Shreeve v Jourdan

1. [1]

   PAYNE JA: I agree with Free JA.

2. [2]

   KIRK JA: I agree with Free JA.

3. [3]

   FREE JA: The common law recognises that when judgment is given requiring the payment of a specified sum, the creation of the judgment debt gives rise to a cause of action on the judgment. The appellants (who should have a grant of leave to bring their appeal) obtained judgments in their favour in March 2006 against the respondent (Mr Jourdan) requiring the payment of various sums. The money was not paid. The appellants did not bring enforcement action in respect of those judgments. Instead, the appellants commenced proceedings in the Supreme Court relying on their cause of action on the 2006 judgments. They did so within the period allowed for actions of this kind under s 17 of the Limitation Act 1969 (NSW) (Limitation Act). The practical effect was to extend the period within which the appellants might be able to achieve satisfaction of their entitlement to be paid the outstanding sums, in circumstances where the usual period for taking action to enforce the 2006 judgments would otherwise have passed and leave would have been required to apply for enforcement orders.

4. [4]

   The question which arises on the application for leave to appeal is whether the institution or maintenance of the Supreme Court proceedings constituted an abuse of process. The primary judge held that it did and dismissed the proceedings accordingly. For the reasons developed below, I respectfully disagree with his Honour’s conclusion. The appellants had a legitimate cause of action which they properly invoked. There was nothing exceptional in the factual circumstances relating to the institution or maintenance of those proceedings that gave rise to an abuse of process. Mr Jourdan could not establish that he was prejudiced by the delay. The fact that the appellants had alternative rights to enforce the 2006 judgment debts, which they did not exercise, does not mean that it was an abuse of process to take the course of suing on the judgments, with all of the consequences that necessarily follow from invoking that cause of action. Contrary to the approach taken by the primary judge, the provisions of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act) governing the enforcement of judgments are not frustrated or circumvented where a plaintiff chooses to bring an action on the judgment rather than seek enforcement of the original judgment. The fact that this prolongs the period within which a plaintiff might achieve ultimate satisfaction by recovering the money owed is a reflection of the inherent characteristics of the cause of action.

The parties and the original dispute between the appellants and Jourdan

1. [5]

   The first appellant, Glenda Shreeve, and the second appellant, Colin Shreeve, are married. Mr Shreeve is the sole director of both the third appellant (C & G Building Consultants) and the fourth appellant (Malachi Corporation). In the period before December 2003, the appellants were involved in property development projects with a number of parties, including a project with Mr Jourdan. In December 2003 the appellants terminated their involvement with the projects. The termination was the subject of a deed dated 19 December 2003 (December 2003 Deed).

2. [6]

   Under the December 2003 Deed, Mr Jourdan agreed to pay $145,000 to the Shreeves by 30 June 2004. Mr Jourdan was the guarantor of a promise by another party to pay $115,000 to C & G Building Consultants by 30 April 2004. He was also the guarantor of a promise by another party to pay $50,000 to Malachi Corporation by 30 June 2004. None of the money was paid in accordance with those promises.

2004 Proceedings in District Court and subsequent events

1. [7]

   In July 2004 the Shreeves commenced proceedings in the District Court claiming against Mr Jourdan (and other parties who were guarantors under the December 2003 Deed) $145,000 plus interest under the District Court Act 1973 (NSW), for breach of the promise to pay under the December 2003 Deed. In August 2004 C & G Building Consultants commenced proceedings in the same court claiming $115,000 plus interest from Mr Jourdan, by way of enforcement of the guarantee he had given under the December 2003 Deed. In August 2005 an equivalent claim was brought by Malachi Corporation against Mr Jourdan for $50,000 plus interest.

2. [8]

   On 20 March 2006 the three District Court proceedings were resolved in favour of the plaintiffs in each matter. Judgment was given for the respective plaintiffs for each of their claims (2006 District Court Judgments).

3. [9]

   Mr Jourdan did not pay any of the judgment debts owed to the respective plaintiffs (being the present appellants). Both Mr Jourdan and the appellants experienced financial difficulties in 2006 and following. The appellants were concerned that Mr Jourdan was on the verge of bankruptcy and considered there to be a low prospect of recovery from him. In those circumstances the appellants were not willing to incur the costs of enforcement action against Mr Jourdan and no such action was taken.

4. [10]

   There was no communication between the appellants and Mr Jourdan between 2006 and 2018. For at least some of this time Mr Jourdan resided overseas.

Commencement of Supreme Court proceedings in March 2018 and obtaining of a defective default judgment

1. [11]

   In 2017 the Shreeves became aware that Mr Jourdan was living in Sydney. They sought legal advice. Following that legal advice, proceedings were commenced by the filing of a statement of claim in the Supreme Court on 16 March 2018 (2018 Supreme Court Proceedings). This was four days short of 12 years after the 2006 District Court Judgments. That deadline was significant because 12 years is the limitation period for bringing an action on a judgment. It is also the prescribed period for seeking enforcement orders under the Civil Procedure Act in respect of those judgments. After 20 March 2018 it would become necessary to obtain leave to apply for such enforcement orders.

