Warren v Queensland Law Society Incorporated
[2015] FCCA 2572
•22 September 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| WARREN v QUEENSLAND LAW SOCIETY INCORPORATED | [2015] FCCA 2572 |
| Catchwords: BANKRUPTCY – Application to set aside notice – effect of QCAT order filed in Magistrates Court – effect of challenge to the QCAT judgement – Application dismissed. |
| Legislation: Bankruptcy Act 1966 (Cth), ss.40(1)(g), 41 Legal Profession Act 2007(QLD), s.699 |
| Re Zagoridis; Ex parte Q’Plas Group Pty Ltd (1990) 27 FCR 108 Dixon v Le Kich [2010] QCA 213 |
| Applicant: | ALEXIA MARGARET WARREN |
| Respondent: | QUEENSLAND LAW SOCIETY INCORPORATED |
| File Number: | BRG 632 of 2015 |
| Judgment of: | Judge Vasta |
| Hearing date: | 16 September 2015 |
| Date of Last Submission: | 16 September 2015 |
| Delivered at: | Brisbane |
| Delivered on: | 22 September 2015 |
REPRESENTATION
The Applicant appearing on her own behalf
| Counsel for the Respondent: | Mr S. Reidy |
| Solicitors for the Respondent: | Tucker & Cowen Solicitors |
THE COURT ORDERS ON A FINAL BASIS:
The Application filed on 9 July 2015 be dismissed.
THE COURT FURTHER ORDERS:
That the Respondent file and serve written submissions with respect to the issue of costs by no later than 4.00pm on 22 September 2015.
That the Applicant file and serve written submissions with respect to the issue of costs by no later than 4.00pm on 2 October 2015.
That Judgment with respect to costs be reserved.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT BRISBANE |
BRG 632 of 2015
| ALEXIA MARGARET WARREN |
Applicant
And
| QUEENSLAND LAW SOCIETY INCORPORATED |
Respondent
REASONS FOR JUDGMENT
Introduction
This is an application by Alexia Margaret Warren to set aside a Bankruptcy Notice issued on 11 June 2015. She seeks, in the interim, that the time for compliance with a Bankruptcy Notice be extended up to and including the date of a hearing in the Magistrates Court. That hearing is listed on 18 September 2015. To my mind, there ought be no adjournment of the matter and, therefore, there is no need to consider any interim order.
The Facts
On 12 March 2013, the then president of QCAT, Justice Alan Wilson, gave a judgement in an application that the present Applicant made against the present Respondent. That action sought to review a decision of the Respondent to cancel the Applicant’s practising certificate. For reasons with which I need not to concern myself, His Honour dismissed the application by the present Applicant.
His Honour ruled that if the Respondent wished to pursue a claim for costs in the application before him, it should file and serve submissions and the present Applicant should file and serve submissions in reply after that. It seems that that did occur.
On 21 May 2013 Justice Wilson ruled on the application and at paragraph [48], His Honour ordered that the Applicant pay the Respondent’s “…costs of and incidental to her application, including reserved costs, with those costs to be assessed by reference to the Supreme Court scale under the Uniform Civil Procedure Rules 1999 and by Mr Paul Garratt of Hickey and Garrett Legal Costs Consultants.” That assessment was made.
On 19 December 2014, the Tribunal (now constituted by Justice Thomas, the QCAT president), in accordance with the assessment made by Mr Garratt, fixed the Respondent’s costs of the proceedings at $59,025.34. Tribunal ordered the present Applicant to pay those costs to the Respondent. This has not been done.
The Applicant filed an application for a stay of the QCAT decision on 5 February 2015, however on 25 May 2015, before any merits hearing of the application, she withdrew it by notice. On 12 May 2015, the Respondent took steps which resulted, by force of legislation, in that cost decision taking effect as an order of the Magistrates Court.
Having a registered the QCAT decision in the Magistrates Court, the Respondent could proceed to enforce that order.
The Respondent had a Bankruptcy Notice issued against the Applicant on 11 June 2015 based on the order that she pay the Respondent $59,025.34. The Bankruptcy Notice was served on the Applicant on 18 June 2015. This has led to the present application which is to set aside that Bankruptcy Notice.
