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Deputy Commissioner of Taxation of the Commonwealth of Australia v Yii Ann Hii [2016] PGNC 432; N7379 (18 November 2016)

N7379

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 48 of 2016 (COMM)

IN THE MATTER OF THE RECIPROCAL
ENFORCEMENT OF JUDGEMENTS ACT
1976 (CHAPTER 50)

AND:

DEPUTY COMMISSIONER OF TAXATION
OF THE
COMMONWEALTH OF AUSTRALIA
Plaintiff

AND:

YII ANN HII
Defendant

Waigani: Hartshorn J
2016: 13^th October,
: 18^th November

Application for an extension of time for filing a notice of motion to set aside orders for the registration of a foreign judgment – Order 1 Rule 15 and Order 13 Rule 74 National Court Rules considered -
Application for a stay

Cases cited:
Papua New Guinea Cases

Pansat Communication Pty Ltd v. John Momis and Ors (1995) N1321
Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317
Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144

Overseas Cases

Anthony Hordern & Sons Ltd v. Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1
Plaintiff S4-2014 v. Minister for Immigration and Border Protection [2014] HCA 34

Counsel:

Mr. D.H. Katter and Mr. G. Geroro, for the Plaintiff
Mr. I.R. Molloy, for the Defendant

18^th November, 2016

1. HARTSHORN J: The defendant Yii Ann Hii seeks to set aside orders for the registration of a foreign judgment against him that were made by this court on 24^th March 2016. Alternatively, an application for a stay of this proceeding and judgment are sought.

2. At the outset the defendant seeks leave to extend the time by which he may file a notice of motion for an order to set aside the registration.

Background

3. The plaintiff, the Deputy Commissioner of Taxation of the Commonwealth of Australia, successfully registered the foreign judgment. The judgment arises from a tax debt recovery proceeding in the Supreme Court of Queensland, Australia. The tax debt which remains unsatisfied is in the sum of K 57,024,877.51.

This application

4. I consider the contested application to extend the time by which the defendant may file a notice of motion for an order to set aside the registration, first.

5. The defendant relies upon Order 13 Rule 74(1) and Order 1 Rule 15(1) National Court Rules, and s. 155(4) Constitution. He submits that in combination, these provisions permit an extension of time to file the requisite notice of motion to be granted to the defendant notwithstanding that the time in which the court may extend the time under Order 13 Rule 74(1) has expired.

6. The defendant submits that his reasons for failing to apply within the time fixed by the court on 24^th March 2016, being 15 days after service upon him of the order of registration, are amongst others that he did not realise that he was required to so apply within 15 days, English is not his first language and he did not understand everything that was stated in the documentation, the requirement was a sentence in one of a number of documents and the covering letter from the plaintiff’s solicitors did not mention the time limit.

7. The plaintiff submits that Order 13 Rule 74 National Court Rules, is mandatory as Order 13 Rule 74(3) provides that a notice of motion for an order under that Rule “must” be filed within certain times. The defendant has not complied with this provision. Further, Order 1 Rule 15 and s. 155(4) Constitution are general provisions and do not derogate from the mandatory specific rule of Order 13 Rule 74.

Consideration

8. As to s. 155 (4) Constitution, I reproduce the following passage from Peter Makeng & Ors v. Timbers (PNG) Ltd & Ors (2008) N3317, a decision of Injia DCJ (as he then was) in which in respect of s. 155 (4) Constitution, His Honour said that it:

“........is not the source of primary jurisdictional power. .........

Section 155 (4)confers jurisdiction on the Court to issue facilitative orders in aid of enforcement of a primary right conferred by law, whether

such right be conferred by statute or subordinate legislation enacted under the enabling statute: SCR No. 2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402.”

9. Section 155(4) cannot be applied to do anything contrary or inconsistent with the provisions of the National Court Rules: Louis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144.

10. As to Order 13 Rule 74, it is as follows:

“74. Setting aside registration. (59/7)

(1) The Court may, before the expiry of time fixed by an order for registration or by an order under this Sub-rule as the time within which the judgement debtor may file notice of a motion for an order setting aside the registration, extend the time so fixed.

