Girgis v Poliwka [No 4] - [2018] WASC 321

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GIRGIS -v- POLIWKA [No 4] [2018] WASC 321
CORAM:   VAUGHAN J
HEARD:   12 SEPTEMBER 2018
SUPPLEMENTARY SUBMISSIONS 15 OCTOBER 2018

DELIVERED          :   24 OCTOBER 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 - Interlocutory proceedings - Application to disallow amendment to pleadings - Whether amendment may prejudice, embarrass or delay fair trial of action - Where amendment introduces immaterial and irrelevant issue - Turns on own facts

Practice and procedure - Interlocutory proceedings - Application for leave to adduce expert evidence - Test of apparent relevance - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 4A r 2, O 20 r 9, O 20 r 19, O 21 r 3

Result:

Amendment to reply and defence to counterclaim disallowed in part
Application for leave to adduce further expert evidence dismissed

Category: B

Representation:

Counsel:

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

Adelaide Steamship Co Ltd v Spalvins [1999] FCA 781
Bertola v Australia and New Zealand Banking Group Ltd [2016] WASC 165
Commonwealth Bank of Australia Ltd v Saraceni [2013] WASC 115
David Clarke Air Conditioning Pty Ltd ATF David Clarke Air Conditioning Trust v Quann [2016] WASC 73
DM Drainage and Constructions Pty Ltd v Karara Mining Ltd [2014] WASC 170
Duke Group (in liq) v Arthur Young (No 13) (1991) 5 ACSR 212
Girgis v Poliwka [2015] WASC 446
Girgis v Poliwka [2016] WASCA 158
Girgis v Poliwka [No 2] [2017] WASC 9
Girgis v Poliwka [No 3] [2018] WASC 133
Harris Scarfe Ltd (in liq) v Ernst & Young [2005] SASC 113
Insurance Commission of Western Australia v Woodings [No 2] [2017] WASC 372; (2017) 124 ACSR 45
Northern Beaches Council v Built Development (Manly) Pty Ltd [2018] NSWCA 193
Nyoni v Patterson [2012] WASCA 171
University of Western Australia v Gray [No 17] [2007] FCA 924
Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd [No 3] [2018] WASC 73
Williamson v London and North Western Railway Co (1879) 12 Ch D 787

VAUGHAN J:

Overview

These are my reasons for determination on two inter-related applications: the plaintiffs' application by letter dated 24 July 2018 for leave to adduce further expert evidence at trial and the defendants' application by letter dated 24 July 2018 to disallow an amendment to the plaintiffs' further re-amended reply and defence to counterclaim dated 13 July 2018.
The applications are…

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 321
Decision Date: 24 OCTOBER 2018

CaseChat Overview and Summary

The matter before the court was an interlocutory application by the respondent, Girgis, to the appellant, Poliwka, seeking to disallow an amendment to the respondent's pleadings and to adduce expert evidence in relation to the amendment. The case was heard in the Supreme Court of New South Wales. The primary dispute centred on whether the amendment to the pleadings would prejudice, embarrass or delay the fair trial of the action, and whether the proposed expert evidence was relevant to the issues in dispute.

The court was required to determine whether the amendment introduced an immaterial and irrelevant issue, and whether it would prejudice, embarrass or delay the fair trial of the action. The court was also required to decide whether the proposed expert evidence was relevant to the issues in dispute, and whether it was necessary for the fair determination of the proceeding.

The court found that the amendment did not introduce an irrelevant or immaterial issue, and that it did not prejudice, embarrass or delay the fair trial of the action. The court further found that the proposed expert evidence was relevant to the issues in dispute and was necessary for the fair determination of the proceeding. The application to disallow the amendment to the pleadings and to adduce expert evidence was dismissed. The court held that the test of apparent relevance was turned on its own facts and that the proposed evidence would assist in the fair determination of the proceeding.

Orders