2. [12]

   The link between the provision of legal advice and the commencement of the Supreme Court claim was addressed in the evidence of both Mr Shreeve and Mrs Shreeve in the proceedings before the primary judgment. The affidavit of Mr Shreeve included the following:

3. [13]

   Mrs Shreeve also gave evidence about the purpose of commencing the 2018 Supreme Court Proceedings. She said that her intention in filing the statement of claim was “to recover judgments for the judgment debts under the District Court Proceedings”.

4. [14]

   The statement of claim in the 2018 Supreme Court Proceedings is brief and straightforward in its pleading of the claims relied upon by the appellants. In respect of the claim made by the Shreeves the appellants plead that the Shreeves commenced proceedings in the District Court for monies due to them by Mr Jourdan on a specialty debt, as a result of which they recovered judgment against Mr Jourdan in the sum of $167,446.71. It is further pleaded that the judgment remains wholly due and unsatisfied, and that in the premises Mr Jourdan is indebted to the Shreeves for $167,446.71. Interest is sought pursuant to s 101 of the Civil Procedure Act and the amount of interest said to be due is specifically pleaded.

5. [15]

   An equivalent claim of C & G Building Consultants is pleaded, in the amount of $134,530.36 plus interest. In relation to Malachi Corporation, equivalent allegations are made in support of a claim for $58,491.78 plus interest.

6. [16]

   On 17 July 2018 the appellants obtained default judgment against Mr Jourdan in the 2018 Supreme Court Proceedings. However, the default judgment was defective. It took the form of a single judgment for $764,442.04 in favour of all of the appellants. That was defective in circumstances where the pleaded claims concerned the appellants in separate capacities in relation to three distinct debts.

7. [17]

   The appellants appear not to have appreciated that there was a problem with the default judgment until 2024. In the meantime, they did not take any action to enforce the default judgment. Nor did Mr Jourdan take any action between 2018 and 2024 to set aside the default judgment or pay the amounts owing to the appellants.

8. [18]

   On 6 May 2024 the appellants caused a bankruptcy notice to be issued based on the default judgment for $764,442.04. After the bankruptcy notice was served on Mr Jourdan, solicitors acting for him wrote to the solicitors for the appellants pointing out the defect in the default judgment which I have described above. Following that correspondence, the appellants consented to orders on 10 July 2024 setting aside the default judgment on the basis of the defect identified by Mr Jourdan’s solicitors. The bankruptcy notice which had been issued in May 2024 was also withdrawn.

9. [19]

   On 5 August 2024 Mr Jourdan filed a defence to the statement of claim. The only matter relied on as a defence to the claims is that the proceedings disclose no reasonable cause of action and are an abuse of process.

Application for strike out or permanent stay and judgment below

1. [20]

   Consistently with the position pleaded in his defence, Mr Jourdan filed a notice of motion seeking that the whole of the statement of claim be struck out or, further or alternatively, that the proceedings be permanently stayed as an abuse of process. The interlocutory application was later expanded to include an application for summary dismissal under r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). That was put forward as an alternative form of order if the Court concluded that the proceedings were an abuse of process: r 13.4(1)(c). The power to stay proceedings, including on the basis that they are an abuse of process, is conferred by s 67 of the Civil Procedure Act.

2. [21]

   A critical feature of the argument on the notice of motion was that Mr Jourdan accepted that a judgment debt does create a new cause of action by which a plaintiff may bring an action on the judgment. It followed that, as the primary judge observed in his reasons for judgment, despite the terms of the notice of motion Mr Jourdan did not in fact contend that no reasonable cause of action was disclosed in the statement of claim. The sole basis for the interlocutory application was the contention that the proceedings were an abuse of process.

3. [22]

   Mr Jourdan has maintained the same approach on appeal. Argument in this Court thus proceeded on the basis that the cause of action invoked by the appellants in the 2018 Supreme Court Proceedings is one that continues to be recognised by the law.

4. [23]

   The essence of Mr Jourdan’s contention about abuse of process before the primary judge was a complaint about the long period of time that had passed since the 2006 District Court Judgments. Measured at the date of hearing of the notice of motion before the primary judge, almost 19 years had passed since those judgments were given. Mr Jourdan contended that the passage of time amounted to an “inordinate delay”, and that he had suffered prejudice as a result. He relied in this regard on the significant amounts of interest being claimed by the appellants in the 2018 Supreme Court Proceedings.

5. [24]

   The primary judge essentially rejected Mr Jourdan’s complaint about prejudice to him. On the question of his exposure to liability to pay interest, his Honour noted that it would remain open to Mr Jourdan to argue at trial that the Court ought not order interest under s 101 of the Civil Procedure Act, including because of delay by the appellants in bringing the proceedings. Moreover, in circumstances where the purpose of interest is to compensate the appellants for being kept out of the judgment sums which Mr Jourdan was obliged to pay and has not paid, the primary judge did not accept that the claim for interest was a source of relevant prejudice.

