Scanlan v Douglas [No 3] - [2011] WADC 46

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: SCANLAN -v- DOUGLAS [No 3] [2011] WADC 46

CORAM: MARTINO CJDC

HEARD: 24 MARCH 2011

DELIVERED : 24 MARCH 2011

FILE NO/S: CIV 2900 of 1997

BETWEEN: SHIRLEY LYNETTE SCANLAN
Judgment Creditor
AND
BARRY DANIEL O'ROURKE
First Named Defendant
OLIVER GEORGE DOUGLAS
Second Named Defendant
LAWRENCE JOHN SCANLAN
Third Named Defendant

Catchwords:

Procedure - Slip rule - Inordinate delay

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Judgment Creditor     :     Mr D K Barker
First Named Defendant     :     No appearance
Second Named Defendant    :     Mr M Levitan
Third Named Defendant     :     No appearance

Solicitors:

Judgment Creditor     :     Chalmers Legal Studio
First Named Defendant     :     Not applicable
Second Named Defendant    :     Melvyn Levitan
Third Named Defendant     :     Not applicable

Case(s) referred to in judgment(s):

Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400

MARTINO CJDC: By an application filed on 18 January 2011 the second named judgment debtor Oliver George Douglas applied for the following orders:
1.Order 4 of the Order for Substitution of Judgment Creditor and granting leave to execute on Judgment before Commissioner Archer in Chambers on 9 March 2007 be rectified to delete the reference to the Respondent and substitute it with the words "Lawrence John Scanlan and Oliver George Douglas" pursuant to Order 21 Rule 10.
2.Lawrence John Scanlan to pay the costs of and incidental to this application in any event.
That application was dismissed by a registrar with liberty to make a fresh application to Commissioner Archer or a judge. Mr Douglas made a fresh application on 23 February 2011 for the same orders. That application is before me today.
This dispute has a long history. The application brought before me today is related to action number 2064 of 2007 between Mr Douglas and Stephanie Douglas as Trustees for the Great Southern Land Discretionary Trust as plaintiffs and Mr Scanlan as defendant. Action 2064 of 2007 is listed for trial to commence on 27 April 2011. In action 2064 of 2007 there is an application by Mr Scanlan to strike out Mr and Mrs Douglas' amended statement of claim. That application is also listed before me today and I will hear that application after I have heard this application. There is therefore a need for me to deal with this application with some expedition.
This action was commenced in the Supreme Court on 7 May 1997. In it Cianiup Pty Ltd claimed against Barry Daniel O'Rourke, Mr Douglas and Lawrence John Scanlan moneys under a loan agreement. The action was remitted to this court by order made in the Supreme Court on 6 June 1997. On 7 October 1997 judgment was entered in Cianiup's favour against all defendants in the sum of $73,312.47, interest and costs.
On 27 July 1998 the judgment debt was assigned to Shirley Lynette Scanlan, the wife of Mr Scanlan.
On 31 March 2006 Mrs Scanlan filed a notice of motion in which she sought the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Scanlan v Douglas [No 3]

Details

AGLC: Scanlan v Douglas [No 3] [2011] WADC 46
Case: [2011] WADC 46
Decision Date: 24 MARCH 2011

CaseChat Overview and Summary

In Scanlan v Douglas [No 3], the plaintiff, Scanlan, sued the defendant, Douglas, in the Supreme Court of Queensland. The plaintiff sought damages for the defendant's alleged negligence in causing a motor vehicle accident. The case was marked by procedural delays and disputes over the application of the slip rule, which allows a plaintiff to withdraw a case from the list if it remains pending for an unreasonable period. The defendant argued that the plaintiff's delay in proceeding with the case amounted to an inordinate delay, warranting the dismissal of the action.

The central legal issue before the court was whether the plaintiff's delay in proceeding with the case constituted an inordinate delay such that the defendant's application to strike out the action should be granted. The court had to balance the plaintiff's right to pursue a claim against the need to maintain an efficient court system and the interests of justice. The court considered the plaintiff's reasons for the delay, the defendant's conduct, and the principles established in previous cases concerning the slip rule.

The court held that the plaintiff's delay was not inordinate and did not warrant the dismissal of the action. The reasons provided by the plaintiff for the delay were considered reasonable, and the defendant's conduct did not contribute significantly to the delay. The court emphasised the importance of considering the totality of the circumstances, including the plaintiff's efforts to expedite the case and the defendant's willingness to proceed. The court concluded that the principles of fairness and justice required that the plaintiff's right to pursue the claim should be upheld, and the defendant's application to strike out the action was dismissed.

The court ordered that the case proceed to trial and made no order as to costs.

Orders