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

1 HER HONOUR: By notice of motion dated 29 June 2012 the second and third respondents, Michael Petronaitis and John Petronaitis, seek the following orders:

"(1)That the summons seeking leave to appeal filed on 15 December 2011 be struck out.

(2)That the applicant pay the costs of the first and second respondents."

The second and third respondents make an oral application through their counsel to amend order 2 so that it reads:

"That the applicant pay the costs of the second and third respondents."

2 Ms Petronaitis is not in court and has not appeared on the listing of the matter today in circumstances to which I will refer shortly. Accordingly, she does not have notice of the application for amendment of order 2 of the notice of motion of 29 June 2012.

3 Counsel for Michael Petronaitis and John Petronaitis has informed the Court that Ms Petronaitis has previously consented to the dismissal of proceedings against the named first respondent, Michael Rowles, and that she is aware that counsel and his instructing solicitor have appeared only for Michael Petronaitis and John Petronaitis and have done so since 2007.

4 In the circumstances, I am satisfied that there could be no prejudice to Ms Petronaitis in granting the amendment. Accordingly, I grant leave to the second and third respondents to amend order 2 of the notice of motion to read:

"That the applicant pay the costs of the second and third respondents."

5 The notice of motion is supported by an affidavit of Jessica Marion Simmonds affirmed 26 June 2012. I will refer to the matters deposed to in that affidavit shortly.

6 There was an affidavit of service of Ms Simmonds affirmed on 27 June 2012 in which she deposed that she sent a letter by registered post to Ms Petronaitis serving the notice of motion and affidavit of 26 June 2012 by registered post sent on that date. The annexed letter to the affidavit which was the covering letter purportedly serving the documents states the following:

"By way of service please find enclosing the following:

1. Unsealed copy of Notice of Motion; and

2. Unsealed copy of the Affidavit of Jessica Simmonds affirmed 26 June 2012.

Sealed copy shall be forwarded to you once we are in receipt of same."

7 In a further affidavit affirmed on 5 July 2012 Ms Simmonds deposed that on 3 July 2012, she was telephoned by a clerk of the Supreme Court to advise her that the notice of motion and her supporting affidavit of 26 June 2012 were in the process of being sealed and that the notice of motion was listed for hearing for 9 am on 9 July 2012.

8 As at 5 July 2012 Ms Simmonds deposed that she had not received sealed copies of the documents. She further deposed that she made a telephone call to Ms Petronaitis' mobile telephone number and left a message advising that the notice of motion was listed for hearing at 9 am on 9 July in the Supreme Court. She sent a letter to Ms Petronaitis via express post on 3 July 2012 in which she confirmed the hearing date.

9 The Uniform Civil Procedure Rules 2005 (UCPR), Pt 18, r 18.2 requires that a person may not move the Court to make any order unless notice of motion has been filed and served on each person affected by the proposed order. In my opinion, it is likely that this rule requires service of sealed copies of any such notice of motion upon each person affected by the proposed order.

10 Ms Petronaitis has not been served with sealed copies of the notice of motion or the affidavit in support. Accordingly, it is likely that r 18.2, subr (1), has not been complied with.

11 However, pursuant to subr (2) the Court has power to dispense with the requirement for such notice of motion to be filed or served. In addition, the Civil Procedure Act 2005, s 14 provides that in relation to particular civil proceedings the Court may by order dispense with any requirement of the rules if satisfied that it is appropriate to do so in the circumstances of the case.

12 I am satisfied, for the reasons that follow, that Ms Petronaitis has notice of the notice of motion and of the affidavit.

13 On 8 July 2012, Ms Petronaitis forwarded a fax to the Court and after referring to the listing at 9 am on 9 July 2012 setting out the name and number of the matter, stated, with an asterisk:

"Application for leave as Dalia Petronaitis cannot attend as medical emergency on way to court. Thank you."

The fax is headed, "Urgent."

14 In circumstances where Ms Petronaitis has informed the Court that she would not be attending it follows that she had full notice of the notice of motion and, accordingly, I would dispense with formal compliance with r 18.2, subr (1).

15 There has been an appearance today for the fifth respondent.

16 There is no appearance today for the fourth respondent, the Guardianship Tribunal. However, the Guardianship Tribunal has submitted to the orders of the Court. Accordingly, it is doubtful that service of the notice of motion on the Guardianship Tribunal was required. As a matter of precaustion, during the course of this morning, the legal representatives of the second and third respondents, Michael Petronaitis and John Petronaitis, forwarded copies of the notice of motion and affidavit to the Crown Solicitor who have, by email, responded, "Thank you".

