FEDERAL COURT OF AUSTRALIA

Walker v Government of the Republic of Vanuatu [2015] FCA 490

THE COURT ORDERS THAT:

1.    Pursuant to r 1.04(3) of the Federal Court Rules 2011, Order 35A, rule 2(2) of the Federal Court Rules as in force immediately before 1 August 2011 applies for the purpose of determining whether the respondent, Michael Hatcher, is in default for the purpose of r 5.23(2) of the Federal Court Rules 2011 in relation to the step taken by the applicant of applying under r 5.23(2) of the Federal Court Rules 2011 for an order giving summary judgment against Michael Hatcher.

2.    The applicant’s application for an order giving summary judgment against the respondent, Michael Hatcher, is dismissed.

3.    The applicant is directed to take steps, within 30 days, to contact a representative of the Queensland Public Interest Law Clearing House (“QPILCH”) so as to seek to arrange a meeting with QPILCH with a view to obtaining preliminary advice about the true nature of the claim the applicant seeks to prosecute; the way in which the claim might be formulated; and the steps that might now need to be taken to bring a properly formulated application and statement of claim before the Court for filing and ultimately to the attention of Michael Hatcher by way of service of the relevant process in a way which complies with the Federal Court Rules 2011.

4.    The applicant is directed to advise the Brisbane Registry of the Federal Court of Australia, within 30 days, of the steps the applicant has taken in relation to the matters described in Order 2.

5.    The proceeding will be re-listed for further directions on a date to be nominated by the Court not earlier than 30 days from the date of these orders.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

1    This proceeding concerns an interlocutory application by the applicant, Mr Walker, for summary judgment against Mr Michael Hatcher in an amount of US$17 million on the ground that the respondent has failed to enter an appearance in the proceeding and has failed to put on a defence in the proceeding.

2    Mr Walker is (and has been, throughout the proceeding) a self-represented litigant.

3    It is necessary to explain aspects of the background to the present application.

4    On 21 July 2009, Mr Walker filed an originating application in this Court (which was accepted for filing by the Federal Court Registry on 13 August 2009) in which he nominated the following parties: “The Ship, MV Retriever 1; Government of the Republic of Vanuatu (first respondent) and Michael Hatcher (second respondent). In that application, Mr Walker asserted that this Court had jurisdiction under the Admiralty Act 1988 (Cth); jurisdiction “in personam”; jurisdiction in “associated matters”; and jurisdiction by reference to a range of international conventions. By his originating application, Mr Walker recites 30 paragraphs described as “Particulars of Claim”. However, the originating application failed to identify particular claims for relief against particular respondents and generally aggregated all of the claims for relief with assorted questions of fact.

5    On 8 September 2009, orders were made that the applicant file an amended application specifying the relief claimed against each defendant and if relief was sought in reliance upon a particular provision of an Act, Mr Walker was directed to specify the Act and the provision of the relevant Act relied upon in each case. Mr Walker was also directed to file an amended application setting out the claims for relief against each defendant. Further, Mr Walker was directed to file a statement of claim in accordance with Form 7 of the Federal Court Rules which complied with the requirements of Order 4, r 6 of the Federal Court Rules and Order 11 of those Rules. Mr Walker was directed to file an amended application and statement of claim by 8 October 2009.

6    The Federal Court Rules 2011 (the “2011 Rules”) commenced on 1 August 2011. Those Rules apply to a proceeding commenced in the Court on or after that date. Those Rules also apply to a step in a proceeding that was commenced before 1 August 2011 if the step is taken on or after 1 August 2011.

7    It follows that the Federal Court Rules (which I will call the “earlier Rules”) operating prior to the commencement of the 2011 Rules apply to the proceeding commenced by Mr Walker. However, the 2011 Rules will apply to any step taken in the proceeding on or after 1 August 2011.

8    On 5 October 2009, Mr Walker filed a document he describes as an “Amended Application in Personam”. Mr Walker also filed on that date a statement of claim in the proceeding.