6. [25]

   As to the possibility that the passage of time might entail prejudice because of the delay in the trial of factual issues, the primary judge suggested that when a trial is conducted after a lengthy delay there is a presumed prejudice, but that in the case of Mr Jourdan “the presumption is weak”. That is because the appellants sue on debts which are capable of being proved by the records of the District Court. There is no room for Mr Jourdan to dispute either the existence of the debts or the fact that they have not been paid. To the extent that there might be factual issues about the reasonableness of the claim for interest having regard to events since 2006, that was not a matter that meant a fair trial was no longer possible.

7. [26]

   In support of the proposition that there is a presumption that prejudice is likely to be involved in the conduct of a trial after a lengthy delay, his Honour cited Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; [1996] HCA 25 (Brisbane South Regional Health Authority v Taylor) at 555 per McHugh J. It is necessary to say more about the judgment of McHugh J in that case when considering the resolution of the application for leave to appeal. For present purposes, it is sufficient to note that the judgment should not be treated as establishing or recognising a general presumption that a trial after a lengthy delay will entail prejudice. The point being made by McHugh J at 555 regarding “presumptive prejudice” was tied to his Honour’s observation that legislatures make a judgment when enacting limitation periods that the chance of an unfair trial occurring “after the limitation period has expired” is sufficiently great to require the termination of the plaintiff’s right of action at the end of that period.

8. [27]

   The primary judge accepted a submission of Mr Jourdan that the explanation given by the Shreeves of their failure to take steps prior to March 2018 to enforce the 2006 District Court Judgments was “vague and unpersuasive”. His Honour described the evidence given by the Shreeves on that topic as “superficial”. His Honour likewise accepted Mr Jourdan’s submission that there was an absence of explanation for the inaction of the appellants after they obtained default judgment in the Supreme Court in July 2018. However, notwithstanding those findings, his Honour did not consider that the delay that had occurred was itself sufficient to warrant the proceedings being stayed or dismissed, in circumstances where neither actual prejudice nor any other form of manifest unfairness to Mr Jourdan was established.

9. [28]

   The argument which found favour with the primary judge was that the bringing of the 2018 Supreme Court Proceedings “circumvented” time restrictions which would otherwise apply to the underlying claims. Mr Jourdan’s argument in this regard focused on s 17 of the Limitation Act and s 134 of the Civil Procedure Act.

10. [29]

    The concept of “circumvention” is a loaded one and care needs to be taken to unpick the different aspects of the argument advanced by Mr Jourdan. In relation to s 17 of the Limitation Act, it was emphasised by Mr Jourdan that the 2018 Supreme Court Proceedings were commenced a few days before the expiry of the applicable limitation period of twelve years under s 17. At a factual level the contention was that the purpose of commencing those proceedings was to “avoid” the time restrictions that would otherwise apply to taking enforcement action in respect of the 2006 District Court Judgments. This was said to have been “admitted” in the evidence of the Shreeves.

11. [30]

    The argument building from s 134 of the Civil Procedure Act must be understood in the broader context of Part 8 of that Act, of which s 134 is part. Section 103 of the Civil Procedure Act, which is also in Part 8, provides that, subject to Part 8, the procedure for enforcing a judgment or order of the court is to be as prescribed by rules of court. Various rules are so prescribed, for example in Part 40 of the Uniform Civil Procedure Rules 2005 (concerning measures for enforcing judgments and orders of the Supreme Court and District Court). Pursuant to s 106 a judgment debt (which is defined in s 3 to include any amount payable under a judgment) may be enforced by means of a writ for the levy of property, a garnishee order or, in the case of a judgment of the Supreme Court or the District Court, a charging order. A writ for the levy of property is a form of writ of execution, according to the definition in s 102.

12. [31]

    The significance of s 134 of the Civil Procedure Act for Mr Jourdan’s argument is that it provides that an application by a judgment creditor for a writ of execution, a garnishee order, a charging order or an order for examination may not be made, except by leave of the court, if the prescribed period has elapsed since the judgment was given or registered pursuant to s 133. Except where the uniform rules prescribe a different period, the “prescribed period” is twelve years: s 134(2). Thus, as the heading to s 134 of the Civil Procedure Act indicates, after the expiry of the prescribed period judgments become “stale” when it comes to enforcement by means of writs of execution and similar measures.

13. [32]

    This temporal restriction is not absolute, because under s 134(1) of the Civil Procedure Act a court may give leave for an application by a judgment creditor after the prescribed period has elapsed. The primary judge placed particular emphasis on this feature of the statutory scheme:

14. [33]

    Section 138(1) of the Civil Procedure Act expressly provides that nothing in Part 8 of the Civil Procedure Act limits the manner in which a judgment or order of the court may be enforced apart from that Act.

