon the photographs as in some way corroborating Mr Lintern’s evidence as to the events of 14 November 1992. If the photographs were reliable as evidence of Mr Wayne Bryant’s activities on 14 November 1992, then the charge relating to that day should be dismissed as were those relating to 28 November and 24 December 1992.
There is nothing in the reasons for decision of the magistrate or of Downs DCJ which indicates that any reliance was placed on the photographs as corroboration of the evidence of Mr Lintern. The photographs were used as evidence of the nature of the trailer from which fish was being sold. There was no suggestion by Mr Whitlock that the photographs did not accurately depict his trailer. Nor was there any suggestion that they were misleading in any way. Thus, it was of no consequence when the photographs were taken so long as they accurately depicted the way in which the trailer was being used.
Part of the cross-examination of Mr Lintern by Mr Whitlock before Bright SM and Downs DCJ appeared to be directed to establishing the precise location of the trailer. There was apparently an issue as to whether or not it was on a public road or on a reserve. Once again, however, it appears to have been accepted that, whenever the photographs were taken and whoever took them, they showed the trailer at the relevant spot.
The reason stated by Bright SM for dismissing the other charges relating to 28 November and 24 December 1992 is that he could not be certain that it was Wayne Bryant who was trading. The uncertainty apparently arose from the fact that other people were trading during the period in question. His Worship said expressly that he accepted Mr Lintern’s evidence that he observed Wayne Bryant on 14 November 1992 and that a conversation occurred between them.
Alternatively, Mr Whitlock said that if Mr Lintern can be shown to be unreliable in relation to his evidence concerning the taking of the three photographs in question, his evidence should not be accepted at all. There may be some substance in such a contention if the premise can be made out. However, Mr Whitlock had the opportunity, both in the proceedings before Bright SM and in the proceedings before Downs DCJ to impugn the credibility of Mr Lintern. He endeavoured to do so but without success.
An affidavit sworn by Mr Lintern was relied on by the Council before me. In it, Mr Lintern asserted that it was Wayne Bryant who was selling seafood from the trailer on 14 November 1992 and that he was well acquainted with Wayne Bryant’s identity through previous similar dealings prior to that date. He explained that he had been in error in referring to Pottsville as the location of the incident on 14 November 1992. He also said that it had been his practice to take photographs of Messrs Byrant and Whitlock selling seafood at Hastings Point and elsewhere but that the photographs were often not developed until the whole reel of film had been exposed some days or a week later. He said that it was his belief that photographs of the seafood selling were taken on different days around the date of 14 November 1992 have been mixed up such that there is now impossible for him to state which of the photographs were taken on which dates.
Neither Mr Bryant nor Mr Whitlock gave evidence before Bright SM or Downs DCJ. Mr Whitlock did not give evidence before me denying the conversation alleged by Mr Lintern. There was some suggestion made during the course of the application to set aside subpoenas that Mr Whitlock had endeavoured to locate Mr Wayne Bryant but had failed to do so. However, no evidence of that question was before me.
In all the circumstances, while there may be some doubt as to who took the photographs in question, I do not consider that the material before me would lead me to conclude that Mr Lintern gave false evidence concerning the conversation with Mr Wayne Bryant on 14 November 1992. Accordingly, the material before me does not lead me to conclude that the conviction of Mr Whitlock was unsafe in so far as it was based upon the evidence of Mr Lintern.
ALLEGED INVALIDITY
Mr Whitlock developed alternative arguments the effect of which was that clause 12(a) of Ordinance 30 was invalid because of inconsistency with other legislation. He also suggested that Ordinance 30 was ultra vires. Submissions were made as to the effect of the Traffic Act1909 (NSW) and the Food Act1989 (NSW) both to Bright SM and to Downs DCJ. However, it is fair to say that the submissions which were then made were apparently not the submissions made to me by Mr Whitlock. I shall deal separately with each of the arguments as to invalidity of Ordnance 30.
Traffic Act 1909
Section 11 of the Traffic Act 1909 (NSW) provides that when any regulation or by-law or ordinance is inconsistent with a regulation made under the Traffic Act, the latter is to prevail and the former, to the extent of the inconsistency, is invalid. Section 3(1)(o3) of that Act authorises the Governor to make regulations including regulations which prohibit or regulate the use of stalls or other means for the sale of goods, or the carrying out of any other business or trade in a public street.
Section 6 of the General Traffic Regulations 1916 (NSW) as at 14 November 1992, relevantly provided as follows:
No person shall, upon any public street:
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9.Set up or use any stall, stand or standing vehicle for the purpose of offering for sale any goods or for the pursuit of any business, calling or employment...
Mr Whitlock sought to rely on the General Traffic Regulation 1916 (NSW) as amended in 1993. However these regulations were not applicable because they did not come into effect until 1 February 1993. Section 18B of the Traffic Act 1909 (NSW) provides that where it appears to a member of the police force or a prescribed officer that any person has committed any prescribed offence under that Act or the Regulations, a notice may be served on such person to the effect that if such a person does not desire to have the matter determined by a Court, such person may pay an amount of penalty prescribed for such offence. Schedule K to the Motor Traffic Regulations 1935 (NSW) prescribes the penalties for the purpose of section 18B of the Act. Under Part 8 of that schedule, the penalty for any offence under subsection 9 of Section 6 was, at the relevant time, $68. Mr Whitlock argued that there was inconsistency between those provisions and the provisions of Ordinance 30.
