Bortolin v State Debt Recovery Office [2008] NSWSC 1007

New South Wales Supreme Court

CITATION : Bortolin v State Debt Recovery Office [2008] NSWSC 1007

HEARING DATE(S) : 18 September 2008

JUDGMENT DATE : 25 September 2008

JURISDICTION : Common Law

JUDGMENT OF : Harrison AsJ

(1) I make order one (1) of the notice of motion filed 23 June 2008. DECISION : (2) The plaintiff's statement of claim filed 7 May 2008 is dismissed. (3) There be no order as to costs.

CATCHWORDS : STRIKE OUT - time to pay enforcement orders - Fines Act

Fines Act 1996 LEGISLATION CITED : Interpretation Act 1987 Uniform Civil Procedure Rules

CATEGORY : Procedural and other rulings

CASES CITED : Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370

PARTIES : Peter Bortolin (Plainitff) State Debt Recovery Office (Defendant)

FILE NUMBER(S) : SC 30049/2008

SOLICITORS : P Bortolin (Plaintiff in person) Dalla-Pozza (Defendant)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

ASSOCIATE JUSTICE HARRISON

THURSDAY, 25 SEPTEMBER 2008

30039/2008 - PETER BORTOLIN v STATE DEBT RECOVERY OFFICE

JUDGMENT (Strike out – time to pay enforcement Orders – Fines Act ) 1 HER HONOUR: Mr Bortolin challenges the power of the State Debt Recovery Office to alter time to pay arrangements for enforcement orders. 2 By notice of motion filed 23 June 2008, the defendant seeks firstly, an order that the plaintiff's proceedings commenced by statement of claim filed 7 May 2008 be summarily dismissed pursuant to Part 13 Rule 13.4(1) of the Uniform Civil Procedure Rules; and secondly, in the alternative, that the statement of claim be struck out pursuant to Part 14 Rule 14.28(1) of the Uniform Civil Procedure Rules. 3 The plaintiff is Peter Bortolin. The defendant is the State Debt Recovery Office (SDRO). The plaintiff relied on his affidavits dated 10 June 2008 and 22 July 2008. The defendant relied on the affidavit of Richard Cant dated 20 June 2008. Mr Bortolin appeared unrepresented. At the hearing of this motion, Mr Bortolin had the assistance of a McKenzie friend, Mr John Drake. The SDRO was represented by a solicitor. 4 Over the past few years, Mr Bortolin has acquired 38 enforcement orders against him. Thirty of these have been made the subject of a time to pay order under s 100 of the Fines Act 1996. 5 Mr Bortolin has pleaded his case in the statement of claim as follows: "1. I had an agreement with the State Debt Recovery Office (SDRO) to repay my debt at $20 per month. 2. Someone at the SDRO arbitrarily reset the amount to $40 per month. 3. I am a pensioner, and when I explained that I could not repay at $40 per month, my licence was cancelled and my car registration was cancelled. 4. I continue to repay at the agreed amount of $20 per month which is all I can afford. 5. It is difficult for me to get around without a licence and a car, and unreasonable for the SDRO to break the repayment agreement and penalise me thus." 6 Mr Bortolin does not intend to amend this pleading. 7 Mr Bortolin submitted that in 2004 someone from the SDRO staff was creating problems for him. By registered mail, he contacted the Director General. He was advised that he would have to pay $20 per month. In 2005, he says that someone from the SDRO staff, while ignoring the existing agreement, arbitrarily requested extra money of up to $30 per fortnight. Mr Bortolin, who is a pensioner, explained his meagre financial situation had not improved in any way. Mr Bortolin says that he again wrote by registered mail, followed by a second letter to the Director General. But he says that his mail was prevented from reaching the executive office and so he has not received any response. He has also tried to reach the Assistant Director, only to be told that it was not possible. Mr Bortolin says that in 2007, his licence and car registration was suspended, despite being up to date with the monthly payments as per the original agreement. 8 Mr Bortolin, in oral submissions stated that the SDRO's data, by its own admission, could not be relied upon. Finally, he would like his correspondence to be attended to by the Director, the Chief of the SDRO, not the "Indians" in the SDRO.