Bird v Telstra Corporation Ltd - [2019] WADC 100

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BIRD -v- TELSTRA CORPORATION LTD [2019] WADC 100
CORAM:   DEPUTY REGISTRAR HARMAN
HEARD:   3 APRIL 2019
DELIVERED          :   3 JULY 2019
PUBLISHED           :   24 JULY 2019
FILE NO/S:   CIV 4454 of 2016
BETWEEN:   ELIZABETH ANN BIRD
Plaintiff
AND
TELSTRA CORPORATION LTD
Defendant

Catchwords:

Practice - Practice under the Rules of the Supreme Court 1971 - Application for leave to apply to dismiss action as an abuse of process - turns on its facts

Legislation:

District Court Rules 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr A A Nolan
Defendant	:	Mr G W Nutt

Solicitors:

Plaintiff	:	Simon Walters
Defendant	:	Sparke Helmore Lawyers

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

Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426
Brocx v Hughes [2010] WASCA 57
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

DEPUTY REGISTRAR HARMAN:

In this action the plaintiff claims damages for personal injury as a result of the defendant's negligence.
On the day that the plaintiff entered the action for trial the defendant issued the application now before the court for leave to apply and to dismiss the action on the basis that it is an abuse of process. O 20 r 19(1)(d) of the Rules of the Supreme Court 1971 (WA) (RSC) so provides.
By its terms the application identifies the cause upon which the action is brought as the same that founded action 1484 of 2015. The defendant contends that the action is an abuse of process because action 1484 of 2015 was dismissed pursuant to r 44G of the District Court Rules 2005 (WA) (DCR); and an application to set aside its dismissal was dismissed.
According to O 20 r 19(3) RSC, an application to strike out a document shall be made within 21 days of the date on which it was served. The defendant accepts that the application was not brought within the period specified in O 20 r 19(3) RSC. It is for the defendant to establish the ground for a grant of leave to bring the application.
It contends that the datum for determining the period of time within which to apply is the date of service of the plaintiff's pleading. Allowing for the period specified in O 20 r 19(3) RSC, by that datum, the application is 33 weeks late.
According to both the ground of the application and the relief sought it is the action that would be constituted as the abuse. I am satisfied that by the application the defendant would have O 20 r 19(1)(d) RSC engage the writ. According to O 20 r 19(3) RSC the datum is the date of service of the writ.
The evidence upon which the defendant relies is of its solicitor. She deposes that the writ was served on 10 November 2017. Accordingly the period specified in O 20 r 19(3) RSC would expire on 2 December 2017. Having been filed on 19 November 2018, the application is 50 weeks out of time.
The deponent produces the writ in action 1484 of 2015. In all material respects it is identical to that in the action. The deponent gives evidence that on 21 November 2016 the parties were informed that pursuant to r 44G(1) DCR action 1418 of 2015 had been dismissed and that on 21 December 2017 the court had dismissed the plaintiff's application to set aside the dismissal of action 1484 of 2015.
In my opinion by 21 December 2017 it ought to have been apparent to the defendant that the ground of its application had been established.
The defendant submitted that during the periods that the action was on the inactive cases list r 44E DCR had precluded it from applying.
Rule 44E DCR is as follows:
If a case is on the inactive cases list, only these documents can be filed in the case:
(aa)    a Form 1AA (Memorandum of appearance);
(a)      a Form 1 (Entry for trial);
(b)     a consent order finalising the case;
(c)      a summons for an order under r 44F(3);
(d)a summons for an order dismissing the case for want of prosecution;
(e)      any document that relates to a document listed above.
I accept that during the two periods that the action was listed as inactive r 44E DCR would have prevented the defendant from filing the application. Those periods were of 14 weeks commencing on 1 December 2017 and concluding on 8 March 2018 and of 15 weeks commencing on 21 June 2018 and concluding on 3 October 2018.
On 8 March 2018, at the hearing of first of two successful applications by the plaintiff to remove the action from the inactive cases list, the defendant foreshadowed that it would apply.
On 12 March 2018 the defendant was served with the order removing the action from the inactive cases list made 8 March 2018 and an unsigned copy of the plaintiff's pleading. The defendant's solicitor deposes that the pleading is identical to that filed in action 1484 of 2015.
Taking into account the period specified in r 19(3) DCR; the period of time since the writ had been served; and that the ground of the application had been established, having foreshadowed the application, it would be expected that service of those documents would prompt the defendant to then apply.
