EMMERTON v CLERK OF THE SUPREME COURT [1992] NSWCA 65

EMMERTON v CLERK OF THE SUPREME COURT

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MEAGHER and SHELLER JJA 12 June 1992, 12 June 1992

[1992] NSWCA 65

PRACTICE and PROCEDURE — Supreme Court — entry of judgment — clerk of Supreme court refuses to enter judgment — application for order in the nature of mandamus directed to clerk of Supreme Court default judgment tendered for filing in Supreme Court proceedings against multiple defendants — proceedings framed in defamation and against former solicitors for breach of contract of retainer and negligence — defence of defendants not verified as required by SCR Pt15, r23 — default judgment claims $7.7 million — held: (affirming Lee J): (1) The Court would assume without deciding that relief in the nature of mandamus would lie against a clerk of the Supreme Court. Isaacs v Robertson [1985] AC 97 (PC) considered; (2) The form of judgment was correctly rejected; and (3) The appeal would be dismissed.

Supreme Court Rules Pt15, 123; Pt17, r8. Kirby P I shall ask Sheller JA to give the first judgment.

Sheller JA Mr Emmerton appeals against a judgment of Lee J given on 17 December 1991 in which he refused the appellant's claim for relief in the nature of mandamus against the respondent. It is conceded by the respondent - in my view correctly - that the order was a final order and that leave to appeal is not required.

Mr Emmerton commenced proceedings against fifty-one defendants by a statement of claim which issued in September 1991. His claim against the first seven of those defendants was based upon alleged defamation by them. The remaining defendants, that is to say the eighth to the fifty-first defendant, were solicitors. Mr Emmerton's claim against them was for alleged breach of their contract of retainer and negligence.

A defence was filed by the solicitor defendants on 4 November 1991. This defence was not verified. It is conceded by the respondent that in accordance with the requirements of Pt15 123 it should have been verified. The failure to verify the defence meant that the defendants were in default pursuant to Pt17 r2D of the Rules. Accordingly, in purported reliance upon Pt!7, Mr Emmerton sought to enter judgment by default against those defendants. The statement of claim sought against the various defendants what seems to me plainly to be unliquidated damages.