15. [34]

    The primary judge construed Part 8 of the Civil Procedure Act as manifesting a legislative intention that in circumstances where a party is seeking to rely on a judgment that is more than twelve years old the appropriate (and effectively exclusive) mechanism for enforcement is to seek leave under s 134(1) of the Civil Procedure Act so as to obtain enforcement of that judgment outside the prescribed period. Based on that understanding of the purpose and effect of Part 8 of the Civil Procedure Act, his Honour characterised a party proceeding instead on a cause of action on the judgment as “circumvent[ing] a liberal regime imposed by Parliament”.

16. [35]

    This is evidently because the practical effect of proceeding on such a cause of action can be to facilitate, or potentially facilitate, enforcement of a new judgment debt, outside the prescribed period that applied to the original judgment debt and without going through the process of obtaining leave under s 134(1) of the Civil Procedure Act.

17. [36]

    On the facts of the present case, the circumvention was not one that occurred immediately at the point of filing, but rather as a likely future consequence if the proceedings came to fruition. When the 2018 Supreme Court Proceedings were commenced the appellants were still within time to apply under s 134 of the Civil Procedure Act for enforcement of the 2006 District Court Judgments. Had the appellants chosen instead to enforce the 2006 District Court Judgments by application to a court under s 134 they would not have required leave. They could not be described at that point in time as circumventing the time limit in s 134 or the requirement for leave in respect of applications outside the prescribed period. Any circumvention could only occur if and when the appellants were put in the position of being able to enforce a new judgment debt after 20 March 2018. Although the primary judge did not express the issue in these terms, his Honour’s concern was evidently that the proceedings were instituted in a way that facilitated this later circumvention and/or that maintenance of the proceedings after 20 March 2018 became an abuse of process because of that consequence.

18. [37]

    Proceedings of the kind brought by the applications on the cause of action on the judgment will, the primary judge found, “deprive Mr Jourdan, the Court and the public interest of the safeguards sought to be provided by the requirement for leave under s 134, which safeguards are intended by Parliament”. This outcome was said to be “manifestly unfair to Mr Jourdan because he will be deprived of the safeguards Parliament intends him to have. For the same reasons, the outcome may otherwise bring the administration of justice into disrepute”. In formulating the conclusions in these terms, his Honour was adopting the terminology of Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 536, where his Lordship referred to:

19. [38]

    The appellants raised a number of grounds of appeal, but the common thread was that the primary judge erred in finding that the 2018 Supreme Court Proceedings involved an abuse of process. The role of this Court on appeal is to determine whether his Honour erred in that regard, applying the correctness standard of review: GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 280 CLR 442; [2023] HCA 32 (GLJ). In considering the correctness of his Honour’s finding, it must be borne in mind that dismissing or permanently staying proceedings as an abuse of process is an “extreme step”: GLJ at [17]. In GLJ Kiefel CJ, Gageler and Jagot JJ said at [3]:

20. [39]

    In argument below Mr Jourdan also drew attention to the prospect of bankruptcy notices being issued under the Bankruptcy Act 1966 (Cth) (Bankruptcy Act). Pursuant to s 41(3)(c) of the Bankruptcy Act, there is a six year time limit on the issuing of a bankruptcy notice on the basis of a judgment debt. There is no power to extend that time. The time limit for issuing a bankruptcy notices in reliance on the 2006 District Court Judgments had therefore expired in March 2012. If the appellants were to obtain new judgments in the 2018 Supreme Court Proceedings, that would effectively create a fresh period of six years within which bankruptcy notices might be served on Mr Jourdan.

21. [40]

    The primary judge acknowledged that it was arguable that an additional reason why the 2018 Supreme Court Proceedings were an abuse of process was that they exposed Mr Jourdan to a re-enlivened risk of being subject to a bankruptcy notice in circumstances where that risk had otherwise passed, in connection with the 2006 District Court Judgments, in March 2012. However, his Honour did not reach a concluded view in that regard. Mr Jourdan did not seek to argue on appeal, by way of notice of contention, that this was an alternative basis on which to sustain the orders of the primary judge. In the circumstances, it is unnecessary to give this argument any further consideration.

The nature of the cause of action on a judgment

1. [41]

   Where a plaintiff successfully sues on a debt, the original cause of action merges in the judgment and is extinguished: Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23; KR Handley, Spencer Bower and Handley, Res Judicata (6th ed, 2024, LexisNexis) at [1.04]. Court procedures for enforcement of the judgment may then be enlivened. But the law has also long recognised that a judgment requiring the payment of money also creates a cause of action on the judgment debt itself.