17 Should service be required, then there has been non-compliance with the time in which the notice of motion and affidavit should have been served. However, in accordance with s 14, I would also dispense with compliance with those rules.

18 The applicants on the notice of motion advance three reasons why the summons seeking leave to appeal filed on 15 December 2011 should be struck out.

19 The first is because of the non-attendance of the applicant, Ms Dalia Petronaitis, on the three previous occasions on which it has been before the Court: see UCPR, r 13.6:

"13.6Non-appearance by plaintiff

(1)If there is no attendance by or on behalf of a plaintiff at a hearing of which the plaintiff has had due notice, the court may adjourn the hearing to another date and direct that not less than 5 days before that date a notice of the adjournment be served on the plaintiff advising that the proceedings may be dismissed if there is no attendance by or on behalf of the plaintiff at the adjourned hearing.

(2)If the plaintiff has been given notice in accordance with subrule (1) and there is no attendance by or on behalf of the plaintiff at the adjourned hearing, the court may dismiss the proceedings.

(3)This rule does not restrict any other power of the court to dismiss proceedings."

20 The second is pursuant to UCPR, Pt 13, r 13.4 in that the summons seeking leave to appeal is an abuse of process:

"13.4 Frivolous and vexatious proceedings

(1)If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a)the proceedings are frivolous or vexatious, or

(b)no reasonable cause of action is disclosed, or

(c)the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2)The court may receive evidence on the hearing of an application for an order under subrule (1)."

21 The third is pursuant to UCPR, Pt 14, r 14.28, in that no reasonable cause of action is disclosed in the summons seeking leave to appeal and it is an abuse of process:

"14.28Circumstances in which court may strike out pleadings

(1)The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading:

(a)discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b)has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c)is otherwise an abuse of the process of the court.

(2)The court may receive evidence on the hearing of an application for an order under subrule (1)."

22 I will deal with each of those matters in turn.

23 The history of the proceedings in this Court has been set out in the affidavit of Ms Simmons affirmed on 26 June 2012. I will not read all of those matters onto the record, the essential factual matter upon which reliance is placed is the non-appearance of the applicant, Ms Petronaitis, on the occasions the matter has been listed before the Court. In that regard there are three relevant orders of the Court to which reference should be made.

24 The first is the order made on 23 April 2012 as follows:

"This matter is listed for Directions on 21 May 2012 9:30 AM before the Court of Appeal at Supreme Court Sydney.

Estimated duration: 5 Minutes

Registry to issue a notice under 13.6 UCPR directed to the Appellant to show cause why the appeal should not be dismissed for non attendance

Registry to issue a notice to the Appellant to show cause why the pro-bono assistance should not be terminated."

25 Notice of those orders was forwarded to Ms Petronaitis on 24 April 2012 by letter under the hand of the Principal Registrar.

26 On the adjourned date of 21 May 2012, the Court made further orders as follows:

"This matter is listed for Directions on 18 June 2012 9:30 AM before the Court of Appeal at Supreme Court Sydney.

Estimated duration: 15 Minutes

Notice is issued under UCPR 13.6 directed to the appellant to show cause why the appeal should not be dismissed or struck out for non attendance today.

Notice is given to the appellant to show cause why the pro-bono assistance should not be terminated.

Appellant is to file and serve a copy of a medical certificate in respect of todays non attendance by 4/6/2012."

27 Notice of those orders was forwarded to Ms Petronaitis by letter dated 21 May 2012 under the hand of the Principal Registrar.

28 When the matter was listed before the Court on 21 May 2012, the Registrar informed counsel for the second and third respondents, Michael Petronaitis and John Petronaitis, that the registry had received a telephone call that morning from a friend of Ms Petronaitis advising that Ms Petronaitis was in hospital due to a heart condition and would not be appearing.

29 Subsequently, and it would appear on 4 June 2012, a medical certificate was forwarded to the Court in respect of Ms Petronaitis' medical condition as at 21 May 2012, the day upon which the matter was before the Registrar. The medical certificate was dated 26 May 2012 and stated that Ms Petronaitis was receiving medical treatment for a "major depressive disorder and that she required treatment and counselling for the period 21 May 2012 inclusive". The medical certificate stated that Ms Petronaitis was "unfit to attend court due to above condition". That is a different condition from that conveyed to the Court in the telephone call to which I have referred.

