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. Mr Emmerton, in seeking to enter judgment against the eighth to fifty-first defendants, presented to the Court a form of judgment that required an order that the defendants numbered eight to fifty-one inclusive pay the plaintiff the sum of $7,700,000. The Officer of the Court concerned to consider whether such judgment should be entered refused to do so. In consequence, Mr Emmerton commenced the proceedings with which we are here concerned by a summons filed on 9 December 1991 against the Clerk of the Supreme Court seeking a prerogative order that he enter his judgment. This is taken to be correctly - an application for prerogative relief in the nature of mandamus under s69 of the Supreme Court Act 1970. 2 UNREPORTED JUDGMENTS The matter came on for hearing before Lee J who dismissed the summons. The basis upon which he dismissed the summons is to be found at page 2 of his judgment when he said: "The form of judgment submitted by the plaintiff asks, 'that the defendants 8 to 51 inclusive pay to the plaintiff the sum of $7,700,000 (seven million seven hundred thousand dollars). 'That form of judgment of course is not the proper form for a judgment to be filed in this case against the 8th to 51st defendants: the proper form being that set out in form 50 which asks for judgment for the plaintiff and that the damages be assessed. In this action, putting to one side the question of whether this summons is properly directed to the Clerk of the Supreme Court and whether these proceedings will lie, the fact is that the Registry acted correctly in not entering the judgment. That would dispose of the matter and the summons must be dismissed." Mr Emmerton has appealed against this dismissal. The notice of appeal contains twelve grounds but, in substance, the basis of the appeal is found in grounds eight and nine, namely, in the claim that his Honour erred in holding that it was required that the Court assess the liquidated damages stated in the subject statement of claim, and that his Honour erred in holding that the fact is that the Registry acted correctly in not entering the judgment. Mr Emmerton made submissions both in writing and orally. I have carefully read these and listened to his submissions from the Bar table. Although the respondent in her written submissions was inclined to concede that mandamus must lie in the present case, I am not persuaded but need not decide that this is so. I note that it was a matter that the learned judge at first instance did not regard as necessary to decide. In my view the claim, even if sustainable as an appropriate form of relief, fails because it is not made out that the officer of the Court, concerned with the question as to whether judgment should be entered, acted incorrectly. In my opinion such officer acted entirely correctly. As I have said the claim made against all the defendants by Mr Emmerton in his statement of claim was for unliquidated damages. In the course of his submissions Mr Emmerton argued that the claim against the solicitor defendants was, at least in part, one for a liquidated amount. In support of that submission he referred to the notes in the Practice book found in para7(4)(i) where reference is made to Alexander v Ajax Insurance Co Ltd [1956] VLR 436. In particular Mr Emmerton relied upon the paragraph lettered C in that note. However, as I have said, in my opinion this claim does not fall within any of the descriptions of claim found in that note. It is, quite plainly, a claim for damages the amount of which, if liability is proved, would have to be assessed in the ordinary way by the Court. The result of this is that under Pt17 r5 the only judgment available to be entered on behalf of Mr Emmerton on default was one for damages to be assessed. Quite clearly the judgment that Mr Emmerton sought to have the officer of the Court enter was not such a judgment. Accordingly, in my opinion, which, as I understand it, accords exactly with that formed by the learned judge at first instance - what the officer did in refusing to enter judgment was correct. Accordingly, in my opinion the summons was correctly dismissed and this appeal should be dismissed with costs. URJ EMMERTON v CLERK OF THE SUPREME COURT (Meagher JA) 3 Kirby P Except in one particular I am in entire agreement with the reasons which have just been given by Sheller JA. That particular is not strictly necessary to the decision of the Court in this appeal. It is also a matter upon which the Court has not had the benefit of lengthy argument. But because it has been addressed, I shall state my present view. The claim of the appellant was clearly one for unliquidated damages. It was not for a liquidated sum. This was so because of the way in which the statement of claim was pleaded and also having regard to the nature of the claims which were then before the court of trial. See Alexander v Ajax Insurance Co Ltd [1956] VLR 436, 443F (VSC). The holding of Lee J was based upon these considerations. Accordingly, the decision of the Clerk of the Supreme Court to reject the tendered judgment was correct. The appeal must, for that reason, fail. In the course of this otherwise unremarkable appeal an interesting and possibly important question arose, as by a side wind. It was whether, pursuant to s69 of the Supreme Court Act 1970, relief in the nature of the ancient prerogative writ of mandamus would run from this Court to the Clerk of the Supreme Court. It is trite law that mandamus will not issue to a Judge of a superior court. See Isaacs v Robertson [1985] AC 97 at 103 (PC). There would, as it seems to me, be reasons of principle for confining the immunity of superior courts from the relief which is now provided in s69 of the Supreme Court Act to the Judges of the Court, as distinct from the other officers of such Court. In the light of the terms of s69 and its apparent object, it is preferable, if there be a choice, to free this area of the law from some of the encrustations which existed in the ancient prerogative writs. This could be done in this instance by confining any such immunity of the superior court to an immunity enjoyed by the orders of the superior court or to the other actions of the Judges of such a Court. The Supreme Court of this State is made up of the Judges of the Supreme Court. The administrative officers, the clerks, the sheriff's officers, the cleaners and so on, are all important to the activities of the Supreme Court. However, they are not part of its essential curial function. It is this function which attracts the ancient immunity from prerogative relief. Still less are such officers immune from the application of the terms of s69 of the Supreme Court Act as made by Parliament. The respondent did not, by a notice of contention, seek to reserve this point. Nor did he seek to support the order made by Lee J upon the basis that mandamus would not, in any event, have run to him as an officer of the Supreme Court. If that were a good point in law it would have been conclusive of the proceedings below and of this appeal. The point was not the one on which Lee J decided the case. Nor, by notice of contention, have we been urged to decide the case on that basis. It would seem to me most unlikely that the question raised by this point has not arisen in the seven hundred years of our legal tradition. It is undesirable that it should be finally determined in this case. I would have said nothing at all about the matter except that Sheller JA mentioned it in his reasons. I was, therefore, provoked to indicate these preliminary differing opinions of my own. On my present feeling I should not have been inclined to determine the matter on the issue of power, had it been tendered to us. However, as it was not tendered Ican content myself with otherwise agreeing with the reasons of Sheller JA and with the orders which he has proposed. Meagher JA I agree with Sheller JA in all parts. 4 UNREPORTED JUDGMENTS KIRBY P: The orders of the Court, accordingly, in all parts, are as Sheller JA has proposed. Appeal dismissed with costs. Counsel: Appellant: RA Emmerton (In Person) 10 Respondent: PI Lakatos Solicitors: Appellant: RA Emmerton (In person) 15 Respondent: HK Roberts (State Crown Solicitor)253545