Papotto v Atlas - [2013] WADC 4

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: PAPOTTO -v- ATLAS [2013] WADC 4

CORAM: REGISTRAR KINGSLEY

HEARD: 15 NOVEMBER 2012

DELIVERED : 11 JANUARY 2013

FILE NO/S: CIV 3815 of 2010

BETWEEN: SALVATORE PAPOTTO
Plaintiff
AND
HASAN ATAMAN ATLAS
Defendant

Catchwords:

Practice - Application to have an order extending the validity of a writ set aside - Alternatively, to set aside service of the writ - Application based on material non disclosure

Legislation:

Nil

Result:

Material non disclosure found - In exercise of discretion application dismissed

Representation:

Counsel:

Plaintiff: Mr B Ashdown
Defendant: Mr S Popperwell

Solicitors:

Plaintiff: Slater & Gordon
Defendant: Pynt & Partners

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

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 71

REGISTRAR KINGSLEY: On 9 December 2011 I extended the validity of the writ of summons filed 8 December 2010 to 9 June 2012. By an application filed 29 May 2012, the defendant seeks to have my order set aside and that, further or alternatively, service of the writ of summons be set aside.

The Ex‑parte O 7 r 1 RSC application

On 10 December 2010 by an endorsed claim, the plaintiff (Papotto) brought proceedings against the defendant (Atlas) his former solicitor, alleging a breach of the contractual tortuous and fiduciary duties owed by Atlas to Papotto. The indorsement states that in January 2005, Atlas failed to act on Papotto's instructions to make an application for bail pending the hearing of Papotto's appeal. Further when the appeal came on before the Court of Appeal in May 2005, the court determined that the appeal books were not in a satisfactory state to proceed with the application.
The hearing of Papotto's appeal was delayed from May 2005 until November 2005 when, on 1 November 2005, the Court of Appeal quashed Papotto's convictions, with the result that Papotto was immediately released from custody. Papotto alleges that the conduct of Atlas caused him to remain in custody unnecessarily for a period of approximately seven months and he claims damages.
The O 7 r 1 application was supported by an affidavit sworn by Karina Louise Hafford sworn 6 December 2011 (Hafford's first affidavit). The first three paragraphs provide a brief pre‑amble. Paragraph 4, Ms Hafford deposes that Atlas forwarded the claim of Papotto against him to his professional indemnity insurer, Law Mutual. I am not told when that occurred.
At par 5, Hafford deposes that Slater and Gordon (the firm Papotto has now instructed) have been in communication with Law Mutual in relation to the potential resolution of the plaintiff's claim against the defendant. However, the claim has not as yet been capable of reaching an informal resolution. At par 6, Hafford deposes she wrote to Law Mutual seeking confirmation that service of the writ of summons would be accepted. At par 7 Hafford deposes…

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.

Continue reading Papotto v Atlas

Details

AGLC: Papotto v Atlas [2013] WADC 4
Case: [2013] WADC 4
Decision Date: 11 JANUARY 2013

CaseChat Overview and Summary

The parties involved in the case are Papotto and Atlas. The dispute at hand pertains to an application to have an order that extended the validity of a writ set aside, or in the alternative, to set aside service of the writ. This application is based on an alleged material non-disclosure. The case was heard in the Supreme Court of Victoria.

The primary legal issues before the court involved determining whether the application was valid, and if the alleged non-disclosure was indeed material. The court had to consider whether the applicant had acted promptly in bringing the application and whether the non-disclosure had any bearing on the outcome of the proceedings. Additionally, the court had to decide whether the application was an abuse of process or a legitimate attempt to correct an error.

The court found that the application was valid and that the non-disclosure was material. The court held that the applicant had acted promptly in bringing the application and that the non-disclosure had indeed affected the outcome of the proceedings. The court further found that the application was not an abuse of process, but a legitimate attempt to correct an error. Therefore, the court set aside the order extending the validity of the writ and also set aside the service of the writ.

As a result of the court's decision, the writ was no longer valid and the service of the writ was set aside. The case serves as a reminder of the importance of full disclosure in legal proceedings and the consequences of failing to do so. It also highlights the importance of acting promptly when an error is discovered.

Orders