30 On 18 June 2012, the matter was again listed before the Registrar. On that date the Court made orders as follows:

"This matter is listed for Directions on 9 July 2012 9:30 AM before the Court of Appeal at Supreme Court Sydney.

Estimated duration: 15 Minutes

Notice is issued under UCPR 13.6 to the Applicant to show cause why the appeal/summons should not be dismissed or struck out for non-attendance today.

Appellant is to provide a medical certificate within 7 days.

Referral for pro bono assistance is terminated."

31 By letter dated 18 June 2012 notice of those orders was forwarded to Ms Petronaitis under the hand of the Principal Registrar. It is in those circumstances that the matter has come before me today.

32 As I have indicated, the Court has received an urgent facsimile transmission by or on behalf of Ms Petronaitis, the terms of which I have already set out. The facsimile transmission was received by the Court on 8 July 2012 (that is, yesterday, which was a Sunday) in respect of the appearance today and it stated that Ms Petronaitis could not attend because of a medical emergency on the way to court. That cannot be correct.

33 On 20 December 2011, I made an order that Ms Petronaitis be referred to the Registrar for pro bono legal assistance. The Registrar, pursuant to that direction, arranged for pro bono legal assistance. On 23 February 2012 Ms Petronaitis was advised by the Registrar that Mr Phil Greenwood of senior counsel was prepared to offer pro bono assistance. She was reminded of that by a further letter of 7 March 2012. However, on 18 June 2012, as appears from the orders above, the referral for pro bono assistance was terminated. I would infer that the referral was terminated because of Ms Petronaitis' failure to take up that opportunity.

34 UCPR, r 13.6, provides that the court may dismiss proceedings if the party has been given notice in accordance with subr (1), the terms of which are set out about above. That notice has now been given to Ms Petronaitis on three separate occasions. The reasons that she has given to the Court for non-attendance on two occasions, namely, on 21 May 2012 and by her facsimile transmission of 8 July 2012, cannot be accurate, for the reasons that I have given.

35 In those circumstances, I am of the opinion that the non-attendance of Ms Petronaitis is of such a persistent nature that it is appropriate, in fairness to all the parties concerned, that the summons be dismissed.

36 The second and third respondents also move under the rules of court which enable the court to apply for an order for dismissal in circumstances where the proceeding is an abuse of process: see UCPR, r 13.4, or where the proceedings are an abuse of process or disclose no reasonable cause of action or defence or other case appropriate to the nature of the pleading: see UCPR , r 14.28.

37 In the draft notice of appeal of 15 December 2011 filed with the summons seeking leave to appeal, Ms Petronaitis seeks to appeal from the whole of the orders made by Slattery J. The grounds relied on in support of the appeal are as follows:

"Judge Slattery reached a result that is unjust.

Also, his statement 'I cannot believe a word she says' has prejudiced other judges in relation to other decisions

ie injunction of property (Justice White on 29/11/2011)

Rehearing as K. Petronaitis' representative did not represent her."

Ms Petronaitis seeks an order that her mother "come home to her property of xx xx xxxxxx xxxxxx Bronte". Ms Petronaitis' mother is the protected person in respect of whom a tutor has been appointed. The property at Bronte has been sold.

38 The order that Ms Petronaitis proposes be made, should leave be granted to appeal, itself demonstrates the futility of the appeal. The grounds upon which she would purport to rely as set out in the draft notice of appeal do not demonstrate any ground that could be appropriately responded to by the second and third or, for that matter, the fifth respondent.

39 I would only add that to the extent that one of those grounds asserts a statement "I cannot believe a word she says", I have been informed by counsel for the second and third respondents that there is no such expression used in the judgment. But in any event, an adverse finding of credit, should that have been made, does not mean that other judges are thereby affected by any such statement. A judge is required on each occasion that a matter is heard to determine the matter according to the evidence presented and accepted by that judge in the particular matter at hand.

40 Accordingly, having regard to the proposed grounds of appeal and the order sought in the draft notice of appeal, I am also satisfied that the summons seeking leave to appeal is properly described as being an abuse of process and that those grounds of appeal disclose no reasonable case on the appeal. It follows that I am of the opinion that it should be struck out under UCPR, rr 13.4 and 14.28.

41 I make the following orders in the matter:

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.

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Decision last updated: 02 August 2012