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Polodna v Mattiaccio

Polodna v Mattiaccio

Case [2017] WASC 294 12 October 2017

Jurisdiction

Appeal

Res Judicata

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: POLODNA -v- MATTIACCIO [2017] WASC 294

CORAM: MASTER SANDERSON

HEARD: 4 SEPTEMBER 2017

DELIVERED : 12 OCTOBER 2017

FILE NO/S: CIV 1219 of 2014

BETWEEN: RICHARD ANTHONY POLODNA
First Plaintiff
FRANK BRATOVICH
Second Plaintiff
AND
ENRICO MATTIACCIO
Defendant

Catchwords:

Practice and procedure - Whether entry of unconditional appearance waiver of a parties right to apply to set aside orders extending the validity of the writ when orders made ex parte - Basis for setting aside ex parte orders

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Service of writ set aside

Category: A

Representation:

Counsel:

First Plaintiff                  :     Mr M Robson
Second Plaintiff             :     Mr M Robson
Defendant:     Mr T J Langdon

Solicitors:

First Plaintiff                  :     TGC Lawyers
Second Plaintiff             :     TGC Lawyers
Defendant:     HWL Ebsworth Lawyers

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

Bell Group NV (in liq) v Aspinall (1998) 19 WAR 561
Bell Group NV (in liq) v Aspinall (Unreported, WASC, Library No 970660, 1 December 1997)
Caltex Oil (Aust) Pty Ltd v Dredge Willemstad (1976) 136 CLR 529
Gauci v Briffa [2011] WASCA 20
Maronis Holdings Ltd v Nippon Credit Australia Ltd [2000] NSWSC 507; (2000) 175 ALR 36
Popovic v Panagoulias [2014] WASCA 86
Rothmans of Pall Mall (Overseas) Ltd v Saudi Arabian Airlines Corp [1981] QB 368
Sheldon v Brown Bayley's Steel Works Ltd [1953] 2 All ER 382

MASTER SANDERSON: This application concerns a series of orders made in this proceeding to extend the validity of the writ of summons. The writ was filed on 13 February 2014 and under O 12 r 1(1) of the Rules of the Supreme Court 1971 (WA) was required to be served on or before 12 February 2015. Orders were made extending the writ on four separate occasions - the first order being made on 13 February 2015 and the last order being made on 30 June 2016.
On each occasion on which the plaintiffs sought orders extending the validity of the writ the plaintiffs filed an affidavit which stated that:
(a)the proceeding was related to a proceeding against CK Locke & Partners Pty Ltd (in liq);
(b)as CK Locke was in liquidation the plaintiffs could not proceed with that related proceeding without leave of the court; and
(c)the plaintiffs expected that CK Locke would be insured for their claim.
The only ground relied on to justify delaying service of the writ was that the plaintiffs did not want to serve the writ on the defendant before the proceeding against CK Locke had been determined. The plaintiffs did not take any step towards obtaining leave to proceed against CK Locke until 29 June 2016. The evidence relied upon by the plaintiffs in support of their applications to extend the validity of the writ did not, so the defendant alleged, disclose that fact nor give any reason for their failure to take any step to apply for leave to proceed against CK Locke. The defendant says the…

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 Polodna v Mattiaccio

Details

AGLC: Polodna v Mattiaccio [2017] WASC 294
Case: [2017] WASC 294
Decision Date: 12 OCTOBER 2017

CaseChat Overview and Summary

Polodna, a plaintiff, brought an action against Mattiaccio, the defendant, in the Federal Circuit Court, seeking to have certain ex parte orders set aside. The orders in question extended the validity of the writ, and the defendant had entered an unconditional appearance, which was argued to waive any right to challenge the orders. The court was required to determine whether the entry of an unconditional appearance waived the defendant's right to apply to set aside the ex parte orders and, if not, what was the basis for setting aside such orders.

The court examined the principles surrounding the waiver of the right to challenge ex parte orders and the circumstances under which such orders may be set aside. It found that an unconditional appearance does not necessarily waive the right to apply to set aside ex parte orders. The court reasoned that while an unconditional appearance generally signifies acceptance of the court's jurisdiction and an intention to defend the proceedings, it does not automatically mean that the defendant waives the right to challenge the validity of orders made without their knowledge or participation. The court further noted that the law provides a basis for setting aside ex parte orders if the party seeking to set them aside can demonstrate that there were substantial grounds for the orders not being brought to their attention, or that there was a failure to act with procedural fairness.

Consequently, the court held that the entry of an unconditional appearance did not waive the defendant's right to apply to set aside the ex parte orders. The court granted the application to set aside the orders, emphasising the importance of procedural fairness and the right of parties to challenge orders made without their knowledge. The court provided relief by setting aside the ex parte orders and allowed the defendant to address the merits of the application in a more procedurally fair manner.

Orders