9    By the amended application, Mr Walker recites this:

The application is for damages and other relief for breach of a contract for salvage operations under which the Applicant was engaged as Salvage Master and/or for breach of duty and/or in tort in relation to the unlawful exercise of powers by governmental authorities in Vanuatu resulting in the seizure, arrest and conversion of property including the ship MV RETRIEVER 1 in respect of which the Applicant was bailee and/or to which the Applicant was beneficially entitled.

10    The amended application continued to recite a wide range of legislation, statutory instruments and other references as the source of jurisdiction.

11    In the amended application, Mr Walker recited these matters:

A.    DETAILS OF CLAIM

On the grounds stated in the accompanying Statement of Claim and the attached schedule to the Statement of Claim the Applicant claims:

1.    Damages in the sum of USD 17 million (or such other sum as the Court thinks fit) for breach of a salvage operation contract between the Applicant and the Second Respondent [Mr Hatcher] and/or for breach of duty and/or statutory duty and/or misfeasance and/or in the torts of fraud, deceit, conversion, conspiracy to defraud and/or breach of international law in connection with the malicious and unlawful boarding and/or arrest, detention, seizure and/or transfer of the ship MV Retriever 1 and other property including personal property beneficially owned by the Applicant at Vanuatu in and after January 8th 2007, and consequential loss including loss of employment and future earnings.

2.    Damages pursuant to ss 82 and 87 of the Trade Practices Act 1974.

3.    Punitive damages in such amount as the Court shall see fit.

4.    An indemnity against any liability the Applicant and/or Sub Ocean Salvage SA may be found to have to third parties in connection with equipment on board MV Retriever 1 at the time of its seizure and/or transfer.

5.    Declaratory relief [described below].

6.    [Further or other relief as may be necessary].

7.    [Interest]

8.    Costs

12    The declarations at para 5 concern matters relating to the beneficial ownership of the ship and matters directed to the liability of the first respondent described as “The Government of the Republic of Vanuatu”.

13    The first part of para 1 seems to be a claim in the nominated amount made against Mr Hatcher for breach of contract. The second part of Claim 1 seems to be directed to conduct on the part of officers of relevant agencies of the Republic of Vanuatu.

14    On 25 March 2011, the Court made orders setting aside service of the proceeding upon the Republic of Vanuatu. Orders were also made on that day dismissing the proceeding against the nominated first respondent on the footing that no justiciable controversy within the Court’s jurisdiction as against that party was raised on the face of the originating application as amended and the pleading: see the orders made on 25 March 2011 and the reasons for judgment in Walker v Government of the Republic of Vanuatu [2011] FCA 364 (the “earlier judgment”). Mr Walker’s appeal from those orders was dismissed: Walker v Government of the Republic of Vanuatu [2011] FCAFC 138.

15    The claims recited in the amended application do not clearly identify the precise claims for relief asserted against Mr Hatcher. The claims are recited at Claim 1 in a rolled up aggregated way. Nevertheless, Mr Walker sought to give content to the claims by reference to the statement of claim filed on 5 October 2009.

16    In the earlier judgment, I described aspects of the pleaded claim against Mr Hatcher, in these terms:

16.    By paras 6 to 46 of the statement of claim, Mr Walker sets out a series of facts, contentions and conclusions concerning the arrangements he made with the second respondent Mr Michael Hatcher concerning an agreement made at the Gold Coast in Queensland in approximately May 2005 by which Mr Walker agreed with Mr Hatcher (or Mr Hatcher’s entity Bowick International Ltd) to carry out salvage operations in Australia and elsewhere.

17.    In those paragraphs Mr Walker pleads that certain representations were made to him and at para 11 Mr Walker sets out the content of the agreement. He says that he was to be the Salvage Master of a ship; for those services, Mr Walker would be entitled to be the beneficial owner of the ship acquired for the salvage operations; Mr Walker would be paid not less than $US10m over a five year period and other entitlements; a lump sum would be made available upon termination; Mr Walker would travel to Singapore to set up an entity to conduct the salvage operations; Mr Walker would travel to Fremantle to acquire a ship; the ship would be purchased in the name of Sub Ocean Salvage SA and would be beneficially owned by Mr Walker; Mr Walker would conduct research in Melbourne about salvage operations; Mr Hatcher would provide funds to pay for the ship, its refitting, stores and all other expenses related to the ship; and, Mr Walker would investigate salvage opportunities in Thailand, the Philippines, New Zealand, Vanuatu and Brazil.

