Polodna v Mattiaccio

[2019] WASCA 21

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Appearance
3. › Unconditional appearance
4. › Waiver
5. › Whether entry of unconditional appearance waives right to apply to set aside ex parte orders extending validity of writ
6. › Whether waiver doctrine applies where challenge is not based on irregularity in writ or service
7. › Supreme Court Rules 1971 (WA), O 12 r 6, O 23 r 1, O 58 r 23
1. Practice and Procedure
2. › Appearance
3. › Withdrawal of unconditional appearance
4. › Discretion to grant leave
5. › Nature of discretion as unfettered
6. › Whether error shown in House v The King sense
7. › Supreme Court Rules 1971 (WA), O 23 r 1
1. Practice and Procedure
2. › Writ of summons
3. › Extension of validity
4. › Ex parte orders
5. › Setting aside ex parte orders
6. › Relevant considerations
7. › Whether discretion properly exercised where limitation period expired and lengthy delay in service
8. › Supreme Court Rules 1971 (WA), O 7 r 1, O 58 r 23
1. Appeal
2. › Leave to appeal
3. › Appeal from master's decision
4. › Standard of appellate review of discretionary decisions
5. › House v The King principles
6. › Supreme Court Act 1935 (WA), ss 58(1)(b), 60(1)(f)

Quick Take

Where a defendant's challenge to proceedings is directed not at any irregularity in the writ or its service but at the propriety of ex parte orders extending the writ's validity, the filing of an unconditional appearance does not waive the right to apply to set aside those ex parte orders under O 58 r 23. The entry of an unconditional appearance is at best a contingent waiver, not an outright election, because the rules permit the court to grant leave to withdraw the appearance. The discretion to grant leave to withdraw an unconditional appearance is unfettered, subject to being exercised judicially.