Weston v Indigo Shire Council & Ors M60/1998 [2002] HCATrans 143 (21 March 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M29 of 1997, and Nos M47, M48, M49 and M60 of 1998

B e t w e e n -

MICHAEL WESTON

Applicant/Judgment Debtor

and

INDIGO SHIRE COUNCIL

First Respondent/Judgment Creditor

PATRICIA MARY WESTON

Second Respondent

ROBIN WILLIAM WILSON

First Garnishee

ANTHONY THOMAS PETRIE

Second Garnishee

PETER WAYNE CAZALY

Third Garnishee

WILLIAM EDWARD JOHNSON

Fourth Garnishee

Garnishee summons

HAYNE, J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 21 MARCH 2002, AT 10.16 AM

Copyright in the High Court of Australia

__________________

MR WESTON appeared in person.

MR A.P. MELVILLE: If the Court pleases, I appear for the first respondent. (instructed by Andrew P. Melville)

MR G.J. MAGUIRE: If the Court pleases, I appear for the garnishees. (instructed by the Victorian Government Solicitor)

HIS HONOUR: The second respondent, Patricia Weston - I hold a certificate from the Deputy Registrar dated 21 March, that she has been informed by Patricia Weston, the second respondent, that she will not be appearing at the hearing of the garnishee summons.

Now, the question is who has the carriage of the matter? Mr Maguire, do you say you do?

MR MAGUIRE: No, your Honour, but it may be convenient if I outline very briefly what the current position is. That may then assist your Honour and the other parties in terms of the matters they wish to address the Court.

HIS HONOUR: Yes.

MR MAGUIRE: Your Honour, the position is that on 21 February a judgment in the County Court of Victoria was entered in the sum of $80,572 in Mr Weston's

favour against the garnishees. That matter is not the subject of an appeal. However, there have been a variety - - -

HIS HONOUR: And time for appeal has expired?

MR MAGUIRE: Has expired, yes. There have been a number of garnishee and other proceedings brought in respect of the amount of the judgment, in particular a claim for $35,009.48 was brought by the Child Support Agency. That money has been paid.

HIS HONOUR: You say a claim has been made. How was that claim made? In what court?

MR MAGUIRE: By notice pursuant to relevant legislation, your Honour, which has the effect of immediately calling for payment of the funds.

HIS HONOUR: Yes.

MR MAGUIRE: There is, of course, this garnishee proceeding in this Court and, as your Honour would be aware, a sum of $20,680.03, inclusive of interest as specified in the terms of the garnishee summons, has been paid into court. There are two garnishee orders which have been made as of Monday of this week in the Supreme Court of Victoria. One is in the sum of $1,560.22. There is a second in the sum of $9,375.31. Both of those are subject to a stay until 31 May of this year. Those sums will be retained by my instructing solicitor in his trust account until the expiration of the stay or other order of the Court.

So, of the amount of the judgment of $80,572, some $66,625.04 has been either paid or is the subject of court order. There is a further sum of $8,057.20 which is the subject of a claim by the Health Insurance Commission, which is a statutory claim under the relevant legislation, requiring 10 per cent of the judgment amount to be paid to the Health Insurance Commission, until the completion of various processes within the Commission, which then leads to a disbursement of some or all of that money to the judgment debtor, Mr Weston. That then leaves a balance of $5,889.76, which is currently not subject to formal order or claim. However, your Honour, my instructing solicitor was contacted by Mrs Weston yesterday, who informed her that, and confirmed, that she is currently bringing an enforcement summons in the Family Court seeking payment of an amount in excess of $55,000. Now, your Honour, having regard to the various claims that are either made or likely to be made, it may be convenient that the whole of the balance of the amount, currently not the subject of court order, be paid to the Registrar of the High Court.

HIS HONOUR: Why? Why should we do anything about that? By what right would you pay it to us? I am sure the Registrar of the High Court would like to receive lots of money, but why should the Deputy Registrar receive it?

MR MAGUIRE: Merely to accommodate our desire to be rid of it, your Honour.

HIS HONOUR: That is your problem, Mr Maguire, it is not ours.

MR MAGUIRE: Indeed it is, your Honour. I can understand your Honour's lack of enthusiasm to adopt our problem.

HIS HONOUR: I have not expected, on appointment to this Court, to be dealing with garnishee summonses, Mr Maguire, but there you are. The variety of work the Court does is boundless.

MR MAGUIRE: Indeed it is, your Honour. That is the position. We take no further part in the proceeding other than to abide the Court's order.