Prior to the commencement of the second period that the action was on the inactive list there was a period of 15 weeks during which it remained open to the defendant to apply.
On 2 August 2018, upon the return of the plaintiff's second successful application to remove the action from the inactive cases list the defendant was ordered to provide evidence of its contention that the writ was an abuse of process. It filed an affidavit.
According to the deponent, on 14 September 2018 at the hearing of that application the court declined to hear submissions on the proposition that the action was an abuse of process as there was no such application before it.
On 3 October 2018 the court delivered reasons for decision to remove the action from the inactive cases list. The order has not been extracted. According to the affidavit the date for entry for trial was then specified as 23 November 2018.
Taking into account the period specified in r 19(3) RSC; the period of time since the writ had been served; that the ground of the application had been established; and that the defendant had filed the affidavit and been ready to address the question of abuse at the hearing on 14 September 2018, it would be expected that upon the order being made on 3 October 2018 the defendant would then have applied.
More than six weeks after the conclusion of that period the defendant filed the application. As would be expected, the affidavit presented to the court for the hearing on 3 October 2018 is largely identical with that filed in support of the application.
The defendant attaches some significance to the fact that over the period from early March 2018 to the date of the application the plaintiff had been on notice that an application would be made. I have struggled with the proposition that notice would advance the defendant's case for leave but without any measure of success.
On an application for leave the court would expect an applicant to provide evidence of the reason for its failure to apply within time. In this instance, after giving notice of its intention to apply in early March 2018 the defendant did not apply until mid-November 2018. There is no evidence to suggest that the defendant would have applied any sooner than it has.
The significance of the lateness of the application is established by the fact that during the relevant period the parties have been engaged in the processes initiated by commencement of the action. On 12 March 2018 the plaintiff served her statement of claim and on 24 October 2018 the defendant filed its defence and provided discovery. The plaintiff had then already served her discovery. On 30 October 2018 the plaintiff served particulars of damage. On 19 November 2018 the action was entered for trial.
The consequence of the defendant's choice not to apply during the time that it was not constrained by r 44E has been that the parties have expended effort and incurred cost in bringing the case to the point of entry for trial.
By the limitation expressed in r 19(3) it is clear that the court intended that any issue that may result in striking out a document be put for determination once sufficient time has passed to allow for reflection and conferral. It has determined that the period of 21 days from the date of its service would be appropriate.
By the datum proposed by the defendant, taking into account the impact of r 44E exceeds 19 weeks. It submits that such a period is not long. Patently it is far too long, especially so considering that notice of its intention to apply had been given at the commencement of the first period when the defendant had not been constrained by the rule.
The defendant gives no evidence of any reason for its delay in applying to strike out the writ as an abuse of process. In my opinion both the extent of the period by which the application is late and the defendant's choice not to put the question for determination when it had been able to do so each tell against leave being granted for it to now do so.
In determining the application for leave the ground of the substantive application would call for at least cursory consideration.
Neither part of the ground of the application is contested. The question to be considered is how it would establish or otherwise justify the conclusion that this action is an abuse of process. In its submissions the defendant proposes that by issuing the writ in this action the plaintiff has circumvented the provisions and consequences of r 44G DCR and is contrary to the intended purpose of r 44G DCR.
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 sub-rule (1), the Principal Registrar must give all parties to the case written notice of that fact.
(3)If under sub rule (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 sub-rule (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.
