Servcom Australia Pty Ltd v Shenton

[2000] WASC 49

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

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASC 49
Published:	29/02/2000
Case No:	CIV:1871/1998	Heard:	25 FEBRUARY 2000
Coram:	MASTER BREDMEYER	Delivered:	25/02/00
No of pages:	6	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	SERVCOM AUSTRALIA PTY LTD SERVCOM PTY LTD LAURENCE JOHN AISTROPE TERENCE IBRAHIM WAHBY RICHARD LAURENCE SHENTON RUSSELL LESLIE PARHAM
Catchwords:	Practice and procedure Appeal from Registrar Rules of the Supreme Court O 60A
Legislation:	Rules of the Supreme Court O 60A
Case References:	Nil FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 154 CLR 268 Queensland v J L Holdings (1997) 189 CLR 146 Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SERVCOM AUSTRALIA PTY LTD & ORS -v- SHENTON [2000] WASC 49 CORAM : MASTER BREDMEYER HEARD : 25 FEBRUARY 2000 DELIVERED : 25 FEBRUARY 2000 PUBLISHED : 29 FEBRUARY 2000 FILE NO/S : CIV 1871 of 1998 BETWEEN : SERVCOM AUSTRALIA PTY LTD

First Plaintiff

SERVCOM PTY LTD
Second Plaintiff

LAURENCE JOHN AISTROPE
Third Plaintiff

TERENCE IBRAHIM WAHBY
Fourth Plaintiff

AND

RICHARD LAURENCE SHENTON
Defendant

FILE NO/S : CIV 2186 of 1998 BETWEEN : RUSSELL LESLIE PARHAM

Plaintiff

AND

RICHARD LAURENCE SHENTON

Defendant

(Page 2)

Catchwords:

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

Legislation:

Rules of the Supreme Court O 60A

Result:

Appeal dismissed

Representation:

CIV 1871 of 1998

Counsel:

First Plaintiff : Mr J D MacLaurin
Second Plaintiff : Mr J D MacLaurin
Third Plaintiff : Mr J D MacLaurin
Fourth Plaintiff : Mr J D MacLaurin
Defendant : In person

Solicitors:

First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
Third Plaintiff : Bennett & Co
Fourth Plaintiff : Bennett & Co
Defendant : In person

(Page 3)

CIV 2186 of 1998

Counsel:

Plaintiff : Mr J D MacLaurin
Defendant : In person

Solicitors:

Plaintiff : Bennett & Co
Defendant : In person

Case(s) referred to in judgment(s):
Nil

Case(s) also cited:

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 154 CLR 268
Queensland v J L Holdings (1997) 189 CLR 146
Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196

(Page 4)

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

(Page 5)

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.

(Page 6)

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.