HIS HONOUR: Now, do I understand the effect of the Rules to be, or at least a possible view of the effect of the Rules to be that you obtained some protection or some acquittance by paying the $20,680.03 into this Court?

MR MAGUIRE: Yes, your Honour.

HIS HONOUR: What then becomes of it is no doubt a matter of interest but of no concern of yours.

MR MAGUIRE: Slight, if any, interest, your Honour.

HIS HONOUR: Yes. Thank you, Mr Maguire. Now, Mr Melville, before I hear from Mr Weston, what do you say I should be doing this morning?

MR MELVILLE: Your Honour, I say that you should be ordering that the $20,000-odd that is paid into Court should be paid to the Indigo Shire Council pursuant to the garnishee summons, together with some additional costs for today. The costs that were on the summons were only for drawing and engrossing the affidavit and the attendance to file and service, and the summons, but did not even include today's appearance. I have a list of those costs. I have a draft order for your Honour's consideration.

HIS HONOUR: Yes. Has Mr Weston seen this?

MR MELVILLE: No, but I have a copy for him, your Honour.

HIS HONOUR: Perhaps if you show him, and he and I will read it for the first time together. Mr Melville, I think that whatever course I adopt and, as I say, not having heard from Mr Weston, assuming he is entitled to be heard on these, I think that it would not be appropriate to make an order in the form of order 1, the garnishees having paid into court, at least as at present advised, it would seem to me that they are acquitted by paying in. While I can understand an order that the money in court be paid out to the judgment creditor, and I can understand that you apply for an order for costs, I do not think I could or should make the first order in that form. It is a question of form.

MR MELVILLE: Yes.

HIS HONOUR: At the moment we have the money in Court. The immediate question is what is to be done with it. I would understand you say it should come out of Court and go to your client. That is putting it as simply as I can.

MR MELVILLE: Yes.

HIS HONOUR: And you say, in addition, you should have your costs of today.

MR MELVILLE: Yes, your Honour. Can I just draw to your Honour's attention the wording of order 2, which says that if the money is paid out, then that is treated as partial satisfaction of the order 1 and the balance is there, and I have tried to cover that situation, but I am happy to - - -

HIS HONOUR: Yes.

MR MELVILLE: I do have a list of the costs here, if that would be of assistance to your Honour. Your Honour probably does not want to be involved in that.

HIS HONOUR: No, I would not be minded to do a taxation of costs, Mr Melville.

MR MELVILLE: I think, with respect to your Honour - I do not wish to tell your Honour how to do things - - -

HIS HONOUR: I want you to tell me how to do things, or at least how you say I should do things, Mr Melville. Whether I do it in that way is then a separate question.

MR MELVILLE: Well, how do we deal about the costs in the Rules, as I understand it, your Honour has to order the garnishees pay the money and their costs be paid and the practical way is to fix the costs immediately, in my submission.

HIS HONOUR: What rule are you referring to?

MR MELVILLE: Order 46 rule 10, your Honour. Subrule (2) says:

The costs of the judgment credit shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order -

It is almost as though your Honour has to make a decision, including costs, and fix the costs there and then.

HIS HONOUR: If, however, under Order 46 rule 10(3), I were to order - I am sorry, I have my parties around the wrong way. That would be to order you to pay the costs of the State and the police. But your costs are to be retained out of the money recovered by you under the garnishee order.

MR MELVILLE: Yes, so it is almost - - -

HIS HONOUR: And in priority to the amount of the judgment debt. So, to round the numbers off, if the judgment debt is $20,000 and your costs are $500 and there is $20,000 in Court you take the $500 for costs in priority, you have $19,500 left to satisfy the judgment debt and there is still a debt of $500 owed unsatisfied.

MR MELVILLE: And when there is an extra $5,000 still not there I say it should come to pay the costs, your Honour.

HIS HONOUR: Round and round the loop we go 27 times.

MR MELVILLE: Is it? With the greatest respect, your Honour, the whole procedure is very unsatisfactory obviously from your Honour's point of view, but from creditors' points of view and everybody.

HIS HONOUR: Not something to which you will be surprised to hear the Court has given great attention over recent times. The last garnishee proceedings we could find in the Court were proceedings in 1993. An order of Justice Toohey made on 7 December 1993 was the last garnishee proceeding we could discover in the Court. The solution lies, if you go back to early editions of Williams Supreme Court Practice, Mr Melville, and it is a solution not of advantage to you.

MR MELVILLE: Thank you, your Honour.

