Petronaitis v Rowles - [2012] NSWCA 236

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Petronaitis v Rowles [2012] NSWCA 236
Hearing dates: 9 July 2012
Decision date: 09 July 2012
Before: Beazley JA
Decision:
1. Pursuant to the Civil Procedure Act 2005, s 14 and UCPR, r 18.2, dispense with compliance with r 18.1 to the extent that that rule required service of a sealed copy of the notice of motion filed 29 June 2012 upon Ms Dalia Petronaitis;
2. In the event the notice of motion filed 29 June 2012 should have been served on the fourth respondent, the Guardianship Tribunal, pursuant to Civil Procedure Act, s 14 dispense with compliance with the time specified in rr 18.4 and 18.5 in respect of service of the notice of motion filed 29 June 2012 on the fourth respondent;
3. Summons seeking leave to appeal be struck out;
4. The applicant, Dalia Petronaitis, to pay the costs of the notice of motion filed 29 June 2012 of the second and third respondents (Michael Petronaitis and John Petronaitis);
5. The applicant, Dalia Petronaitis, to pay the costs of the notice of motion filed 29 June 2012 of the fifth respondent, the tutor for Mrs Petronaitis.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:
CIVIL PROCEDURE - Application to strike out summons seeking leave to appeal - Sealed copy of notice of motion moving for strike out not served on applicant - Court has power to dispense with service requirements - Civil Procedure Act 2005, s 14; Uniform Civil Procedure Rules 2005, rr 18.1, 18.2.
CIVIL PROCEDURE - Application to strike out summons seeking leave to appeal - Whether summons seeking leave to appeal constituted an abuse of process - Non-attendance by applicant on three occasions when matter listed before the court - Grounds of appeal disclose no reasonable case on the appeal - Uniform Civil Procedure Rules 2005, rr 13.4, 13.6, 14.28.
Legislation Cited: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005
Category: Principal judgment
Parties: Dalia Petronaitis (Applicant)
Michael Rowles (First Respondent)
Michael Petronaitis (Second Respondent)
John Petronaitis (Third Respondent)
Guardianship Tribunal (Fourth Respondent)
Kay Petronaitis (Fifth Respondent)
Representation: Counsel:
No appearance (Applicant)
P Jeffriess (Second Respondent/Applicant on notice of motion)
Submitting appearance (Fourth Respondent)
D Roberts (Fifth Respondent in application for leave to appeal)
Solicitors:
Everingham Solomons (Second and Third Respondents)
Crown Solicitor (Fourth Respondent)
Michael McHugh (Fifth Respondent)

File Number(s): 2011/404847
Publication restriction: No
Decision under appeal

Citation:

P v D1 & Ors

Date of Decision:

2011-10-28 00:00:00

Before:

Slattery J

File Number(s):

2009/46

Judgment

HER HONOUR: By notice of motion dated 29 June 2012 the second 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.

Continue reading Petronaitis v Rowles

Details

AGLC: Petronaitis v Rowles [2012] NSWCA 236
Case: [2012] NSWCA 236
Decision Date: 09 July 2012

CaseChat Overview and Summary

In *Petronaitis v Rowles*, the New South Wales Court of Appeal considered an application to strike out a summons seeking leave to appeal. The applicant, Dalia Petronaitis, had failed to attend court on three occasions when the matter was listed. The respondents sought to strike out the summons, arguing that it constituted an abuse of process and that the grounds of appeal disclosed no reasonable case. A preliminary issue arose regarding the service of the notice of motion seeking the strike out, as a sealed copy had not been served on the applicant.

The Court was required to determine whether it had the power to dispense with the service requirements of the Uniform Civil Procedure Rules 2005 (UCPR) and, if so, whether it should exercise that power. Furthermore, the Court had to consider whether the summons seeking leave to appeal should be struck out as an abuse of process, given the applicant's non-attendance and the perceived lack of merit in the grounds of appeal.

Beazley JA, applying section 14 of the *Civil Procedure Act 2005* and UCPR rules 18.1, 18.2, 18.4, 18.5, and 13.4, 13.6, and 14.28, found that the Court had the power to dispense with the service requirements. The Court exercised this power, dispensing with the need to serve a sealed copy of the notice of motion on the applicant and, in the event service was required on the fourth respondent, the Guardianship Tribunal, dispensing with the time limits for such service. The Court concluded that the summons seeking leave to appeal constituted an abuse of process and ordered that it be struck out.

