Walton v Marshall

[2006] QDC 126

[2006] QDC 126

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD1016 of 2006

JOHN LESLIE CHARLES WALTON AND DONNA ANNE WALTON	Applicants
and
LORRAINE MARSHALL	First Respondent
And
BRUCE MARSHALL	Second Respondent
And
MARK GARDENER	Third Respondent
And
DAIL BIRD	Fourth Respondent

BRISBANE

..DATE 26/04/2006

ORDER

CATCHWORDS: Uniform Civil Procedure Rules r 665(3) while a draft order initialled by a judge will indicate a time for compliance under r 665(1), it need not contain the statement required by subrule (3), which is a direction to the Registrar

HIS HONOUR:  The Court makes an order in terms of the initialled draft.  It is a somewhat unusual document commencing with a declaration that the respondent's license to occupy certain premises was determined by a notice in writing given on the 27th of March 2006 and an injunction to restrain the respondents from occupying, using or otherwise being in possession of the property from 11th of May 2006.

There is then the unusual order that -

"Upon production of a sealed copy of this order to any person in control of the property that any person upon the property permit the applicants and any other person duly authorised by the applicants to enter the property forthwith for the purpose of taking possession of the property."

The effect of that will be that persons presently unidentified who might be found on the property will not be entitled to justify their possession.

...

HIS HONOUR:  Paragraph 4 should say the second and third respondents pay the plaintiff's costs in this originating application of the proceeding to be assessed on a standard basis. 
The application is also dismissed against the fourth respondent who has not been able to be served with no order as to costs.

...

HIS HONOUR:  There has been some discussion with Mr Thomae for the applicants about the appropriateness of an endorsement on the draft order:

"If you, Lorraine Marshall, Bruce Marshall or Mark Gardiner, do not obey this order within the time specified you will be liable to court proceedings for failing to obey it and punishment for contempt".

He has not been able to point to any rule authorising the inclusion of such a provision in an order initialled by a Judge. It is well known that the former Supreme Court rules required an endorsement of similar effect before contempt proceedings could be taken. That is not reflected in the UCPR, it seems.

The fourth respondent has been dismissed from the proceedings given inability to effect service on her.  The first and second respondents have provided Mr Gardener with the document, which has been made Exhibit 1, authorising him to appear on their behalf today.  So, it may be that they are bound by his agreement, reluctant as it might be, on the basis of things he has said to an order of the kind being made.  I might add that reference to "legal council"‑‑‑‑‑

MR THOMAE:  Your Honour, may I interject?  I did find the order in the required time for compliance.

HIS HONOUR:  All right.  Well, just let me finish this sentence.

MR THOMAE:  Sorry.

HIS HONOUR:  Reference to "legal council" in Exhibit 1 was not a reference to Mr Gardener who does not purport to have any legal qualifications but to another person whose assistance it was apparently hoped might be available.  What is the rule?

MR THOMAE:  I apologise, your Honour, it's rule 665, sub 3, it's time to compliance with an order of the Court for non-money order.

HIS HONOUR:  You do not often get that one these days.

MR THOMAE:  That's why it was so familiar, your Honour, it's because the normal type of - that type of order is where you were trying to restrain someone from doing - or to do something.

HIS HONOUR:  I am grateful to Mr Thomae for locating rule 665 which requires that an order requiring a person to perform an act must specify the time within which the person is required to perform the act.  The order made complies with that requirement.

Sub-rule (3) states that an order requiring a person to perform an act must have written on it, or attached to it, the following statement or a statement to the same effect:

"If you [state name of person required to perform act] do not obey this order within the time specified, you will be liable to court proceedings to compel you to obey it and punishment for contempt".

It seems to me that is a direction to someone in the position of the plaintiffs who may want to enforce this order and to the Registrar - in other words, a formal requirement when order is taken out rather than a command to a Judge who initials a draft as happens today.  No doubt the plaintiffs and their legal advisers will be astute to ensure, if they are still concerned about compliance in the circumstances, that any order issued from the Court contains the rule 665(3) endorsement.

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