F BUCOLO & R ROWICK TRADING AS ROWICK & BUCOLO LAWYERS -v- AS EXECUTOR OF THE WILL OF MOSZKO MEJER DZIENCIOL [2025] WASC 322 (11 August 2025)

This application has been listed for Thursday, 20 March 2025 at 09:45 AM at the Supreme Court, David Malcolm Justice Centre, 28 Barrack Street, PERTH.

All parties are required to attend the hearing date unless otherwise advised.

1. On 13 March 2025 at 3.59 pm, the Supreme Court Registry received a facsimile from the defendant dated 10 March 2025. The first page of that facsimile was a copy of a letter dated 12 October 2022, sent by the Supreme Court Registry in matter number CIV 1338 of 2017. That letter referred to a request made by the defendant in that matter for an exemption from the mandatory electronic filing pursuant to O 67A r 3(1) of the Rules of the Supreme Court 1971 (WA) and stated:

I confirm that you [sic] request has been granted, in that you are able to present documents to the Supreme Court Registry by way of facsimile to be lodged on matter CIV 1338 of 2017.

1. At the top of the page are handwritten annotations stating, 'URGENT' and 'CIV 1236/2025'. These documents were lodged in that matter. At the bottom of the page is written:

Note This approval to fax documents also applies to all my cases and to this later Rowick case CIV 1236/2025

1. The remainder of the facsimile was four handwritten pages with the heading in all capitals, 'CERTIFICATE OF URGENCY'. In the body of the document, the defendant stated that he was an 82 year old pensioner, 'in dire health with a serious life threatening condition' who had been referred to hospital for urgent treatment and could not appear personally in court 'for these and other reasons previously notified to the court'. The defendant's facsimile further asserted that the Estate (of which he is the executor) lacked legal representation which he believed is a legal requirement.
2. The defendant's facsimile contained a number of assertions about one of the members of the plaintiff's firm and allegations about the validity of the District Court Decision. The defendant claimed that the District Court Decision was:

... currently under appeal but the District Court Registrar has (for months) unduly delayed his 'consideration' of my application for withdrawal or setting aside or cancelling the summary judgement order to pay Rowick $445,658 in fees plus costs.

1. I interpose that it is not a matter for the District Court Registrar to consider any appeal against a District Court decision, and that decision was not under appeal to the appropriate entity.
2. In summary, by his facsimile, the defendant indicated his opposition to the orders sought by the plaintiff by the Application. The orders sought included:

(a) an order to set aside the District Court Decision;

(b) an order to adjourn the application sine die; and

(c) an order to 'strike out' the Application and 'dismiss it'.

PS. This letter is to be read together with all previous correspondence and papers submitted by me.

PPS The hearing listed for 20-3-25 at 9.45am should be vacated.

1. The final page of the facsimile was the first page of the Application.
2. From the facsimile in total, it can be inferred that the defendant was aware of both the Application and the fact that it was listed for a hearing on 20 March 2025 at 9.45 am by at least 13 March 2025, if not 10 March 2025.
3. Contrary to the defendant's unilateral assertion on the front page of the facsimile that the exemption from compliance with the requirement that documents be filed electronically granted to him in matter CIV 1338 of 2017 applied to all of his other matters, no such exemption had been sought or granted in matter CIV 1236 of 2025. The facsimile was not accepted for filing, but was held in the correspondence section of the court's electronic file.
4. On 18 March 2025 at 5.39 pm, an email was sent to the defendant by the Associate to Master Russell which relevantly stated as follows:

Mr Dzienciol, I note you have faxed a letter to the Courts which has been filed on the eCourts system . A memorandum of appearance (form 6) will need to be filed before you can be heard in relation to the above matter. Please file a Memorandum of Appearance as soon as practicable by filling out and lodging form 6, which is attached to this email and can be found on the Supreme Court website.