HIS HONOUR: Order 45 rule 9 of the former rules of the Supreme Court read:

The cost of any application for an attachment of debts and of any proceedings arising from or incidental to such application, shall be in the discretion of the Court or a judge -

So far so good. That mirrors what we find in Order 46 rule 10(1). The rule goes on:

and as regards the costs of the judgment creditor -

that is, your costs -

shall, unless otherwise directed, be retained out of the money recovered by him under the garnishee order -

That mirrors rule 10(2) -

and in priority to the amount of the judgment debt -

The first note under the old practice book is:

As a rule no costs will be allowed (Davidson v. Secombe (1892), 9 W.N. (N.S.W.) 1). Costs will not be ordered against the judgment debtor as he is not a party (Hart v Muir (1889), 6 W.N. (N.S.W.) 62; Davidson v. Secombe -

and that would be consistent with the Victorian practice reflected in, particularly, Stonehouse v Bond; Bank of Victoria garnishee [1917] ArgusLawRp 77; (1917) VLR 467, a decision of Mr Justice Hood and the decision in R v Justices of Heywood; Ex parte Fletcher [1895] VicLawRp 128; (1896) 21 VLR 654, the burden of which is that the judgment debtor has no standing in the proceedings. The judgment debtor stands outside the proceeding, it being a proceeding only as between judgment creditor and garnishee.

MR MELVILLE: Yes, I was aware of that, your Honour.

HIS HONOUR: That would mean, therefore, no costs for you against Mr Weston.

MR MELVILLE: Yes. We are not actually seeking costs against Mr Weston as an actual order.

HIS HONOUR: Not directly, just a tad indirectly.

MR MELVILLE: Indirectly. It is out of what is left, yes, your Honour.

HIS HONOUR: Yes, namely, his money you want rather than him to pay. That sounds like wanting costs out of him, I fear, Mr Melville.

MR MELVILLE: Well, the garnishee is wanting costs out of him, your Honour, when you boil it down to that.

HIS HONOUR: Yes.

MR MELVILLE: But in those circumstances I do not wish to pursue it any further. We seek the $409 on the summons that was allowed at the time of issue, your Honour, and have that added into the order.

HIS HONOUR: Yes.

MR MELVILLE: Now, my figures in that draft order are slightly different to the amount that was paid in in that - - -

HIS HONOUR: Greater or less?

MR MELVILLE: Minor. It is two days worth of interest or three days worth of interest and we are happy to forgo that, your Honour, just to seek an order that the amount paid in be - - -

HIS HONOUR: Well, the most I can deal with is the amount paid in.

MR MELVILLE: We seek that to be - - -

HIS HONOUR: I will make no other order except dealing with the amount paid in as at present advised.

MR MELVILLE: I seek that to be paid out to the Shire.

HIS HONOUR: Yes. Yes, thank you, Mr Melville. Now, Mr Weston, as you will have understood from what we have just been debating on, there is at least a view that you have no standing to be here and this is a fight between the other two to which you are not a party. All that being said, what, if anything, do you wish to say to me about what I should do this morning?

MR WESTON: I have this to say to you, your Honour, and that is that the money should stay in Court and that I be granted what I am seeking is the opportunity to bring an application to have the order set aside.

HIS HONOUR: Sorry, which order are you talking - - -

MR WESTON: The orders we are talking about are the High Court after costs.

HIS HONOUR: Yes.

MR WESTON: I am seeking to have that order, or those orders - there is a whole series of them - have them all set aside and the basis that I would mount that application on is one of the findings that his Honour Judge Dove made during the trial. It is to be found at page 4578 of that transcript and the particular passage reads that, "At the end of the day I am satisfied that the Shire and its advisers have played a deliberate game of concealment". I say that that deliberate game of concealment has been played from the outset of litigation between myself and the Shire back in 1989. I have made various applications for leave to appeal out of time, of the original tribunal's decision. You should be very well aware of that because the first of those was before you, your Honour.

One of the things that came out after the rule that his Honour made - and I have not gone to the expense or trouble of putting this in affidavit material because it is expensive and if I am not granted leave to what I want to do there is no real point, but because of the ruling that his Honour Judge Dove made in the paragraph I have referred to of it is really the core of it.

These particular aerial photographs emerged that the Shire had taken the day I was in Court before you for the first time on 25 September 1992 or the day before and what they do is quite clearly show that the material that was put before the tribunal was completely false and that the Shire knew it and what they have done for the last 12 years is exactly what Judge Dove has said, played a deliberate game of concealment which, I say, is sufficient to prove the test of a judgment being obtained by fraud, the key word in his Honour's decision being "deliberate".

HIS HONOUR: Now, can I just go through this a bit further with you just to understand how things would turn out. At the moment we have money sitting in Court idle.

