Robertson v Moran[2010] QDC 221

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 28 October 2002 Bradley DCJ made an order that the respondent pay the applicant $9000 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995.  Although some payments have been made under that order, it has never been satisfied.  The applicant has now applied under r 799 for leave to start an enforcement proceeding against the respondent based on that order.  Leave is necessary because more than six years have elapsed since the order was made:  r 799(2)(a).  The application may be made ex parte (r 799(3)) and in the circumstances I do not think there would be any point in ordering that it be served on the respondent.

Background

2. [2]
   The circumstances giving rise to the order go back to 10April 1999.  On 17October 2000 the respondent pleaded guilty before this court to one count of unlawfully wounding the applicant and one count of burglary in the night with violence whilst armed on that date.  The reasons given when the order for compensation was made indicate that the offence involved the respondent striking the applicant while the applicant was trying to hold the front door of his house closed to prevent the respondent from coming in.  The respondent at that time was armed with a knife and that caused two stab wounds to the applicant’s left shoulder and a further wound to his right hand.  Compensation was assessed on the basis of minor laceration, minor stab wound and minor scarring, totally 12% which when applied to the scheme maximum produced a figure of $9,000.  No special orders were made in relation to payment:  the order took effect as a money order of this court.^[1]

3. [3]
   The history of the matter thereafter appears in written submissions filed on behalf of the applicant on 18 May 2010.  After the order was made on 8November 2002 the respondent offered to pay $50 per week, in a letter pointing out that he had only casual employment and had a wife and two-year-old son to support.  It does not appear that any particular further steps were taken in response, other than the sending of a couple of further letters of demand on behalf of the applicant; no payments seem to have been made at this stage, but in August 2003 the respondent sent the applicant’s solicitors a copy of the letter of 8 November 2002 and again said that he was struggling quite badly and was in debt to his eyes.  The property that was owned in 2002 was sold, although it appears that another property at Browns Plains was purchased in July 2004.  In August 2004 the respondent telephoned the applicant’s solicitors and offered to pay the amount by an initial payment of $1,000 followed by fortnightly payments of $250.  The applicant’s application to the department for an ex gratia payment was then withdrawn.  A letter confirming that offer was sent to the respondent on 4August 2004.

4. [4]
   It appears that payment of $700 was made on 12 August 2004 and of $300 on 20 August 2004.  One hundred and fifty dollars was paid on 16 September 2004, $250 on 29October 2004, $100 on 8 November 2004, and $100 on 7 January 2005.  No further payments have been received since then.  The balance owing is therefore $7,400 plus interest.  That interest was calculated at the rates specified under the statute to 17May 2010 at $5,564.32.

5. [5]
   After the payments stopped in early 2005 there was a further application for an ex gratia payment from the department which was refused on the basis that it was not clear that the order could not be enforced against the respondent.  There was also some delay because the applicant had travelled overseas for around 18 months and did not provide his solicitors with instructions during this time, and because the solicitor who had been handling the matter for the applicant subsequently ceased his employment without notifying anybody that the file in this matter was still active.  However, in late 2009 the respondent was located and a further demand for payment was made against him.  In response, he wrote on 25 November 2009 saying that he had been in good casual employment only since March but that prior to that time he was unemployed.  He was in arrears on his mortgage payments, as a result of which he was paying, he claimed, $680 per week to cover his home loan, and had also been pursued by the local council in respect of unpaid rates and had agreed to pay them $100 per week.  These two commitments took all but about $200 to $300 of his weekly income.  He claims to have three small children to support, and virtually no other assets.  On the face of it, his financial position is very difficult.