2. [42]

   The cause of action is described by Pollock CB in Williams v Jones (1845) 13 M & W 628 (Williams v Jones) at 633; 153 ER 262 at 264-265 in the following terms:

3. [43]

   Alderson P likewise held at (1845) 13 M & W 628 at 634; 153 ER 262 at 265:

4. [44]

   As noted by Alderson P this cause of action provides a means by which judgments of foreign courts may become enforceable. But it is equally available as a cause of action in relation to judgments given within the same jurisdiction. Historically, the cause of action had a particular utility because of limits on the enforceability of judgments, as explained by Finkelstein J in Dennehy v Reasonable Endeavours Pty Ltd (2003) 130 FCR 494; [2003] FCAFC 158. His Honour considered the history of the cause of action in the context of applying s 5(4) of the Limitation Act 1958 (Vic) which provides that an action shall not be brought upon any judgment after the expiration of fifteen years from the date on which the judgment became enforceable. Finkelstein J held:

5. [45]

   Earlier in his judgment Finkelstein J had explained the evolution of the law in England and Australia concerning the common law rule that a judgment could not be enforced after a year and one day:

6. [46]

   Following an equivalent evolution in New South Wales the position concerning enforcement of judgments is now governed by Part 8 of the Civil Procedure Act. As the primary judge observed in the present case, the law has moved a long way from the old common law presumption that a judgment was presumed to have been satisfied after a year and a day had passed. In addition to the default period for enforcement being much longer (twelve years as opposed to a year and a day) the conferral of discretion on the Court to grant leave to extend time gives additional flexibility to an already liberal regime.

7. [47]

   There have been various observations about the obscurity of the cause of action, at least as it relates to actions on domestic judgments. In the passage extracted above Finkelstein J referred to such actions as now “probably obsolete”. The Final Report of the Law Reform Committee on Limitation of Actions (1977) (UK) described actions on a judgment as being “nowadays very rare indeed” (quoted in Lowsley v Forbes [1998] 3 WLR 501 at 509). In Kuwait Oil Tanker Company SAK v Al Bader [2008] All ER D 165; EWHC 2432 (Comm) at [8] Teare J described the claimants in that case as being entitled to seek a judgment against the defendant upon the judgment they had obtained in their first action against him, “however surprising that may seem”.

8. [48]

   Notwithstanding such observations, the critical point remains that despite the relaxation of the rules regarding enforcement of judgment the law has continued to recognise the availability of an action on a judgment. Mr Jourdan did not refer to any authorities that were said to cast doubt on the ongoing existence of the cause of action. To the contrary, as I have emphasised above, the present matter has been conducted on appeal, as it was before the primary judge, on the premise that the cause of action persists and was thus available to the appellants when they commenced the 2018 Supreme Court Proceedings.

9. [49]

   Nor has it been established by past decisions that it is inherently an abuse of process for a plaintiff to bring an action on a judgment in circumstances where the plaintiff could instead have taken enforcement action directly in respect of the original judgment. The position in England, in relation to actions on judgments of English superior courts, is described in Spencer Bower and Handley, Res Judicata in the following terms:

10. [50]

    The position in Australia is no different. Reference is made in the footnote to this passage to Berkeley v Elderkin (1853) 1 E & B 805 (Berkeley v Elderkin), at 807 where Lord Campbell CJ said that “prima facie, an action lies on the judgment of any court of competent jurisdiction”. The learned authors proceed to say that a party who “unnecessarily sues on a judgment of an English superior court may be denied costs”, citing as an example Mason v Nicholls (1845) 14 M & W 118.

11. [51]

    In Berkeley v Elderkin the prima facie position as described by Lord Campbell CJ did not prevail, such that an action was held not to lie on a judgment of the County Court. That is because the legislation which had established the County Court (County Courts Act 1846 (9 & 10 Vict c 95)) contained special provisions regulating the ways in which execution of a judgment of that court could be obtained, which were narrower than the modes of execution which would be available if judgment were issued by a superior court. Lord Campbell CJ concluded at 639 that it was:

12. [52]

    The provisions in question conferred protections on a judgment debtor, including by protecting certain property from execution. Such protections would be lost if a fresh judgment issued in the superior court. Under s 100, the County Court was empowered, even after an ostensibly final judgment, to rescind or alter any order previously made and to make orders for the payment of debts by instalments or in any other manner as the judge may think reasonable and just. Lord Campbell CJ at 639 held that this situation enlivened the principle that “where new rights are given with specific remedies, the remedy is confined to those specifically given”. The implication was that the legislature did not intend that an action on the judgment could be maintained in a superior court where the nature and enforcement of the judgment was subject to such specific regulation. The issue was not analysed in terms of abuse of process, but rather as a limitation on the scope of the cause of action in its application to judgments of this particular kind.

13. [53]

    Wightman J at 639, agreeing that an action did not lie, held that the prospect of the County Court being empowered to alter its judgment even while an action on that judgment was pending in the superior court was “so absurd that the legislature must be understood to prohibit the action”. Erle J likewise agreed and characterised the judgment in the County Court as being “placed on a different principle from an ordinary judgment”.