MR WESTON: Yes, one - - -

HIS HONOUR: No, let me just try and articulate the problem so that we are both talking about the same sorts of problem. We can either let the money stay there which is, you say, the preferred course or I can order it paid out to the Shire. I think they are the only two courses that are realistically on the table, are they not? Either it stays there or it goes out to the Shire.

MR WESTON: Yes.

HIS HONOUR: If it goes out to the Shire and if you were able to mount the challenges of the kind you have just foreshadowed that would set aside the various orders that underpin this debt and if, as a result of those challenges, you were able to get the orders set aside, am I not right in thinking that the consequence is that they would owe you the money back and owe you it back maybe with interest and why am I to treat them as not being good for the dollars? That is the nub of it.

MR WESTON: Yes, that is the nub of it.

HIS HONOUR: So, why leave it idly sitting in a bank account just causing the auditors to keep running over it? Why not let it go out to them, wipe the debt? If you are right, if you are right and if you can demonstrate that you are right, then the order goes. They then owe you money. Why should I assume they are not good for the money?

MR WESTON: Because they have instigated an article on the front page of the local paper in north-eastern Victoria, the Border Morning Mail, that if I succeeded on any of my claims the Shire would go insolvent.

HIS HONOUR: I do not think for $20,000 they will, will they?

MR WESTON: No.

HIS HONOUR: Times are really tight up in the border country if $20,000 is going to tip it over.

MR WESTON: The picture is a lot bigger than that, your Honour.

HIS HONOUR: Yes, I understand that.

MR WESTON: Perhaps I have not been quite as articulate as I should have been about the orders. I would not have envisaged sitting in Court doing nothing. I would have sought the order that it be placed on interest or somehow so that it was constructive. But the other part of the picture is that there is also - I initiated a writ in the Supreme Court to begin a separate proceeding to have the various judgments that emanate from the Shire proceedings overturned. Now, Master Wheeler, I think, made a mistake on that. He struck it out.

HIS HONOUR: Right.

MR WESTON: The original writ was taken by the prothonotary before Mr Justice Beach before the prothonotary would issue it.

HIS HONOUR: Yes.

MR WESTON: And the information that I was supplied by the prothonotary back in 1999, I think it was issued, was that Justice Beach had directed that he issue it and that it was a matter that should go to trial and that instead, as I think you are agreed with, his Honour Mr Justice Winneke in the appeal where I succeeded there should not be these pedantic strike-out proceedings but anyway there has been a pedantic strike-out proceeding and that matter is now before the Court of Appeal again on - - -

HIS HONOUR: The present status being that the action is, at the moment, struck out and you are seeking to overturn that in the Court of Appeal.

MR WESTON: Yes.

HIS HONOUR: Yes, I understand that.

MR WESTON: And I take great heart from the recent decision of his Honour Justice Smith in the Supreme Court of Victoria that was handed down on 1 March.

HIS HONOUR: I am familiar with that.

MR WESTON: I have not got 100 per cent, or 20 per cent familiar with it yet but it seems to assist me.

HIS HONOUR: But I understand there is this larger picture and I understand also that as part of that larger picture you would desire to do two things at least. One, unpick various orders that have already been made against you but secondly, pursue, you say, to a successful conclusion, the claims that you make against the Shire.

MR WESTON: Yes.

HIS HONOUR: Now, that is part of the big picture.

MR WESTON: Yes.

HIS HONOUR: Understanding that big picture, and understanding that the claims you make are large claims, my immediate problem is the narrow problem of what I do about this money in court. Why should I leave it there?

MR WESTON: Because I think if it goes out I will never see it again and you should just be aware the damages that I have been awarded are for personal injury.

HIS HONOUR: I understand that.

MR WESTON: And a personal injury that occurred because of information supplied by the Shire.

HIS HONOUR: I understand that, and you succeeded, did you not, in a wrongful arrest claim?

MR WESTON: Yes.

HIS HONOUR: A false imprisonment claim.

MR WESTON: But unfortunately I did not succeed in pinning it on the Shire because - - -

HIS HONOUR: I understand all that.

MR WESTON: And I should say this, that I have or I will endeavour to appeal that decision but with a transcript running to 7,500 pages, your Honour, it is a - - -

HIS HONOUR: It is a large task.

MR WESTON: It is a monumental task.

HIS HONOUR: Yes, it is. Now, can I just focus you again very closely: is there anything else, any other reason why you say I should leave the money in court rather than pay it out to the Shire? You say if it is paid out it is likely to go and you will not see it.

MR WESTON: That is what I am saying.