Information regarding filing of documents can be found here: Electronic Filing. If you have any technical issues regarding the filing of documents, please contact CTG Helpdesk at ctghelpdesk@justice.wa.gov.au

If you require any further information or assistance in relation to filing a notice of change of representation (form 5AA), please contact SCCentralOffice@justice.wa.gov.au

1. While the email was sent to an email address which purported to be that of the defendant, there is no information suggesting that, as at March 2025, the defendant had access to that email address or received the email.
2. On 19 March 2025, a facsimile was sent to the defendant, indicating that a Form 6 Memorandum of Appearance was required to be lodged by him before he could be heard, and attaching a copy of a blank Form 6.
3. The matter came on before Master Russell on 20 March 2025 at 9.45 am. The defendant did not attend the hearing. Master Russell noted the court's receipt of the facsimile received on 13 March 2025 and indicated that account had been taken of the matters referred to in the facsimile, notwithstanding the failure of the defendant to file an appearance.
4. Master Russell gave brief reasons finding that it had been established that the District Court Decision had not been appealed and that there was money standing to the credit of the defendant which had been paid into court, and on that basis determined that the orders sought in the Application should be made, with some minor adjustments. The transcript records that court was adjourned at 10.28 am.
5. However, at 3.18 am on 20 March 2025, the Supreme Court Registry facsimile machine had recorded receiving a facsimile from the defendant dated 19 March 2025, addressed to the Associate to Master Russell, headed 'EXTREMELY URGENT', which stated, in part:

I confirm receipt of your fax dated Wed 19-3-25 today at 11.57am, while I was out receiving regular medical treatment for my serious medical condition. It was only received by me late in the afternoon on my return. The life threatening medical condition and other reasons including urgent referral to a hospital emergency department prevent my personal appearance in court ...

1. The defendant also indicated he, and the Estate, lacked funds for a lawyer, and said:

Note that the directions hearing on [the plaintiff's] application is scheduled for 9.45am tomorrow which leaves little time for my response and for the Master to read my letter and this fax.

1. Also in the four handwritten pages, the defendant said he was unable to personally appear in court for medical and other reasons and would have to rely on making all his submissions 'on my prior papers'. He made assertions as to the prejudice he would suffer if the orders were made.
2. At 3.19 am on 20 March 2025, the Supreme Court Registry facsimile machine had also recorded receipt of a completed Form 6 Memorandum of Appearance, dated 19 March 2025. In that document, the defendant gave a residential address for service but in the section provided for an email address, the defendant wrote 'NOT AVAILABLE (no computer)'.
3. It is plain from the transcript of the proceedings before the Master that her Honour was not aware that the defendant had sent either of the facsimiles dated 19 March 2025.
4. The court records indicate that the facsimiles were not lodged into the Electronic Case Management System until 1.52 pm on 20 March 2025, well after the matter had been heard by the Master and the orders made. At that time, it appears that the facsimiles were both accepted for filing, despite the fact that the defendant did not have an exemption in matter CIV 1236 of 2025 from lodging documents electronically.
5. The orders were extracted and emailed to the plaintiff at 4.50 pm on 20 March 2025. The plaintiff was directed to serve the orders on the defendant.
6. On 24 March 2025 at 2.45 am, the Supreme Court Registry received a further facsimile from the defendant, dated 21 March 2025. In that facsimile, which included nine handwritten pages, the defendant indicated he had understood the hearing on 20 March 2025 had been for directions only, and that he had not expected final orders would be made at that hearing.
7. The defendant again challenged the District Court Decision, and claimed it was 'now subject to appeal in the District Court and the Supreme Court'. No Notice of Appeal had been lodged in the Court of Appeal. The defendant noted he had requested an adjournment sine die of matter CIV 1236 of 2025 until a lawyer could be arranged for the Estate and himself as executor to defend against the action. He noted he had (previously) filed a Memorandum of Appearance 'on an associated case' and questioned why the Associate to Master Russell had not requested a Memorandum of Appearance sooner, since it left him little time to respond. He also indicated that his previous letter had contained 'specific' submissions as to why the Application should be set aside or dismissed or adjourned sine die.
8. The defendant sought orders that the orders made on 20 March 2025 be 'withdrawn and cancelled' and that the funds not be released to the plaintiff 'until an appeal has taken place'.
9. On 3 April 2025, the court received, by mail, a copy of a four page handwritten document, plus enclosures, from the defendant, dated 26 March 2025, to the same effect as the facsimile dated 24 March 2025 which I have just summarised.
10. By letter to the parties dated 2 April 2025 (faxed to the defendant), my Associate noted that the listing notice for 20 March 2025 had not been stated to be listed for directions. The parties were asked to provide unavailable dates for a hearing in relation to the matters raised by the defendant, to be provided by 11 April 2025. The letter stated that if either party failed to provide their unavailable dates, the matter would be listed without reference to their unavailability.
11. By facsimile dated 7 April 2025, including six handwritten pages, the defendant confirmed receipt of the court's facsimile dated 2 April 2025. He challenged the chronology set out in that correspondence. He included a copy of the plaintiff's letter serving the Application which stated, incorrectly, that the matter had been listed for 'Directions' on 20 March 2025. The defendant stated he was unable to provide unavailable dates for a hearing, as he was unable to appear in court 'for several reasons including lack of representation and serious illness and its side effects'. He requested an adjournment of the hearing (which he seemed to believe was listed to take place on 11 April 2025) sine die.
12. On 10 April 2025, the defendant sent a further facsimile (bearing that date) and indicated that he had a 'prior appointment for medical treatment' on 11 April 2025 and would be unable to attend court on that date for medical and other reasons. He also contended that the Estate was required, as a matter of law, to be legally represented. Accordingly, he again sought orders that the hearing be adjourned sine die.
13. Following the defendant's failure to provide unavailable dates by 11 April 2025, the hearing was listed to take place on 12 May 2025 and the defendant was sent a listing notice accordingly.
14. By a four page handwritten letter dated 23 April 2025 (which was sent by mail to the court, apparently because the court's facsimile machine was out of order), the defendant set out in some detail his medical condition and its impacts on him. He claimed to be unfit to represent the Estate. He claimed to be unable to participate in a hearing by telephone, 'especially if I am in hospital for emergency treatment'. He indicated his intention to obtain a medical certificate and lodge an affidavit, if possible. Again, he sought to 'rely on "my papers" previously provided for an ex parte hearing'. He again sought orders that the orders made on 20 March 2025 be withdrawn on the basis of his previous submissions or the matter otherwise adjourned sine die.
15. Attached to this facsimile was a medical report from Dr G K Tan, the defendant's long standing medical practitioner dated 24 April 2025. The report briefly set out the defendant's medical condition, and said that:

