FEDERAL COURT OF AUSTRALIA

Franklins Ltd v The Reject Shop (Aust) Pty Ltd [1999] FCA 1190

PRACTICE AND PROCEDURE - enforcement of order of Court to pay a sum for taxed costs – effect of s 53 Federal Court of Australia Act and O 37 r 7 Federal Court Rules – use by Federal Court of Australia of enforcement hearing procedure set out in Uniform Civil Procedure Rules (Qld) – issue of enforcement hearing summons.

Federal Court of Australia Act 1976 s 53

Federal Court Rules O 37 r 7

Uniform Civil Procedure Rules (Qld) r 807, 808, 809

Guthrie v Robertson (1987) 13 FCR 336 followed

FRANKLINS LIMITED v THE REJECT SHOP (AUST) PTY LTD

NG 138 of 1997

SPENDER J

25 AUGUST 1999

BRISBANE

THE COURT ORDERS THAT:

(1)               a summons in the following form be issued by the District Registrar of the Federal Court of Australia:

"TO:    Joel Vivian Keune

OF:    8 Carnoustie Place, Carindale in the State of Queensland:

Upon application, without notice to another party, made by the abovenamed Enforcement Creditor on 25^th August 1999 THE COURT ORDERED that you attend an enforcement hearing before the Court to give information and answer questions about the Enforcement Debtor's property and other means of satisfying the order debt.  IT IS FURTHER ORDERED that you produce the following documents and things:-

All books of accounts, profit and loss statements, balance sheets, depreciation schedules, business records, registration papers, bank statements, share certificates, income tax returns and all other documents and financial records relating to the financial position of the Enforcement Debtor.

THE COURT ALSO ORDERED that you complete a statement of the enforcement debtor's financial position.

NOTE:  The Statement of Financial Position must be in Form 71 to the Uniform Civil Procedure Rules.  It must be completed and forwarded to the enforcement creditor at Bain Gasteen within 14 days after service of this summons upon you or before the day set for the enforcement hearing, whichever happens first.

NOTICE

YOU ARE NOTIFIED that the time and place appointed for your attendance and examination is at the Federal Court of Australia at Level 6, Commonwealth Law Courts, 119 North Quay Brisbane at 10.15 am on Thursday 16 September 1999.

Date of money order: 12 April 1999 Amount outstanding is $9,562.94.

If you fail to attend a warrant may be issued to arrest you and have you brought before the Court.  You may also be liable to a penalty for being in contempt of Court.

ISSUED WITH THE AUTHORITY OF THE FEDERAL COURT OF AUSTRALIA.

Registrar:…………………..

Dated:                                   "

(2)        the enforcement debtor pay the enforcement creditor's costs of and incidental to this motion, to be taxed if not agreed.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application on behalf of Newnham Trucking Proprietary Limited and Graeme Charles Newnham for the enforcement of an order of the Court to pay a sum for taxed costs. 

2                     On 10 June 1998 the Court ordered that Australian Pacific Trading Proprietary Limited pay the third and fourth cross-respondents' (that is, Newnham Trucking Proprietary Limited and Graeme Charles Newnham) costs of the preliminary question, to be taxed if not agreed.  Those costs were taxed and allowed at $9562.94, as appears by a certificate of taxation dated 13 November 1998.  A copy of that certificate of taxation was served upon Australian Pacific Trading Proprietary Limited on or about 1 December 1998.  No part of those costs has been paid.

3                     On 12 April 1999, pursuant to the provisions of O 62 r 45(3), the Court, constituted by Deputy District Registrar Allen, ordered that Australian Pacific Trading Proprietary Limited pay to the third and fourth cross-respondents the sum of $9562.94. 

4                     The notice of motion relies on O 37 r 7 of the Federal Court Rules which relevantly provides:

"7(1) Subject to the Rules, and without limiting any other means of enforcement which may be available, the Court may, in order to enforce a judgment or order of the Court, make any order, issue any writ or take any other step that could be made, issued or taken by the Supreme Court of the State or Territory in which the judgment or order is to be enforced if the judgment or order had been made by that Supreme Court.

7(2)  The modes of procedure and forms of process of the Supreme Court of the State or Territory in which the judgment or order is sought to be enforced shall be available and followed in the Court so far as is practicable mutatis mutandis for the enforcement of orders of the Court."

5                     In Guthrie v Robertson (1987) 13 FCR 336 I ordered that the Federal Court could, by reason of s 53 of the Federal Court of Australia Act 1976 and O 37 r 7 of the Federal Court Rules, exercise the power in O 47 r 33 of the Rules of the Supreme Court (Qld) to order the attendance of a defendant, and oral examination concerning his means of satisfying the judgment.

6                     On 1 July 1999 the Uniform Civil Procedure Rules came into operation, providing for a new set of rules in the Supreme, District and Magistrates Courts of Queensland.  Those rules have replaced the oral hearing procedure with a new process involving the holding of an enforcement hearing.