18.    Paragraphs 15 to 46 set out the implementation steps by which Mr Walker selected an ex-navy auxiliary mine sweeper called the HMAS Brolga as the appropriate vessel; the purchase transaction was completed on 19 April 2006; the vessel was renamed MV Retriever 1; Mr Walker on 11 June 2006 took up the position of “Master of the Ship” and “Salvage Master” for the salvage operation. Those paragraphs also recite that the ship was acquired by Chance Cove Ltd and that on 7 July 2006 Mr Hatcher caused the ship to be registered in the Panamanian Ship Registry in the name of Chance Cove Ltd. Those paragraphs describe the steps to refit the ship and the taking of the ship from Freemantle to Melbourne.

19.    On 12 December 2006, the ship under Mr Walker’s command departed Melbourne and sailed to Fiji and then to Vanuatu. The remaining section of the pleading describes the events thereafter.

…

25.    At paras 92 to 97, Mr Walker pleads matters concerning arrangements said to have been made between the Republic of Vanuatu and Mr Hatcher. Mr Walker pleads that without his knowledge, Mr Hatcher purported to give the ship to the Authority at no cost in return for an agreement that the Authority would take no action against Mr Hatcher. Mr Walker says that this transaction was effected pursuant to a memorandum of agreement dated on or about 11 May 2007 entered into by Mr Hatcher on behalf of Chance Cove Ltd. Mr Walker pleads that Mr Hatcher knew that neither he nor Chance Cove Ltd had any right to enter into such an agreement. Mr Walker at para 98 pleads that the Authority and other Statutory Authorities in Vanuatu acted improperly, deliberately and unlawfully which ultimately is said to give rise to a claim for damages. Alternatively, it is said that the Authority and other Statutory Authorities of the Republic of Vanuatu failed to take adequate precautions to act lawfully in all the circumstances.

17    As I mentioned at [19] of the earlier judgment, the remaining section of the statement of claim describes the general sequence of events which occurred after the ship sailed to Fiji and then to Vanuatu.

18    In Mr Walker’s interlocutory application he applies for an order that summary judgment be entered against Mr Hatcher for “costs and Interest in this matter [and] [t]hat Summary Judgment is entered against the Second Respondent, Michael Hatcher for the amount of US$17 million on the following grounds …”: para 1 of the application.

19    At paras 2 to 8 inclusive of the interlocutory application, Mr Walker recites a sequence of contentions which are, no doubt, intended to be the basis upon which summary judgment ought to be entered against Mr Hatcher. These paragraphs do not assert further relief sought by the interlocutory application but simply seek to provide support for the order sought. For example, these other paragraphs assert that Mr Hatcher was served with “the Application, Claim and Statement of Claim”; Mr Hatcher was otherwise served; Mr Hatcher has “refused, failed, omitted to file an appearance or defence in an attempt to stall the proceedings and deny due process”; and other matters.

20    The interlocutory application was filed on 11 March 2013 and is thus a step governed by the 2011 Rules.

21    In support of the application, Mr Walker relies upon an affidavit of service sworn and filed by him on 3 September 2009.

22    In that affidavit, Mr Walker says that on or about 15 August (which, having regard to para 4 of the affidavit must necessarily be a reference to 2009), he left a copy of “the Application” with the second defendant’s wife at a restaurant called the “My Tai” restaurant in Tedder Avenue, Main Beach, Queensland at approximately 9.30pm. Mr Walker says that on 21 August 2009, he left a copy of the same document with the “Second Defendant’s Solicitor’s receptionist, Rachel”. Mr Walker says that the second defendant’s solicitor then had the conduct of a matter on behalf of Mr Hatcher in connection with steps taken by Queensland police officers concerning a particular motor vehicle. Mr Walker also says in his affidavit that on 31 August 2009 he caused “the Application” to be sent to the second respondent by Registered Post to “his home address”.

23    The references to “the Application” are necessarily references to the originating application as filed prior to the amended application filed on 5 October 2009.