The applicant, Dalia Petronaitis, was ordered to pay the costs of the notice of motion filed by the second and third respondents, Michael Petronaitis and John Petronaitis, as well as the costs of the notice of motion filed by the fifth respondent, the tutor for Mrs Petronaitis.

Orders

Orders of the court

1. Pursuant to the Civil Procedure Act 2005, s 14 and UCPR, r 18.2, dispense with compliance with r 18.1 to the extent that that rule required service of a sealed copy of the notice of motion filed 29 June 2012 upon Ms Dalia Petronaitis;

2. In the event the notice of motion filed 29 June 2012 should have been served on the fourth respondent, the Guardianship Tribunal, pursuant to Civil Procedure Act, s 14 dispense with compliance with the time specified in rr 18.4 and 18.5 in respect of service of the notice of motion filed 29 June 2012 on the fourth respondent;

3. Summons seeking leave to appeal be struck out;

4. The applicant, Dalia Petronaitis, to pay the costs of the notice of motion filed 29 June 2012 of the second and third respondents (Michael Petronaitis and John Petronaitis);

5. The applicant, Dalia Petronaitis, to pay the costs of the notice of motion filed 29 June 2012 of the fifth respondent, the tutor for Mrs Petronaitis.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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Medium Neutral Citation:	Petronaitis v Rowles [2012] NSWCA 236
Hearing dates:	9 July 2012
Decision date:	09 July 2012
Before:	Beazley JA
Decision:	1. Pursuant to the Civil Procedure Act 2005, s 14 and UCPR, r 18.2, dispense with compliance with r 18.1 to the extent that that rule required service of a sealed copy of the notice of motion filed 29 June 2012 upon Ms Dalia Petronaitis; 2. In the event the notice of motion filed 29 June 2012 should have been served on the fourth respondent, the Guardianship Tribunal, pursuant to Civil Procedure Act, s 14 dispense with compliance with the time specified in rr 18.4 and 18.5 in respect of service of the notice of motion filed 29 June 2012 on the fourth respondent; 3. Summons seeking leave to appeal be struck out; 4. The applicant, Dalia Petronaitis, to pay the costs of the notice of motion filed 29 June 2012 of the second and third respondents (Michael Petronaitis and John Petronaitis); 5. The applicant, Dalia Petronaitis, to pay the costs of the notice of motion filed 29 June 2012 of the fifth respondent, the tutor for Mrs Petronaitis. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	CIVIL PROCEDURE - Application to strike out summons seeking leave to appeal - Sealed copy of notice of motion moving for strike out not served on applicant - Court has power to dispense with service requirements - Civil Procedure Act 2005, s 14; Uniform Civil Procedure Rules 2005, rr 18.1, 18.2. CIVIL PROCEDURE - Application to strike out summons seeking leave to appeal - Whether summons seeking leave to appeal constituted an abuse of process - Non-attendance by applicant on three occasions when matter listed before the court - Grounds of appeal disclose no reasonable case on the appeal - Uniform Civil Procedure Rules 2005, rr 13.4, 13.6, 14.28.
Legislation Cited:	Civil Procedure Act 2005 Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	Dalia Petronaitis (Applicant) Michael Rowles (First Respondent) Michael Petronaitis (Second Respondent) John Petronaitis (Third Respondent) Guardianship Tribunal (Fourth Respondent) Kay Petronaitis (Fifth Respondent)
Representation:	Counsel: No appearance (Applicant) P Jeffriess (Second Respondent/Applicant on notice of motion) Submitting appearance (Fourth Respondent) D Roberts (Fifth Respondent in application for leave to appeal) Solicitors: Everingham Solomons (Second and Third Respondents) Crown Solicitor (Fourth Respondent) Michael McHugh (Fifth Respondent)
File Number(s):	2011/404847
Publication restriction:	No
Decision under appeal	Citation: P v D1 & Ors Date of Decision: 2011-10-28 00:00:00 Before: Slattery J File Number(s): 2009/46