Case: Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549
Outcome: referred to
A similar approach is reflected in the decisions of Re Sutherland-Cropper (1985) 11 FCR 156; Glass v Tarea Management (North Shore) Pty Ltd (in liq) (1990) 25 FCR 242; Re Keogh; Ex Parte Keogh v Director of Public Prosecutions (1995) 61 FCR 591 ( Re Keogh ); Re Lattouf (1994) 52 FCR 147 ( Re Lattouf ) ; Re Lattouf; Ex parte New South Wales Director of Public Prosecutions v Lattouf [1995] FCA 752 ; and Tatt v New South Wales Director of Public Prosecutions [1998] FCA 957. In each of those cases a restitution order (sometimes as a condition of a recognisance) had not been complied with following conviction for a criminal offence. Hence, s 60(1) has been found to be available to stay the enforcement of an order to make restitution, or to stay that part of the order imposing consequences for non-compliance with a condition in a recognisance requiring restitution. That approach gives effect to the purpose and effect of s 60(1) of the Act as in force since 1980 and as explained by Gibbs CJ in Storey v Lane [1981] HCA 47 ; (1981) 147 CLR 549 at 556. 22 In my view, Higgins is not a decision directly on point. It too was an application under s 60(1) of the Act. Spender J made the determination that s 60(1) was not available in the particular circumstances, because the fine and costs imposed were in reality the punishment. The bankrupt was ordered to pay the fine and costs within a specified period, with a term of imprisonment in default of payment. His Honour at 537 described them as ' ... but components of a total sum which has a punitive character in that non-payment of which is visited by imprisonment'. Moreover, the costs order was made under the general discretionary power of the Magistrates Court under s 157 of the Justices Act 1886 (Qld) to order costs, and the costs were payable to the prosecuting authority (the Builders' Registration Board of Queensland) rather than to the victims of the contravening conduct. In addition, Spender J at 539 contrasted the situation with which he was faced with orders amounting to pecuniary penalties payable in consequence of the non-payment of a provable debt: see Storey v Lane (above) at 563. 24 The power under s 60(1)(b) is discretionary. In this matter, I am satisfied on the evidence that the applicant is bankrupt, and is unable to satisfy the costs order. He is a disability pensioner. He has no employment. That is also in part demonstrated by the processes against him under the Sentencing Act since the costs order was made, and which have not resulted in him paying the costs order. The prospect of further enforcement procedures under the Sentencing Act imposing more disadvantage, without him having the capacity to meet the costs order, stands strongly in favour of exercising the discretion in his favour: see Storey v Lane (above) at 558. There appear to be no features of the applicant's circumstances which point in a contrary direction: cf Re Keogh at 596 ; Re Lattouf at 153. The second respondent, which is the beneficiary of the cost order, has not put forward any such countervailing considerations. I am therefore of the view that the order sought by the applicant should be made.