HIS HONOUR: That is the nub of your - - -

MR WESTON: That is exactly what - in a nutshell.

HIS HONOUR: Right. Now, is there more that you would wish to say?

MR WESTON: Only that if you decide that it stay in court it should be somehow put to work.

HIS HONOUR: I understand that.

MR WESTON: That interest accrue on it. I have no idea what the mechanism is.

HIS HONOUR: No, but that is a challenge to ingenuity. That is all that is, Mr Weston. I understand that.

MR WESTON: So, with that I would sit down and not take any more of your time.

HIS HONOUR: Thank you.

On 28 February, Indigo Shire Council, first respondent in a number of proceedings in this Court, issued a garnishee summons directed to Robin William Wilson and others calling on the garnishees to show cause why debts owing or accruing from them to Mr Michael Weston, who had been applicant in the several proceedings in this Court, should not be attached to answer an order for costs in favour of Indigo Shire Council as taxed by certificate dated 29 May 2000, together with interest and costs.

In response to that summons, the garnishees paid into Court an amount of $20,680.03 being an amount calculated as sufficient to satisfy the order for costs, interest and costs of the garnishee proceedings. The question which now arises is what should be done with the money that has been paid into Court in this way.

The garnishees appeared by counsel to inform me of the fact that the payment into Court had been made and to inform me of some other claims that had been made in relation to the judgment debt owed by the garnishees to Mr Weston in respect of a County Court proceeding successfully prosecuted by Mr Weston.

The Indigo Shire Council, as judgment creditor, appeared seeking an order, among other things, for payment out to it, as judgment creditor, of the amount paid into Court. Mr Weston, as judgment debtor, also appeared and sought to be heard in support of his contention that the money which had been paid into Court should be retained in Court, or at least retained under the control of the Court pending applications, which he foreshadowed, designed to set aside the orders which Indigo Shire Council had obtained against him, both in proceedings in this Court and in other proceedings that Mr Weston had instituted in other courts, and which all arise out of the same factual circumstances.

It is at least open to doubt whether the judgment debtor has standing to appear in a proceeding of the kind with which I am now dealing, see, for example, R v Justices of Heywood; Ex parte Fletcher [1895] VicLawRp 128; (1896) 21 VLR 654. Rather, it may well be that the only parties to the present proceeding are the judgment creditor and the garnishees, and the garnishees having paid the sum claimed into Court, it is only the judgment creditor who is entitled to be heard.

That, notwithstanding, I thought in all the circumstances of the case, it desirable to allow Mr Weston to tell me the arguments that he had against payment out to the Shire of the sum standing in Court. Put shortly, his contention was that if the money were to be paid out to the Shire, and if he were to succeed in his applications to set aside the effect of the various orders that have been made against him in his various proceedings against the Shire, it was at least possible, indeed, in his view, probable, that he would succeed in claims against the Shire in such an amount as would make it unlikely that the Shire would be in a position to repay to him any amount now ordered to be paid out of Court to the Shire.

In the present circumstances in which the orders, both of this Court and of other courts, have not been set aside, it would, in my opinion, be wrong to proceed on an assumption that the orders made in this Court are in some respects to be regarded as conditional or contingent. The orders that have been made in this Court have not been set aside. That being so, those having the benefit of those orders should be permitted to enforce them according to law. The process that now has been adopted is but one means of enforcing those orders. There is, in my opinion, no reason shown why the law should not take its ordinary course. That being so, there should be an order for payment out of the sum now standing to the credit of these matters in Court.

Application was made on behalf of the Shire for an order that directly or indirectly Mr Weston, as judgment debtor, should pay the costs of the present day in Court. As I said in the course of argument, there appears to be authority in support of the general proposition that as a rule no costs will be allowed on proceedings of this kind for appearance in Court or, at least, costs will not be ordered against the judgment debtor, the judgment debtor not being a party to the proceedings: see Hart v Muir (1889) 6 WN (NSW) 62; Davidson v Secombe (1892) 9 WN (NSW) 1.

In any event, I would not be minded to order any costs over and above those that are allowed by the Rules and have been taken into account in computing the amount that has been paid into Court. In those circumstances, the order that I will make is that the sum of $20,680.03 paid into Court on 18 March 2002 by the garnishees, Robin William Wilson and others, be paid to the judgment creditor, Indigo Shire Council, by its solicitor, Andrew P. Melville.

In the circumstances, it is, I think, unnecessary to certify for the attendance of counsel in chambers. The only order that I will make will be the order for payment out of the kind I have earlier announced.

Yes, I will adjourn.

AT 11.02 AM THE MATTER WAS CONCLUDED