The Law
A Court can extend time for which there must be compliance with the notice. Section 40(1)(g) of the Bankruptcy Act 1966 (Cth) reads:
…
(g)if a creditor who has obtained against the debtor a final judgment or final order, being a judgment or order the execution of which has not been stayed, has served on the debtor in Australia or, by leave of the Court, elsewhere, a bankruptcy notice under this Act and the debtor does not:
(i) where the notice was served in Australia—within the time specified in the notice; or
(ii)where the notice was served elsewhere—within the time fixed for the purpose by the order giving leave to effect the service;
comply with the requirements of the notice or satisfy the Court that he or she has a counter‑claim, set‑off or cross demand equal to or exceeding the amount of the judgment debt or sum payable under the final order, as the case may be, being a counter‑claim, set‑off or cross demand that he or she could not have set up in the action or proceeding in which the judgment or order was obtained;
…”
Section 41 of the Bankruptcy Act 1966 (Cth) reads:
“41 Bankruptcy notices
(1) An Official Receiver may issue a bankruptcy notice on the application of a creditor who has obtained against a debtor:
(a) a final judgment or final order that:
(i) is of the kind described in paragraph 40(1)(g); and
(ii) is for an amount of at least $5,000; or
(b) 2 or more final judgments or final orders that:
(i) are of the kind described in paragraph 40(1)(g); and
(ii) taken together are for an amount of at least $5,000.
(2)The notice must be in accordance with the form prescribed by the regulations.
(3) A bankruptcy notice shall not be issued in relation to a debtor:
(a) except on the application of a creditor who has obtained against the debtor a final judgment or final order within the meaning of paragraph 40(1)(g) or a person who, by virtue of paragraph 40(3)(d), is to be deemed to be such a creditor;
(b) if, at the time of the application for the issue of the bankruptcy notice, execution of a judgment or order to which it relates has been stayed; or
(c) in respect of a judgment or order for the payment of money if:
(i) a period of more than 6 years has elapsed since the judgment was given or the order was made; or
(ii) the operation of the judgment or order is suspended under section 37.
(5) A bankruptcy notice is not invalidated by reason only that the sum specified in the notice as the amount due to the creditor exceeds the amount in fact due, unless the debtor, within the time allowed for payment, gives notice to the creditor that he or she disputes the validity of the notice on the ground of the misstatement.
(6) Where the amount specified in a bankruptcy notice exceeds the amount in fact due and the debtor does not give notice to the creditor in accordance with subsection (5), he or she shall be deemed to have complied with the notice if, within the time allowed for payment, he or she takes such action as would have constituted compliance with the notice if the amount due had been correctly specified in it.
(6A) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice:
(a) proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; or
(b) an application has been made to the Court to set aside the bankruptcy notice;
the Court may, subject to subsection (6C), extend the time for compliance with the bankruptcy notice.
(6C) Where:
(a) a debtor applies to the Court for an extension of the time for complying with a bankruptcy notice on the ground that proceedings to set aside a judgment or order in respect of which the bankruptcy notice was issued have been instituted by the debtor; and
(b) the Court is of the opinion that the proceedings to set aside the judgment or order:
(i) have not been instituted bona fide; or
(ii) are not being prosecuted with due diligence;
the Court shall not extend the time for compliance with the bankruptcy notice.
(7) Where, before the expiration of the time fixed for compliance with the requirements of a bankruptcy notice, the debtor has applied to the Court for an order setting aside the bankruptcy notice on the ground that the debtor has such a counter‑claim, set‑off or cross demand as is referred to in paragraph 40(1)(g), and the Court has not, before the expiration of that time, determined whether it is satisfied that the debtor has such a counter‑claim, set‑off or cross demand, that time shall be deemed to have been extended, immediately before its expiration, until and including the day on which the Court determines whether it is so satisfied.”
Similarly, a Court can set aside a notice especially if there has been some defect in the notice or the serving of that notice. The general power of the Court allows the setting aside of a notice if it has been obtained by fraud or collusion or some other form of conduct that would equate to a “miscarriage of justice”.
The Right of the Law Society to appear in this Court
The Applicant submitted that pursuant to s.699 of the Legal Profession Act 2007 (QLD), there was no valid appearance by the Queensland Law Society Incorporated. Section 699 reads as follows:
“699 Starting proceedings
(1) The secretary, or another person authorised by resolution of the law society, may start, carry on and defend any proceeding in the name of the law society. (my underlining)
(2) In any proceeding on behalf of the law society, it is not necessary to prove the election or appointment of the presidential members, another council member or the secretary.”
