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. Brief history of the time to pay orders 9 Prior to March 2004, Mr Bortolin was served with five fine enforcement orders to recover moneys payable as a result of fines incurred by him. 10 In March 2004, the SDRO permitted Mr Bortolin to pay the total amount owing as a result of the fine enforcements orders by instalment pursuant to s 100 of the Fines Act 1996. It is known as a time to pay order. At the commencement of the time to pay order, Mr Bortolin was permitted to make monthly repayments of $20. 11 Between March 2004 and 21 April 2007, Mr Bortolin was served with 25 new fine enforcement orders. On each occasion, the SDRO decided to add the fine enforcement order to the time to pay order. As a result, the amount Mr Bortolin was required to repay through the time to pay order increased by around $3000. From late 2006, the SDRO increased the amount payable by each instalment in the time to pay order from $20 to $25 and then to $30 per month. This was to accommodate the inclusion of the additional amounts outstanding as a result of the additional fine enforcement orders received. The amount payable was finally increased to $20 per fortnight. Mr Bortolin continued to repay the amount at the rate of $20 per month and as a consequence he fell behind in the amount he was required to make in his time to pay order. 12 On 21 April 2007, Mr Bortolin was issued with one further fine enforcement order (No 264050234) due and payable on 19 May 2007. He failed to pay the amount by the due date. As Mr Bortolin was in arrears of his time to pay order, the defendant decided not to add this fine enforcement order to the time to pay order. There are now a further seven fine enforcement orders which are not the subject of a time to pay order. 13 On 28 May 2007, Mr Bortolin wrote to the SDRO enquiring why enforcement order 264050234 had not been added to the time to pay order. The defendant advised him that it would first require Mr Bortolin to be up to date with his time to pay order payments for enforcement order 264050234 to be added to the time to pay order. It also warned of enforcement action if he did not pay the amount in arrears and the scheduled payment by 8 June 2007. The SDRO says that Mr Bortolin did not pay the outstanding amount by 8 June 2007. 14 On 13 June 2007, pursuant to s 65(1)(a) of the Fines Act, the SDRO directed the Roads and Traffic Authority (the RTA) to suspend Mr Bortolin's drivers licence on the grounds that he had failed to pay fine enforcement order 264050234. The SDRO also advised the plaintiff by letter that it had dissolved the time to pay order on the grounds that the plaintiff was in arrears. 15 By letter dated 11 July 2007, the SDRO advised Mr Bortolin that, since he owed money for unpaid fines, it was considering taking further enforcement action against him. The SDRO again invited Mr Bortolin to apply for a new time to pay order and requested him to make a new application. 16 On 25 July 2007, the SDRO pursuant to ss 65(1)(a) and 67(2) of the Fines Act directed the RTA to take enforcement action against Mr Bortolin for non-payment of fine enforcement order 264929941. As Mr Bortolin, at this stage, did not hold a licence that was in force the RTA cancelled the plaintiff's vehicle registration (s 67). 17 On 16 August 2007, the SDRO wrote to Mr Bortolin advising that it had decided to reinstate the plaintiff's time to pay order at a repayment rate of $20 per month. It also informed Mr Bortolin that fine enforcement orders number 264050234, 264929941, 264158983, 264201984 and 265271111 had still not been incorporated in the time to pay order and advised Mr Bortolin that until the status of these outstanding fine enforcement order had been finalised, the enforcement action taken would not be reversed. 18 By letter dated 4 December 2007, the Director General wrote to Mr Bortolin stating relevantly: "In regards to your licence and registration cancellation, a review of our records confirm our office has acted in accordance to the Fines Act 1996 when directing the NSW Roads and Traffic Authority (RTA) to impose restrictions for non payment of your enforcement orders. I note your current financial constraints, however you must appreciate that our office cannot continue to add new enforcement orders into your current time to pay schedule without adjusting the current payment amount of $20 per month. Our records indicate that you have thirty eight (38) outstanding enforcement orders issued in your name with a total balance of $5333. Thirty (30) of which are included on your current Time to Pay Order 9000232016. Eight are not, and are liable for further action and costs at any time. To consider adding these further enforcement orders to your time to pay arrangement, I need you to provide this office with the following documents as outlined in our letter faxed to you on 20 August 2007. I am advised that you acknowledged receipt of this letter and have spoken with Jenna Kerstens, Team Leader Enforcement: § A completed time to pay application (copy attached) § Your personal tax return for the financial year ended 30 June 2007 § A statement of income confirming the pension amount that you receive § Details of any other income received by you § Details of all assets and outstanding liabilities in your name § In addition, I require your last 3 bank statements Enforcement action is suspended on these enforcement orders until 5 January 2007 to allow you time to provide these documents. If these documents are not all received enforcement action will resume. No further extensions will be provided." 