consideration
30 Whether the June 2018 Orders ought to be set aside depends on whether the June 2018 Orders are inconsistent with Order 3 of the NSD786/2015 Orders. In considering that issue, the applicants urge the Court to consider the context in which the NSD786/2015 Orders were made.
31 While the overriding principle dictating the exercise of the discretion under r 39.05(c) is the interests of justice, what that will require will vary according to the circumstances of each case. Here the parties had the opportunity to lead evidence and make submissions in relation to the Stay Application after which judgment was delivered. Although the June 2018 Orders are interlocutory, given the circumstances in which they were made and the application which they resolve, they are not merely procedural. In addition, they carry with them an element of finality in relation to the issue with which they are concerned. Against that background, in my opinion, it falls to the applicants to demonstrate that there is good reason to set them aside.
32 Before proceeding further to consider whether the applicants have demonstrated that is so, I wish to address the Lyons Affidavit. That affidavit was filed electronically prior to the delivery of judgment. However, as I have already observed, it was not at that time served on Mr Prentice and no application was made to the Court by the applicants to reopen their case to rely on the Lyons Affidavit. To the extent it may be have been suggested, albeit faintly, that in those circumstances the Court ought to have been aware of and have regard to the Lyons Affidavit in determining the Stay Application, that suggestion is rejected.
33 The applicants relied on Patel v Minister for Immigration and Citizenship (No 4) (2012) 208 FCR 128 (Patel). In that case the appellant had emailed submissions to a Deputy Registrar of the Court but, for reasons which were unexplained, those submissions were not brought to the attention of the trial judge nor placed on any part of the Court file, including by lodgement in accordance with the Rules, before dispositive orders were made. In those circumstances, after considering the Court's power to do so and the relevant authorities, Collier J held at [45] that the Court had the power to, and should, reopen its decision made on the assumption that no submissions had been filed by the appellant and should consider the appellant's submissions.
34 In contrast to Patel, this was not a case where orders had been made for the filing of further evidence and, in compliance with such orders, material had been delivered to the Court which was not brought to my attention. Here, having heard the application over the course of half a day, judgment was reserved. If the applicants wished to rely on further evidence, it was incumbent on them to make such an application and give notice to Mr Prentice of their intention to do so. While the Lyons Affidavit, having been filed, may have formed part of the Court's file maintained for the purpose of the proceeding, it did not, absent such an application being successfully made, form part of the evidence to which the Court would have regard for the purpose of determining the Stay Application.
35 I turn then to consider the applicants' substantive arguments.
36 The first issue to consider is whether the June 2018 Orders are inconsistent with Order 3 of the NSD786/2015 Orders. In my opinion, they are not.
37 Order 3 prevents Mr Prentice, on the one hand, and the applicants (among others), on the other, "from taking any or any further enforcement action or steps (including in relation to any insolvency proceedings, but excluding any process for the quantification or assessment of costs) in respect of any debts that they have or may have as against each other". That order needs to be read as a whole, not in the fragmented way urged by the applicants. That is, the words "further enforcement" relate to the word "action" and the word "steps" such that what is intended is that the named parties are not to take any further enforcement action or further enforcement steps in relation to any debt that they have or may have against one another while the order remains in force.
38 Enforcement has an established meaning in the context of orders. Part 41 of the Rules concerns enforcement. Rule 41.10, headed "Execution generally", provides that a party may apply to the Court to make an order, issue any writ, or take any other step that can be taken in the Supreme Court of the State or Territory in which the judgment or order has been made, as if it were a judgment or order of that court. Assuming, in the context of the NSD786/2015 proceeding that the relevant court for the purposes of r 41.10 is the Supreme Court of New South Wales, the available methods of enforcement are writs for the levy of property, garnishee orders and charging orders: see ss 109 to 129 Civil Procedure Act 2005 (NSW).
39 Having regard to that established meaning, the Stay Application was not an "enforcement action" or "enforcement step" in relation to a debt, namely the Costs Order. Rather, it was an application made by Mr Prentice to prevent him suffering the injustice of "being saddled twice with unpaid costs": see Fewin v Prentice at [65] citing Hutchinson v Nominal Defendant (1972) 1 NSWLR 443 at 450. The effect of the June 2018 Orders was to prevent the applicants from prosecuting this proceeding until they paid the Costs Order. It did not "require" payment of that amount. The applicants could choose not to pay the sum and forgo the opportunity to prosecute this proceeding which would continue to be stayed.