(a) the defendant had been attending the clinic twice weekly for care;

(b) the defendant's condition was worsening and he was experiencing chronic pain which affected his daily living activities and sleep pattern;

(c) as a result the defendant was taking strong analgesics which made him feel drowsy and lethargic and affected his ability to drive;

(d) the defendant had been hospitalised several times;

(e) Dr Tan had urgently referred the defendant to hospital for further treatment; and

(f) the defendant is 'unfit for self-representation in court and is not capable to participate in any court hearing in person or by telephone conference due to his serious medical condition'.

1. In light of that medical report, the hearing on 12 May 2025 was adjourned to 27 May 2025 for the plaintiff to consider its position. The orders were sent to the defendant. Unfortunately, due to delays with transcript, a transcript of the hearing was only able to be sent to the defendant on 20 May 2025.
2. On 21 May 2025, the defendant called my chambers and spoke to my Associate. The defendant said he was in hospital but declined to say which one. He asked if I had read his letter dated 5 May 2025. He was told that I had, prior to the hearing on 12 May 2025. He said he did not understand, then, why the matter had not been adjourned sine die. He was repeatedly advised to refer to the transcript of the hearing, which had been sent to his address for service. The defendant was informed that the transcript could be sent to him at the hospital if he wished to provide details. He declined, and said that his mail was being collected but he would not be able to read it, given the state he was in. A file note was compiled of that conversation and sent to both parties.
3. On 25 May 2025, the Supreme Court Registry received a further four page handwritten facsimile from the defendant, dated 23 May 2025. In that facsimile, the defendant said he had been admitted for urgent treatment for his medical condition and was writing from hospital. He again referred to previous correspondence, in which he sought an adjournment sine die to:

... enable the insolvent Estate of MM Dzienciol ('Estate') to mount a proper defence of the matter with legal representation as required by law, and for my release from hospital and to overcome my ongoing medical conditions, in due course, and to allow for the release of Estate funds held by the court for engagement of a lawyer to represent the insolvent Estate which is liable for any [plaintiff] fees which are strongly disputed, untaxed and even fraudulent and premature in any event. In addition the entire amount of fees are offset by counterclaims arising from the gross misconducts of [a member of the plaintiff firm] which have caused losses and damages to the Estate and me personally in excess of the fees.

1. The defendant also indicated that a lawyer was required to have the disputed fees taxed and the costs agreement set aside. He wrote that he was aware from his neighbour who collects his mail that a new court date had been set and repeated his request for an adjournment sine die and amendment of the orders.
2. In a postscript, the defendant claimed to have not yet received any information on his previous 'ex parte application' for an 'interim partial release of Estate funds lodged in the court and already proven as owed to me'.
3. No formal application appears to have been filed to that effect. However, in his letter dated 18 October 2024 (filed in matter CIV 1338 of 2017 and to which I referred earlier), the defendant had written:

As the Executor of the Estate I again apply for urgent release of the entire Estate funds to me to pay all the Estate's indemnified and other debts as a first priority and then distribute any remaining funds to beneficiaries, all in accordance with my legal duty.

