Emmerton v Soden as Clerk of the Supreme Court of New South Wales

[1992] HCATrans 357

..

.

•	',i- •	~
~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S83 of 1992

B e t w e e n -

ROY ALAN EMMERTON

Applicant

and

WARWICK SODEN AS CLERK OF THE

SUPREME COURT OF NEW SOUTH

WALES

Respondent

Application for special leave

to appeal

MASON CJ
DEANE J

GAUDRON J

Ernmerton 1 10/12/92

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 DECEMBER 1992, AT 3.56 PM

Copyright in the High Court of Australia

MR R.A. EMMERTON: If it please the Court, I am the

appellant in person.

MR P.I. LAKATOS: If the Court pleases, I appear for the

respondent. (instructed by the Crown Solicitor for

New South Wales)

MASON CJ: Yes, Mr Emmerton?

MR EMMERTON:  I am an international industrial research

engineer and scientist, and there are exceptional circumstances in my case for my appearance before

you in person, Your Honours. I have had three

firms of solicitors acting for me in the original

cause of action of this case which involved

significant developments which I had made in the

field of sustainable energy and the quashing of an

international project of some importance. These

solicitors and the partners - - -

DEANE J:  Mr Emmerton, by way of seeking to help you, can I

point out to you that the only question which this

Court would be concerned with if leave to appeal

were granted would be whether you were entitled to

have judgment entered in the amount of $7 million

plus, as distinct from having judgment entered in

an amount to be assessed. Having read it and

looked at it rather closely, it seems to me that

you have to persuade us that you have an arguable

case that the courts below were wrong in the

conclusion they reached on that very narrow point.

That is what you really have to direct your

submissions to.

MR EMMERTON: Thank you, Your Honour. But I submit to

Your Honours that in any case, the clerk,

Mrs Figen Kole, the judgments clerk of the supreme

court, should have entered my default judgment,

before I go on to what Your Honour has suggested,

because of section 69 of the Supreme Court Act,

which on page 3 - I have given Your Honours copies

of the Act, I believe - in the last paragraph. The learned President of the Court of Appeal also cited

this section of the Act:

It is usually inappropriate that a court

or tribunal whose proceedings are the subject

of an application under this section - - -

MASON CJ: But they are the notes dealing with prerogative

relief directed by the supreme court to an inferior

tribunal. The question that is put to you is not

that, but a question going to the proper form of

judgment to be entered. What you have to meet is

the point made against you by Mr Acting Justice Lee

Emmerton 2 10/12/92

that you should have filed a form of judgment in

accordance with form 50 in the rules.

MR EMMERTON:  Yes, I understand that, Your Honour.

MASON CJ: Unless you can persuade us that the form of

judgment that you filed should have been entered by

the officer of the court, you must fail in the

proposed appeal. The ordinary form of judgment

that is filed and entered in the case of a claim

for unliquidated damages is a form of judgment that

asks for judgment for the plaintiff and requests

that damages be assessed. It is not a form of

judgment for a liquidated or specific amount.

Unless you can demonstrate that the form of

judgment you filed was appropriate to be entered

under the Supreme Court Act and the rules, you must

fail in your appeal.

MR EMMERTON:  I understand, Your Honour.

MASON CJ: That is the question you have got to meet.

MR EMMERTON:	If you look at Part 17, rule 8, Your Honours:
Where the plaintiff's claims for relief against the defendant in default include two or more of the claims for relief -

I rely on the fact that my statement of claim

contained a money claim which was spelt out. It

was not a figure plucked from the air. These
figures were determined by the Bonn government, the
federal government here in Australia and the
Australian Industrial Research and Development

Incentives Board. This rule, as I see it,

Your Honours - and I am not a lawyer, but I do have

an advice from - - -

DEANE J: That is the problem, Mr Ernrnerton. We are dealing

with very technical things here, and the

difference - - -

MR EMMERTON:  My word. I have been listening, Your Honour.

I did not understand most of what happened here today.

DEANE J: But what we are concerned with here is the

difference between a claim for unliquidated damages

and a claim for liquidated damages. Even though,

in an action for breach of contract, you put in a

specific amount, when it is an action like the one

you claim to have against the defendants who are

presently before the Court, it is an unliquidated

claim or a claim for unliquidated damages. The

Court does not enter a judgment in default for

whatever amount is on the writ; it enters judgment

Ernrnerton 3 10/12/92

and then sends it for the damages to be assessed.

That is your problem here.

MR EMMERTON:  Your Honour, I should say in the beginning, I

do have a favourable advice from Mr John Foord, QC

that my case is sound, but I am not competent

to - - -

DEANE J:  Your case may be sound, but we are concerned with

this very narrow technical point.

MR EMMERTON:  Yes, and I am not really competent to argue

that. I have tried very strenuously over the past

couple of months to get proper representation here.

I have even advertised interstate for a lawyer. It

seems to me that when it is mentioned that it is

necessary to oppose other lawyers, there is a great

reluctance for anyone to take the case on. It is

not until the last few days that I have managed to

put together a solicitor, a junior and senior

counsel to - I have passed up a letter to

Your Honours from Mr Karageorge who mentions the

circumstances. He is unable to come along today

because he had hoped that counsel might have been

able to appear for me, but they are both tied up in

other matters and could not get along for this

hearing, but they have undertaken to come along if

Your Honours can see your way clear to let this

matter go to a hearing.

MASON CJ: Are you asking for an adjournment?

MR EMMERTON:  No, I do not believe I can ask for an

adjournment, can I? I will do the best I can.

MASON CJ:  You have to meet this narrow point, Mr Ernrnerton.

MR EMMERTON:  Yes, I see. I had -

MASON CJ:  You see, ordinarily the principle is that in

actions for defamation and in actions for
negligence, the damages are unliquidated; they are

not liquidated.

