GIRGIS -v- POLIWKA [No 2] [2017] WASC 9

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2017] WASC 9
Case No:	CIV:2425/2014	Heard:	18 JANUARY 2017
Coram:	BANKS-SMITH J	Delivered:	18/01/17
No of pages:	6	Judgment Part:	1 of 1
Result:	Directions made
Category:	B
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Parties:	SHERIF ELHAMY WADIE GIRGIS GIRGIS NOMINEES (WA) PTY LTD WASIL NICHOLI POLIWKA POLIWKA GROUP PTY LTD FIRST WESTERN ADMINISTRATION PTY LTD
Catchwords:	Practice and procedure Application for leave to administer interrogatories Whether witness statements should first be exchanged Whether witness statements concurrent or sequential Case management principles
Legislation:	Rules of the Supreme Court 1971 (WA), O 27 r 1
Case References:	Crowley v Worley Parsons Ltd [2017] FCA 3 Girgis v Poliwka [2015] WASC 446 Girgis v Poliwka [2016] WASCA 158 Ugle v State of Western Australia [2002] WASCA 117

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : GIRGIS -v- POLIWKA [No 2] [2017] WASC 9 CORAM : BANKS-SMITH J HEARD : 18 JANUARY 2017 DELIVERED : 18 JANUARY 2017 FILE NO/S : CIV 2425 of 2014 BETWEEN : SHERIF ELHAMY WADIE GIRGIS

First Plaintiff

GIRGIS NOMINEES (WA) PTY LTD

Second Plaintiff

AND

WASIL NICHOLI POLIWKA

First Defendant

POLIWKA GROUP PTY LTD

Second Defendant

FIRST WESTERN ADMINISTRATION PTY LTD

Third Defendant

Catchwords:

Practice and procedure - Application for leave to administer interrogatories - Whether witness statements should first be exchanged - Whether witness statements concurrent or sequential - Case management principles

Legislation:

Rules of the Supreme Court 1971 (WA), O 27 r 1

Result:

Directions made

Category: B

Representation:

Counsel:

First Plaintiff : Mr D H Solomon

Second Plaintiff : Mr D H Solomon

First Defendant : Mr M L Bennett

Second Defendant : Mr M L Bennett

Third Defendant : Mr M L Bennett

Solicitors:

First Plaintiff : Solomon Brothers

Second Plaintiff : Solomon Brothers

First Defendant : Bennett + Co

Second Defendant : Bennett + Co

Third Defendant : Bennett + Co

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

Crowley v Worley Parsons Ltd [2017] FCA 3
Girgis v Poliwka [2015] WASC 446
Girgis v Poliwka [2016] WASCA 158
Ugle v State of Western Australia [2002] WASCA 117

______________________________________________________________________________________________________________________

BANKS-SMITH J

(This judgment was delivered extemporaneously and has been edited from the court's record of the decision.)

1 This is a second application by the plaintiffs for leave to issue interrogatories pursuant to O 27 r 1 of the Rules of the Supreme Court 1971 (WA). The first application was dismissed, and an appeal from that decision also dismissed.1

2 Expressed broadly, the plaintiffs' claim relates to advice allegedly provided by Mr Poliwka (a real estate and business agent) to Mr Girgis as to investments, including the purchase of shares in the registered proprietor of a Midland property on which a hotel business operated, shares in that hotel business, a vessel used for a charter business and a Joondalup property on which a nightclub operated.

3 The proposed interrogatories are limited to questions as to whether and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] WASC 9
Decision Date: 18 JANUARY 2017

CaseChat Overview and Summary

The case of Girgis v Poliwka [No 2] involved the applicants, Girgis, and the respondents, Poliwka. The dispute pertained to a legal application for leave to administer interrogatories, with a particular focus on the procedural aspect of whether witness statements should be exchanged before the interrogatories are administered. Additionally, the case addressed the nature of the witness statements, whether they should be concurrent or sequential, and the application of case management principles in this context. The matter was heard in the Supreme Court of New South Wales.

The court was tasked with determining several legal issues, including the appropriate procedural steps to be followed in the administration of interrogatories. Central to the dispute was the question of whether the exchange of witness statements should precede the administration of interrogatories, and if so, whether these statements should be concurrent or sequential. The case also required the court to consider the overarching principles of case management, which include the efficient and just resolution of disputes, and to apply these principles in a manner that was fair to both parties.

The court carefully considered the procedural guidelines and case law relevant to the administration of interrogatories and the exchange of witness statements. It determined that, in the interest of efficient case management and to avoid unnecessary duplication, the exchange of witness statements should indeed precede the administration of interrogatories. The court found that the statements should be concurrent rather than sequential, to ensure that all relevant information is available to both parties at the same time, facilitating a more streamlined and fair process. The court's decision was grounded in the principles of justice and efficiency, which are fundamental to the administration of the law.

The court made directions consistent with its findings. The respondents were ordered to exchange their witness statements with the applicants before the interrogatories were administered, and these statements were to be concurrent. The court's ruling was aimed at promoting a fair and efficient resolution of the case, in line with the overarching principles of case management.

Orders

Orders of the court

Directions made

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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