Bennetts v Hughes - [2012] WADC 107

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: BENNETTS -v- HUGHES [2012] WADC 107

CORAM: DEPUTY REGISTRAR HARMAN

HEARD: 25 JUNE 2012

DELIVERED : 25 JUNE 2012

FILE NO/S: CIV 327 of 2011

BETWEEN: LUKE EDWARD BENNETTS
Plaintiff
AND
TIMOTHY JOHN HUGHES
Defendant

Catchwords:

Practice - Western Australia - Practice under the District Court Rules 2005 - Case deemed dismissed under r 44G

Legislation:

Nil

Result:

Notice set aside

Representation:

Counsel:

Plaintiff: Mr T Passmore
Defendant: Mr K N Allan

Solicitors:

Plaintiff: Simon Walters
Defendant: K N Allan

Case(s) referred to in judgment(s):

Nil

DEPUTY REGISTRAR HARMAN:
(This judgment has been delivered extemporaneously on 25 June 2012.)

According to the statement of claim the plaintiff claims damages as a consequence of the defendant's negligence.
Rule 30 of the District Court Rules 2005 provides that actions should be entered for trial within 120 days of the date the defence was filed. In this case, by notice dated 29 March 2011, the parties were informed that the action should be entered for trial by 27 July 2011.
According to r 44, where a plaintiff is notified of its failure to enter an action for trial, it will be deemed inactive unless the action is entered for trial within the period specified in the notice. In this case such notice was dated 28 July 2011. It specified that the action would become inactive unless entered for trial before 12 August 2011.
By notice dated 16 August 2011, given in accordance with r 44D, the plaintiff was informed that on 13 August 2011, in default of the action being entered for trial, it had been put on the inactive cases list.
By notice dated 14 February 2012 the plaintiff was informed that pursuant to r 44G, the case had been dismissed.
By application made 22 May 2012 the plaintiff applied for an order that:
The judgment of dismissal by virtue of the operation of r 44G (1) be set aside and the case be deemed to be active.
The fundamental question raised by the application is the status of a case that has travelled the path that I have outlined.
Rule 44G is as follows:
(1)A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.
(2)If a case is dismissed under subrule (1), the Principal Registrar must give all parties to the case written notice of the fact.
(3)If under subrule (2) a practitioner for a party is notified, the practitioner must, as soon as practicable, send a copy of the notice to the party.
(4)If a case is dismissed under subrule (1), any party to it may apply to the Court for, and the Court may make, any order needed as a consequence of the dismissal.
In my opinion there is nothing in the rule which provides for dismissal of an action. No such consequence is specified for a case that falls into the category outlined at r 44G(1). I note that for the purposes of r 44G(2) and r 44G(4), a case to which r 44G(1) applies is one that is characterised as having been dismissed. It may be considered that they disclose an intention that satisfaction of the criterion expressed in r 44G(1) would itself bring the result that the case had been dismissed. The difficulty with such an approach to interpretation is that there is good reason to consider that if a party is to actually lose the benefit of a case then a rule to that effect would so provide.
In my opinion the rule does not establish any process which would result in dismissal. The only indication as to the existence of any process is that according to r 44G(2), it would operate prior to the issue of notice.
Whatever process may have operated prior to the point of issuing the notice, there is no scope to consider that it engaged with any consideration of either the merits of the case or the consequences of the result that the notice conveyed. Although there are particular considerations that would be enlivened where a plaintiff had the opportunity to commence a new action without the prospect of being met by a limitation defence, I will focus for a moment on the prospect that any such new action would be exposed to a limitation defence. It is difficult to conceive that a just result in an action before the court would be evident in its dismissal simply because it had not entered the case for trial in accordance with the rules.
As for the language of r 44G(1), the purpose of a deeming provision is that it would operate in some context to a particular end. I understand that there is a similar provision in the rule that operates in circumstances where an appeal on an interlocutory matter in the Supreme Court is not proceeded with in a timely manner. In such a case, the case in the action would proceed with the deeming provision having effect. The context to which r 44G(1) speaks could be considered to be that expressed at r 44G(4), however the complication at that point is that it refers to the action having been dismissed under r 44G(1). A feature of the complication is that in leaving open the prospect that the court would entertain an application in the action for an unspecified purpose provides scope to consider that an action deemed to have been dismissed has not been dismissed.