(5)The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under sub-rule (1).
…
Because it is common ground that r 44G(1) DCR has taken effect and that under r 44G(2) DCR notice was given that action 1484 of 2015 has been dismissed, I take it to be implicit in the submission that the rule operates to foreclose upon the opportunity to later bring an action on the cause the subject of action 1484 of 2015.
On a plain reading r 44G DCR does not purport to interfere in the common law. An instrument such as a rule would be taken to do so only by express provision. Accordingly the opportunity to bring an action upon a cause is unaffected by the rule.
As for the proposition that the plaintiff has circumvented the consequences of r 44G DCR, neither the deemed dismissal of action 1484 of 2015 under r 44G(1) DCR nor notification of its dismissal under r 44G(2) DCR could preclude the plaintiff from issuing the writ.
Because it had been voluntarily undertaken by the plaintiff, I would not consider her application under r 44G(5) DCR to be a consequence of r 44G DCR. However the fact that by the application the plaintiff did not establish exceptional circumstances to justify reinstatement of action 1484 of 2015 would not provide any support for the application.
As for the proposition that issuing the writ is an abuse of process because it is contrary to the intended purpose of r 44G DCR, the intended purpose of the rule is determined by reference to its terms. The rule does not establish the proposition.
The defendant next submits that bringing an action identical to an action that has been dismissed for want of prosecution is not in the public interest and is not an efficient use of court resources and is oppressive to the defendant. It contends that issuing the writ in this action amounts to an abuse of process and brings the administration of justice into disrepute.
I take from the following paragraph of its submissions that it would draw that proposition from the decision of the Court of Appeal in Brocx v Hughes [2010] WASCA 57 yet in their reasons for decision both Buss JA and Newnes JA state that an application to dismiss a writ as an abuse of process must be determined on its merits. The references by Pullin JA to 'circumstances' establish the same conclusion. According to common law, dismissal for want of prosecution would not establish that an identical action taken later was an abuse of process.
In his reasons for decision Brocx v Hughes Buss JA states at [14] ‑ [15]:
14A question in this appeal is whether the Supreme Court's power to prevent an abuse of process may be exercised where:
(a)a previous action has been dismissed as a result of the plaintiff's failure to comply with a springing order; and
(b)the plaintiff then commences a new action against the same defendant on causes of action that are indistinguishable from those pleaded in the first action,
notwithstanding that the new action has been commenced within the relevant limitation periods and there is no res judicata or issue estoppel.
15In my opinion, the Supreme Court's power to prevent an abuse of process may be exercised in these circumstances, if relevantly, the commencement and prosecution of the second action would cause or be likely to cause:
(a)improper vexation or oppression to the defendant; more particularly, if the second action would be seriously and unfairly burdensome, prejudicial or damaging to the defendant; or
(b)the administration of justice to be brought into disrepute.
He then canvasses a variety of considerations that might be drawn from the particular facts and circumstances of a case that would bear upon whether or not the second action should be characterised as an abuse of process.
It is open to consider that the analysis conducted by Buss JA would apply where the dismissal of a previous action had resulted from r 44G DCR having effect.
In its submissions the defendant cites a number of paragraphs of the reasons of Newnes JA without putting any particular contention as to the significance of their content.
According to Newnes JA in Brocx v Hughes at [67] and following:
67The master dismissed the second action. The master concluded that to allow it to continue would be oppressive to the respondent and likely to bring the administration of justice into disrepute. The 'master gave three reasons for reaching' that conclusion. The first was delay. The master observed that the relevant events were said to date back to 1993 and the cause of action itself appeared to have arisen in about 2000. The late Mr Hughes had died in the meantime. The master considered, first that it would be unfair to allow the action to continue to hang over the estate and, secondly, that a cause of action of this nature, built as it was on a slender foundation, should not be allowed to endure after such delay.
