The application on the face of it did not make sense as the orders sought had already been made. Although the application made no sense, a supporting affidavit lodged by Mr Simonsen sworn 23 December 2008 made it clear he was seeking specific discovery by Mr Legge of a number of documents relating to the partnership.

1. On 12 January 2009 the matter again came before his Honour Magistrate Boothman who made the following orders:
   1. Application is adjourned to 30/1/2009 at 10 am at District Court Building, Court 1.4, 500 Hay Street, Perth for formal discovery to be complete.
2. On 30 January 2009 the matter came back before Magistrate Boothman who made the following order:

Application is adjourned for final discovery list to 13/2/09 at Court 9.1, Level 9, Central Law Courts, 30 St Georges Terrace, Perth.

Unfortunately there is no transcript of the proceedings on this date available.

1. On 9 February 2009 Mr Legge lodged an application (in purported compliance with the order made on 19 December 2008 but out of time) seeking orders that 'parties to each lodge an application for specific and formal discovery'. Similar to Mr Simonsen's application of 23 December 2008, the application on the face of it did not make sense. However an affidavit of Mr Legge made on 9 February 2009 and lodged in support of the application, made it clear Mr Legge was seeking specific discovery by Mr Simonsen of a number of documents relating to the partnership. The application by Mr Legge was listed for hearing on 6 March 2009. A copy of the application was given by Mr Legge to Mr Simonsen on 13 February 2009.
2. On 13 February 2009 the matter came back before his Honour Magistrate Boothman. The transcript of what occurred on 13 February 2009 reveals a disturbing confusion as to what orders were in place against Mr Legge. At p 3 of the transcript his Honour said as follows:

The order of 25 November 2008 says, 'In the event that the defendant does not comply with the above' - with the order - 'in respect of the independent accountant's report as per paragraphs 2 and 3, default judgment will be granted'.

In fact no order had been made on 25 November 2008.

An order for specific discovery is exactly that, the party to provide specific discovery. If you haven't done that, all I am saying to you is that if Mr Simonsen now makes an application with an affidavit, seeking judgment under order 5 which I made, he will get it; simple.

His Honour Magistrate Boothman made the following formal orders:

1. Application lodged 9 February 2009 be and is adjourned for service on the claimant.
2. This matter be adjourned seven days to 23 February 2009 at 10 am, Industrial Court 4, Level 18, AXA Building, 111 St Georges Terrace, Perth WA for an affidavit and application by the claimant as to orders of 25 November 2008. (my emphasis)
3. There be no order as to costs.
4. On 16 February 2009 Mr Simonsen lodged an application seeking the following orders:
   1. The court make orders for default judgment in the sum of $21,870.19 against the defendant; and
   2. statutory interest on the above sum from the date of debt to the date of payment or judgment.
5. The matter came before his Honour Mr Boothman on 23 February 2009. During the hearing of the matter his Honour was informed by Mr Simonsen that he had given discovery on 23 December 2008 as per the order of 19 December 2008 (ts 3). Of course there was no order for discovery on 19 December 2008 but only an order that the parties lodge 'an application for specific and formal discovery'. This suggests that there was some confusion by Mr Simonsen as to the difference between making an application for discovery and giving discovery.

8 On the hearing of this appeal Mr Simonsen informed me that he was unable to confirm that he had filed a list of discoverable documents after the order of Magistrate Boothman on 30 January 2009. Mr Simonsen believed he had given discovery of documents by his affidavit of 26 September 2009 in support of a summary judgment application. The supporting affidavit had annexed to it the book of documents marked AJS 1 to AJS 8.

9 Order 30 and O 31 of the Magistrates Court (Civil Proceedings) Rules 2005 provide that where a party is required to provide additional information by disclosing documents relevant to the case (that is, discovery) the party must lodge and serve an affidavit containing a list of the documents. The affidavit must state, to the best of the deponent's knowledge and beliefs, every document required to be disclosed has been disclosed or is the subject of an objection. These provisions are consistent with the practice of the superior courts in relation to discovery. Mr Simonsen did not comply with these rules and had not given discovery as required, although I accept that he believed he had.

10 It is apparent from the transcript of the proceedings that on being informed by Mr Simonsen that he had given discovery, his Honour then focused his attention on Mr Legge and his apparent failure to give discovery. His Honour was informed by Mr Legge that he had given discovery and had served this on Mr Simonsen at the previous hearing on 13 February 2009. He also informed his Honour that he had filed an affidavit of service. This affidavit of service refers to the purported discovery as 'application (Form 23) plus affidavit for discovery'. In my opinion this is clearly a reference to the application filed by Mr Legge seeking discovery against Mr Simonsen and not giving discovery himself.

11 During the course of the hearing the following exchange occurred between his Honour and Mr Legge (ts 6 - 7):

HIS HONOUR: Mr Legge, you have just told me that you have done discovery and handed it to him and you haven't. You simply haven't.

LEGGE, MR: Sorry. Could you just explain what you mean by handing discovery to Mr Simonsen?

HIS HONOUR: You are supposed to provide discovery to the other side and you haven't done that. This is the third time it has been in court.

