Re Lenske, G.W. v. Ex parte Lenske, G.W. [1986] FCA 21

Re Lenske, G.W. v. Ex parte Lenske, G.W. [1986] FCA 21

The application fell within s.60(1)(b) because the relevant process was in respect of, or in consequence of failure to comply with an order for payment of, an underlying obligation owed to the victim of the thefts that was provable in bankruptcy. The restitution order was not a penalty within s.82(3). In circumstances where the applicant was bankrupt, unable to pay, the offences were not inherently of great heinousness, and the sentencing court had not considered a custodial sentence warranted, the discretion should be exercised to permanently stay the restitution and imprisonment-in-default orders.

Jurisdiction
Australia
Judgment Date
04 February 1986
Procedural Posture
Bankruptcy Application Under S.60(1)(b) of the Bankruptcy Act 1966 / Application for Stay of Legal Process and Orders for Imprisonment in Default After Bankruptcy
Outcome
Application granted; orders for restitution and imprisonment in default permanently stayed; costs ordered against the Attorney-General of Queensland in part.
Legal Topics
['stay of Legal Process' 'provable Debt' 'restitution Order' 'imprisonment in Default' 'exercise of Discretion']
['bankruptcy' 'criminal Law'] ['stay of Legal Process' 'provable Debt' 'restitution Order' 'imprisonment in Default' 'exercise of Discretion']

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Procedural Posture

Bankruptcy Application Under S.60(1)(b) of the Bankruptcy Act 1966 / Application for Stay of Legal Process and Orders for Imprisonment in Default After Bankruptcy

Legal Issues

  1. 1 ['Whether the Federal Court had power under s.60(1)(b) of the Bankruptcy Act 1966 to stay orders requiring payment of restitution and imprisonment in default after the applicant became bankrupt.' 'Whether an order for restitution under s.685A of the Criminal Code (Q.) was a penalty not provable in bankruptcy under s.82(3) of the Bankruptcy Act 1966.' 'Whether the discretion to stay the orders should be exercised in favour of the applicant.']

Ratio Decidendi

The application fell within s.60(1)(b) because the relevant process was in respect of, or in consequence of failure to comply with an order for payment of, an underlying obligation owed to the victim of the thefts that was provable in bankruptcy. The restitution order was not a penalty within s.82(3). In circumstances where the applicant was bankrupt, unable to pay, the offences were not inherently of great heinousness, and the sentencing court had not considered a custodial sentence warranted, the discretion should be exercised to permanently stay the restitution and imprisonment-in-default orders.

Court Disposition

Application granted; orders for restitution and imprisonment in default permanently stayed; costs ordered against the Attorney-General of Queensland in part.

Orders

  • ['The orders of the Magistrates Court at Pomona made on 17 September, 1984 in respect of the applicant Gary William Lenske be permanently stayed, in so far as they require the payment of restitution in respect of eight charges of stealing from B. W. Coles Discount Furnishers and also in so far as they require the...