(2) Subject to Sub-rule (3), the Court may, on motion by the judgement debtor, make an order, on terms, setting aside the registration.

(3) Notice of motion for the order must be filed within the time fixed under Rule 71(1) or under Sub-rule (1).”

11. It is a Rule contained in the Rules referred to in Order 13 Rule 68(3) which states:

“The Rules contained in this Division shall have effect with respect to foreign judgements which may be enforced and the provisions of the Act.......”

12. “Act” is defined in Rule 68(1) as the Reciprocal Enforcement of Judgements Act 1976. The Rules in Division 9 of Order 13 National Court Rules are the Rules made pursuant to s. 4 Reciprocal Enforcement of Judgements Act 1976. Section 4(1)(d) provides:

“4. Rules of court.

(1) Subject to this section, rules of court may—

(a) ........

(b) ........

(c) ...........and

(d) make provision with respect to the fixing of the period within which an application may be made to have the registration of the judgement set aside and with respect to the extension of the period fixed; and.....”

13. So Order 13 Rule 74 has been made specifically for the purpose of s.4(1)(d) Reciprocal Enforcement of Judgements Act 1976.

14. Order 1 Rule 15 National Court Rules provides:

“15. Extension and abridgement. (2/3)

(1) The Court may, on terms, by order extend or abridge any time fixed by the Rules or by any judgement or order.

(2) The Court may extend time under Sub-rule (1) as well after as before the time expires whether or not an application for the extension is made before the time expires.

(3) The period within which a person is required by these Rules or by any order to serve, file or amend any pleading may be extended by consent without an order for extension.”

15. The plaintiff submits that Order 1 Rule 15 is a general rule and is not and should not derogate from a specific Rule. The defendant submits that if the argument of the plaintiff was accepted, Order 1 Rule 15 would not have any utility.

16. Order 1 Rule 15 is a general provision as it is not concerned with any particular or specific Rule. Further, Order 1 Rule 15 is not one of the Rules referred to in Division 9 of Order 13 National Court Rules and not one of the Rules made pursuant to s. 4 Reciprocal Enforcement of Judgements Act 1976. Given this, I am not satisfied that Order 1 Rule 15 can be relied upon for the extension of time sought.

17. If however, Order 1 Rule 15 can be relied upon for the extension of time sought, in Pansat Communication Pty Ltd v. John Momis and Ors (1995) N1321, the Court followed the Australian High Court decision of Anthony Hordern & Sons Ltd v. Amalgamated Clothing & Allied Trades Union of Australia [1932] HCA 9; (1932) 47 CLR 1. At [7], Gavan Duffy CJ and Dixon J stated:

“When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.”

18. This statement has sometimes been called the “Anthony Hordern principle”. In the recent Australia High Court decision of Plaintiff S4-2014 v. Minister for Immigration and Border Protection [2014] HCA 34, the Court referred at [43] to the proposition on which the principle depends to the effect:

“that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course”

19. Notwithstanding that the cases referred to above concerned statutes, in my view the same principle should apply to the interpretation of subordinate legislation.

20. In this instance Order 13 Rule 47 specifically applies to the power of the court to extend the time within which the judgment debtor may file a notice of motion for an order setting aside a registration. Order 13 Rule 47(3) could not be more clear. It specifically provides that a notice of motion for an order ‘must’ be filed within the time fixed by the court.

21. Order 1 Rule 15 is a general Rule permitting an extension or abridgement of any time fixed by the Rules or by any judgment or order. I reject the argument that Order 1 Rule 15 would have no utility if Order 13 Rule 47 prevailed. In my view, Order 1 Rule 15 operates to extend or abridge time in circumstances where the National Court Rules do not otherwise provide specifically to extend or abridge time. To my mind if Order 1 Rule 15 were to prevail over Order 13 Rule 74, Order 13 Rule 74(3) would have little utility.