24    Mr Walker also relies upon an affidavit sworn and filed by him on 18 December 2009.

25    In that affidavit, Mr Walker says that on or about 17 December 2009 he caused “the Original Application” to be “served personally on Michael Hatcher at 2104 hrs outside his [Hatcher’s] restaurant on the corner of an unnamed laneway behind Tedder Avenue [Main] Beach Gold Coast that runs parallel to Tedder Avenue”. Mr Walker says that at all times he was in the company of Robert James Kennedy who was standing “at the vehicle about 10 metres away” from the events described below. Mr Walker says this in his affidavit:

2.    I walked up to Hatcher and said how are you going Mike? He said “good”. I said I have some documents for you and touched him on the arm with the documents. He said [Mr Walker could deal with the documents in a particular way]. With that I pulled open his shirt front and stuck them inside his shirt.

3.    Hatcher, [threw] a punch at me and missed, pulled the documents from the front of his shirt and [threw] them on the ground and said [an expletive].

4.    A short time later, about 35 minutes or [thereabouts] I returned to where the incident took place to see if the document remained on the ground. They were missing.

5.    We drove the laneway and around the block to see if the laneway had a name. There were no names marked on the laneway.

…

9.    At all times material to this affidavit I was in the company of Robert James Kennedy who witnessed the service and heard the conversations.

26    In this affidavit, Mr Walker refers to “the Original Application”.

27    In other paragraphs he makes reference to “some documents” and “the documents”. However, Mr Walker does not annex or exhibit to the affidavit a copy of the document or documents he says he served on Mr Hatcher that day. The reference to “the Original Application” presumably means the originating application as amended and filed on 5 October 2009. Mr Walker is presumably not making reference to the original application as filed by him on 13 August 2009. Nevertheless, there is no mention of the statement of claim and there is no express reference to the amended application filed on 5 October 2009 and, as mentioned, no document is annexed or exhibited to the affidavit.

28    The relevance of these events, of course, is that if Mr Hatcher was personally served with the originating application (being the amended originating application filed on 5 October 2009) in the way described and if such service is sufficient for the purposes of the Federal Court Rules governing service of originating process at that time, then Mr Hatcher has been personally served in Australia and within the jurisdiction of the Federal Court of Australia. Thus, it would not have been necessary for the applicant to serve Mr Hatcher out of the jurisdiction under Order 8 of the earlier Rules or invoke the processes contemplated by Order 8 or Order 8A of the earlier Rules.

29    Mr Walker also relies upon an affidavit of Robert James Kennedy.

30    Mr Kennedy swore an affidavit on 18 December 2009 in which he says that on or about 17 December 2009 at “2104 hrs” he was present “when Kell Walker served Michael Hatcher with [the] Originating Application outside his restaurant on the corner of an unnamed laneway behind Tedder Avenue Main Beach, Gold Coast that runs parallel to Tedder Avenue”. Mr Kennedy says at para 2 of his affidavit that: “I have read the Affidavit sworn on the 18th of December 2009, and agree that the contents of the said affidavit are true and correct”. Mr Kennedy is presumably referring to the affidavit of Mr Walker sworn on 18 December 2009. Mr Kennedy also refers to the “Originating Application”. He does not annex or exhibit to his affidavit a true copy of the document he is referring to or any other document. Mr Kennedy does not refer to “documents” or anything other than the “Originating Application”. Although Mr Kennedy says that the contents of the affidavit of 18 December 2009 are true and correct, Mr Kennedy’s affidavit as to service rises no higher than the content of Mr Walker’s affidavit. I am willing to infer that Mr Kennedy is referring to Mr Walker’s affidavit at para 2 of his own affidavit.

The Federal Court Rules (the earlier Rules) as they applied at the time of the relevant events

31    As Mr Walker is a self-represented litigant, I propose to set out aspects of the applicable Rules of Court.

32    Order 4, r 1 of the Federal Court Rules as they applied at the time provides, relevantly, that all proceedings in the Court’s original jurisdiction shall be commenced by filing an application. The application must specify the relief claimed by the applicant and if the relief depends upon a provision of an Act – the Act and the provision: Order 4, r 3.

