Re the Courts Fund Regulation 2009
[2023] QDC 79
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- Unreported Judgment
- Re the Courts Fund Regulation 2009[2023] QDC 79
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Re the Courts Fund Regulation 2009[2023] QDC 79
Re the Courts Fund Regulation 2009[2023] QDC 79
DISTRICT COURT OF QUEENSLAND
CITATION: | Re the Courts Fund Regulation 2009 [2023] QDC 79 |
PARTIES: | Registrar, District Court at Brisbane (Applicant) |
FILE NO: | BD 453/23 |
DIVISION: | Civil |
DELIVERED ON: | 16 May 2023 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 10, 16 May 2023 (on the papers) |
JUDGE: | Barlow KC, DCJ |
ORDERS: |
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CATCHWORDS: | PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – FUNDS IN COURT AND DISPOSAL THEREOF – the registrar brought an application in respect of ‘inactive accounts’– evidence that accounts had not been dealt with in the relevant period was originally inadequate, but was supplemented after an adjournment – whether list of inactive accounts complied with regulation – whether an order should be made that the money be paid into the consolidated fund Court Funds Act 1973, s 16 Court Funds Regulation 2009, ss 30, 32 |
- [1]In this proceeding, the Registrar applies for an order, pursuant to s 32(2)(a) of the Court Funds Regulation 2009, that money held in court in inactive accounts be paid into the consolidated fund. (That regulation was made pursuant to s 16(2)(o) of the Court Funds Act 1973.) Not surprisingly, there is no respondent to the application.
- [2]A particular procedure is required, by s 30 of the Regulation, to be undertaken before the court may make such an order. In brief, on or before 1 April in each year, the registrar:
- (a)must prepare a “list of inactive accounts” and file the list in the court;
- (b)must also prepare a notice, containing the list of inactive accounts, to the effect that any person claiming an entitlement to any of the money may apply to the court by a specified day for payment of the entitlement or an order may be made that the money be paid into the consolidated fund;
- (c)must file the notice in court and display it in the court registry for at least 42 days; and
- (d)where the total amount of money in the list exceeds $1,000, must publish the notice in the gazette and in a newspaper circulating in the district where the court is constituted.
- (a)
- [3]The day stated in the notice for any application to be made (where the total amount is over $1,000) must be after 42 days from publication of the notice in the gazette and a newspaper.
- [4]The term “list of inactive accounts” is defined, in the dictionary to the Regulation as –
a list of accounts that, at the start of 1 January in a particular year, were credited with money or securities in court that had not been dealt with, other than by continuous investment or continuous payment of interest, in the previous 6 years.
- [5]This application was filed on 8 May 2023, together with an affidavit of a deputy registrar. The court file and the evidence in the affidavit show that a notice containing a “list of accounts” was filed on 24 February 2023. Of course, it was unnecessary to file the notice itself, as the regulation only requires the list to be filed, but as the notice contains that list I am satisfied that the registrar has filed the list.
- [6]The deputy registrar deposed that the notice was displayed in the registry on and from 24 February 2023 for a period of not less than 42 days from the date of publication of the notice under s 30(4) of the regulation. Strictly speaking, the statement that it was displayed for not less than 42 days is a conclusion of fact, rather than evidence of the fact. It would be preferable for the evidence to state the date to which the notice was displayed so that the court may itself conclude, on the evidence, that it was displayed for the relevant period.
- [7]The deputy registrar also deposed that the notice was published in the gazette and in the Courier Mail newspaper on 17 March 2023. She exhibits what she says is a copy of the advertised notices. The exhibit itself appears to show an actual page from the gazette publishing the notice. However, it does not show the actual advertisement as published in the newspaper, but rather what appears to be the form of advertisement that was presumably provided to the newspaper’s publisher for inclusion in the newspaper. It would be preferable for a copy of the notice as advertised in the newspaper to be exhibited to the affidavit, but I have no reason not to accept the evidence, in the body of the affidavit, that the notice was published as described.
- [8]It is necessary to discuss some aspects of the list contained within the notice. It is headed with the name of the Regulation and the Act and then goes on as follows.
LIST OF ACCOUNTS
[Section 30(1)]
Prepared by the Registrar Supreme and District Court (sic) at Brisbane in respect of accounts in her books which have not been dealt with otherwise than by continuous investment or payment of interest during the six years immediately preceding the 1st February 2023.
- [9]There follows a table containing the title of a cause or matter, when lodged and “Amount held (Interest calculated to end January 2023)” for eight matters (four in each of the Supreme Court and the District Court). The total sum held well exceeds $1,000.
- [10]The deputy registrar has deposed that an application has been filed in respect of the amount lodged in one proceeding in this court. That sum is therefore to be excluded from any order.
- [11]Several things stand out about that list and this application. The first is that the application does not, on its face, limit itself to the amounts that were lodged in respect of proceedings in this court. However, the application is made in this court, which of course can only make an order about proceedings in this court. In the supporting affidavit, the deputy registrar makes it clear that the order sought only concerns amounts lodged in this court’s proceedings.
- [12]The next thing to mention is that the list would be more accurately described in its title as a “list of inactive accounts”, conformably with its description in the Regulation, instead of merely a “list of accounts”. Although the description adopted does not make it invalid, it would be of more assistance to a reader to describe it more precisely.
- [13]Thirdly, and most importantly, the list does not comply strictly with the required list. A list of inactive accounts is a list of accounts that had not been dealt with (except as expressed in the Regulation) in the six years preceding 1 January in a particular year. This list and the evidence originally filed about the money held concerns accounts that had not been relevantly dealt with in the 6 years preceding 1 February 2023, not 1 January 2023. The effect of this discrepancy between the published list and the requirement under the Regulation is that, on the evidence before the court when the application first came before me, I could not be satisfied that the accounts the subject of the application have not been relevantly dealt with in the six years preceding 1 January 2023. Thus, an account may well have been dealt with in January 2017 and so should not be on the list of inactive accounts, even though it was not dealt with after 31 January 2017.
- [14]Having formed that conclusion, I adjourned the application to enable the registrar, should she choose, to adduce further evidence about whether any of these accounts had been dealt with since 1 January 2017. The deputy registrar has since filed a further affidavit, in which she said, relevantly, that “On 11 May 2023 a further search was conducted to determine that the accounts as listed were inactive for 6 years prior to 1 January 2023.” I shall take that sentence as meaning that the search in fact determined that the accounts were inactive for the stated period.
- [15]That being the case, although the list deals with the period to 31 January 2023, the evidence now satisfies me that the accounts concerned were not dealt with in the six years preceding 1 January 2023. Therefore the list is in fact a relevant list of inactive accounts.
- [16]I shall therefore make an appropriate order, although not in the terms of the order sought. Both the application and the draft order provided to me refer to accounts described in a list of accounts prepared “pursuant to Regulation 30(1)”, whereas I have found that the list does not conform, on its face, to that regulation. I shall therefore make an order referring specifically to the accounts for the relevant proceedings.
- [17]Finally, the deputy registrar has given evidence of the cost of advertising the notice that was published in the gazette and the newspaper. Subsection 30(5) of the Regulation provides that the cost of publishing a notice may be debited by the registrar to the inactive accounts mentioned in the list in proportion to the value of the accounts. The order should therefore provide for the balance to be paid after deduction of each account’s aliquot share of the cost of publishing the notice.