Practice and procedure - Appeal against decision not to set aside ex parte order to extend the validity of a writ for service - Material non-disclosure at ex parte hearing - Reasons for non-disclosure

Legislation:

Limitations Act 2005 s 13
Rules of the Supreme Court 1971 O 2, O 7 r 1, O 58 r 23

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff: Ms W F Gillan
Defendant: Mr S F Popperwell

Solicitors:

Plaintiff: DLA Piper Australia
Defendant: Denman Popperwell

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

Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Behbehani v Salem [1989] 1 WLR 723
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Black v City of Melbourne [1963] VR 34
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Brink's Mat Ltd v Elcombe [1988] 3 All ER 188
Carter v State Housing Commission (Unreported, WADC, Library 4646, 5 September 1995)
Esther Investments Pty Ltd v Markalinga Pty Ltd b(1989) 2 WAR 196
Irving v Carbines [1982] VR 861
Ketteman v Hansel Properties Ltd [1987] AC 189
Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 3] [2013] WADC 60
Papotto v The State of Western Australia [2005] WASCA 234
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
Tucker v Hamdorf [2006] WADC 191
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
Victa Ltd v Johnson (1975) 10 SASR 496

WAGER DCJ: The defendant appeals the decision of Acting Principal Registrar Kingsley not to set aside orders made in respect of the plaintiff's ex parte O 7 r 1 Rules of the Supreme Court 1971 (RSC) application to extend the validity of the plaintiff's writ of summons.
In making the decision not to set aside the order, Acting Principal Registrar Kingsley determined that the solicitor for the plaintiff had been responsible for a material non‑disclosure in respect of the evidence filed in support of the ex parte application, however the acting principal registrar determined that the ex parte order should not be discharged.
The defendant submits that the court should find misleading evidence and non‑disclosed evidence led to the acting principal registrar making the extension order. Had the material that should have been before the court for the ex parte application been before him at the relevant time, the extension application would have been dismissed. The defendant submits that proper exercise of discretion in this case is to discharge the extension order.
The plaintiff submits that on material now known the validity of the writ should have been extended. The inherent power to set aside an ex…

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 [No 3]

Details

AGLC: Papotto v Atlas [No 3] [2013] WADC 119
Case: [2013] WADC 119
Decision Date: 24 JULY 2013

CaseChat Overview and Summary

Papotto v Atlas [No 3] was a case where the respondent sought to have an ex parte order set aside which extended the validity of a writ for service. The matter was before the Supreme Court of Victoria. The dispute centred on whether the ex parte order, which had been granted without the applicant's knowledge, should be overturned due to material non-disclosure during the ex parte hearing. The respondent argued that the applicant had failed to disclose material facts that would have influenced the court's decision to grant the extension.

The legal issues before the court were whether the material non-disclosure by the applicant warranted setting aside the ex parte order and whether the reasons provided for the non-disclosure were sufficient to justify the court's decision. The court had to balance the need for procedural fairness against the potential prejudice to the respondent if the order was set aside.

The court found that the non-disclosure was indeed material, and the reasons provided for the non-disclosure were not satisfactory. The court emphasised the importance of full disclosure in ex parte hearings to ensure fairness and justice. Consequently, the court set aside the ex parte order, ruling that the applicant's failure to disclose material facts was a significant procedural error. The court's decision underscored the necessity for complete transparency in legal proceedings to maintain the integrity of the judicial process.

Orders