68The master also concluded that even accepting that her then solicitor conducted the proceedings in a less than appropriate manner, it was difficult to justify allowing the [plaintiff] to take further steps in relation to the second action when there was no reason to believe that it would be prosecuted with dispatch.
69Finally, the master considered that it was inappropriate for a party who has had an action struck out 'simply to rekindle the action and try again'. To enable the [plaintiff] to do so would be unfair and likely to bring the law into disrepute.
…
79What constitutes an abuse of process cannot be reduced to hard and fast rules or closed categories because notions of justice and injustice, as well as other considerations that bear upon public confidence in the administration of justice, must reflect contemporary values, and as well, take account of the circumstances of the case:… However, the failure to take, as well as the taking of, procedural steps and other delay in the conduct of proceedings is capable of constituting an abuse of process: …
80It is, I think, clear that, at least in ordinary circumstances, the fact that an earlier action was dismissed for failure to comply with a 'springing order' does not, of itself, mean that a subsequent action for the same cause of action is an abuse of process. The question that arises in this case is when, if at all, such an action, brought within the limitation period, will be struck out as an abuse of process.
…
96The resources of the court are limited and the demands upon them are great. In light of the objects set out in O 1 r 4B, the public interest in the efficient use of those resources and the right of other litigants to have their disputes resolved in an efficient and timely way are properly matters to be taken into account in determining whether proceedings instituted in circumstances such as the present are an abuse of process of the court…
97Where a party demonstrates a disregard for the orders or procedures of the court and as a result their claim is dismissed, their right again to invoke the jurisdiction in respect of that same claim cannot be unlimited if the public interest in the efficient use of court resources and the rights of other litigants are to be given due recognition. It cannot be the case that so long as the limitation period has not expired a party can ignore the rules and orders of the court, secure in the knowledge that if the worst happens and the action is struck out they can simply start again. It would bring the administration of justice into disrepute, and be "productive of serious and unjustified trouble and harassment" to the defendant if a party whose action had been dismissed by reason of their contumacious conduct could simply institute and proceed with a fresh action and, until the limitation period ran out, could continue to repeat that if and when the same fate befell them. …
98Each case must, of course, depend upon its own circumstances. But, in my view, where an action has been dismissed by reason of the failure of a party to comply with a springing order in circumstances where that party's conduct was contumacious, a second action by that party to enforce the same claim would generally be an abuse of process. I do not, however, consider that the fact an action is dismissed for failure to comply with a springing order establishes, of itself, that the conduct of the party in default was contumacious. I do not understand the cases to which I have referred suggest otherwise. In each case, the court found that the conduct was contumacious in the absence of an explanation which showed that it was not. … As Heydon JA pointed out in Micallef v ICI Australia Operations Pty Ltd [2001] NSWCL274:
A satisfactory explanation on affidavit might negate an inference that the plaintiff's defaults were not [sic] contumelious. But the absence of any explanation permits that inference to be drawn [54].
99In this case it was argued on behalf of the appellant that it was for the respondent to show that the appellant's conduct in the first action was contumacious. I accept that is the case but the particular circumstances which led to default occurring will generally be a matter peculiarly within the knowledge of the defaulting party and their solicitors. It is so in this case. In the absence of a credible and satisfactory explanation by the appellant as to how the default came about, the court is entitled to infer that the conduct concerned was contumacious.
…
103There is nothing to suggest that the appellant was not in a position to provide a more detailed explanation if she chose to do so. But the detailed explanation which was plainly called for has not been provided.
…
106In my view, the only inference reasonably open is that the appellant's conduct was contumacious. No satisfactory explanation has been provided for it. As the conduct has not been explained, the court cannot be satisfied that it will not occur again. Mere assertions to that effect will not suffice.