The Applicant submits that there is no evidence that the secretary or any other person authorised by resolution of the Society has defended this proceeding in the name of the Law Society. This is a serious misreading of the Legislation. Firstly, s.699(1) does not mean that the institution, defending or maintaining of any proceedings can only be done by the secretary or other authorised person. The critical word in that subsection is the word “may”. Subsection (2) means that there is no obligation on the Law Society to provide evidence as to the position within the Law Society of the person conducting proceedings.
The starting position is not s.699 but instead, s.679. That section provides that the Law Society “may sue and be sued in its corporate name”. In this application, the Queensland Law Society has been sued in its corporate name. There is no need for any further proof of the standing of any person connected with the Law Society.
For that reason, I rule that the appearance by Counsel and solicitor for the Respondent is a valid appearance.
The Magistrates Court
The Queensland Civil and Administrative Tribunal Act 2009 (QLD) makes provision for enforcing a final decision of the Tribunal. Section 131 reads as follows:
“Monetary decisions
(1) This section applies to a final decision of the tribunal in a
proceeding if it is a monetary decision.
(2) A person may enforce the final decision by filing in the
registry of a court of competent jurisdiction—
(a) a copy of the decision that the principal registrar has
certified to be a true copy; and
(b) the person’s affidavit about the amount not paid under
the decision.
(3) No charge may be made for filing a copy of a decision or an
affidavit under this section.
(4) On filing the documents mentioned in subsection (2) in the
registry of a court, the final decision is taken to be an order of
the court in which it is filed and may be enforced accordingly.”
The purpose of this section is clearly to give the decision of QCAT the force of a Court of competent jurisdiction. The powers of those Courts to enforce their decisions can then be used to enforce the QCAT decision. Part of that enforcement regime is the option to proceed under the Bankruptcy Act 1966 (Cth).
The Applicant complains that the affidavit mentioned in s.131(2)(b) that was used in the filing of the QCAT judgement of 19 December 2014, was based on hearsay. She says that the order of QCAT should therefore have never been legitimately filed. This is complete and utter nonsense. That affidavit is to provide evidence that the sum of money has not been paid. There is no contest here that the sum of money has not been paid. There is no basis for the submission that the QCAT order was improperly filed.
The Applicant further claims that there was no evidence that there had been compliance with s.699 of the Legal Profession Act 2007 (QLD). For the reasons that I have previously given, there is no substance at all in this complaint.
Rules of the Law Society
The Applicant further submits that the “rules” of the Law Society provide that only amounts less than $50,000.00 can be expended on behalf of the Society unless there is a special resolution allowing further expenditure. She claims that if the costs of the Law Society are $59,025.34, then the Law Society has breached its own rules because it has not put into evidence any resolution allowing the expenditure of this amount of money.
Her argument is that this makes the QCAT order invalid and therefore, the Magistrates Court order is invalid. This, also, is total nonsense. The amount of $59,025.34 is the amount that has been assessed by the person appointed by Justice Wilson to assess the costs. It is that person’s decision as to what the proper amount is. It is not then for the Law Society to justify to anyone else that expenditure. To do so would be undermining the order of Justice Wilson made in May 2013.
New Information
The Applicant now claims that she is in receipt of new information that calls into question the very decision by the Law Society to cancel her practising certificate. The argument is based upon who in the Law Society had the proper authority to give her the notices about such proceeding. I do not propose to dwell on this aspect at all because it is an attempt to go behind the judgment of QCAT.
I think that there is a total misconception by the Applicant as to the effect of this aspect, if it does actually exist. The Applicant relies upon the authority of Dixon v Le Kich [2010] QCA 213. That case was about the impact if there had not been proper delegation given. In that case, a police officer who was manning a speed camera should have had delegation from the Commissioner of Police to operate the camera. Such delegation was not in evidence. The result was that evidence obtained by the speed camera could not be admitted and therefore there was insufficient evidence upon which to convict the offender. Contrary to the Applicant’s submissions, that matter was not authority for the proposition that if the delegation is not proven, there can be no proper proceedings that ensue.
But ultimately it is not a matter that should concern me. The fact is that there is a judgement of QCAT that has been properly filed pursuant to s.131 of the QCAT Act and it is a final order as described in s.40(1)(g) of the Bankruptcy Act.
Costs Assessment
The power to fix or assess costs at QCAT is made pursuant to s.107 of the QCAT Act that sets up that Tribunal. The section reads:
Fixing or assessing costs
(1) If the tribunal makes a costs order under this Act or an
enabling Act, the tribunal must fix the costs if possible.
(2) If it is not possible to fix the costs having regard to the nature
of the proceeding, the tribunal may make an order requiring
that the costs be assessed under the rules.
