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 following orders:
1.Shirley Lynette Scanlan be substituted as the Judgment Creditor in this matter.
2.Shirley Lynette Scanlan have leave under subsections 13(1)(a) & (1)(d) of the Civil Judgments Enforcement Act 2004 to execute against the second and third named judgment debtors upon the judgment entered in this action on 7 October 1997.
3.There be such order as to costs as this Honourable Court thinks fit.
Deputy Registrar Harman dismissed that application.
By a notice of appeal filed on 5 September 2006 Mrs Scanlan appealed against that decision. That appeal was not in the correct form for an appeal from a decision of a registrar to a judge as although it bore the correct file number it had a different heading to the action. The notice of appeal showed Cianiup as appellant and Mr Douglas as respondent. It did not name Mr O'Rourke or Mr Scanlan as a party to the action. In the notice of appeal the appellant sought the following orders:
1.The appeal be allowed.
2.The orders made by Deputy Registrar Harman on 25 August 2006 be set aside.
3.Shirley Lynette Scanlan be substituted as the Judgment Creditor/Appellant in this matter.
4.Shirley Lynette Scanlan has leave under subsections 13(1)(a) and (1)(d) of the Civil Judgment Enforcement Act 2004 to execute against the Respondent upon the judgment entered in this action on 7 October 1997.
5.The respondent pays Shirley Lynette Scanlan's costs of the application dated 31 March 2006.
6.The Respondent pays Shirley Lynette Scanlan's costs of this Appeal.
That appeal came before Commissioner Archer on 6 December 2006. By that time Mr O'Rourke was bankrupt. Her Honour heard argument from counsel for Mrs Scanlan and counsel for Mr Douglas and reserved her decision. Her Honour brought counsel for Mrs Scanlan and Mr Douglas back before her on 22 December 2006. Her Honour pointed out to counsel that Deputy Registrar Harman did not have jurisdiction to deal with the application under the Civil Judgments Enforcement Act 2004. After hearing submissions from counsel her Honour decided to deal with the appeal as though it were a fresh application for leave to execute on the judgment. By a decision delivered on 9 March 2007 her Honour granted Mrs Scanlan leave to enforce the judgment. Her Honour's reasons are published at [2007] WADC 19.
In those reasons at [25] her Honour referred to the fact that Mrs Scanlan was seeking leave to enforce the judgment against Mr Scanlan as well as Mr Douglas.
The Associate's Record and Certificate of the orders made by Commissioner Archer is that the following orders were made:
1.The Appeal be allowed.
2.The orders made by Deputy Registrar Harman on 25 August 2006 be set aside.
3.Shirley Lynette Scanlan be substituted as the Judgment Creditor/Appellant in this matter.
4.Shirley Lynette Scanlan has leave under subsections 13(1)(a) and (1)(d) of the Civil Judgments Enforcement Act 2004 to execute against the Second Named Defendant and the Third Named Defendant.
5.There be no order as to costs in relation to the application dated 31 March 2006.
6.The Second Named Defendant pays Shirley Lynette Scanlan's costs of this Appeal and any reserved costs in relation to the Appeal.
There is on the file a copy of the notice of appeal with handwritten amendments. As amended it is in the same terms as the Associate's Record and Certificate.
The order issued by the court and signed by Registrar Kingsley was in the following terms:
1.The appeal be allowed.
2.The orders made by Deputy Registrar Harman on 25 August 2006 be set aside.
3.Shirley Lynette Scanlan be substituted as the Judgment Creditor/Appellant in this matter.
4.Shirley Lynette Scanlan has leave under subsections 13(1)(a) and (1)(d) of the Civil Judgment Enforcement Act 2004 to execute against the Respondent upon the judgment entered in this action on 7 October 1997.
5.There be no order as to the costs of the application dated 31 March 2006.
6.The Second-named Judgment Debtor pay Shirley Lynette Scanlan's costs of the appeal, including reserved costs.
That order bears two court stamps on its reverse side. One is dated 9 March 2007. The other is a stamp that it was filed on 16 March 2007. The order incorporates some, but not all of the orders contained in the Associate's Record and Certificate. While it refers to the respondent in order 4 it refers to the second named judgment debtor in order 6.
In support of his application of 18 January 2011 Mr Douglas' lawyer Mr Melvyn Levitan has affirmed an affidavit dated 18 January 2011 in which he has set out some of the history which I have related in these reasons. That affidavit is relied upon in this application dated 23 February 2011. Mr Levitan has also annexed to his affidavit a letter sent to the court by facsimile transmission dated 5 February 2010. In that letter Mr Levitan wrote that Commissioner Archer had granted leave to execute against Mr Douglas and against Mr Scanlan. He enquired whether the court required an amended order for extraction. The court file is now a large one, with many documents on it, not all in chronological order. I have not been able to find a copy of that letter on the court file. Mr Levitan did not receive a reply to his letter.
In opposition to Mr Douglas' applications of 18 January 2011 and 23 February 2011 Mrs Scanlan has sworn an affidavit on 16 February 2011. In her affidavit Mrs Scanlan has deposed that she did not instruct her solicitors to apply for leave to execute the judgment against Mr Scanlan and that neither the application nor the appeal was served on her husband. In her affidavit of 16 February 2011 Mrs Scanlan also deposed that in obtaining leave to enforce the judgment she had relied upon an affidavit sworn by her on 7 September 2004 in which she deposed at par 5:
I have not made demand on, and do not seek leave to execute against the Third named Judgment Debtor, Lawrence John Scanlan, who is my husband.
That affidavit of 7 September 2004 was filed in support of an ex parte application made by Mrs Scanlan on 15 September 2004 seeking leave under s 141 of the Supreme Court Act 1935 to execute on the judgment.
Annexed to Mrs Scanlan's affidavit of 16 February 2011 is a copy of a letter from her solicitors to Mr Levitan dated 21 March 2007 which refers to the order granting leave to execute on the judgment being attached to the letter and demands payment of the judgment sum.
It is now four years since Commissioner Archer made her orders. In view of the length of time that has passed since the orders were made, it is impossible on the information available to me to ascertain why it is that the Associate's Record and Certificate shows that leave was granted to execute against Mr Scanlan as well as Mr Douglas when the notice of appeal does not refer to Mr Scanlan and when her Honour, after hearing from counsel for Mrs Scanlan and for Mr Douglas, decided to treat the notice of appeal as a fresh application for leave to execute on the judgment. It is also impossible on the information available to me to ascertain why the settled order filed on 16 March 2007 differs from the Associate's Record and Certificate. I have not been referred to any transcript of the hearing on 9 March 2007 when her Honour delivered her decision. It appears that no transcript was prepared. In answer to an enquiry by me today Mr Levitan informed me that he has requested a transcript but it has not been provided. In any event there is no certainty that a transcript would explain these discrepancies.
The long delay in the making of this application is relevant to whether or not I should make the orders sought. In Esther Investments Pty Ltd v Markalinga Pty Ltd (1992) 8 WAR 400 Malcolm CJ referred to the need for finality in litigation and to ensure that the administration of justice is not brought into disrepute by applications made after inordinate delay.
It is my view that to grant the application which Mr Douglas seeks in the circumstances to which I have referred would bring the administration of justice into disrepute. By reason of the inordinate delay in bringing this application I refuse to grant it.