Authorities

6. [6]
   Sub‑rule(4) requires an applicant to satisfy a court as to the amount including interest owing at the date of the application, as to the reasons for the delay, that the applicant is entitled to enforce the order, and that the enforcement debtor is liable to satisfy the order.  Whether the applicant is entitled to enforce the order depends on entitlement as a matter of law:  World Square Pty Ltd v Taylor [1991] Qd R 583, a case where it was held that there was not an entitlement to enforce because after the judgment had been obtained in respect of the liability of the defendants under a guarantee an agreement between the parties including the principal debtor had been entered into under which the plaintiff agreed to accept payment by instalments, and in respect of which the court held that there had been no default.  Lee J went on to say that if he was wrong about that he would in any event have refused leave on discretionary grounds.  He noted that there were authorities to the effect that the discretion under the equivalent rule then in force was unfettered (see p 585).  Nevertheless, it has been said that the primary consideration is to ensure that the party applying to execute after the period is entitled to do so, and that in those circumstances the court usually grants leave.^[2]

7. [7]
   The previous rule was also considered by the Court of Appeal in Tonkin v Johnson [1999] 2 Qd R 318, where McPherson JA with whom the other members of the court agreed gave some historical background to the requirement now in r 799.  In that case the court declined to interfere on appeal with a refusal by a judge to set aside a default judgment which was the basis of the execution sought, and to grant leave to execute after six years.  The court noted that under the Limitation of Actions Act 1974 s10(4) an action could be brought on the judgment within a period of 12 years from the date on which it became enforceable.  This was said to be a relevant consideration.  The court held that there was no statutory bar to granting interest on the judgment because more than six years had elapsed since it became enforceable.

8. [8]
   In Walkden v Townsville City Council [2004] QDC 23 Brabazon DCJ refused leave to start an enforcement proceeding in respect of an order for costs where there had been a delay in having the costs taxed as required by the rules then in force, and where, if the costs had been taxed within the time limit indicated by the rules then in force, the statutory limitation period of 12 years would have run so that no judgment could be brought on the order for costs as taxed.  His Honour held that the defendant should not be prejudiced by the delay in obtaining taxation of the costs.  His Honour rejected an argument that there was no discretion whether to grant leave once the requirements of r 799(4) was satisfied, and held that the court must consider all the relevant circumstances:  [24].  In that case the debtor was in a modest financial position, though she had become tenant in common in an unencumbered property, to which she had contributed a small amount of money and which she was obliged to keep paying off to the co‑owner.  His Honour noted that 14 years had passed from the original order for costs, and that the limitation period had not expired only because of the delay in arranging for taxation of those costs.  Apart from that, the debtor could by then reasonably expect that the creditor’s claim had come to an end as a result of the effluxion of time:  [33].  Accordingly the application was refused.

Analysis

9. [9]
   In the present case, the 12‑year period has not run, though the six‑year period has run.  On the face of it the applicant is entitled to enforce the balance of the judgment and the respondent is liable to satisfy it, and to pay interest in accordance with s 48 of the Supreme Court Act 1995.  The reasons for the delay in enforcing the judgment have been explained, though they do to some extent reflect adversely on the applicant and the applicant’s solicitors.  Nevertheless, to a large extent the enforcement process has been withheld because of a recognition at different times of the financial difficulties confronting the respondent, and the apparent difficulty facing him in satisfying the balance of the order.  It does not appear that anything has ever been done by the applicant to give the respondent the impression that the order did not need to be satisfied.  It seems that if leave were refused it would be open to the applicant to bring a fresh proceeding on the basis of the order made, that being in effect a judgment for payment of money.^[3]  In these circumstances, the only consequence of refusing leave to execute would be that the plaintiff would be put to the additional trouble and expense of bringing a fresh action on the order, which would then be enforceable directly.

10. [10]
    Although I can sympathise with the respondent’s financial plight, and would accept that there have been periods in the past where there seems to have been a lack of diligence on the part of the applicant in pursuing payment under the order, in all the circumstances I consider that it would be appropriate to exercise my discretion by giving leave to start enforcement proceedings. I should say that I note that if I were to refuse leave it would appear that the order would not be enforceable, so that the applicant would not be a person entitled to be paid an amount under a compensation order, and hence not be entitled to make an application for a payment in respect of the order to the State of Queensland under s 32 of the Criminal Offence Victims Act 1995.^[4]

11. [11]
    I should say that the application was filed as one to be determined without oral hearing, and came before me on 21 May 2010.  On that day I was not prepared to grant the application without further consideration, particularly in relation to any relevant authorities.  It is only now that I have had the opportunity to consider the authorities that I am prepared to decide the application.

12. [12]
    I grant leave in terms of the draft order provided on behalf of the applicant.