1. However, the defendant also acknowledged in the same letter that he needed to make a 'separate detailed application to the Supreme Court for release of funds from the Estate or Trust and which is subject to opposition by [an interested party]'.
2. No application was made, and it appears no action was taken in relation to that correspondence.
3. On 27 May 2025, the defendant again failed to appear in this court. On that date, I made orders in which, having regard to the defendant's self‑represented status, I treated his facsimiles of 24 March 2025 and subsequent dates as an application for the orders dated 20 March 2025 to be set aside pursuant to O 58 r 23 of the Rules of the Supreme Court 1971 (WA). Programming orders were made for the filing of any affidavit(s) and submissions with generous time frames to enable the defendant to comply with them. The matter was adjourned to 11 August 2025, namely today. Orders 4, 5 and 6 were as follows:

1. Subject to Orders 5 and 6, if the defendant does not appear on 11 August 2025 or make arrangements to appear by audio or video link, the Application will be dealt with in his absence.[1] 2. If the defendant is medically unable to appear by audio or video link or in person at the hearing on 11 August 2025, the defendant must file and serve a medical report containing the following information:

(a) the reason for his inability to attend, including, if applicable, the reason why he is unable to appear via audio or videolink;
>
> (b) the length of time for which the defendant is likely to remain unfit to appear in any of the possible ways (ie in person, by audio or videolink);
>
> (c) whether there are any special arrangements which could be made which could enable the defendant to be fit to attend the hearing in any of the possible ways; and
>
> (d) the dates since 1 March 2025 on which Mr Dzienciol has been admitted to hospital.

1. In the event that the defendant files and serves a medical report in accordance with order 5 the author of the medical report is required to be available for cross-examination on 11 August 2025 at 10.00am either in person or by audio or visual link as arranged with the Court.
2. A transcript of the hearing on 27 May 2025 was sent to the defendant, as were the orders.
3. On 14 July 2025, the court received a facsimile from the East Metropolitan Health Service, which included a letter from a social worker, dated 14 July 2025, in which it was confirmed that the defendant was taken to hospital on 9 July 2025 and remained an inpatient as at 14 July 2025. That facsimile included a 10 page handwritten letter dated 7 July 2025 from the defendant.
4. In his letter, the defendant confirmed he remained in chronic pain and is suffering consequences including severe sleep deprivation. He wrote that he was unable to appear in court either in person or by phone, due to:

... sleep deprivation and lack of mental acuity also due to age of 82 and other reasons including extreme pain, etc etc. I have also previously suffered a concussion for which I attended a hospital emergency department. This probably had a long term mental effect.

1. No medical report has been provided to the court, whether supported by affidavit or otherwise, which refers to the defendant's 'lack of mental acuity' due to age, or any incident in which the defendant suffered concussion.
2. Attached to the correspondence were also some brief letters indicating various historical matters relating to the defendant's health and hospital admissions.
3. The defendant has not, at any time, filed an affidavit in relation to his medical circumstances. However, having regard to the fact that he is self‑represented, and there is no suggestion that the reports with which I have been provided are not genuine, for the purposes of the application I will treat the materials filed as if they were supported by an affidavit filed by the defendant. As previously indicated, I will regard the letters written by the defendant as summarised above as if they were written submissions in support of the Application.

1. In my view, the Application must fail.
2. It is not appropriate to delay the matter further for the following reasons:

(1) the District Court Decision, on which the plaintiff's proceedings were based, was made on 9 October 2024. Despite numerous assertions on the part of the defendant that the District Court Decision has been appealed by him, there is no evidence of any such appeal having been lodged, and neither the plaintiff nor the court have been able to locate any record of such an appeal;

(2) the defendant has been able to write, by hand, lengthy and articulate letters on numerous occasions, stating his inability to attend court, his refusal to appear in the absence of legal representation, his objections to the orders made by the Master on 20 March 2025 and the reasons for his disagreement with the District Court Decision. The nature of all of this correspondence, and the content of his telephone conversation with my Associate (said to be from a hospital bed), on the face of it are inconsistent with the defendant's assertion that he is incapable of appearing and representing himself;

(3) while a medical report has been filed which says that the defendant is not fit to represent himself, either in person or by telephone, it is apparent that, at times, the defendant has been able to drive. Further, and in any event, the defendant's articulate and prolific correspondence cannot be reconciled with the medical report;