I might add that the prospect that the defendant would apply to strike out a new action commenced by the plaintiff on the same cause as an abuse of process provides additional scope for insight.
My understanding of the defendant's attitude to the application is that it was not opposed although he questioned whether there was a jurisdictional basis to make the order sought.
A consideration that may inform the bringing of the application and the defendant's response is that in the event that the action had been dismissed it would be open to the plaintiff to issue new proceedings. I take it that the parties may each recognise that there would be some utility in not beginning the process again.
In my opinion based on the evidence and my assessment of the circumstances in which the plaintiff finds himself, the appropriate course for the court to take is to recognise that the case has not been dismissed, it is at most and for a particular unspecified purpose deemed to be dismissed. As such would be amenable to being recast as an action that would not be so characterised.
The file reveals that since the plaintiff would have received the first notice the defendant amended his defence by adding allegations relating to the plaintiff's pre‑existing medical condition and the circumstances of the accident. On 4 July 2011 the defendant obtained an order that the plaintiff answer interrogators in relation to his employment prior and subsequent to the material date, his income generated other than by his employment both prior and subsequent to the material date and his gross and net income for specified years. Those questions have not yet been answered. The plaintiff's solicitor in support of the application deposes as follows:
10.I verily believe that on the 4 July 2011 the plaintiff confirmed with a member of my professional staff that he was unable to complete the requested answers based on financial and employment circumstances without the assistance of his accountant or financial officer.
11.By letter dated 3 August 2011 the defendant's legal representatives sought the plaintiff's sworn answers to interrogatories or requested confirmation that an extension of the time of production was given …
12.On 4 August 2011, I caused written correspondence to be sent to the defendant's legal representatives requesting an extension of the production of his answers to the request for interrogatories …
13.On the 12 August 2011 the plaintiff's action became inactive.
14.On the 17 August 2011, the defendant's legal representatives confirmed that they had been instructed to grant the requested extension of time …
15.I verily believe that on 19 September 2011 a member of my professional staff attempted to call the plaintiff requesting he urgently provide my office with answers to his interrogatories. The plaintiff confirmed that his accountant had failed to assist with his request for financial information, and that he was actively chasing the information.
16.On 23 December 2011, a member of my professional staff caused written correspondence to be sent to the defendant's legal representative confirming that we were unable to obtain the plaintiff's instructions …
17.I verily believe that on 15 February 2012, a member of my professional staff contacted the plaintiff and confirmed that he was required to file the requested answers to interrogators immediately. I verily believe that he said his accountant refused to assist him and that he would simply undertake to complete the request himself to the best of his ability.
18.At the time of drafting and swearing this affidavit, the plaintiff has produced his answer which had been typed and were being sworn with a Justice of the Peace prior to filing at the District Court of Western Australia [sic].
In my opinion, based on that evidence between the plaintiff and his solicitors it appears that the activity reveals that the case was anything but inactive, although it does demonstrate that the case was being conducted in what may be described as a leisurely manner. Be that as it may, the details sought of the plaintiff's employment and in particular his income over a significant period of time, would in my opinion, generate a significant task even if the person to whom the questions were directed kept detailed records.
The evidence indicates that the plaintiff is now in a position to respond to the interrogatories. By the terms of the application he proposes that the action be entered for trial by 1 July 2012. In my opinion it is a sufficient indication of his intention to conduct the case in a timely manner.
I will set aside the notice that the case is dismissed and order that it no longer be inactive.