Girgis v Poliwka [No 3] - [2018] WASC 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GIRGIS -v- POLIWKA [No 3] [2018] WASC 133
CORAM:   DERRICK J
HEARD:   1 MAY 2018
DELIVERED          :   1 MAY 2018
PUBLISHED           :   3 MAY 2018
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 - Undertaking by defendants that they would not oppose tendering as admissions paragraphs of a witness statement - Case management principles

Legislation:

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

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	Mr D H Solomon
Second Plaintiff	:	Mr D H Solomon
First Defendant	:	Mr M A MacLennan
Second Defendant	:	Mr M A MacLennan
Third Defendant	:	Mr M A MacLennan

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 decision(s):

Girgis v Poliwka [2015] WASC 446
Girgis v Poliwka [2016] WASCA 158
Girgis v Poliwka [No 2] [2017] WASC 9
Hennessy v Wright (1890) 24 QBD 445
Marriott v Chamberlain (1886) 17 QBD 154
Potter's Sulphide Ore Treatment Ltd v Sulphide Corporation Ltd [1911] HCA 35; (1911) 13 CLR 101
Ugle v The State of Western Australia [2002] WASCA 117

DERRICK J:

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

The application

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) (RSC). The first application was dismissed: Girgis v Poliwka [2015] WASC 446. An appeal from the decision dismissing the first application was also dismissed: Girgis v Poliwka [2016] WASCA 158.
The present application first came before Banks‑Smith J on 18 January 2017. The minute of proposed interrogatories that was before her Honour is the minute that is before me. Banks‑Smith J adjourned the application pending the exchange of witness statements. Her Honour did so on the basis that the exchange of witness statements might elucidate the evidence as to the pleaded issues and hence might remove the need for interrogatories: Girgis v Poliwka [No 2] [2017] WASC 9 [12].
Witness statements have now been exchanged by the parties. In light of the witness statements the parties have conferred on the minute of proposed interrogatories. However, they have been unable to reach agreement as to whether leave should be granted for the plaintiffs to administer the proposed interrogatories.

The claim

In general terms the plaintiffs' claim relates to advice allegedly provided by Mr Poliwka (a real estate and business agent) to Mr Girgis as to a number of investments, specifically the purchase of shares in…

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: [2018] WASC 133
Decision Date: 3 MAY 2018

CaseChat Overview and Summary

The case before the court involved Girgis, the plaintiff, and Poliwka, the defendants. Girgis sought leave to administer interrogatories to the defendants, which was opposed by the defendants. The defendants, however, provided an undertaking that they would not oppose the tendering as admissions of certain paragraphs of a witness statement. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the defendants' undertaking could be accepted as a sufficient alternative to administering interrogatories. This raised questions about the application of case management principles and the extent to which a party could be compelled to admit facts through an alternative process.

The court considered the principles of case management, which emphasise efficiency, fairness, and the just resolution of disputes. The court noted that the defendants' undertaking could provide a pragmatic solution that aligned with these principles. By accepting the undertaking, the court could achieve a similar outcome to administering interrogatories without the need for a formal court process. The court weighed the importance of allowing parties to manage their cases efficiently against the potential prejudice to either party. Ultimately, the court determined that the defendants' undertaking was an acceptable alternative to administering interrogatories, provided it did not unfairly prejudice either party.

In reaching its decision, the court found that the defendants' undertaking sufficiently protected the interests of both parties. The court held that the defendants' willingness to admit certain facts demonstrated a commitment to resolving the dispute efficiently and in accordance with case management principles. The court accepted the undertaking as a suitable alternative to administering interrogatories, thus allowing the case to proceed without the need for a formal court process. This decision underscores the importance of flexibility in case management and the court's willingness to consider alternative processes that achieve a fair and efficient resolution of disputes.

Orders