Petronaitis v Rowles

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.