Guthrie, T.J. v Robertson, M. [1987] FCA 176

TRADE PRACTICES - Part V contraventions ~ enforcement. PRACTICE AND PROCEDURE - discovery in aid of execution.

CATCHWORDS

Federal Court of Australia Act 1976, ss.4,

Federal Court Rules,

The Rules of the Supreme Court (Qld.) 0.47 r.33.

TERENCE JAMES GUTHRIE V. MICHAEL ROBERTSON

0.37 v.7, 0.37 r.8.

QLD. NO.G54 of 1986.

SPENDER J.

BRISBANE 27 MARCH 1987.

53.

9 Ae

9 ARS

ioe

PRINCIPAL

AEGISTAY

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QLD. G54 of 1986

ee

GENERAL DIVISION

BETWEEN :

TERENCE JAMES GUTHRIE

Prosecutor AND:

MICHAEL ROBERTSON Defendant

MINUTE OF ORDER

JUDGE MAKING ORDER: SPENDER J. DATE OF ORDER: 24 MARCH 1987. WHERE MADE: BRISBANE

THE COURT ORDERS THAT:

1. Michael Robertson attend and be orally examined as to whether he has any, and what other property or means of satisfying judgment, before the Registrar of the Federal Court of Australia, 27th level M.L.C. Building, at 10.30 a.m. on Monday, 11 May 1987.

2. The said Michael Robertson produce all his books, bank statements, saving

accounts, share certificates, and other

documents relating to his financial position before the said Registrar at the time of that examination.

3. Costs on the application be reserved.

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

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

GENERAL DIVISION

BETWEEN :

AND:

TERENCE JAMES GUTHRIE

MICHAEL ROBERTSON

DATE OF HEARING:

DATE JUDGMENT DELIVERED:

APPEARANCES :

for the prosecutor

QLD. G54 of 1986

Prosecutor

Defendant

24 MARCH 1987.

24 MARCH 1987

Ms. C. Barker of the Office of the Director of Public Prosecutions.

tT. MACDERMOTT ASSOCIATE TO SPENDER 3.

w

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY QLD. G54 of 1986

GENERAL DIVISTON

BETWEEN :

TERENCE JAMES GUTHRIE

Prosecutor

MICHAEL ROBERTSON

Defendant

SPENDER J.

BRISBANE

27 MARCH 1987.

EX TEMPORE REASONS FOR JUDGMENT

This application concerns enforcement of orders of the

Court.

On 12 November 1986, in respect of a number of

contraventions of Part V of the Trade Practices Act 1974, I

convicted the defendant, Michael Robertson, of 21 informations

alleging contraventions of 88.53A and 56(1) of the Act.

In respect of each of those contraventions, I ordered

that he be fined $1,000.00 and the total of those fines, namely

$21,000.00, be paid to the District Registrar at Brisbane forthwith. I also ordered that he pay the prosecutor's costs of and incidental to all of those matters, such costs to be limited

to those incurred on or before 22 October 1986.

Mr. Terence James Guthrie, the Assistant Director of Consumer Protection, Trade Practices Commission, deposes to the fact that no amounts have been paid to the District Registrar by

Mr. Robertson in respect of any of the fines which I ordered.

The present application seeks orders that Mr. Robertson attend and be orally examined as to whether and what debts are owing to him and whether he has any and what other property or means of satisfying judgment before the Registrar at such time and place as he may appoint and that the said Michael Robertson produce all his books, bank statements, savings accounts, share certificates and other documents relating to his financial position before the said Registrar at the time of the

examination.

The application 1s essentially an application for discovery in aid of execution. The contraventions in respect of which the fines were imposed occurred prior to the commencement of s.79A of the Act which came into force on 1 June 1986 and which deals directly with the question of enforcement of fines

imposed for contraventions of certain provisions of the Act.

Section 4 of the Federal Court of Australia Act 1976

provides, inter alia:-

3.

"*Judgment' means a judgment, decree or order, whether final or interlocutory, or a sentence."

Section 53 of that Act provides:-

f

"(1) Subject to the Rules of Court, a person in whose favour a judgment of the Court is given is entitled to the same remedies for enforcement of the judgment in a State or Territory, by execution or otherwise, as are allowed in like cases by the laws of that State or Territory to persons in whose favour a judgment of the Supreme Court of that State or Territory is given.

(2) This section does not affect the operation of any provision made by or under any other Act or by the Rules of Court for the execution and enforcement of judgments of the Court."

Order 37, rule 7 of the Federal Court Rules provides:-

"(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 ordec is to be enforced if the judgment or order had been made by that Supreme Court.

(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."

Order 37, rule 8 of those Rules provides:-

"A party interested in the execution or enforcement of an order may apply to the Court ex parte for directions as to its execution or enforcement."

The present application is made ex parte.

Order 47, rule 33 of the The Rules of the Supreme Court

(Qld.) provides:-

"When a judgment or order is given or made for the payment of money, the party entitled to enforce it

may apply ex parte to the Court or a Judge for an order that the debtor liable under such judgment or order, or, in the case of a corporation or

company, or other body of persons empowered by law to sue or be sued, whether in its own name or in the name of any officer or other person, that any officer thereof be orally examined before a Judge or an officer of the Court ag the Court or Judge may appoint, as to whether any and what debts are owing to the debtor and whether the debtor has any and what other property or means of satisfying the judgment or order; and the Court or Judge may make an order for the attendance and the examination of such debtor, or of such officer, and for the production by him of any books or documents."

In my opinion, this chain of statutory provisions

applies to the present circumstances.

It is obviously crucial to the efficiency of the court's

process that its orders be obeyed, and the court should be astute to lend whatever assistance 1t can to enable its orders to be

enforced.

This is an appropriate case for the making of the order

sought by the notice of motion.

I therefore order that Michael Robertson attend and be orally examined as to whether he has any, and what other property or means of satisfying judgment, before the Registrar of the Federal Court of Australia, 27th level M.L.C. Building, at 10.30

a.m. on Monday, 11 May 1987.

5.

I further order that the said Michael Robertson produce

all his books, bank statements, saving accounts, share certificates, and other documents relating to his financial position before the said Registrar at the time of that

examination.

I reserve the question of costs of this application.

| certify that this and the praceding pages are a true copy of the reasons for judgment herein of His Honour

Mr Justice Spender C | WSdDer

27 32-87 | wilsei; Associate Dated eae .