14. [54]

    In Greville v Bird (1867) 6 SCR (NSW) 253 (Greville v Bird), it was held for similar reasons that an action did not lie in the Supreme Court of New South Wales on a District Court judgment. The reasoning of the Court turned on provisions of the District Courts Act 1858 (NSW) which conferred specific protections on a judgment debtor. Under s 76, the District Court was empowered to order the payment of a judgment by instalments, while under s 80 certain things were protected from seizure. Stephen CJ held at 254 that the situation was relevantly indistinguishable from Berkeley v Elderkin. His Honour reasoned that it was “most strange, that this Court should give judgment and issue execution against all of the goods of the defendant, for the immediate payment of a debt, which the District Court may on the day previous have allowed the defendant to pay by instalments”. Stephen CJ explained that this conclusion was not in conflict with Williams v Jones, because in Greville v Bird the issue was governed by the intention of the legislature, as discerned from the District Courts Act, that a suitor’s remedies ought be confined to those provided for in that statute. Faucett J at 255 reached the same conclusion, reasoning that the defendant ought not be liable to be sued in the Supreme Court on the judgment of the District Court because “if he were so liable he might, at the option of the plaintiff, be deprived of advantages conferred on him by statute”.

15. [55]

    The situation that pertains where there is no legislative exclusion of this kind is illustrated by Duffy v De Rozzoli (1887) 8 LR (NSW) 153. It was held in that case that an action did lie in the District Court on a judgment given in the Supreme Court, as an aspect of the general conferral of jurisdiction on the District Court in respect of all pleas of personal actions where the amount was below a specified monetary limit. The argument to the contrary, seeking to invoke Berkeley v Elderkin, was rejected in circumstances where the defendant was unable to point to any particular protections that were bestowed on him in relation to the Supreme Court that could be said to be denied to him by reason of the action in the District Court. Darley CJ at 156 reasoned that, unlike in Greville v Bird, there was no basis to say that the plaintiff was confined to the particular statutory remedies that applied in the court that had given the original judgment. Sir G Innes J, agreeing, could not see the hardship in such a state of affairs: “If a man has incurred a judgment debt, I do not see why he should not pay it”: 156.

16. [56]

    In Bennett v Royal Bank of Scotland [2004] EWCA Civ 988 (Bennett), Mummery LJ (with whom Baker LJ and Collins J agreed) referred at [4] to the following statement of Leggatt LJ (with whom Morritt and Brooke LJJ agreed) in ED & F Man (Sugar) v Haryanto (Court of Appeal Transcript 17 July 1996) as setting out the general principles regarding actions on an existing judgment:

17. [57]

    A similar conclusion can be drawn from the enactment of s 17 of the Limitation Act about the compatibility of the cause of action with legislative policy in New South Wales on enforcement of judgments. As with s 24 of the Limitation Act 1980 (UK) (considered in Bennett), the legislature chose to enact s 17 in a form which recognised the ongoing availability of the cause of action on a judgment, notwithstanding the prevailing rules limiting execution of judgments. The legislature can be taken to have appreciated that it was preserving a cause of action that, of its nature, can have the effect of extending the period for enforcement of the underlying obligation beyond the period otherwise permitted for direct enforcement of the original judgment. The legislature must also be taken to have understood that the limitation period described in s 17 did not itself affect the time within which enforcement action would otherwise be required to be taken in respect of the original judgment. The enactment of the Limitation Act occurred following the recommendations of the Law Reform Commission in a report of October 1967 which relevantly included the following about the proposed s 17:

18. [58]

    In O’Mara Constructions Pty Ltd v Avery (2006) 151 FCR 196; [2006] FCAFC 55 at [16], the Full Court of the Federal Court held that the legislature can be taken to have intended that s 17 would have the effect described by the Law Reform Commission.

19. [59]

    The observations of Leggatt LJ in ED & F Man (Sugar) v Haryanto about the maintenance of “judicial scrutiny” over the second action have a particular resonance in the present case. One of the concerns held by the primary judge was that the leave requirement in s 134 of the Civil Procedure Act establishes a form of judicial scrutiny over the bringing of actions for the enforcement of judgments outside the prescribed period. His Honour’s reasoning suggests that an action on the judgment is an abuse because it avoids judicial scrutiny. That overlooks the mechanism of judicial scrutiny described by Leggatt LJ, being the ability to intervene if and when the second action is an abuse of process. It would be circular reasoning to say that such intervention is necessarily warranted whenever a second action is commenced because the action is not subject to the different form of scrutiny that applies to enforcement actions under s 134 of the Civil Procedure Act.

20. [60]

    On the facts in Bennett, the Court of Appeal was not satisfied that the plaintiff bank had engaged in any abuse of process. In doing so it rejected arguments, equivalent to those advanced by Mr Jourdan in the present case, that the bank had commenced the proceedings to obtain a second judgment for the sole purpose of “circumventing” the inconvenient fact that it was statute barred from enforcing the original judgment: [17]-[19].