40 In any event, Mr Prentice made the Stay Application on 7 December 2017. It was heard on 18 December 2017 and judgment was reserved. Those events occurred prior to 3 May 2018 when the NSD786/2015 Orders were made. Thus it could not be said that Mr Prentice took any action or step, let alone an enforcement action or step, in relation to a debt after the time the NSD786/2015 Orders were made. The only thing that occurred after that date was the delivery of judgment and the making of the June 2018 Orders by the Court.
41 The second issue raised by the applicants as a basis upon which they should be entitled to reopen the Stay Application and set aside the June 2018 Orders is that the NSD786/2015 Orders were intended to maintain the status quo. As Mr Prentice submitted, Order 3 must be construed on its face and any intention divined from the words in the order itself. The terms of Order 3 are plain. As set out at [13] above, for as long as the order remains in place, the parties are prevented from taking any or any further enforcement action or steps in relation to debts that exist between them, other than in relation to the quantification of costs. Those orders were made in the context of Mr Prentice applying for a stay of a writ for the levy of property issued against his boat. That is the relevant context in which the draft orders were agreed by the parties and provided to the Court on 3 May 2018 in the NSD786/2015 proceeding.
42 The status quo to be maintained is that, for the time being and it seems until various judgments of the Full Court are handed down (which were reserved at the time the Briefing Document was created), no enforcement action is to be taken by any of the named parties against the other in relation to debts that they have between them. As set out above, the June 2018 Orders are not, in my opinion, inconsistent with Order 3 nor have the applicants established that they are contrary to an intention to maintain that status quo.
43 The final issue to consider is the assertion that Mr Prentice failed to bring the Stay Application to the attention of Lee J as part of the Interim Application. To the extent that it is relevant to the application currently before me for consideration, I note the following matters.
44 First, although represented by different counsel and, in the case of Mr Prentice, different solicitors, both Mr Prentice and the applicants were party to the Interim Application. If there was an obligation to raise the Stay Application as a relevant consideration at any point during the course of the hearing of the Interim Application up to the time when the NSD786/2015 Orders were made, that obligation fell on both parties.
45 Secondly, the applicants criticise Mr Prentice for not referring to the Stay Application in the Costs Orders Reconciliation. But to the extent Mr Prentice attempted to provide a list of outstanding costs orders, as the title of the document suggests, the Costs Order which was the subject of the Stay Application was included under proceeding NSD1222/2015, the proceeding in which it was made. No costs order had been made in this proceeding at that time which may explain why it was not included in the Costs Orders Reconciliation. In any event, if the applicants had any concerns about the completeness of the Costs Orders Reconciliation that was a matter which they could have raised at the time.
46 Thirdly, reference was made to this proceeding in the Briefing Document provided to his Honour Justice Lee on the hearing of the Interim Application as an aide memoire, albeit the document does not describe the nature of the applications made in this proceeding, including the Stay Application, on which the Court was at the time reserved. Once again, if the applicants were concerned by the description provided in the Briefing Document they could have raised it at the time.
47 Fourthly, the NSD786/2015 Orders were clearly the subject of discussion between the parties. I would infer that, if the parties thought that the Stay Application was relevant to or affected by those orders, they would have raised it with the Court or sought a relevant carve out. They did not.
48 Neither the applicants nor Mr Prentice have sought to vary or discharge the NSD786/2015 Orders since the June 2018 Orders were made. Indeed they expressly declined an invitation from the Court in proceeding NSD786/2015 to do so. Rather, the applicants have made the current application seeking to discharge the June 2018 Orders. That is, they have elected to have those orders which act solely against them discharged rather than discharge the NSD786/2015 Orders which provide mutual benefit and burden to the applicants and Mr Prentice. To adopt the vernacular, it seems that the applicants wish to have their cake and eat it too.
49 Having regard to the above matters, I am not satisfied that it is in the interests of justice to set aside the June 2018 Orders and I decline to exercise my discretion to do so.