(3) The rules may provide that costs must be assessed by
reference to a scale under the rules applying to a court.”
The Applicant submitted that r.87 of the Queensland Civil and Administrative Tribunal Rules 2009 (QLD) then applies. She submitted that such rules bring into play chapter 17A of the Uniform Civil Procedure Rules 1999 (QLD). Part 3 of that chapter speaks of costs statements to be served and conceded or objected to.
The Applicant complains that she was never given a costs statement nor did she ever make any objections or comments about such a statement.
Again this is a total misunderstanding of the order of Justice Wilson. His Honour ordered that costs be assessed by Mr Garratt. There was no reason for resort to r.87. It was the decision of Mr Garratt, and Mr Garratt alone, as how to assess the costs. Part 3 of chapter 17A had nothing to do with the assessment of costs by Mr Garratt.
There is no merit in any submission that the proper procedures were not followed.
Final order
The Applicant submitted that it was only a final decision of the Tribunal that could be filed in the Magistrates Court to be enforced. That is a correct summation. However, the Applicant submits that the final order of the Court was the one delivered on 13 May 2013. That decision, she submits, is the only decision that could be filed.
The submission of the Applicant is that the decision of 19 December 2014 was merely a direction and not a final decision. She submitted that embarking on an assessment of costs was a new proceeding.
Her submission is that because that decision was not a final order, it could not be filed pursuant to s. 131 of the QCAT act. Therefore it could not be enforced.
This is absolute nonsense. There can be no other way to describe the Order of 19 December 2014, other than to say it was the final decision in the matter. It was therefore properly filed in the Magistrates Court.
Actions of the Applicant
The Applicant has submitted that she is taking action in the Magistrates Court to have the order of the Magistrates Court (defined by s.131 of the QCAT Act) nullified. Her arguments are, in effect, the ones I have already outlined in these reasons. She submits that I should not make a decision until the Magistrates Court have given a judgement.
For the reasons I have already outlined, I do not think that there is any substance in any of the arguments that the Applicant is seeking to ventilate before the Magistrates Court. Therefore I find it difficult to see how any competent Magistrates Court would entertain those submissions in any event.
But, in my view, the application itself is flawed. Whilst s.131 of the QCAT Act deems the QCAT decision an order of the Magistrates Court that is only for the purpose of enforcement of the order. To my mind, the Magistrates Court has absolutely no jurisdiction to decide the issue that the Applicant seeks to agitate.
The Applicant also informs me that she intends to apply to reopen the proceedings before QCAT. She has not done this yet. She also implores me not to make any decision until that reopening has been decided.
It is obvious to me that the Applicant has made concurrent applications in various jurisdictions so as to complicate the issue and to obfuscate what is a very clear and unambiguous matter. I am of the view that she is not a bona fide Applicant.
If the applicant were bona fide, she would have taken this matter straight to the Court of Appeal on a point of law. If she were successful before the Court of Appeal, there would be no need to go to either the Magistrates Court or to QCAT to attempt to reopen proceedings.
I do not accept that she is simply exercising the rights that she has. I do not accept that she is genuinely trying to resolve this matter.
I will not be adjourning this matter nor will I be making any interim orders. I regret that I was not able to render this judgement ex tempore but the hearing of the matter finished late on a Wednesday afternoon and my calendar did not allow me to give this decision any earlier than I have been able to do. I do not find that there are any grounds for me to grant any form of extension of time to comply with the Bankruptcy Notice. Pursuant to s.41(6C)(b) of the Bankruptcy Act, I am of the view that any proceedings to set aside the QCAT order have not been instituted bona fide and certainly have not been prosecuted with due diligence.
The Application
It must not be forgotten through the myriad of red herrings that have been raised in this matter, that it is simply an application to set aside a Bankruptcy Notice.
Even if there were merit in any application to set aside the QCAT order, that would not be sufficient to set aside the Bankruptcy Notice. In Re Zagoridis; Ex parte Q’Plas Group Pty Ltd (1990) 27 FCR 108, Spender J held that the crucial matter in considering whether a judgment is final is the capacity for enforcement. Whether an order was obtained irregularly and therefore is entitled to be set aside, does not affect the integrity of the Bankruptcy Notice.
There never could have been any merit in any of the submissions of the Applicant. I therefore dismiss the application.
I certify that the preceding forty-four (44) paragraphs are a true copy of the reasons for judgment of Judge Vasta
Date:22 September 2015
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