33    By Order 4, r 6 an applicant is required to file and serve with the application either an affidavit in accordance with Form 20 or a statement of claim in accordance with Form 7, whichever is appropriate. In this case, Mr Walker had been ordered to file a statement of claim by 8 October 2009 and he filed his document on 5 October 2009. Thus, Mr Walker was required to serve the amended application of 5 October 2009 and the statement of claim filed on that date upon Mr Hatcher in order to comply with Order 4, r 6(1).

34    The originating process was required to be served personally upon Mr Hatcher: Order 7, r 1.

35    In the case of an individual, personal service is effected by leaving a copy of the originating process with him or her: Order 7, r 2.

36    These Rules had the effect that Mr Walker was required to personally serve Mr Hatcher with the amended application and the statement of claim by leaving a copy of those two documents with Mr Hatcher. Mr Walker would ultimately be required to prove service in accordance with the applicable Federal Court Rules by putting on affidavit evidence that establishes that matter. Ordinarily, that would be done by deposing quite precisely to the facts of service; properly describing the document or documents left with Mr Hatcher; and annexing to that affidavit a true copy of the particular document or documents said to have been left with the individual.

37    As already mentioned, neither Mr Walker’s affidavit nor Mr Kennedy’s affidavit precisely describes the document or documents said to have been left with Mr Hatcher on 17 December 2009. Nor does either affidavit exhibit or annex a true copy of the document or documents said to have been left with Mr Hatcher.

38    Upon an application and statement of claim being filed, the Registrar, on the applicant’s request, is required to sign and affix the seal of the Court to a sufficient number of copies of the application for service and proof of service: Order 4, r 7.

39    The application must state a date for a hearing at which the Court may hear the proceeding in whole or in part or give directions for the further conduct of the proceeding: Order 4, r 8.

40    The application and statement of claim is to be served not less than five days before the hearing date nominated under Order 4, r 8: Order 4, r 11.

41    If Mr Hatcher was properly served in Australia on 17 December 2009, he was required to enter an appearance before the date appointed for a directions hearing and before filing any document: Order 9, r 2. An appearance is entered by filing a notice of appearance in accordance with Form 15: Order 9, r 3.

42    As mentioned, each originating application must state a hearing date (Order 4, r 8) and that date would almost always be a date on which a directions hearing would occur to enable the Court to give such directions it thinks appropriate in the conduct of the proceeding. Sometimes the nominated hearing/directions date will fall in before the applicant has been able to serve the respondent with the originating process in which event the proceeding might be adjourned to a nominated date or adjourned generally to enable enquiries to be made to locate and serve the respondent within the jurisdiction. The directions that might be given include directions as to the mode and sufficiency of service: Order 10, r 1(2)(a)(viii).

43    In this case, the proceeding came before the Court on a directions hearing on 7 December 2009 and was adjourned to enable Mr Walker to locate and serve, if possible, Mr Hatcher.

44    Where the Court, as here, orders the applicant to file and serve a statement of claim, the defence of the respondent is to be filed within 14 days after service of the statement of claim: Order 11, r 20(2).

45    Order 35A of the earlier Rules addresses the topic of orders or judgment on default. For the purposes of Order 35A, a respondent is in default (assuming the respondent has not satisfied the applicant’s claim) if the time for the respondent to enter an appearance has expired and the respondent has failed to enter an appearance (Order 35A, r 2(2)(a)) or the time for the respondent to file a defence has expired and the respondent has failed to file a defence (Order 35A, r 2(2)(b)).

46    If a respondent is in default and the proceeding was commenced by an application supported by a statement of claim or the Court has ordered that the proceeding continue on pleadings (as here), the Court may give judgment against the respondent for the relief that “the applicant appears entitled to on the statement of claim” and “the Court is satisfied it has power to grant”: Order 35A, r 3(2)(c)(i) and (ii). Alternatively, the Court may “give judgment or make any other order against the respondent”: Order 35A, r 3(2)(d). Another alternative order is that the Court may, relevantly, make an order specified in Order 35A, r 3(2)(c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time limited in the order: Order 35A, r 3(2)(e).

47    More generally, the Court may make an order contemplated by subrule (2) or any other order, or give such directions, and specify such consequences for non-compliance with the order, as the Court thinks just: Order 35A, r 3(5).

