Petronaitis v Rowles [2012] NSWCA 236

Petronaitis v Rowles [2012] NSWCA 236

The Court dispensed with formal compliance with service requirements because the applicant had notice of the notice of motion and supporting affidavit, and any service issue affecting the Guardianship Tribunal could also be dispensed with. The summons seeking leave to appeal was struck out because the applicant's repeated non-attendance after notices under UCPR r 13.6 made dismissal appropriate, and because the proposed grounds and relief were futile, disclosed no reasonable case on appeal, and constituted an abuse of process under UCPR rr 13.4 and 14.28.

Jurisdiction
Australia
Judgment Date
09 July 2012
Procedural Posture
Notice of Motion to Strike Out Summons Seeking Leave to Appeal / Court of Appeal Hearing of Notice of Motion
Outcome
Summons seeking leave to appeal struck out; service compliance dispensed with; applicant ordered to pay specified respondents' costs of the notice of motion.
Legal Topics
['service of Notice of Motion' 'dispensing With Compliance With Rules' 'non Attendance by Applicant' 'abuse of Process' 'strike Out' 'no Reasonable Case on Appeal']
['civil Procedure' 'appellate Procedure'] ['service of Notice of Motion' 'dispensing With Compliance With Rules' 'non Attendance by Applicant' 'abuse of Process' 'strike Out' 'no Reasonable Case on Appeal']

Case Brief

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Procedural Posture

Notice of Motion to Strike Out Summons Seeking Leave to Appeal / Court of Appeal Hearing of Notice of Motion

Legal Issues

  1. 1 ['Whether compliance with service requirements for the notice of motion should be dispensed with where sealed copies had not been served on the applicant.' 'Whether any non-compliance with time for service on the Guardianship Tribunal should be dispensed with.' 'Whether the summons seeking leave to appeal should be struck out for persistent non-attendance by the applicant.' 'Whether the summons seeking leave to appeal was an abuse of process or disclosed no reasonable case on the appeal.']

Ratio Decidendi

The Court dispensed with formal compliance with service requirements because the applicant had notice of the notice of motion and supporting affidavit, and any service issue affecting the Guardianship Tribunal could also be dispensed with. The summons seeking leave to appeal was struck out because the applicant's repeated non-attendance after notices under UCPR r 13.6 made dismissal appropriate, and because the proposed grounds and relief were futile, disclosed no reasonable case on appeal, and constituted an abuse of process under UCPR rr 13.4 and 14.28.

Court Disposition

Summons seeking leave to appeal struck out; service compliance dispensed with; applicant ordered to pay specified respondents' costs of the notice of motion.

Orders

  • ['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;' 'In the event the notice of motion filed 29 June 2012 should have been served...