Pepper Finance Corporation Limited v Wichman [2019] NSWSC 1009

Supreme Court New South Wales

Medium Neutral Citation: Pepper Finance Corporation Limited v Wichman [2019] NSWSC 1009 Hearing dates: 7 August 2019 Date of orders: 07 August 2019 Decision date: 07 August 2019 Jurisdiction: Common Law Before: Rothman J Decision: (1) the motion is dismissed. (2) the applicant shall pay the respondent's costs of and incidental to the motion as agreed or assessed. Catchwords: PROCEDURE – Civil – Motion to stay and/or set aside default judgment and execution of a writ of possession – principles – "common law rights" – single judge does not render the Court any less effective in the exercise of the jurisdiction of the Court – motion dismissed Legislation Cited: Civil Procedure Act 2005 (NSW) Commonwealth of Australia Constitution Act 1901 (UK) Royal Charter of Justice 1824 Supreme Court Act 1970 (NSW) Third Royal Charter of Justice 1824 Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Bird and Free (1994) 126 ALR 475; FCA 891 Re Jarman ex parte Cook (No 1) (1997) 188 CLR 595; HCA 13 Category: Procedural and other rulings Parties: Warren Ronald Wichman (Applicant) Pepper Finance Corporation Limited (Respondent) Representation: Solicitor: Richard Lewin (Respondent)

Self-represented: Warren Ronald Wichman (Applicant) File Number(s): 2018/227089

EX TEMPORE Judgment 1. HIS HONOUR: Before the Court is a motion, on the face of which, it seems, the applicant seeks to set aside default judgment and/or the decision of the Registrar and to stay the writ of possession for eviction dated 21 February 2019. 2. The applicant has filed three affidavits which have been read by the Court, notwithstanding that they are in a form that, as an affidavit, would be objectionable, but they have been taken in some regards as submissions which the applicant seems to rely upon in most regards. 3. The formal terms of the motion before the Court dated 5 August 2019 are in the following terms - prayers for the following relief are: 1. To challenge or appeal the jurisdiction of a man called Christopher Bradford acting as Registrar on 14 June 2019 along with his orders and dismissal of motion; 2. That the Court stay the writ of possession eviction dated 8 August 2019; 3. Move a motion to have the Court vacated, default judgment and writ of possession notice to evict; and 4. Seeking leave to abridge time for service of the motion. 1. I do not deal with the last matter. 2. The issues raised before the Registrar and before this Court relate, amongst other things, to the jurisdiction of the Court and what Mr Warren Ronald Wichman refers to as, and I quote "common law rights" and the requirement to be sworn to the Commonwealth of Australia Constitution Act 1901 (UK). 3. As I understand it, amongst other things, even though not formally put or precisely put in these terms, the applicant on the motion disputes the jurisdiction of the Registrar to make the orders that were made and disputes the Court as presently constituted making orders. 4. It is not absolutely clear how the Court as presently constituted could stay a motion or the execution of a default judgment if it had no jurisdiction to deal with the matter, but leaving aside that obvious inconsistency of logic, I will deal as best I can with the issues that have been raised. 5. There is no doubt on the facts before the Court, including the affidavit filed in relation to the original proceedings, that there is a default by the applicant in a manner which gives rise to the writ of possession which was initially filed by statement of claim. 6. DEFENDANT: Excuse me, your Honour. 7. HIS HONOUR: No, sit down and be quiet. 8. The Court has before it an affidavit, the effect of which shows that a default notice, statement of claim dated 24 July 2018, judgment entered 27 November 2018, the affidavit of service and the affidavit relating to certain exhibits. 9. It is unnecessary to go to the merits of the application that was originally dealt with by the Registrar. Essentially, as I understand it, from the submission of the applicant, the applicant argues that the Court can only exercise jurisdiction en banc, and there has to be a panel of judges that exercises the jurisdiction. 10. The Court, that is the Supreme Court of New South Wales, was established by Royal Charter of Justice. There was, of course, a court set up in and relating to New South Wales as it then existed prior to 1824. 11. The Third Royal Charter of Justice 1824 set up the Supreme Court of New South Wales with the powers of the Courts of Westminster. 12. The Supreme Court Act 1970 (NSW), by operation of s 25, prescribes that the Court is comprised of the Chief Justice, the President of the Court of Appeal and also other Judges of Appeal, Judges and Associates Judges, as the Governor may from time to time appoint - the Governor being her Majesty's representative in New South Wales. 13. Pursuant to the terms of s 40 of the Act, all proceedings in any Division and all business arising out of proceedings in a Division shall be heard and disposed of before a Judge who shall constitute the Court. That is the provision of subsection 1 of s 40 of the Act. 14. Pursuant to the judgments of the High Court in re Jarman ex parte Cook (No 1) (1997)188 CLR 595; HCA 13, when a single Judge sits, pursuant to s 40 of the Supreme Court Act, it exercises the jurisdiction of the Supreme Court of New South Wales or the Court from which the Judge emanates and is the Court for all purposes. If it be a fact that there may be an appeal, it does not render the Court any less effective in the exercise of the jurisdiction of the Court when sitting as a single judge. 15. The capacity to appeal is a statutory capacity granted by the legislature. As a consequence of that, as was determined in re Jarman, and was also determined by the Federal Court of Australia in Bird v Free (1994) 126 ALR 475; FCA 891, prerogative writ cannot issue from a Court to a Judge of that Court exercising the jurisdiction of the Court. 16. The point, if it be a point, that the Court as presently constituted is not representing or is not exercising the jurisdiction of the Supreme Court is not made out and is contrary to authority. 17. Further, the Supreme Court Act provides for the Registrar to exercise certain jurisdiction. No submission has been made that the terms of the Supreme Court Act or of the Civil Procedure Act 2005 (NSW) or the Uniform Civil Procedure Rules 2005 (NSW) have been contravened or breached. 18. There is no submission before the Court on the basis of the law as it applies in this State that the Registrar has not exercised the jurisdiction of the Court properly and appropriately and in accordance with the Rules of natural justice. As a consequence, in my view, on the material that has been presented, there is no arguable case. I have heard the applicant and given him the opportunity to put his case. He rests it on the "jurisdictional" issue. I make the following orders: 1. the motion is dismissed. 2. the applicant shall pay the respondent's costs of and incidental to the motion as agreed or assessed.