Supreme Court of WA|2000-02-25|Before: Mr J

Servcom Australia Pty Ltd & Ors v Shenton [2000] WASC 49 (25 February 2000)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : SERVCOM AUSTRALIA PTY LTD & ORS -v- SHENTON [2000] WASC 49

Practice and procedure - Appeal from Registrar - Rules of the Supreme Court O 60A

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 154 CLR 268

Queensland v J L Holdings [1997] HCA 1; (1997) 189 CLR 146

Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196

1 MASTER BREDMEYER: The defendant has appealed against an order made by Registrar Dixon on 23 November 1999 in each action. The orders under appeal are the same and the appeals are the same. They were argued together. I will consider action CIV 1871 of 1998 as an example and what I say in relation to that applies equally to the other action.

2 The notice of appeal under O 60A says that the appeal is against an order of Registrar Dixon made on 23 November 1999. I feel sorry for the defendant. He is unrepresented and is not familiar completely with the processes of the court. Default judgment was entered on 23 November 1999. That was ordered, as it says:

"Pursuant to the order of Registrar Dixon made on 17 November 1999 whereby it was ordered that unless by 22 November 1999 the defendant complies with the order of Registrar Dixon made on 3 November 1999 - I add that that was an order about discovery - the defendant's defence will be struck out and judgment entered for the plaintiffs with damages to be assessed".

The default judgment was made by the court (by Registry staff) and not by Registrar Dixon. If the defendant wants to appeal against the default judgment of 23 November he has to do so to the Full Court, not under O 60A. Alternatively, he can apply to a Master to set aside the default judgment. He cannot appeal under O 60A against the order of 23 November as that order was not made by Registrar Dixon, as I have said.

3 His notice of appeal cannot be amended by me to read against the order of Registrar Dixon made on 17 November because there is a time bar there. An appeal against a Registrar's order must be lodged within three days, ie three days of 17 November, and this appeal notice was filed on 2 December. The appeal will be dismissed.

4 The plaintiffs' application for directions for the assessment of damages will be made.

5 The defendant has an avenue open to him and I advise him of this because he is unrepresented. My advice is not an indication that an application will succeed or not. I am just telling him of a relevant court procedure.

6 That avenue is to apply by way of chamber summons to set aside the default judgment of 23 November. It needs a fresh chamber summons and an affidavit in support explaining how and why the judgment was allowed to go by default. The defendant also has to show by affidavit or argument that he has a prima facie defence to the action on the merits.

7 I make a few remarks on discovery which are obiter. I am trying to offer some advice to assist the unrepresented defendant. Firstly, the discovery needs to be by way of affidavit. Secondly, I quote from Registrar Dixon's order of 3 November:

"The affidavit needs to depose to all documents relating to matters in question in this action that are or have been in his possession, custody and power and, if not now in his possession, custody or power, that he parted with them and what has become of them."

Thirdly, it needs to list the documents by date and description, even if privilege is claimed for some of them or they are no longer in his possession.

8 The defendant says he does not have any documents. They have all gone to the National Crime Authority. Here is a suggestion about how to make a list in those circumstances. The plaintiffs have all given discovery. The first plaintiff has given a list of 62 documents. The defendant should inspect them and, if, having read a document, he recalls he once had it, then it should be listed in his affidavit of discovery. For example, the first document in the first plaintiffs' list is:

"Handwritten sales and marketing agreement between Servcom Australia and Shenton Holdings Pty Ltd and Richard Shenton of 14 April 1997".

I take this to be the defendant's contract of employment. Did he have that once? If so, then he should list it and, if he no longer has it in his possession, he should say what happened to it.

9 Item 2 in the first plaintiff's list says "Handwritten annotated copy letter from first plaintiff to defendant 5 February 1998." Again, this document should be inspected. If the defendant recognises that as a document he once had, then he should list it and, if he has lost it, say what has happened to it.

10 The appeal will be dismissed and the defendant is to pay the plaintiff's costs. I will make similar orders in the other action, CIV 2186 of 1998.

11 As previously advised the plaintiffs' application for directions for the assessment of damages will be granted and costs of that application will be in the cause.

Servcom Australia Pty Ltd & Ors v Shenton [2000] WASC 49

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Servcom Australia Pty Ltd & Ors v Shenton [2000] WASC 49 (25 February 2000)

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