21. [61]

    Kuwait Oil Tanker Company SAK v Al Bader [2008] All ER D 165; EWHC 2432 (Comm) illustrates the kind of factual circumstances that could potentially give rise in a particular case to an abuse of process in connection with an action on a judgment, or at least the need for special conditions to avoid such an abuse arising. In that case the plaintiffs had taken steps to seek to enforce the original judgment, obtained in 1998, against such assets of the defendant as they had been able to identify. When a substantial amount remained outstanding, but the date of limitation for enforcement of the 1998 judgment was imminent, the plaintiffs commenced an action on the 1998 judgment. At that time enforcement action was ongoing, including in Switzerland. In order to address the overlap between the ongoing enforcement action and the new proceedings the plaintiffs undertook that enforcement of any judgment in the second action would be stayed until they had obtained permission from the Court to enforce it, which would give the opportunity the opportunity to review the matter and ascertain that enforcement was appropriate in the circumstances. The Court was satisfied that in the circumstances the second proceedings were not an abuse of process. The same conclusion was reached in Habib Bank Ltd v Central Bank of Sudan [2014] EWHC 2288 (Comm) on the basis of an equivalent condition being imposed on enforcement of the second judgment.

Disposition of the application for leave and the appeal

1. [62]

   Stripped of the loaded language sought to be attached by Mr Jourdan, the state of affairs facing the appellants as of 16 March 2018 was simply this:

   1. (1)

      as a matter of direct enforcement action the 2006 District Court Judgments were about to become stale. Unless they made an application for a writ for the levy of property, a garnishee order or a charging order in respect of the 2006 District Court Judgments by 20 March 2018, the appellants would only be able to pursue that option for enforcement if they obtained leave under s 134(1) of the Civil Procedure Act;

   2. (2)

      an alternative to direct enforcement action of that kind in respect of the earlier judgments was the commencement of a new action on the judgments, which was still within time but needed to be commenced by 20 March 2018;

   3. (3)

      the new action on the judgments, if successful, would have the practical effect of allowing more time to seek recovery of the outstanding money from Mr Jourdan, including if necessary by taking enforcement action in respect of new judgments if and when obtained on that action; and

   4. (4)

      the potential enforcement action that might be taken on the basis of new judgments would include enforcement action under the Civil Procedure Act (within twelve years of the future judgments) and issuing a bankruptcy notice within six years of judgment, pursuant to s 41(3)(c) of the Bankruptcy Act.

2. [63]

   Given this context, there is nothing remarkable about the evidence given by the Shreeves to explain why they commenced the 2018 Supreme Court Proceedings. The Shreeves wanted to recover the outstanding judgment debts. They filed the 2018 Supreme Court Proceedings with a view to achieving that outcome. It may readily be inferred that they understood, having taken legal advice, that this was a legitimate option available to them as a means of recovering the money owed to them.

3. [64]

   In light of the authorities considered above, it may be accepted that an action on a judgment, while available as a legitimate cause of action, can nevertheless involve or become an abuse of process. The fact that the action has been commenced within the applicable limitation period does not mean that it is incapable of constituting an abuse of process: GLJ at [37]. However, there must be some feature of the proceedings that warrants the characterisation of abuse of process over and above the inherent characteristics of the cause of action itself.

4. [65]

   In the present case the primary judge made no finding that the purpose of the appellants commencing the 2018 Supreme Court Proceedings was in any sense improper, at least as that concept would ordinarily be understood in the context of abuse of process. There was no basis on the evidence to reach a conclusion that the appellants were actuated by anything other than a desire to recover the outstanding debts that Mr Jourdan owed them.

5. [66]

   To the extent that Mr Jourdan complained of “delay” in commencing the 2018 Supreme Court Proceedings, the appropriate focus is upon the effect of the delay, in particular on the trial process, and not the mere fact of the effluxion of time: GLJ at [43], citing the analysis of Bell P in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at 235 [77]. Here the difficulty for Mr Jourdan is that he cannot show that he will suffer any manifest unfairness because of the delay since 2006, including in terms of the ability to conduct a fair trial. As explained above the primary judge rejected Mr Jourdan’s complaints of prejudice.

6. [67]

   It is also important to emphasise that the 2018 Supreme Court Proceedings were commenced within the time period allowed by s 17 of the Limitation Act. In Brisbane South Regional Authority v Taylor McHugh J considered the nature and purpose of statutory limitation periods. This was in the context of an application under s 31(2) of the Limitation of Actions Act 1974 (Qld) for an extension of time to bring a claim outside the limitation period. His Honour at 552 noted that the effect of delay on the quality of justice is “no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions”. After identifying three other broad rationales for the enactment of limitation periods, his Honour said, at 553:

7. [68]

   His Honour further developed the point at 555:

8. [69]

   His Honour made similar observations in Herron v McGregor (1986) 6 NSWLR 246 at 253; 28 A Crim R 79, quoted with approval in GLJ at [37].

9. [70]

   It follows that there is a critical difference between commencing an action within the prescribed limitation period and seeking to commence an action outside that period. His Honour said, at 555:

10. [71]

    Once these matters are appreciated, there is little substance in Mr Jourdan’s complaint that the appellants only commenced the 2018 Supreme Court Proceedings a matter of days before the expiry of the limitation period that applied. This is not, as Mr Jourdan would have it, a matter of “avoiding” the limitation period. It is simply a matter of bringing an available action within the permitted time.

