Lynde Louise Sharpels v Northern Territory of Australia [1988] NTSC 20; 55 NTR 35; 91 FLR 11 (22 March 1988)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA Asche C.J(1) CWDS Practice and Procedure - Application - To set aside judgment in default of defence - Necessity for supporting affidavit to be sworn by deponent from personal own knowledge and belief - Affidavit by solicitor setting out his instructions not sufficient Cases applied: Palmer v Price (1980) WAR 61 Worldwide Products Pty Ltd v Hoffmann (1982) Qd R 316 Cases referred to: Collins Book Depot Pty Ltd v Bretherton [1938] VicLawRp 11; (1938) VLR 40 Wiedenhoffer v The Commonwealth of Australia [1970] HCA 54; (1970) 122 CLR 172 HRNG ALICE SPRINGS #DATE 22:3:1988 Counsel for the Plaintiff: R. Bennett Solicitors for the Plaintiff: Martin and Partners Counsel for the Defendant: P. Walsh Solicitor for the Defendant: Solicitor for the Northern Territory JUDGE1 By writ issued 29 October 1986, the plaintiff sought damages against the Northern Territory of Australia, claiming that the plaintiff suffered those damages arising out of the negligence of the defendant "in failing to notify the plaintiff of the positive result of severe dysphasia carcinoma in situ of a Pap smear test, which the defendant took of the plaintiff at Tennant Creek Hospital". 2. Appearance was entered on behalf of the defendant. A Statement of Claim was delivered, but no defence was filed within the appropriate time. The defendants were warned by a letter written by the solicitor for the plaintiff on 13 November 1987 that if defence was not filed within a times which they agreed to extend to four weeks, then they would proceed to enter interlocutory judgment for damages to be assessed without further notice. 3. Owing to some difficulties in the office of the solicitor acting for the defendant, and a change of solicitors dealing with the matter within that office, the defence was not filed. There is sufficient in the affidavit filed on behalf of the defendant, which is not contradicted on this aspect, to establish that there was some misapprehension or understandable delay. 4. Judgment was, in fact, entered, and was regularly entered pursuant to the rules, and no submission is made that it was not regularly entered. The defendant then applied, by summons filed on 23 February 1988, to have that judgment set aside. The defendant had acted promptly enough, because the judgment was entered on 1 February 1988, and I understand there had been some communication between the solicitors before the application was made for setting aside the judgment. 5. In support of the application to set aside judgment, the defendant filed an affidavit sworn by its solicitor. That affidavit first set out the reasons whereby the defendant had failed to file a defence within the appropriate time, and then purported to set out the defence. The solicitor acting for the defendant says that he travelled to Tennant Creek to obtain instructions, and he then appended to his affidavit the defence drawn as a result of the instructions. 6. Mr Bennett, on behalf of the plaintiffs, says that that is not sufficient, and he refers me to a number of cases which establish that in order to have judgment in default of appearance or defence set aside, it is normally the rule that the affidavit should disclose a defence and should be sworn by somebody in a position to prove the defence, or by a person who has personal knowledge of the events out of which the claim arises. 7. The cases do not seem to establish just how far that should go, although I am satisfied that it does not mean that a defendant should voluminously put forward the whole of the defence and the witnesses who will be called, and a general proof of what they will say. I'm quite sure that that is not required. 8. In Palmer v Prince , Burt J. (as he then was), says at page 64: " The test in these matters is not whether upon facts as asserted by way of instructions to a solicitor or otherwise the applicant appears to have an arguable defence; it is whether the facts have been sworn to by a person who would be competent to depose to them if the matter should go to trial, which is approved would satisfy the court that the applicant has a good defence on the merits." Jackson C.J. says, at page 62: " The general rule is that where a judgment has been regularly entered, it is not to be set aside unless the court is satisfied that there is a defence on the merits: Rubin v Eacott , following Farden v Richter This rule has been approved by the House of Lords in Evans v Bartlam At p 480 of the report Lord Atkin refers to the rule laid down by the courts to guide the normal exercise of their discretion in a case where the judgment was regularly obtained that 'there must be an affidavit of merits, meaning that the applicant must produce to the court evidence that he has a prima facie defence', although he concedes that in rare but appropriate cases the rule could be departed from." 9. Jackson C.J. then cites an instance where that rule was departed from, and that is Collins Book Depot Pty Ltd v Bretherton ; There, Martin J. held that it was sufficient to establish that the failure to deliver a defence arose from a solicitor's clerk's error, and the defendant, an executor, sought and was given the opportunity to investigate by his defence circumstances of suspicion regarding his testator. 10. But Jackson C.J. then goes on to point out that instances of departure from the rule are rare. He refers to Williams Supreme Court Practice at what was then page 390 of volume 1. In the later edition, which I have before me, it is page 1185 of volume 1. 11. The case of Palmer v Prince was followed in the Supreme Court of Queensland by McPherson J., in the case of Worldwide Products Pty Ltd v Hoffman There His Honour was dealing with a case where judgment had been entered on behalf of the plaintiff. 12. As in this case, an application had been made to set aside the judgment, and in support of that application an affidavit by a solicitor had been filed, in which the solicitor stated that he was informed by his clients and verily believed that they had a defence on the merits to the plaintiff's claim. He then exhibited to his affidavit a proposed defence and counterclaim. 13. McPherson J., applying Palmer v Prince, held that that was not sufficient. He did make these remarks at the conclusion of his judgment: " Accordingly, I propose to give effect to the submission advanced by the respondent (plaintiff) to this application. No doubt the applicants will now simply file a further affidavit in the appropriate form deposing to precisely the same facts, with the consequence that the respondent's success is likely to be short lived." 14. It has been put to me by Mr Walsh for the defendant that, as a matter of expedition and on the basis that the defendant here in the Northern Territory of Australia - that is, a large corporation with many servants