7                     Rule 807(1) of the Uniform Civil Procedure Rules provides:

"807(1)  At any time after a money order is made, an enforcement creditor or an enforcement debtor may, without notice to another party, apply to the court, including the court as constituted by a registrar, for an enforcement hearing."

8                     Rule 793 defines an "enforcement creditor" as, inter alia, "a person entitled to enforce an order for the payment of money..." and an "enforcement debtor" is defined to mean "a person required to pay money under an order".  In this particular case Australia Pacific Trading Proprietary Limited is an enforcement debtor as so defined and Newnham Trucking Proprietary Limited and Graeme Charles Newnham are enforcement creditors as defined.

9                     The money order is defined in Schedule 4 of the Uniform Civil Procedure Rules to have the same meaning as provided in Schedule 2 of the Supreme Court of Queensland Act (1991).  That definition is:

"…an order of the court, or part of an order of the court, for the payment of an amount, including an amount for damages, whether or not the amount is or includes an amount for interest or costs."

The order of the Court of 12 April 1991 is such a money order.

10                  Rule 808(1) of the Uniform Civil Procedure Rules provides:

"A court may, by an enforcement hearing summons in the approved form, require a person mentioned in rule 807(3), (4) or (5) to attend before the court at a stated time and place to give information and answer questions, and produce stated documents or things."

And r 807(4) provides that:

"If the enforcement debtor is a corporation, the summons may be directed to an officer of the corporation."

11                  Joel Vivien Keune is a director and secretary of the enforcement debtor.

12                  Rule 809 of the Uniform Civil Procedure Rules provides:

"809(1)  By an enforcement hearing summons, a court may also require completion of a statement on oath of an enforcement debtor's financial position in the approved form by -

(a)          the enforcement debtor; or

(b)          if the enforcement debtor is a corporation - an officer of the corporation; or

(c)           if the enforcement debtor is a partnership - a partner or person who has or had the control or management of the partnership business in Queensland."

13                  By virtue of r 809(3), that statement of financial position must be forwarded to the enforcement creditor within 14 days after service of the enforcement summons or before the day of the enforcement hearing, whichever happens first.  The approved form for the statement of financial position is Form 71 under the Uniform Civil Procedure Rules.

14                  Rule 811 of those rules deals with conduct money and provides that where a person is required by summons to attend an enforcement hearing in a district other than a district in which the person resides or carries on business, conduct money must be offered to the person at the time he or she is served with the enforcement hearing summons.  The amount of money required to be paid is the same as required to be paid to witnesses attending before the Court under a subpoena pursuant to r 419.  Rule 419 requires the payment of conduct money sufficient to meet the reasonable expenses of complying with the subpoena.  In this case the reasonable expenses of complying with the enforcement summons total $6.

15                  It seems to me that the material is such as to make it appropriate for the Court to issue an enforcement hearing summons.  I therefore order that:

(1)               a summons in the following form be issued by the District Registrar of the Federal Court of Australia:

"TO:    Joel Vivian Keune

OF:    8 Carnoustie Place, Carindale in the State of Queensland:

Upon application, without notice to another party, made by the abovenamed Enforcement Creditor on 25^th August 1999 THE COURT ORDERED that you attend an enforcement hearing before the Court to give information and answer questions about the Enforcement Debtor's property and other means of satisfying the order debt.  IT IS FURTHER ORDERED that you produce the following documents and things:-

All books of accounts, profit and loss statements, balance sheets, depreciation schedules, business records, registration papers, bank statements, share certificates, income tax returns and all other documents and financial records relating to the financial position of the Enforcement Debtor.

THE COURT ALSO ORDERED that you complete a statement of the enforcement debtor's financial position.

NOTE:  The Statement of Financial Position must be in Form 71 to the Uniform Civil Procedure Rules.  It must be completed and forwarded to the enforcement creditor at Bain Gasteen within 14 days after service of this summons upon you or before the day set for the enforcement hearing, whichever happens first.

NOTICE

YOU ARE NOTIFIED that the time and place appointed for your attendance and examination is at the Federal Court of Australia at Level 6, Commonwealth Law Courts, 119 North Quay Brisbane at 10.15 am on Thursday 16 September 1999.

Date of money order: 12 April 1999 Amount outstanding is $9,562.94.

If you fail to attend a warrant may be issued to arrest you and have you brought before the Court.  You may also be liable to a penalty for being in contempt of Court.

ISSUED WITH THE AUTHORITY OF THE FEDERAL COURT OF AUSTRALIA.

Registrar:……………..

Dated:……………….."

16                  So far as costs of the motion are concerned it seems to me that I should order that:

(2)        the enforcement debtor pay the enforcement creditor's costs of and incidental to this motion, to be taxed if not agreed.

Associate:

Dated:              25 August 1999