(4) the defendant is not entitled to legal representation, either in his personal capacity or as the executor of the Estate, and he is not entitled to indefinitely prolong proceedings on the basis that he is not so represented;

(5) despite claiming to have very significant cognitive deficits (with limited evidence adduced to that effect), and to be unfit to represent the Estate, the defendant has not applied to have himself removed as executor of the Estate, or for any other person to be appointed in that capacity. If, as he claims, he is unable to properly fulfil his obligations to the Estate, he has a duty to remove himself;

(6) while the defendant has repeatedly asserted his unavailability and the need to urgently attend medical treatment at short notice, he regularly manages to send facsimiles very shortly before court dates, and has also telephoned the court when he sought to obtain information;

(7) while it is plain that, on some occasions, the defendant has been admitted to hospital, it is apparent that on other occasions, it is only for part of a day that the defendant has been unavailable, due to outpatient treatments, suggesting that defendant may be being less than frank with the court regarding his true unavailability;

(8) while being willing to complain about not understanding the court's reasons for not adjourning the matter as he requested, the defendant was unwilling to provide contact details to enable him to be provided with the means of understanding those reasons, suggesting a lack of a genuine desire to facilitate the progress of the proceedings;

(9) the defendant has at no time explained why he cannot be available to appear by telephone, notwithstanding that his access to a facsimile machine, day and night, necessarily means that he has access to a telecommunications line;

(10) the defendant has previously sought an exemption from complying with the requirement to lodge documents electronically, and is therefore aware of the court's rules in this regard, yet did not seek an exemption in relation to this matter, and unilaterally asserted his entitlement to lodge documents by facsimile;

(11) the defendant's unauthorised use of a facsimile machine instead of complying with the court processes for electronic lodgement is the principal reason why the Master was not aware of the defendant's facsimiles sent in the very early hours of 20 March 2025;

(12) the Master was aware of the content of the defendant's facsimile dated 13 March 2025 at the time of the making of the orders on 20 March 2025, and took into account those matters before making the orders;

(13) while it is to be accepted that the defendant has a number of serious health conditions, in correspondence sent since those orders were made, it has not been shown that the defendant was incapable of appearing, even by telephone, on 20 March 2025, or on any listed occasion since that date;

(14) while it has been shown that the plaintiff did indeed inform the defendant, wrongly, that the matter was listed for directions on 20 March 2025, the defendant has, since that date, been provided with numerous opportunities to provide any information which would suggest that the orders would not or even might not have been made had that information been before the court. Despite having sent numerous, lengthy facsimiles, he has not done so; and

(15) the defendant has made references to various legal steps he has or intends to take, including having a costs agreement set aside, applying for costs to be taxed and lodging appeals. In some cases, he has had months, if not years, to take those steps and has not actually done so.

1. Ultimately, I am satisfied that the defendant has been provided with every reasonable opportunity to be heard, and has taken that opportunity to provide extensive written submissions in support of his Application that I have treated him as having made. However, despite also having been provided with every opportunity to do so, he has failed to provide full and frank information which establishes that his inability to appear or his fitness to appear are such as to prevent him from progressing the matter. Having regard to the nature of the correspondence received from the defendant, it is impossible to avoid an inference that the defendant is less genuinely interested in resolving this matter than delaying it indefinitely.
2. It has been made abundantly clear to the defendant that, in the absence of a proper explanation for his failure to appear (whether in person or by telephone), the court will consider his Application (as it is deemed to be) having regard to his written documents, but will determine the matter in his absence.
3. The defendant's written documents challenge various decisions and matters, but he cannot escape the fact that summary judgment was entered against him in the District Court, and that summary judgment has not been set aside, and is not the subject of an appeal which contends that it should be, despite the defendant having numerous opportunities to file such an appeal.
4. I confirm that we have checked this morning and there is no record of any receipt of any correspondence from the defendant up until approximately 9.30 am this morning.
5. The defendant having failed to appear to make oral submissions (by any means), and there being nothing in any of the matters raised by the defendant in his written documents which suggests that the Application has merit, in the sense that nothing suggests that the orders made by Master Russell on 20 March 2025 would not or might not have been made had the defendant had the opportunity to be heard, the Application is dismissed. Accordingly, I decline to set aside the orders made by Master Russell on 20 March 2025.
6. I will order that the funds not be released for 14 days from today.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] That being the application to set the matter aside.