11. [72]

    Nor is there any finding that the appellants have acted in the context of the proceedings themselves in a way that is oppressive or unfair to Mr Jourdan, or otherwise involves the misuse of court processes. Despite the long passage of time between the 2006 District Court Judgments and today, there has in fact been very little engagement with the Court’s processes. The period between the giving of the District Court judgments in March 2006 and the commencement of proceedings in the Supreme Court in March 2018 did not involve the process of any court. At most, the complaint of Mr Jourdan is that the appellants could have invoked the processes of a court by bringing enforcement action but they did not.

12. [73]

    After the commencement of the 2018 Supreme Court Proceedings the appellants moved efficiently to obtain default judgment against Mr Jourdan. Default judgment was obtained four months after the commencement of proceedings. No complaint is made about the time taken for this to occur, or the manner in which it came about. Again, there was a period of dormancy, from July 2018 and May 2024, when there was no engagement with the processes of the Supreme Court. There is no sense in which it can be said that during this period the appellants abused the processes of the Court.

13. [74]

    The bottom line is that Mr Jourdan cannot point to any particular characteristics of the litigation that warrant a conclusion that the proceedings are an abuse of process. That is so whether one focuses on the actions and purpose of the appellants at the point of commencement of the proceedings, or the maintenance of the proceedings beyond 20 March 2018, or in 2024. The absence of any finding in his favour of prejudice is particularly telling. Properly scrutinised, his argument reduces to the proposition that to commence an action on a judgment is necessarily to “circumvent” the legislature’s intention that the only available mode of enforcement of the original judgment is by enforcement within the prescribed period under s 134 of the Civil Procedure Act or, after that time, with leave of the Court. That is the notion implicit in Mr Jourdan’s submission that the appellants brought the administration of justice into disrepute by filing an action which “avoided” the time limit in s 134. The primary judge in substance accepted that proposition. His Honour’s reasoning did not turn on any particular feature of the evidence or any particular step taken or not taken in the course of the 2018 Supreme Court Proceedings.

14. [75]

    The error in this approach, with respect, is that it attributes to the legislature an intention that the regime in Part 8 of the Civil Procedure Act for the enforcement of judgments is exclusive to the point that it would be undermined by allowing for an action on a judgment that can give rise to a fresh judgment, and a prospect of later enforcement on that judgment. No such intention can be discerned from the text, context or purpose of Part 8 of the Civil Procedure Act. The law has long recognised that an action on a judgment involves a response to a judgment which is distinct from direct enforcement or execution of that judgment. A necessary characteristic of the cause of action is that any subsequent judgment will bring with it the prospect of enforcement at a time which is later than the time at which enforcement of the original judgment might otherwise occur. That includes the prospect of enforcement of the subsequent judgment at a time when it may no longer be possible to enforce the original judgment giving rise to the cause of action.

15. [76]

    As explained above, s 17 of the Limitation Act was enacted in a form which expressly recognised the existence of the cause of action and in circumstances where the legislature appreciated that there were separate rules governing the execution of judgments. There is plainly an overlap between those different ways of responding to a judgment, given that an action on a judgment is another means by which a creditor may achieve satisfaction of an entitlement to be paid. But it is not to be treated, either in form or substance, as a mode of enforcement of the original judgment itself, in the sense in which Part 8 of the Civil Procedure Act uses that concept. Once this context is appreciated, there is not a sound basis to conclude that the legislature’s objectives in enacting Part 8 are undermined by allowing judgment creditors to take the alternative course of bringing an action outside Part 8.

16. [77]

    These conclusions are reinforced by s 138(1), which provides expressly that nothing in Part 8 “limits the manner in which a judgment or order of the court may be enforced apart from this Act”. Even if an action on a judgment is to be characterised for these purposes as a means of “enforcing” a judgment (which in my view is not an accurate characterisation), s 138(1) makes clear that the provisions of Part 8 were not intended to be exhaustive to the point of rendering it an abuse of process to bring such an action.

17. [78]

    This is not a situation, of the kind that arose in Berkeley v Elderkin and Greville v Bird, where the 2006 District Court Judgments were subject to a special statutory regime affecting enforceability, the effect of which would be subverted by the prospect of fresh judgments to be obtained in the Supreme Court. Aside from the temporal limitations that have already been addressed, Mr Jourdan did not submit that, having regard to Part 8 of the Civil Procedure Act and any applicable rules of court, there was any relevant difference between enforceability of the 2006 District Court Judgments and the prospective future enforceability of judgments obtained in the 2018 Supreme Court Proceedings.

18. [79]

    The orders that I consider appropriate are:

    1. (1)

       Leave to appeal is granted.

    2. (2)

       The appellants are to file within seven days a notice of appeal in the form filed as a draft notice of appeal on 23 May 2025.

    3. (3)

       Appeal allowed.

    4. (4)

       The orders of the primary judge of 26 February 2025 are set aside and in lieu thereof the following orders are made:

    5. (5)

       The respondent is to pay the appellants’ costs.