POPOVIC -v- PANAGOULIAS [2014] WASCA 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASCA 86 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:50/2013 | 10 DECEMBER 2013 | |
| Coram: | MARTIN CJ PULLIN JA NEWNES JA | 23/04/14 | |
| 16 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| A | |||
| PDF Version |
| Parties: | JANE ELIZABETH POPOVIC as Executor of the Estate of EMIL POPOVIC PETER PANAGOULIAS by Next Friend FIONA AVERIL PANAGOULIAS MINISTER FOR HEALTH |
Catchwords: | Practice and procedure Extension of validity of writ for service Rules of the Supreme Court 1971 (WA), O 7 r 1 Order extending validity made ex parte Whether primary judge excluded hardship or prejudice to defendant arising from events occurring prior to expiration of period for service Practice and procedure Application for review of ex parte order O 58 r 23 Whether necessary for applicant to adduce additional material Bell v Aspinall (1998) 19 WAR 561 doubted |
Legislation: | Rules of the Supreme Court 1971 (WA), O 7 r 1, O 58 r 23 |
Case References: | Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104 Bell v Aspinall (1998) 19 WAR 561 Brealey v Board of Management Royal Perth Hospital [1999] WASCA 158; (1999) 21 WAR 79 House v The King (1936) 55 CLR 499 Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 2] [2012] WADC 120 Pangoulias (by his next friend Fiona Averil Pangoulias) v Minister for Health [No 3] [2013] WADC 60 Pangoulias v Minister for Health [2011] WADC 231 Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213; (2005) 12 VR 639 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : POPOVIC -v- PANAGOULIAS [2014] WASCA 86 CORAM : MARTIN CJ
- PULLIN JA
NEWNES JA
- Appellant
AND
PETER PANAGOULIAS by Next Friend FIONA AVERIL PANAGOULIAS
First Respondent
MINISTER FOR HEALTH
Second Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram : SLEIGHT DCJ
Citation : PANGOULIAS (by his next friend FIONA AVERIL PANGOULIAS) -v- MINISTER FOR HEALTH [No 3] [2013] WADC 60
File No : CIV 2791 of 2010
Catchwords:
Practice and procedure - Extension of validity of writ for service - Rules of the Supreme Court 1971 (WA), O 7 r 1 - Order extending validity made ex parte - Whether primary judge excluded hardship or prejudice to defendant arising from events occurring prior to expiration of period for service
Practice and procedure - Application for review of ex parte order - O 58 r 23 - Whether necessary for applicant to adduce additional material - Bell v Aspinall (1998) 19 WAR 561 doubted
Legislation:
Rules of the Supreme Court 1971 (WA), O 7 r 1, O 58 r 23
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CaseChat Overview and Summary
Popovic v Panagoulias was a case before the court in which the primary issue was the extension of the validity of a writ for service. The case was heard in the Supreme Court of Western Australia. The dispute arose from an ex parte order that extended the validity of a writ, and the defendant sought to review this order under Rule 23 of the Rules of the Supreme Court 1971 (WA).
The legal issues that the court had to decide included whether the primary judge had properly excluded the hardship or prejudice to the defendant that arose from events occurring prior to the expiration of the period for service. Additionally, the court had to determine whether it was necessary for the applicant to adduce additional material to support an application for review of an ex parte order. This latter issue saw the court re-evaluating the precedent set in Bell v Aspinall, where it was suggested that additional material might not be necessary.
The court held that the primary judge did not exclude the relevant hardship or prejudice experienced by the defendant. Consequently, the court found that the ex parte order was flawed. However, the court also determined that in this case, the applicant did not need to adduce additional material to support the application for review of the ex parte order, differing from the precedent set in Bell v Aspinall. Ultimately, the appeal was dismissed.
The legal issues that the court had to decide included whether the primary judge had properly excluded the hardship or prejudice to the defendant that arose from events occurring prior to the expiration of the period for service. Additionally, the court had to determine whether it was necessary for the applicant to adduce additional material to support an application for review of an ex parte order. This latter issue saw the court re-evaluating the precedent set in Bell v Aspinall, where it was suggested that additional material might not be necessary.
The court held that the primary judge did not exclude the relevant hardship or prejudice experienced by the defendant. Consequently, the court found that the ex parte order was flawed. However, the court also determined that in this case, the applicant did not need to adduce additional material to support the application for review of the ex parte order, differing from the precedent set in Bell v Aspinall. Ultimately, the appeal was dismissed.
Orders
Orders of the court
Appeal dismissed
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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