19 I note that this letter was signed by the Director (the Chief) and that Mr Bortolin did not respond to this letter. 20 Section 100 of the Fines Act 1996 relevantly reads: 100 Time to pay (1) After a fine enforcement order is made and before a community service order is issued in the matter, an application for time to pay the fine may be made to the State Debt Recovery Office by the fine defaulter. (2) The State Debt Recovery Office may, by order, allow further time to pay the fine if satisfied the application is genuine and it appears expedient to do so. (3) The State Debt Recovery Office may: (a) extend the time for payment of the whole fine, or (b) allow the fine to be paid by instalments of such amounts, and at such times, as the Office specifies. (4) If an instalment of a fine is not paid by the due date, the remaining instalments then become due and payable unless the State Debt Recovery Office otherwise orders. (4A) An order allowing further time to pay a fine may be amended or revoked by a further order made on the application of the person liable to pay the fine or on the State Debt Recovery Office's own initiative. (5) Further enforcement action under this Part is suspended if an application for time to pay is granted and payment of the fine is made in accordance with the order of the State Debt Recovery Office. (6) …" 21 Under s 100(3)(b) of the Fines Act the SDRO is given a discretion. It may allow the fine to be paid by instalments of such amounts and at such time as the office specifies. Section 8(b) of the Interpretation Act 1987 provides that in any Act or instrument a reference to a word or expression in the singular form includes a reference to the word or expression in the plural form. Section 100(3)(b) of the Fines Act provides that the order allowing further time to pay may be amended on the SDRO's own initiative. Thus, SDRO was entitled to increase the instalments payable when further enforcement orders became subject to the time to pay order. If $3600 was the total amount of the fines that were payable (excluding the five which have not been made the subject of a time to pay order) and the amount payable per month was still $20, then it will take Mr Bortolin about 15 years to pay the outstanding amount. The SDRO in making an order for time to pay has to strike a balance between the payer's resources to pay and the time it will take to pay off the total amount outstanding. 22 In relation to the suspension of Mr Bortolin licence and the cancellation of his vehicles registration, s 66 empowers the Roads and Traffic Authority (RTA) to suspend or cancel the drivers licence of a fine defaulter. Section 67 empowers the RTA to cancel the registration of motor vehicles that are registered in the name of the fine defaulter so far as the powers to cancel the defaulter's licence and car registration. 23 Sections 66 and 67 provide: "66 Suspension or cancellation of driver licence (1) The Roads and Traffic Authority must, without further notice, suspend any driver licence of a fine defaulter against whom it is required to take enforcement action for the balance of the period of the licence. (1A) The Roads and Traffic Authority must suspend the driver licence of a fine defaulter even if the State Debt Recovery Office has: (a) granted an extension of time for the payment of the fine, or (b) allowed the fine defaulter to pay the fine by instalments, after requiring the Roads and Traffic Authority to take enforcement action. (2) If the driver licence is suspended and: (a) where the State Debt Recovery Office has granted the fine defaulter an extension of time for payment of the fine, the fine remains unpaid for at least 6 months after the extended due date, or (b) where the State Debt Recovery Office has allowed the payment of a fine by instalments, an instalment remains unpaid for at least 6 months, or (c) in any other case, the fine concerned remains unpaid for at least 6 months, the Roads and Traffic Authority must, if the State Debt Recovery Office so directs, cancel the licence. (3) The Roads and Traffic Authority is to remove the suspension of a driver licence if the State Debt Recovery Office so directs. (3A) The obligation to suspend the driver licence of a fine defaulter under subsection (1) extends to any licence that is already suspended when enforcement action is required to be taken under this Division. Accordingly, if the period of suspension comes to an end before the expiry of the licence, the Roads and Traffic Authority is then to take action under subsection (1) to further suspend the licence if the State Debt Recovery Office so directs. (4) The State Debt Recovery Office (or the Roads and Traffic Authority on its behalf) may notify the fine defaulter of the enforcement action taken under this section, but a failure to notify the fine defaulter does not affect that action. (5) Despite the suspension or cancellation of a driver licence under this section, a court or the Roads and Traffic Authority may exercise a function under another Act to suspend or cancel the licence. 