YARRALL v Barker - [2003] WASC 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: YARRALL -v- BARKER [2003] WASC 268

CORAM: EM HEENAN J

HEARD: 12 DECEMBER 2003

DELIVERED : 12 DECEMBER 2003

FILE NO/S: FRJ 3 of 2002

BETWEEN: MARY-ANNE YARRALL
Applicant
AND
JOHN CHARLES BARKER
Respondent

Catchwords:

Foreign Judgments Act (Clth) - Judgment of High Court of New Zealand registered as a judgment of this Court - Restraint of Debtors Act (1984) - Warrant for arrest of judgment debtor on risk of departing from State - Debtor released on reporting conditions and on surrender of passport - Directions to enable judgment creditor to attempt enforcement of judgment - No enforcement proceedings attempted for over 12 months - Debtor bankrupt in New Zealand - Affidavit of means showing no significant assets in State - Debtor wishing to leave State to take up employment overseas - Restraints imposed under Restraint of Debtors Act discharged in view of time elapsed without steps taken to enforce judgment

Legislation:

Foreign Judgments Act 1991 (Clth)

Restraint of Debtors Act (1984) (WA)

Result:

Restraints under Restraint of Debtors Act discharged

Category: B

Representation:

Counsel:

Applicant: Mr M W Hutchings
Respondent: In person

Solicitors:

Applicant: Butlers
Respondent: In person

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

Nil

Case(s) also cited:

Australian Mutual Provident Society v Gregory (1908) 5 CLR 615
Hall v Woolf (1908) 7 CLR 207; 15 ALR 60
Radich v Bank of New Zealand (1993) 45 FCR 101; 116 ALR 676