MR EMMERTON:  But under this mixed claims rule, I am not

making any claim in that regard. I am just -

because my defendants are in default, I am claiming

the amount on the statement of claim. I am relying

on the - - -

MASON CJ: True, but your causes of action were causes of

action in defamation and negligence, were they not?

MR EMMERTON:  No, Your Honour, there is no defamation cause

of action involved as far as my present - - -

MASON CJ: These defendants?

Ernrnerton	4	10/12/92
MR EMMERTON:	Yes.	The cause of action in defamation was

lost by the action of negligence on the part of my

own lawyers who failed to bring the matter before

any court of competent jurisdiction within the

statutory period, Your Honour.	So the original
cause of action was lost.

MASON CJ: But when we look at your writ that commenced

these proceedings, the damages that you claim are

damages that are necessarily unliquidated. You

have put a specific sum on some of the heads of

damage, but of course they must be necessarily

unliquidated.

MR EMMERTON: 

So what Your Honour is explaining to me is

that the mixed claims rule does not apply in my
case.

MASON CJ: No. 

It would apply in a case, for example, where you had a claim in respect of a debt - a certain

sum and also a claim in respect of unliquidated

damages.  Then you would get a mixed claim case.

MR EMMERTON: 

It seems to me that all I have to rely upon is

that the judgments clerk was wrong in not entering

my judgment in that she made a judgment in the case
which has sidetracked the case through the

proceedings before Mr Justice Lee and subsequently
through the appeal court, whereas it could have

been, if properly handled, just an interlocutory

matter between me and my defendants. It could have

been sorted out quite simply between me and my

defendants. Under Part 69 of the Supreme Court

Act, the part that I referred to -

DEANE J: But, Mr Emmerton, you have got to face the fact

that if you had submitted the correct form of

judgment which would have been judgment for an

amount to be assessed in circumstances where you

were entitled to do that only because the defence

had not been verified, it would have been

inevitable when the defendants applied to set aside

that judgment that it would have been set aside,

because the courts just do not allow judgments to

stand in important cases simply because someone has

made a mistake about a technical form.

MR EMMERTON: Well, Your Honour, I did go to the registry to

file my judgment in the first instance and I was

told that my defendants were not in default, which

I knew was quite wrong, so I then went to the duty

registrar and I was told by the duty registrar that

there was only one fault with my judgment that I

was trying to file, and that was that I had put the

date of effect in. So she told me that I should

strike out the date of effect and resubmit it to be

Emmerton 10/12/92

filed and tell the registry that it had been

cleared by the duty registrar.

Not being a lawyer, I expected this judgment

then to be entered by Mrs Figen Kole, the judgments

clerk. But then I started to get strange

requisitions from Mrs Figen Kole in regard to

matters which were not so, and subsequently some

false information was punched into the computer

which I also got a requisition about in relation to

me having amended my statement of claim, which I

did not do.

Another thing that brings me this far,

Your Honours, is when the matter went before

Mr Justice Lee, my file had been stripped in the

registry. Mr Acting Justice Lee complained

continuously through that hearing that he did not

know what the matter was all about because he did

not have any papers. I had to keep handing him

documents from my file, Your Honours. It has been

a rough trip for me, Your Honours, all because in

my view the judgments clerk did not treat me like

she would have treated a lawyer. In fact, she said

to me that I was a penniless litigant opposing well

respected lawyers and there was no way that she was

going to enter such a large judgment for me without

a guarantor for the court. So I sought out a

guarantor and returned with an amended judgment,

but that did not work either. Further requisitions

ensued.

DEANE J: But we are getting a long way from the question

whether it is liquidated damages or unliquidated

damages.

MR EMMERTON:  Yes. I think you have explained quite clearly

to me that I cannot argue that it is liquidated

damage, but I cannot understand the positive advice

that I have received from counsel that - - -

DEANE J:  We cannot comment on that advice.

MR EMMERTON:  I see. Your Honours, you did mention an

adjournment. Is that possible so that I can see if I can follow up and get these people to come along?

MASON CJ:  Mr Emmerton, an adjournment would not be in your

interests.

MR EMMERTON:	I see.
MASON CJ:	I think for my part I would say I have given

careful attention to the question that you seek to

raise, and I cannot see how an adjournment would

assist you. I think it would only result in your

incurring a great deal of useless expense.

Emmerton	6	10/12/92
MR EMMERTON:	Yes, Your Honour.	Mr Justice Kirby said in

the Court of Appeal that one option I had was to

seek to strike out the defence of the defendants.

I suppose you cannot comment on that.

DEANE J:  We cannot give you advice because it is not fair

to the courts below.

MR EMMERTON:	Yes.
MASON CJ:	I think that is as far as we can take it,

Mr Emmerton.

MR EMMERTON:  Thank you, Your Honours.

MASON CJ:  The Court need not trouble you, Mr Lakatos. The

applicant seeks leave to present his application
for special leave on the basis that there are

exceptional circumstances. In considering his

application for leave, we have given careful

attention to the arguments which he wishes to

present in support of his proposed appeal.	We have
reached the firm conclusion that

Mr Acting Justice Lee was correct in holding that

the form of judgment which the applicant sought to

file was not in correct form. It was a judgment

for liquidated damages, not for unliquidated

damages as it should have been. Consequently,

there is no point in granting the application for

leave, and the application for special leave must

be refused.

MR LAKATOS:	Your Honour, I do seek costs.
MR EMMERTON:	Your Honour, in the circumstances I object.

MASON CJ: Costs must follow the event, and therefore the

application must be refused with costs.	The Court
will now adjourn sine die.

AT 4.21 PM THE MATTER WAS ADJOURNED SINE DIE
Emmerton	10/12/92