48    These are the features of the earlier rules which governed the relevant obligations of the applicant; the relevant obligations of the respondent upon particular events occurring (notably service); and the application that might be made for orders on default, consequent upon events of default as described for the purposes of Order 35A of the earlier Rules and in particular those events described at Order 35A, r 2(2) of the earlier Rules.

49    With that background in mind, it needs to be recalled that as Mr Walker’s application for summary judgment, predicated upon contentions of Mr Hatcher’s default under the earlier Rules, was made by an application filed on 11 March 2013, that step was a step governed by the 2011 Rules rather than the earlier Rules. Nevertheless, by operation of the 2011 Rules, the Court may order that the earlier Rules apply with or without modification to a step taken after 1 August 2011: r 1.04(3) of the 2011 Rules.

50    Rule 5.22 of the 2011 Rules provides, relevantly, that a party is in default if the party fails to do an act required to be done, or do an act in the time required, “by these Rules” (r 5.22(a)); or fails to defend the proceeding with due diligence (r 5.22(d)). The contended failures on the part of Mr Hatcher are not things required to be done or done in the time frames required by, the 2011 Rules and thus Mr Hatcher is not in default for the purposes of r 5.22 by reason of a failure to comply with obligations arising under the earlier Rules. Mr Hatcher’s contended failure to “defend the proceeding with due diligence” is, however, concerned with things done or not done both under the period of the earlier Rules and the 2011 Rules.

51    For the purposes of this application, I will order that the Rules governing contended default on the part of Mr Hatcher set out in Order 35A, r 2(2) of the Federal Court Rules as in force immediately before 1 August 2011 apply so as to determine whether Mr Hatcher was (or is) in default for the purposes of r 5.23 of the 2011 Rules and that in so ordering, those earlier Rules shall not displace the continued operation for the purposes of this application of r 5.22(d) of the 2011 Rules.

52    Rule 5.23(2)(c) of the 2011 Rules provides, relevantly, like the earlier Rules, that if a respondent is in default, an applicant may apply to the Court for:

(c)    if the proceeding was started by an originating application supported by a statement of claim, or if the Court has ordered that the proceeding continue on pleadings – an order giving judgment against the respondent for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled; or

(d)    an order giving judgment against the respondent for damages to be assessed, or any other order; or

(e)    an order mentioned in paragraph … (c) or (d) to take effect if the respondent does not take a step ordered by the Court in the proceeding in the time specified in the order.

53    Rule 5.23(2)(b) contemplates that an applicant may apply to the Court for an order giving judgment against the respondent (if the claim is for a debt or liquidated damages) for the debt or liquidated damages and if appropriate, interest and costs in a sum fixed by the Court or to be taxed.

54    Mr Walker’s claim is not for a debt or liquidated damages, to the extent to which the claim is framed by the amended originating application and supporting statement of claim.

55    As earlier mentioned, Mr Walker filed his application for summary judgment on 11 March 2013 relying upon Mr Hatcher’s contended failure to enter an appearance; file a defence; and defend the proceeding with due diligence. The difficulty confronting Mr Walker on the initial return date of the summary judgment application was that assuming that Mr Hatcher had fallen into default by failing to take the steps required of him under the earlier Rules (assuming that Mr Hatcher had been duly served in compliance with those earlier Rules and was thus served within the jurisdiction), and by failing to defend the proceeding with due diligence, no step had been taken by Mr Walker as against Mr Hatcher since, in effect, 17 December 2009 when the contended events of service occurred. Thus, even if Mr Walker was prima facie correct in his contentions as to Mr Hatcher’s default, it would not have been a proper exercise of the discretion to enter default judgment (absent any other consideration going to the exercise of the discretion) so long after the principal events of default, without Mr Hatcher having been put on notice of the application for summary judgment made against him.

56    Mr Walker had, of course, been addressing the central question of whether his joinder of the “Government of the Republic of Vanuatu” and service upon that party ought to be set aside on the footing that the Court lacked jurisdiction and no justiciable controversy was raised as against that party falling within the Court’s jurisdiction.