22. As Order 13 Rule 47 is one of the Rules that Order 13 Rule 68(3) provides, “... shall have effect with respect to foreign judgements...”, that Rules 68 to 75 of Order 13 were made pursuant to s. 4(1)(d) Reciprocal Enforcement of Judgements Act 1976, that pursuant to the “Anthony Hordern principle” Order 13 Rule 47 is a particular provision which prescribes the mode in which a subject extension of time may be made and Order 1 Rule 15 does not have that particularity and is not a Rule that “... shall have effect with respect to foreign judgements....”; I am of the view that Order 1 Rule 15 cannot be relied upon by the defendant for the extension of time that he seeks.

23. Consequently, as I have found that the defendant is not able to obtain the extension of time that he seeks he is not entitled to the relief sought in paragraphs 1, 2 and 3 of his notice of motion.

Application for a stay

24. In the alternative, the defendant pursuant to Order 12 Rule 40, Order 13 Rule 11 and Order 13 Rule 21 National Court Rules, and s. 155(4) Constitution, seeks that these proceedings and execution on the judgment be stayed pending the hearing and determination of proceedings that have been commenced by the defendant in Malaysia relating to and in connection with the plaintiff’s claim against the defendant.

25. As to this application for a stay, I mention at the outset that counsel for the defendant conceded that the foreign judgment registered was a judgment of the Supreme Court of Queensland that was made by the consent of the defendant. Further the defendant was legally represented by a firm of solicitors and counsel was instructed. The Order of P D McMurdo J dated 11^th May 2015 in evidence states that “By Consent The Order of the Court is That: 1. Judgment be given for the Plaintiff (Deputy Commissioner of Taxation) against the Defendant (Yii Ann Hii).....”.

26. As to the reliance upon s. 155(4) Constitution for a stay, I refer to my comments in paragraphs 8 and 9 above.

27. In regard to the application for a stay made pursuant to Order 12 Rule 40, I have difficulty understanding how an application for a stay can legitimately be made on the grounds that in the proceeding either no reasonable cause of action is disclosed or the proceeding is frivolous or vexatious or is an abuse of the process of the court, when the defendant consented to the judgment that is now registered in this jurisdiction, being entered against him.

28. In any event I concur with the submissions of the plaintiff that the procedure in Order 12 Rule 40 should be confined to cases where the cause of action is obviously and incontestably bad. I am not satisfied that this is the case in this instance.

29. In regard to Order 13 Rule 11, as to matters occurring after the date on which the judgment takes effect, there has not been a change in the standing of the plaintiff or any evidence of any other change that would warrant in my view, a stay of a judgment the foundation of which was a judgment ordered by consent. I remain of the same view in regard to the application made under Order 13 Rule 21 National Court Rules. I note further in this regard that the defendant has been unsuccessful in applying for an extension of time to set aside the registration of a foreign judgment and if I understand correctly, the judgment of the Supreme Court of Queensland has not been successfully appealed. In all of these circumstances, in my view it is not appropriate that the stay sought should be granted. Given this it is not necessary to consider the other submissions of counsel.

Orders

30. It is ordered that:

a) The notice of motion of the defendant filed 9^th August 2016 is dismissed;

b) The costs of and incidental to the said notice of motion shall be paid by the defendant to the plaintiff;

c) The interim orders made on 7^th June 2016, as extended on 15^th June, 23^rd June, 5^th July, 10^th August and 13^th October 2016 are further extended to the close of business on 14^th December 2016;

d) The interim orders made on 24^th June 2016, as extended on 5^th July, 10^th August and 13^th October 2016 are further extended to the close of business on 14^th December 2016;

e) The matter returns for an inter partes hearing at 1:30pm on 14^th December 2016 as to whether the interim orders in paragraphs c) and d) above should continue;

f) The time for entry of these orders is abridged to the date of settlement by the Registrar, which shall take place forthwith.
_____________________________________________________________
Leahy Lewin Lowing Sullivan: Lawyers for the Plaintiff
Pacific Legal Group: Lawyers for the Defendant