JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: POLODNA -v- MATTIACCIO [2019] WASCA 21
CORAM: BUSS P
MURPHY JA
BEECH JA
HEARD: 23 JANUARY 2019
DELIVERED : 23 JANUARY 2019
PUBLISHED : 30 JANUARY 2019
FILE NO/S: CACV 112 of 2017
BETWEEN: RICHARD ANTHONY POLODNA
First Appellant
FRANK BRATOVICH
Second Appellant
AND
ENRICO MATTIACCIO
Respondent
Catchwords:
Practice and procedure - Unconditional appearance - Application to withdraw unconditional appearance and enter conditional appearance - Whether master erred in granting defendant leave to withdraw unconditional appearance
Practice and procedure - Application to set aside ex parte orders to extend the validity of a writ - Whether master erred in finding entry of unconditional appearance did not waive right to apply to set aside ex parte orders extending the validity of a writ - Whether master erred in exercising discretion to set aside ex parte orders extending the validity of a writ
Legislation:
Supreme Court Rules 1971 (WA), O 2 r 1, O 7 r 1, O 12 r 6, O 23 r 1, O 58 r 23
Result:
Leave to appeal refused
Appeal dismissed
Category: A
Representation:
Counsel:
| First Appellant | : | T Galic |
| Second Appellant | : | T Galic |
| Respondent | : | T Langdon |
Solicitors:
| First Appellant | : | MGM O'Connor Lawyers |
| Second Appellant | : | MGM O'Connor Lawyers |
| Respondent | : | HWL Ebsworth Lawyers |
Case(s) referred to in decision(s):
Agricultural and Rural Finance Pty Ltd v Gardiner [2008] HCA 57; (2008) 238 CLR 570
Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79
Caltex Oil (Aust) Pty Ltd v Dredge Willemstad [1976] HCA 65; (1976) 136 CLR 529, 539
Commonwealth of Australia v Davis Samuel Pty Ltd (No 11) [2017] ACTSC 2; (2017) 316 FLR 159
Dodds v Kennedy [2011] WASCA 32
Ezekiel‑Hart v Law Society of the Australian Capital Territory [2012] ACTSC 103
Garsec v Sultan of Brunei [2007] NSWSC 882; (2007) 213 FLR 331
House v The King [1936] HCA 40; (1936) 55 CLR 499
In re Chittenden [1970] 3 All ER 562
Jadwan Pty Ltd v Porter [2004] TASSC 107; (2004) 13 Tas R 162
Kaney v Rushton [2017] ACTSC 11
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 507; (2000) 175 ALR 36
Polodna v Mattiaccio [2017] WASC 294
Popovic v Panagoulias [2014] WASCA 86
Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corporation [1981] QB 368
Sheldon v Brown Bayley's Steel Works Ltd [1953] 2 All ER 382
Sheldon v Brown Bayley's Steel Works Ltd [1953] 2 QB 393
Van Leer Australia Pty Ltd v Palace Shipping KK [1981] HCA 11; (1981) 180 CLR 337
Volkes v Eastern Health and Social Service Board (1990) N.I. 388
Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433; (2011) 83 ACSR 206
REASONS OF THE COURT:
Introduction
On 23 January 2019,…
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- Polodna v Mattiaccio [2019] WASCA 21
- Case
- [2019] WASCA 21
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were whether the master correctly exercised their discretion in allowing the defendant to withdraw their unconditional appearance and enter a conditional appearance, and whether the master erred in finding that the entry of the unconditional appearance did not waive the right to apply to set aside ex parte orders extending the validity of the writ. Additionally, the court had to consider whether the master appropriately exercised their discretion in setting aside the ex parte orders extending the validity of the writ.
The court found that the master correctly exercised their discretion in allowing the defendant to withdraw their unconditional appearance and enter a conditional appearance, as the application was made within a reasonable time. The court held that the entry of an unconditional appearance did not waive the right to challenge the validity of the writ or the service thereof, including the ex parte orders extending the writ's validity. Furthermore, the court determined that the master appropriately exercised their discretion in setting aside the ex parte orders, as the defendant's application was made in a timely manner and there was a reasonable prospect that the orders were obtained without proper consideration of all relevant factors.