That argument appears to me to involve a misconception. Section 18B is concerned only with the procedure contemplated by that section. Whether that procedure is adopted will be a matter for the member of the police force or other officer and the recipient of a notice. If it is, there will be a limit on the penalty which can be imposed. However, the section has nothing to do with proceedings for an offence by way of summons before a court. The proceedings in question were proceedings brought by summons for an offence under Ordinance 30 clause 12. Such offence could have been proceeded with under section 18B by reason of the operation of subsection 9 of Section 6 of the General Traffic Regulations. However, the Council did not proceed under section 18B.
I do not consider that there is any inconsistency between the provisions of the Traffic Act and clause 12(a) of Ordinance 30. It follows that such alleged inconsistency would not be a ground for concluding that the conviction was in any way defective.
Food Act 1989
Section 90 of the Food Act 1989 (NSW) authorises the Governor to make regulations for or with respect to, inter alia, securing proper conditions and practices in connection with the sale of food and the handling of food for sale. The Food (General) Regulation 1992 (NSW) regulates a number of activities. Mr Whitlock referred to the following regulations:
regulation 11 which deals with any vehicle in which food is prepared, preserved, packed, decorated or served for sale or sold,
regulation 58(1) which regulates the storage or conveyance of food for sale in a vehicle,
regulation 67(4) which deals with the sale from a vehicle by retail, sale of butchers meat or prepacked meat that is in the vehicle or has been transported by the vehicle and
regulation 78(4) which regulates the storage of certain types of food.
His contention was that the effect of those provisions is that a vehicle may not be allowed to be set up except under the Regulations. He said that Ordinance 30 clause 12 was inconsistent with the Food Act in so far as in purports to regulate the way in which food is sold by the use of a vehicle. The contention was that any legislation which is not made under the Food Act which deals with food must state plainly that it is intended to deal with food and that clause 12 does not do so.
I do not regard clause 12 of Ordinance 30 as being in any way inconsistent with the provisions of the Food Act or the regulations made under that Act. It regulates the use of a standing vehicle for the pursuit of any business. Bright SM and Downs DCJ held that Mr Whitlock’s trailer was being used for the pursuit of the business of selling of seafood to the public by retail. Whatever might have been the object or purpose of clause 12 of Ordinance 30, it explicitly prohibits the use of a standing vehicle for the pursuit of a business except with the permission of the Council. Whether that was to enable the Council to ensure that a traffic hazard was avoided or for some other purpose does not matter. I do not see any inconsistency between giving full effect to the express terms of clause 12 and the provisions of the Food Act.
Ultra Vires
Mr Whitlock referred me to the decision of Thomas J in Kwiksnax Mobile Industrial & General Caterers Pty Ltd v Logan City Council [1994] 1 Qd R 291. The plaintiff in that case engaged in various forms of catering. In particular, its activities included a special mobile form of catering through the use of vans or small trucks which visit various premises to sell food stuffs, mainly to the working community for morning tea and lunch. The defendant, the Logan City Council, passed a by-law purporting to impose certain controls upon “stalls”. The Council was attempting to apply the by-law against the plaintiff in that it was alleged that the plaintiff was acting illegally in conducting the business described as above without a licence.
The Court observed that the by-law as drafted would subject every retail business, every snack bar, every restaurant and any business engaging in the display or sale of goods to the necessity of obtaining a licence from the Council. One of the questions which arose was whether any power had been conferred upon the Council to pass a by-law of such breadth. The Court held that there was no such power and that, accordingly, the by-law was ultra vires. In particular, it was held that the by-law went beyond the power to make by-laws concerning “advertising on roads and on land adjacent to roads” or concerning “stalls and stands on roads or land under the control of the local authority or on land adjacent to roads” (at 303). The by-law went beyond any power relating to “stalls” as that term ought to be understood.
A further argument was advanced on behalf of the plaintiff that, in passing the by-law, the Council exercised any power it had for an improper purpose. The Council had adopted a policy which was to deny outsiders, that is persons who were not resident in Logan City, any opportunity to engage in the sort of activity in question within Logan City area and to prevent vending activities within Logan City unless they were associated with, and operated from, commercial premises in Logan City. Thomas J observed (at 310) that such a policy might “euphemistically be described as a policy of local preference, but it seems to go beyond tolerable limits on that concept”. The Court held that the case was a clear one in which the legislative step of passing the by-law was taken in the direct implementation of an improper purpose and that that ground of attack was made out.
Although I was referred to the case in the course of address by Mr Whitlock, I was not given a reference to the report of the decision. Accordingly, it was not possible to read the report until after I had reserved my decision. However, having read the report, the case does not appear to me to bear on the question which was before Bright SM and Downs DCJ. It does not appear to me that any of the grounds accepted by Thomas J for concluding that the by-law there in question was invalid would be applicable to clause 12 of Ordinance 30.
CONCLUSION
I do not consider that there is reason to doubt that the judgment of the Local Court properly evidences the fact that Mr Whitlock is indebted to the Council in the amount comprised in the judgment. Accordingly, Mr Whitlock’s grounds of opposition to the petition must fail. It is therefore appropriate for the petition to stand over to enable the Council to file up to date evidence as to the indebtedness of Mr Whitlock and as to the other formalities required before a sequestration order can be made.
I also consider that it may be appropriate to revoke certain of the orders which I made on 17 November 1992 and to direct the refund to Mr Whitlock of the moneys which were paid as conduct money and attendance money. Those orders may have been made without full disclosure of all relevant matters relating to the proposed evidence. However, before making any further orders, I will give the parties the opportunity of being heard on those questions.
I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Emmett
Associate:
Dated: 10 December 1997
Counsel for the Petitioning Creditor: - Solicitor for the Petitioning Creditor: Hunt & Hunt as agent for Halliday & Stainlay The debtor appeared in person Dates of Hearing: 3-5 and 20-21 November 1997 Date of Judgment: 10 December 1997
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