Whitlock, Ronald v Tweed Shire Council

[1997] FCA 883

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 7784 of 1997

BETWEEN:	RONALD WHITLOCK APPLICANT
AND:	TWEED SHIRE COUNCIL RESPONDENT

JUDGE:	LINDGREN J
DATE:	12 AUGUST 1997
PLACE:	SYDNEY

REASONS FOR JUDGMENT
(ex tempore)

There is before the Court an application by Mr Whitlock filed on 3 July 1997 for an order that bankruptcy notice 930 of 1997 issued by the respondent Council and served on Mr Whitlock on 17 July 1997 be set aside.

The bankruptcy notice claims that Mr Whitlock owes the Council $24,015.29 as shown in a schedule to the notice.  The schedule refers to an amount of judgment or order of $23,462.40 plus $11.00 for “Certificate of Judgment” plus interest of $541.89, giving the total of $24,015.29 previously mentioned. According to the schedule, the claim for interest is under s 39A of the Local Courts (Civil Claims) Act 1970 (NSW) and is on "the principal sum of $23,462.40 (being the judgment amount)" from 19 February 1997 down to 9 May 1997.

In order to understand these figures it is necessary to refer to the background.  On 23 September 1993 at Murwillumbah Local Court Mr Whitlock was convicted by a magistrate of aiding and abetting the selling of seafood from a trailer on a public road within the Tweed Shire Council.  Mr Whitlock appealed to the District Court of New South Wales. There were five appeals against conviction. On 27 November 1995 Downs J dismissed the appeals. His Honour ordered Mr Whitlock to pay the Council’s costs of the appeal, to be assessed or taxed, failing agreement. He also ordered that when assessed or taxed, the relevant sum was to be included in his Honour's order and was to be paid by Mr Whitlock to the Clerk of the Local Court, Murwillumbah, within three months of assessment or taxation.

On 24 October 1996 the costs of the appeal were taxed in a sum of $23,411.40.  His Honour ordered in Chambers on 14 November 1996 that Mr Whitlock pay that amount within three months of 24 October 1996, that is to say, by 24 January 1997.  It will be noted that the sum of $23,411.40 differs from the sum of $23,462.40 to which I referred earlier, by $51.00.  It will also be noted that there is not to be found within the order made by his Honour any explanation of why interest should accrue from 19 February 1997 rather than from some earlier date.

On the hearing I raised the question of these discrepancies and, in consequence, there was tendered a certificate from the Registrar of the Local Court at Murwillumbah.  The certificate shows that on 19 February 1997 judgment for $23,462.40 was entered for the Council against Mr Whitlock and that this sum included a registration fee of $51.00.  The certificate also shows that a fee of $11 was payable for the certificate.

The bankruptcy notice was founded on the judgment in the Local Court recovered on 19 February 1997, not on the orders made previously in the District Court.

The point taken by Mr Whitlock in support of his application to set aside arises out of evidence which apparently was given in the course of the hearing in the District Court.  He has sworn an affidavit dated 1 July 1997 but has said that he relies on only one aspect of the evidence which was given against him and which he contends was false.  This is that, according to the submission, certain photographs demonstrate that certain Council rangers who apparently said that they were not present at the seafood trailer in question in the case, were in fact present.

There is a proceeding currently pending in the Land and Environment Court of New South Wales No 40002 of 1997 between the Council as applicant and Mr Whitlock as respondent in which the Council seeks an injunction restraining Mr Whitlock from selling seafood and associated goods from a trailer situated on or adjacent to a public road or upon a public reserve without the Council's consent.  Apparently that proceeding is to be heard in September.  Mr Whitlock hopes, in the course of defending that proceeding, to demonstrate that the evidence given by the Council rangers was false.  As I understand it, his intention is that if he persuades the Land and Environment Court to accept that their evidence was false, he will appeal, if possible, against the decision of the District Court.

There is no presently pending challenge, direct or indirect, to the judgment on which the bankruptcy notice is founded. I do not, and cannot, know what will happen on the hearing in the Land and Environment Court or after it.  Nor is it shown that, if the particular evidence referred to is accepted to have been false, the result would be a setting aside of any earlier order or judgment.

In the event that a creditor's petition is filed, it will, of course, be open to Mr Whitlock, on the hearing of the petition, to invite the Court to go behind the judgment on which the bankruptcy notice is based.  I do not say whether he would be successful or not.  At least, however, it may be that by the time of the hearing of a creditor's petition there will be more evidence available than there is now. On the basis of the evidence before me I am not persuaded that a good ground is shown for going behind that judgment.

For the reasons given above, the Court orders that:

1. The application be dismissed.

1. The applicant pay the respondent's costs of the proceeding.

I certify that this and the preceding  two (2) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren

Associate:

Dated:             3 September 1997

The applicant appeared in person.
Solicitors for the Respondent:	Halliday & Stainlay, by Hunt and Hunt (city agents)
Date of Hearing:	12 August 1997
Date of Judgment:	12 August 1997