The court's final orders included permitting the defendant to withdraw their unconditional appearance and enter a conditional appearance, setting aside the ex parte orders extending the validity of the writ, and directing the parties to proceed with the litigation as if the writ had been properly served and the orders had not been made.
Orders
Orders of the court
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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
Order 7 of the RSC relevantly provides:Order 7 ‑ Duration and renewal of writ: concurrent writs1. Duration and renewal of writ(1)For the purpose of service, a writ (other than a concurrent writ) is valid in the first instance for 12 months beginning with the date of its issue and a concurrent writ is valid in the first instance for the period of validity of the original writ which is unexpired at the date of issue of the concurrent writ.(2)Where a writ has not been served on a defendant, the Court may by order extend the validity of the writ from time to time for such period, not exceeding 12 months at any one time, beginning with the day next following that on which it would otherwise expire, as may be specified in the order, if an application is made to the Court before that day or such later day (if any) as the Court may allow.(3)Before a writ, the validity of which has been extended under this rule, is served it must be marked with an official stamp showing the period for which the validity of the writ has been so extended.(4)Where the validity of a writ is extended by order made under this rule, the order shall operate in relation to any other writ (whether original or concurrent) issued in the same action which has not been served so as to extend the validity of that other writ until the expiration of the period specified in the order.2. Proof of extension of validity of writThe production of a writ purporting to be marked with the official stamp showing the period for which the validity of the writ has been extended shall be sufficient evidence of the validity of the writ having been so extended, and of the commencement of the action as of the date of the original writ, for all purposes.…4. Unserved writs may be struck out (1)If at any time after 6 months after a writ is issued it appears to the Court that ‑(a)no affidavit of service of the writ has been filed by the plaintiff; and(b)no appearance has been entered to the writ,the Court may issue a summons (to a hearing at least 7 days after it is issued) to the plaintiff to show cause why the writ should not be struck out.(2)If at the hearing the Court is not satisfied that the writ has not been served for good reason the Court may ‑(a)strike out the writ; or(b)make directions as to the service of or the time for serving the writ.(3)On being struck out, a writ and any writ that is concurrent with it cease to be valid. Order 12 of the RSC relevantly provides:1. Who may enter appearance(1)Subject to subrule (2) …, a defendant to an action may … enter an appearance in the action and defend it by a practitioner or in person.…2. How to enter an appearance(1)To enter an appearance, a defendant must file 2 copies of a Form No. 6 signed by - (a)the practitioner who acts for the defendant; …3. Procedure on receipt of requisite documentsOn receiving the requisite documents the proper officer must in all cases affix to the copy of the memorandum of appearance an official stamp showing the date on which he received those documents, enter the appearance in the Cause Book, and then return the copy of the memorandum to the person entering the appearance and the copy memorandum so stamped shall be a certificate that the appearance was entered on the day indicated on the official stamp.4. Appearance to be served on plaintiffOn the day on which a defendant enters an appearance to a writ, the defendant must comply with Order 72 rule 5 for the purposes of serving the stamped copy memorandum returned under rule 3 on the plaintiff in accordance with that Order.5. Late appearance(1)A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the Court.(2)Except as provided by subrule (1), nothing in these rules or any writ or order thereunder shall be construed as preventing a defendant from entering an appearance in an action after the time limited for appearing, but if a defendant enters an appearance after that time, he shall not, unless the Court otherwise orders, be entitled to serve a defence or do any other thing later than if he had appeared within that time.6. Conditional appearance(1)A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court or reserving the right to apply to the Court to set aside the originating process, or the notice thereof, or the service of the originating process, or notice thereof, on the ground of any informality or irregularity which renders the originating process or the service thereof invalid, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this rule.(2)The defendant shall forthwith apply to the Court to have the question raised by his conditional appearance decided, and if such an application is not made within 14 days from the entry of the conditional appearance, or if the application be dismissed, the conditional appearance shall, unless the Court otherwise orders, become and operate as an unconditional appearance.7. Setting aside writ etc. before appearanceA defendant to an action, at any time before entering an appearance in it, may serve notice of motion to -(a)set aside the writ or service of the writ on the defendant; or(b)discharge any order that granted leave to serve the writ on the defendant outside Australia. (emphasis added)