57    Nevertheless, upon the resolution of that matter, Mr Walker then considered his contended rights as against Mr Hatcher. He then set about seeking to identify the precise whereabouts of Mr Hatcher. He put in place steps to try and find and serve, if possible, Mr Hatcher (in the Philippines) with notice of the application for summary judgment and serve him with copies of the amended originating application and the statement of claim in the proceeding. Those efforts ultimately led to the attempts at and contended service upon Mr Hatcher described in [58] and [62] of these reasons.

58    Mr Walker relies upon an affidavit sworn by him on 21 December 2013 and filed on 23 December 2013. In that affidavit he says that on or about 8 July 2013 he contacted Mr Mark Ang, a solicitor, who has a Practising Certificate issued by the Supreme Court of the Philippines. He then says that he (Mr Walker) contacted Mr Richard Thomas “of the Blue Rock Motel at Subic Bay” in the Philippines “to look for and serve the Second Respondent with a Sealed copy of the Statement of claim and an amended Statement of Claim”: para 2 of the affidavit. The reference to a sealed copy of the statement of claim must necessarily be a reference to the statement of claim filed on 5 October 2009. The reference to an amended statement of claim must necessarily be a reference to the amended originating application filed on 5 October 2009.

59    Mr Walker says at para 3 of his affidavit that he is informed by Richard Thomas and verily believes it to be true that on or about 14 December 2013 a police officer served Michael Hatcher with a sealed copy of the statement of claim and the “Amended Statement of Claim” (which must be a reference to the amended originating application) “outside of his Hotel” (which must be a reference to Mr Thomas and the Blue Rock Motel at Subic Bay). This event is said to have been “witnessed by the police officer’s superior officer”.

60    This evidence, of course, is hearsay upon hearsay.

61    At paras 4, 5 and 6 of his affidavit, Mr Walker refers to an action brought by a police officer in respect of a motor vehicle against Mr Hatcher, Mr Walker and Mr Adrian James Stevens in the Magistrates Court of Queensland in 2009. Mr Walker says that he filed an affidavit in those proceedings on 14 October 2009 which “included” a sealed copy of the statement of claim filed in these proceedings (described as Exhibit KW-102 to Mr Walker’s affidavit in those proceedings). Mr Walker says that Mr Hatcher participated in the proceedings “by telephone link” and that Mr Walker cross-examined Mr Hatcher about matters set out in the statement of claim in these proceedings. Mr Walker says that it follows that Mr Hatcher has had the statement of claim brought to his attention.

62    In addition, Mr Walker attaches to his affidavit filed 23 December 2013 a faxed copy of an affidavit sworn by a person whose name is handwritten on the document and is difficult to read. The first name is Ray and the second may be Ethesle. The affidavit describes the deponent’s occupation as “Driver”. In any event, the deponent to that affidavit says this:

2.    I served Michael Hatcher with a sealed copy of the Statement of Claim and an Amended Statement of Claim in Manila of the Philippines outside of his hotel on the 9th of December 2013.

3.    Hatcher threw the documents on the ground and walked off. Before departing my presence he threatened to have me killed.

4.    I know Hatcher as I had worked for him as a driver in Indonesia approximately 20 years ago. ...

63    The remarks said to have been made by Mr Hatcher to the deponent are much along the lines of remarks Mr Walker deposes to in his exchange with Mr Hatcher at Main Beach at the Gold Coast on 17 December 2009.

64    The procedural background to the listing of the summary judgment application is this.

65    The directions hearing at which the matter was to be mentioned was adjourned to 9 October 2013. At that time, Mr Walker was still attempting to determine the whereabouts of Mr Hatcher with a view to bringing the application to his attention. The application was adjourned to be brought back on upon notice from Mr Walker.

66    Mr Walker subsequently filed his affidavit of 23 December 2013.

67    Ultimately, Mr Walker sought a listing date from the Court.

68    Mr Walker then took steps to bring the listing of the application to the attention of Mr Hatcher. On 11 August 2014, Mr Walker filed a further affidavit in which he deposes to having attempted to send the notice of listing of the hearing of the application to Mr Hatcher by email on two occasions. Mr Walker says in his affidavit that on one of those occasions the email bounced back.

