Williams v Spry t/as the Village Cabins
[1997] IRCA 239
•16 Jun 1997
DECISION NO:239/97
CATCHWORDS
INDUSTRIAL LAW - TERMINATION OF EMPLOYMENT -UNLAWFUL TERMINATION - ENFORCEMENT OF ORDER - PAYMENT BY INSTALMENTS
Industrial Relations Court Rules: Order 37 rule 6 and Order 62 rule 1(b)
ROZ WILLIAMS -v- DAVID JAMES SPRY trading as THE VILLAGE CABINS
No. AI 1043 of 1996
CORAM: Judicial Registrar LINKENBAGH
PLACE: CANBERRA
DATE: 16 June 1997
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
NO 1043 of 1996
ROZ WILLIAMS
Applicant
DAVID JAMES SPRY trading as THE VILLAGE CABINS
Respondent
CORAM: Judicial Registrar LINKENBAGH
PLACE: CANBERRA
DATE: 16 June 1997
MINUTES OF ORDERS
THE COURT ORDERS:
that execution of the Order of 6 August 1996 be stayed whilst the respondent makes payments of $100 per fortnight to the applicant, such payments to be applied first towards interest due and outstanding from time to time and secondly, as to the costs and fees referred to in Order 3 and, lastly, as to the judgment debt;
that interest is to be calculated from 6 August 1996 at the rate allowed by the Court rules
that the respondent pay the applicant's costs assessed at $440 pursuant to Order 62 rule 1(b) and fees of $200 paid to the Sheriff.
Settlement and entry of Orders is dealt with by Order 36 of the Industrial Relations Court Rules
IN THE INDUSTRIAL RELATIONS COURT
OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY
DISTRICT REGISTRY
NO 1043 of 1996
ROZ WILLIAMS
Applicant
DAVID JAMES SPRY trading as THE VILLAGE CABINS
Respondent
CORAM: Judicial Registrar LINKENBAGH
PLACE: CANBERRA
DATE: 16 June 1997
REASONS FOR JUDGMENT
Delivered ex tempore and revised from the transcript
The proceedings before the Court today are brought by Notice of Motion filed by the respondent on 16 May 1997 seeking payment of the Order made by the Court on 6 August 1996 by instalments of $50 per fortnight. The amount of the Order is $3950 and interest has been accruing on that sum, at the rate prescribed by the Court Rules, since 6 August 1996. No moneys have been paid in part satisfaction of the Order.
Since the Order was made, the respondent sought a review of the decision which gave rise to the Order and that Application for review was dismissed on 28 February 1997. The respondent has apparently made no effort to meet his obligations under the Order until enforcement action by way of an Order for seizure of property was taken on 10 April 1997.
The power of the Court to make an Order of the kind sought by the respondent is found in Order 37 rule 6 which provides that:
A person bound by a judgment may move the Court for a stay of execution of the judgment or for some other Order on the ground of matters occurring after the date on which the judgment takes effect and the Court may make such Order as the nature of the case requires.
The evidence in support of the respondent's application is an affidavit of the respondent sworn on 12 May 1997 and his oral evidence today. The Court notes that the affidavit is scant in its particulars and it omits a source of income of the respondent being payments received by him from the Department of Social Security. He also receives wages from part-time employment at Parliament House. It is my observation that the respondent tends to be evasive in answering questions about his financial position. However, notwithstanding that, it certainly does appear, on the inquiry to date into his financial affairs, that his liabilities exceed his assets and that he has no other real sources of income apart from his part-time work as a Security Attendant at Parliament House and whatever he is entitled to from the Department of Social Security.
He has the prospect of increased hours of work at Parliament House and if that comes to fruition he estimates that he will earn a net income of about $1200 per fortnight. Certainly the respondent is in a poor financial position. He does, however, have disposable income. He pays $180 per week rent for a flat in Kingston and whilst the Court does not look in detail at the manner in which the respondent maintains his lifestyle, the evidence does indicate that he spends some of his disposable income on items which might be regarded as non-essentials.
The difficult task for the Court in these kinds of matters is to weigh up the interests of the parties. The applicant has an entitlement to the Order made by the Court in her favour. She has been made to wait a substantial period of time for payment of that Order to date. She has faced an Application for review of the decision and she has incurred legal costs in relation to that and in relation to the current proceedings. The respondent has made no effort to make any payment off the debt and only brought this application after the applicant went to the considerable pains which are involved in taking enforcement action in this Court.
The Court's interest is in ensuring that its Order is satisfied. If the application is refused the debt is then due and payable. The applicant is left to use whatever enforcement procedures might be appropriate and the respondent runs the risk that, amongst other things, the applicant might commence bankruptcy proceedings against him. The only resource out of which this debt can be satisfied is the respondent's income and it would be short-sighted of the Court to make any Order which might have the effect of circumventing his ability to earn that income. On the other hand, the applicant ought not to be made to wait too long for payment of the moneys due to her.
The respondent seeks payment at the rate of $50 per fortnight, which is $25 per week or just over $1000 per year. A rough calculation indicates that at that rate the applicant would be waiting for almost four years for the last of the money due to her, assuming that all the payments were made on time. That is too long for the applicant to be made to wait. I propose to exercise the discretion I have in this matter by making an Order for payment by instalments but those will be instalments of a much more substantial amount than that sought by the respondent in his Notice of Motion.
The Orders will be that execution be stayed whilst the respondent makes payments of $100 per fortnight to the applicant, such payments to be applied, firstly, towards interest due and outstanding from time to time. Interest is to be calculated from 6 August 1996 at the rate allowed by the Court rules.
I propose to make an Order for costs. The reasons for the making of that Order are reflected in my reasons which I have given in relation to the substantive matter before the Court today and they are essentially that the respondent has made no effort to meet this debt at all and has put the applicant to necessary time, expense and inconvenience in pursuing him to meet his obligations. The costs will be assessed at $440 pursuant to Order 62, rule 1(b) and fees of $200 paid to the Sheriff.
The Court therefore orders:
that execution of the Order of 6 August 1996 be stayed whilst the respondent makes payments of $100 per fortnight to the applicant, such payments to be applied first towards interest due and outstanding from time to time and secondly, as to the costs and fees referred to in Order 3 and, lastly, as to the judgment debt;
that interest is to be calculated from 6 August 1996 at the rate allowed by the Court rules
that the respondent pay the applicant's costs assessed at $440 pursuant to Order 62 rule 1(b) and fees of $200 paid to the Sheriff.
I certify that this and the preceding 2 pages are a true copy of my Reasons for Judgment
Judicial Registrar Linkenbagh
Date: 30 July 1997
Solicitors for the Applicant: G J Piscioneri & Co
The Responent appeared and was not represented by a Solicitor or Counsel
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