EM HEENAN J: These proceedings were commenced by originating motion on 3 October 2002 by which the applicant sought to register in this Court, under the provisions of the Foreign Judgments Act 1991 of the Commonwealth of Australia, a judgment against the respondent entered in her favour in the High Court of New Zealand dated 11 June 1999.
While that application was pending a further application was made by the applicant for an order, under the Restraint of Debtors Act (1984) Western Australia, for the arrest of the defendant on the basis that the evidence indicated that he was likely to depart from the jurisdiction leaving a substantial debt unsatisfied.
In due course the judgment of the High Court of New Zealand was registered in this state and no attempts have ever been made by the respondent to set aside that registration. It, therefore, has effect as a judgment of this Court. The respondent was arrested pursuant to the warrant that was issued and that warrant was extended on 30 January 2003. While in custody the respondent was brought before me on that warrant and orders were made, under the Restraint of Debtors Act, discharging him from custody on condition that he report regularly to the police, that he surrender his passport to the Court and that he be subject to forfeiture of an amount of money if he should breach any of the terms of the order of the court. Those terms were varied with regard to the place and time of reporting to the police on several occasions since then and the matter has been back before me for directions in relation to whether or not the warrant and the terms which were ordered should continue.
The evidence has disclosed that the respondent debtor was made bankrupt in New Zealand on his own petition in or about May 2003 and that a trustee in bankruptcy in New Zealand was vested with all the property of the bankrupt to which the New Zealand bankruptcy order applies. The appearances are that there is no property in New Zealand which can be obtained by the trustee to satisfy that judgment and the appearances also suggest that the trustee in bankruptcy has not taken any steps under the provisions of the Australian bankruptcy legislation, or otherwise, to attempt to recover property from the bankrupt debtor in Australia or from other countries outside New Zealand.
The submissions before me are that the effect of the New Zealand bankruptcy order would not, of itself, result in the vesting in the New Zealand trustee of immovable property owned by the debtor in Australia, if he has any, but that it may apply to moveable property in Australia owned by the debtor, although that application may depend upon steps being taken by the New Zealand trustee under s 29 of the Commonwealth Bankruptcy Act to enlist the assistance of the Australian authorities to seize that property. But, as I have said, no steps have been taken in that regard.
The defendant debtor, in response to directions which I have made in these proceedings on 24 October, has filed an affidavit of means. No attempts have been made to have him cross‑examined on that affidavit. It discloses that there is no immovable or real property owned by him within Australia and that his financial position as at 12 November 2003 was a credit of $1800 in a Commonwealth Bank account, a debt on a Visa credit card of $1677, some personal effects worth about $2000, a 1979 motor vehicle worth approximately $3000, some electrical goods worth $1000 and some personal effects in Indonesia worth $2000.
It would seem that his net assets are, at the most, about $8000. Mr Barker says that he has dependents living in Indonesia, a wife and a son, and that he has opportunities for employment in Indonesia and in the Maldive Islands and so wants to be able to leave Australia to avail of those employment opportunities and to support his family. That has been his position for some months and the affidavit is confirmatory of oral submissions which he made in this Court on the return of these proceedings on earlier occasions.
Since the New Zealand judgment was registered in this Court no formal steps have been taken by the applicant to enforce the judgment. There has been no writ of fieri facias issued. There have been no bankruptcy proceedings commenced in Australia against the debtor, nor has there been any application properly made to have the debtor examined as to his means with a view to assisting in effecting execution.
One of the directions which I made on 24 October 2003 was that, before today, the applicant, if so advised, should apply for and conduct an examination on oath of the respondent in order to determine what, if any, assets he possesses which may be available to satisfy the judgment registered in this State and to file submissions as to the form of any further execution of the judgment which the applicant may desire to attempt. It seems that an ineffective attempt to obtain an order for examination of the respondent was made by the applicant sometime in November but no order for examination was obtained, nor has any examination been conducted. We are left, therefore, with Mr Barker's declaration as to means. As to that, the applicant points out that there has been no disclosure of employment or income and the applicant's counsel submits that he has instructions about matters that his client wishes to have investigated further, if there were to be any such examination.
In that regard, although I sympathise with the practical problems of dealing with court processes, I should observe that the respondent has had since January of this year to initiate execution on this judgment and more particularly since 24 October to follow up the particular avenues of execution which were identified in those directions and nothing effective has been done.
The evidence which is available suggests that there is very little in the way of assets available in Western Australia to satisfy the judgment, but I am not really concerned about that matter because the judgment has been registered and can be enforced should it ever be considered worthwhile to do so. The question is whether or not the restraints imposed on Mr Barker when the orders which were made when he answered the warrant should continue. I can appreciate the desire of the applicant to ensure that the debtor remains subject to the enforcement powers of this Court. I can also appreciate that in practical terms, if he were to depart from Australia the prospects of enforcing this judgment would diminish and that many other procedural difficulties are likely to be encountered if it is necessary to search for the respondent in Indonesia, the Maldives or elsewhere and, if successful in locating him, to take steps in those countries to enforce the judgment.
Nevertheless, almost twelve months has gone by without any attempts being made to execute the judgment and the restraints which have been imposed under the provisions of the Restraint of Debtors Act are largely, in my view, designed to facilitate execution if it were ever possible rather than to constitute a substitution for execution or a permanent restraint.
Having regard to the small means which have been disclosed by the respondent in Western Australia, the length of time which has passed without execution being attempted by the applicant and the understandable desire by the respondent to exercise his earning capacity to advantage and the opportunities which he has in the Maldives and Indonesia, I do not consider that the justice of the situation requires that he be made subject to these restraints any longer.
Accordingly, I will order under the provisions of s 14 of the Restraint of Debtors Act that the respondent John Charles Barker be unconditionally released from the restraints imposed by the orders of this Court as varied and as presently appearing in the order of 24 October 2003 and from any other restraints presently applying by orders of this Court. In particular, I direct that he be released from the obligation to report further to the police as directed by my Order of 24 October 2003 and, secondly, I direct that his passport which has been held in safekeeping by the Court be returned to him on him providing a receipt for its delivery to him.
These orders will mean that the judgment which has been registered in this Court under the provisions of the Foreign Judgments Act 1991 remains registered and enforceable but there are no present restraints on the liberty or actions of the respondent. I appreciate that the likelihood is that Mr Barker will depart from Australia in the immediate future and may not return but having regard to the history of the matter, I do not see that I should make any orders which would prevent him from doing so. The applicant may attempt to enforce this judgment immediately or in the future or register it elsewhere. Those will be the orders.