69    Nevertheless, the listing date went ahead on 3 September 2014 and the application was heard and reserved.

70    There are a number of fundamental difficulties with the application.

71    First, the affidavit material does not prove service of the amended originating application and the statement of claim on Mr Hatcher on 17 December 2009. The affidavits do not identify the documents served upon Mr Hatcher by leaving particular documents with him in the course of those events. The affidavits do not annex or exhibit a true copy of the document or documents said to have been served upon Mr Hatcher. That being so, there is no proof of the service within the jurisdiction of the amended originating application and statement of claim. That being so, there is no proof of events which have given rise to a default on the part of Mr Hatcher by reason of Mr Hatcher’s having failed to enter an appearance or file and serve a defence.

72    Second, Mr Walker seeks by his application, summary judgment in a particular amount, namely, US$17 million. Mr Walker’s claim to the extent that it is reflected in the amended originating application and statement of claim is not a claim in respect of a debt or liquidated damages. That being so, to the extent that judgment might be entered against Mr Hatcher (assuming no other difficulties in the exercise of the discretion), the proper order would be judgment for damages to be assessed.

73    Third, on the face of the present material, I am not satisfied that the listing date for the hearing of the application was brought to the attention of Mr Hatcher. To the extent that it may have been brought to his attention by reason of one of the emails reaching him, Mr Hatcher may have chosen to ignore the email on the footing that he may not have been served with the originating process properly at the outset.

74    Fourth, r 5.23(c) of the 2011 Rules contemplates that upon default an order might be made giving judgment against Mr Hatcher “for the relief claimed in the statement of claim to which the Court is satisfied that the applicant is entitled” [emphasis added]. An examination of the amended originating application and the statement of claim shows these things. In relation to the amended originating application, the document continues to assert a wide range of legislation and statutory instruments as the foundation of jurisdiction. That document, however, describes the applicant’s claim as one for damages and other relief for breach of a contract for salvage operations and then recites the matters reflected in the quote at [9] of these reasons. The details of the claim quoted at [11] of these reasons is a rolled up aggregated assertion of many things. As to the statement of claim, the pleading does not properly and clearly identify the elements of the contended breach of contract claim. On the face of these documents, I cannot be satisfied (leaving aside all other considerations) that the applicant is entitled to the relief claimed in the statement of claim and originating amended application.

75    It follows that Mr Walker’s application for summary judgment must be dismissed.

76    That leaves outstanding the question of what steps ought now to be taken.

77    The most important step is to attempt to put in place a mechanism by which Mr Walker might obtain legal advice about the true nature of his claim; the way in which it might be formulated; and the steps that might now need to be taken to bring a properly formulated application and statement of claim to the attention of Mr Hatcher by way of service which complies with the relevant Rules of Court.

78    Previously, Deputy District Registrar Lynch of the Federal Court wrote to Mr Walker suggesting that he may wish to contact the Queensland Public Interest Law Clearing House (QPILCH) self-representation service prior to seeking to re-list the summary judgment application, with a view to obtaining preliminary advice about the essential aspects of the claims and the application. Mr Walker responded on 26 June 2014 and 22 July 2014 by email to Deputy District Registrar Lynch’s communication. However, those responses do not make clear whether Mr Walker had engaged with QPILCH. It seems to me that there is a lot to be said in trying to secure some independent legal advice to Mr Walker about aspects of the matter including the way in which the claim is presently formulated.

79    I propose to make a direction that Mr Walker takes steps to contact a representative of QPILCH within 30 days so as to arrange a time for a meeting with QPILCH to discuss the nature of Mr Walker’s contended claims. I propose to direct Mr Walker to advise the Court, through the Federal Court Registry in Brisbane, within 30 days, of the steps he has taken in that regard and to advise the Registry of the representative of QPILCH with whom he has spoken. I propose to then re-list the matter for directions and request the QPILCH representative to attend Court so that something in the nature of a case management conference might be conducted to determine the course Mr Walker might take. At that mention or case management hearing, the question of the form of the amended originating application and the compliance of the statement of claim with the relevant Rules of Court, must be addressed.

80    For present purposes, the interlocutory application will be dismissed and directions orders as indicated at [77] to [79] of these reasons will be made.

Associate:

Dated:    20 May 2015