67 Cancellation of vehicle registration (1) The Roads and Traffic Authority may, without further notice, cancel the registration of all or any motor vehicles of which a fine defaulter is the registered owner (or one of the registered owners) if: (a) it is required to take enforcement action against the fine defaulter but the fine defaulter does not hold a driver licence that is in force, and (b) the cancellation of the registration of those motor vehicles is in accordance with any guidelines issued under section 120. (2) The Roads and Traffic Authority must cancel the registration of a vehicle in accordance with this section if the State Debt Recovery Office so directs. (3) The State Debt Recovery Office (or the Roads and Traffic Authority on its behalf) may notify the fine defaulter of the enforcement action taken under this section, but a failure to notify the fine defaulter does not affect that action." 24 Once the SDRO declined to take into account the further outstanding fines, it was entitled to direct the RTA to cancel Mr Bortolin's driver licence and his registration of the vehicle owned by him. The RTA did cancel the licence and registration pursuant to ss 66 and 67 of the Act. 25 The SDRO seeks to summarily dismiss the statement of claim pursuant to Part 13.1 of the Uniform Civil Procedure Rules. Summary judgment and strike out defence 26 Rule 13.1(1) of the Uniform Civil Procedure Rules provides: 13.1(1) If, on application by the plaintiff in relation to the plaintiff's claim for relief or any part of the plaintiff's claim for relief: (a) there is evidence of the facts on which the claim or part of the claim is based, and (b) there is evidence, given by the plaintiff or by some responsible person, that, in the belief of the person giving the evidence, the defendant has no defence to the claim or part of the claim, or no defence except as to the amount of any damages claimed, the court may give such judgment for the plaintiff, or make such order on the claim or that part of the claim, as the case requires." 27 Rule 13.4(1) of the Uniform Civil Procedure Rules provides that the court may dismiss proceedings generally, or in relation to any claim for relief, in three circumstances. These are, if the proceedings are frivolous or vexatious; or, if no reasonable cause of action is disclosed; or, if the proceedings are an abuse of the process of the court. 28 Rule 14.28(1) of the Uniform Civil Procedure Rules provides that the Court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading firstly, discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, secondly, has a tendency to cause prejudice, embarrassment or delay in the proceedings, or thirdly, is otherwise an abuse of the process of the court. 29 Rule 14.28(2) provides that the court may receive evidence on the hearing of an application for an order under sub-rule (1). 30 In Commonwealth of Australia v Griffiths & Anor [2007] NSWCA 370 Beazley JA with whom Mason P agreed said: "11 The general principles relating to the summary disposal of proceedings are well-known: see General Steel Industries Inc v Commissioner for Railways (NSW) & Ors [1964] HCA 69; (1964) 112 CLR 125 at 129. If it is demonstrated that there is a real question to be tried, the matter is inappropriate for the entry of summary judgment: Dey v Victorian Railway Commissioners [1949] HCA 1; (1949) 78 CLR 62. The tests stated in the authorities as to whether it is appropriate that a case be disposed of by the entry of summary judgment include statements such as that the matter is "so obviously untenable that it cannot possibly succeed"; "manifestly groundless" or "would involve useless expense": see General Steel Industries at 129. 12 The summary disposal of proceedings or part thereof deprives a party of the right to a contested hearing. For that reason it is said that the requirement for establishing that there is no triable issue is demanding: Air Services Australia v Zarb (Court of Appeal, 26 August 1998, unreported). In Webster & Anor v Lampard [1993] HCA 57; (1993) 177 CLR 598, Mason CJ, Deane and Dawson JJ said at 602: "… the issue before the learned Master on the application for summary judgment was not whether [the plaintiffs] would probably succeed in their action against [the defendant]. It was whether the material before the Master demonstrated that that action should not be permitted to go to trial in the ordinary way because it was apparent that it must fail. The power to order summary judgment must be exercised with 'exceptional caution' and 'should never be exercised unless it is clear that there is no real question to be tried." (Citations omitted) 31 The SDRO has the power under s 100 of the Fines Act to determine the amount of the fine to be paid by instalments at such times as it specifies (s 100(3)). Mr Bortolin has indicated to this Court hat he does not wish to amend the statement of claim as currently pleaded. In my view, the claims raised in the statement of claim are doomed to failure. The statement of claim should be dismissed. 32 I make order one (1) of the notice of motion filed 23 June 2008. The plaintiff's statement of claim filed 7 May 2008 is dismissed. 33 The defendant is not seeking costs. I make no order as to costs. The Court orders (1) I make order one (1) of the notice of motion filed 23 June 2008. (2) The plaintiff's statement of claim filed 7 May 2008 is dismissed. (3) There be no order as to costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.