LEGGE, MR: Did not Mr Simonsen say that he saw the documents he requested at Lawton Gillon's office and you said to him last time, 'Did you make a copy of that'?

HIS HONOUR: That may well be but you have not provided discovery to him.

LEGGE, MR: Because I have not got - - -

HIS HONOUR: You have not provided discovery and here are once again and you have not told me the truth this morning.

LEGGE, MR: Well, I have, your Honour.

HIS HONOUR: No, you have not, Mr Legge. You have told me something quite different.

LEGGE, MR: Well, I understood there was a discovery list and that was on the list.

HIS HONOUR: Well, in the circumstances discovery has not been complied with. This is the third time.

LEGGE, MR: Can I ask what you mean by 'discovery', your Honour? I know you can't give advice.

HIS HONOUR: No. I don't provide legal advice.

LEGGE, MR: The registry won't - - -

HIS HONOUR: You have not provided it. The registry doesn't provide legal advice.

LEGGE, MR: Well, I don't know what the request is for.

HIS HONOUR: In respect of this matter this is the third time this has been to the court. You have failed to provide discovery.

LEGGE, MR: Well, it's very - - -

HIS HONOUR: In the circumstances what I am going to do is I am going to comply with the application by Mr Simonsen and I am going to enter judgment. (1) there be judgment for the claimant in the sum of $21,870.19 with interest at six per cent from the date of the summons which was when, Mr Simonsen - 20 August 2008?

SIMONSEN, MR: Yes.

HIS HONOUR: (2) there be no order as to costs because the parties are appearing in person. Yes, thank you.

LEGGE, MR: Can I ask a question, your Honour?

SIMONSEN, MR: Thank you, your Honour.

LEGGE, MR: My application for hearing for Mr Simonsen to provide the information that you want is listed for 6 March.

HIS HONOUR: Mr Simonsen has provided discovery. You have not. Thank you.

12 On the hearing of the appeal Mr Legge gave sworn testimony that he believed he had given discovery by filing his affidavit of 9 February 2009 in support of his application for specific and formal discovery. Mr Legge's evidence was challenged by Mr Simonsen on the basis that it ought to have been clear to Mr Legge that he was required to give discovery from the plain wording of the affidavit of Mr Simonsen sworn on 23 December 2008 seeking specific discovery by Mr Legge and also the order of the magistrate on 30 January 2009. However, I accept the evidence of Mr Legge that he was confused as to the nature of the requirement of giving discovery. This is understandable given the confusing history of the matter and the fact that the parties were unrepresented. At no time did his Honour, during the course of proceedings, explain to the parties what their obligations were in terms of giving discovery and the procedures to be followed. I conclude that both parties did not understand their obligations and both parties failed to give adequate discovery.

13 Pursuant to s 16(n) of the Magistrates Court (Civil Proceedings) Act 2004 (the Act) the Magistrates Court may make an order requiring 'a party to provide additional information to that in or attached to its case statement, whether by disclosing or providing documents or by answering interrogatories'. A 'case statement' as defined in s 3 of the Act is the statement of a party's claim or defence.

14 Pursuant to s 19(2)(b) of the Act the court may give judgment against a party without trial when a party does not comply with an order or direction made by the court. Pursuant to s 19(3) the court may set aside such a judgment given and may do so on conditions as to the payment of costs or as to other matters.

15 In my opinion, the magistrate's order of 23 February 2009 making an order for default judgment was based upon two misunderstandings by the magistrate:

(a) Firstly, his Honour believed that he had made an order on 25 November 2008 relating to specific discovery which included a springing order for judgment. This misunderstanding is evident from the order he made on 13 February 2009.

(b) Secondly, his Honour was wrongly informed that Mr Simonsen had complied with an order for discovery made against both parties on 30 January 2009 so that his Honour believed that Mr Legge was the only defaulting party.

16 In addition to this misunderstanding of the situation by his Honour, in my opinion, it is also clear that both parties, who were unrepresented, did not understand the difference between applying for discovery against the other party (as per the order of the magistrate on 19 December 2008) and giving discovery.

17 The power of the court to enter judgment for non-compliance with an order for discovery is to be exercised in such manner as seems to the court best calculated to do justice in the particular case. It is a power that a court will exercise only with some reluctance, because of its serious consequences. However, the orders of the court must be obeyed. A point is reached at which a litigant, who deliberately and without proper excuse disobeys an order, will not be allowed to proceed: Magenta Nominees Pty Ltd v Bonini & Ors [1999] WASC 88 [89] (Wheeler J).

18 However, in the circumstances of this case, where there was confusion as to what orders were in existence and where there was confusion and uncertainty by Mr Legge of his obligations (as indeed there was by Mr Simonsen), I conclude it would be unjust to allow the default judgment to remain in existence. Accordingly, I allow the appeal and I make the following orders:

1. The appeal in this matter be allowed.
2. The default judgment entered against Mr Legge be set aside.
3. The sum of $25,000 paid into court by Mr Legge be paid to Mr Legge.
4. The matter be remitted back to the Magistrates Court before a different magistrate for further directions and hearing.
5. There be liberty to apply in relation to these orders.

19 I will hear further from the parties as to whether an order for costs should be made.