In the process of finding against the plaintiff the court drew upon the history of the action in the period from March 2004 to December 2006 that it considered had informed the issue of the springing order. It concluded that the history revealed continual delay and inaction on the part of the plaintiff.
The court proceeded to determine that if the second action was permitted to proceed, the defendant would be unfairly vexed; that the resources of the court which otherwise would be available for utilisation by other litigants would be allocated to the parties; and the law would be brought into disrepute.
The defendant's contention that issuing the writ was an abuse of process and would bring the administration of justice into disrepute ought to be considered on the merits of the cases put by each party in the application.
The defendant's evidence that relates to the dismissal of action 1484 of 2015 is as follows:
(9)On 7 August 2015, the Court issued a case timetable directing the plaintiff to enter the case for trial before 3 December 2015.
(10)On 4 December 2015, by consent, the time to enter the matter for trial was extended to 3 February 2016. The reason for the extension was that the plaintiff's solicitor required further time to obtain the plaintiff's financial documents.
(11)On or about 3 February 2016, by consent, the time to enter the matter for trial was extended to 20 April 2016. The reason for the extension was allow the plaintiff further time to provide documents relating to her economic loss claim.
(12)On 18 May 2016 the Court issued Notice advising that the first action had been moved to the Inactive Cases List due to the failure to enter the case for trial within the time specified in the Notice of Default. The Notice provided that a case on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution pursuant to r 44G(1) of the District Court Rules 2005 (WA).
(13)On 21 November 2016, the Court issued a Notice that the case was dismissed on 18 November pursuant to r 44G of the Rules.
The evidence that relates to the plaintiff's application to set aside the dismissal of action 1484 of 2015 is as follows:
14.On 20 February 2017, the plaintiff served upon the defendant a Chamber Summons and affidavits of the plaintiff and Mr Simon Walters in support of an application to have the dismissal of the action set aside.
…
19.On 15 December 2017, the plaintiff's Chambers Summons seeking orders to set aside the dismissal of the first action was heard before Principal Registrar Melville the Principal Registrar reserved his decision to 21 December 2017.
20.On 21 December 2017, Principal Registrar Melville read his decision on to the transcript and made the following orders:
20.1The plaintiff's chambers summons seeking orders to have the dismissal of the first action set aside be dismissed;
20.2The plaintiff pay the defendant's costs of the summons and the reserved costs of 24 May 2017;
20.3Costs of the action are reserved.
Attached to the affidavit is a copy of the transcript of the reasons given by the principal registrar. It reveals the history of action 1484 of 2015 as follows:[1]
On 4 August 2015 a defence was filed which denied nearly all of the allegations including liability and raised allegations that contribute to negligence. The first date by which the case was to be entered for trial pursuant to the provisions of the District Court Rules was 3 December 2015.
This date was extended by consent, firstly to enable the plaintiff's solicitors to get the plaintiff's financial documents and then on a second occasion by reason of the need to give the plaintiff time to provide documents regarding her financial loss.
The entry for trial milestone was then extended out to 20 April 2016. On 18 March, particulars of damage were filed and on 27 April 2016 a notice was issued under the District Court Rules advising the plaintiff that a failure to enter the matter for trial by 16 May 2016 would result in the matter going on to the inactive cases list.
The plaintiff failed to do so and accordingly on 18 May 2016 the case placed on the inactive cases list. Nothing was done other than by way of filing an amended document constituting amended particulars of damage. And on 21 November 2016 the District Court issued a notice that the case had been dismissed pursuant to District Court Rule 44G.
[1] ts 2 (21 December 2017).
The transcript reveals that the application subsequently brought by the plaintiff had been filed some three months later and the special appointment allocated for the hearing was either adjourned or vacated on four occasions before it was finally heard on 15 December 2017. On three of those occasions the reason that the hearing did not proceed is attributed by the principal registrar to one of the parties: twice to the defendant and once to the plaintiff.
The principal registrar continues as follows:[2]
The affidavit of Mr Walters contains the salient evidence at paragraphs 11 onwards. He says that on 19 and 29 April 2016 he sought the defendant's dates for a pre‑trial conference in July.
Similarly by a letter dated 24 May 2016 and 31 May 2016 he requested the defendant's unavailable dates for a pre‑trial conference. In his letter dated 24 May 2016, he proposed it took place after the receipt of Dr Harper's report. On 6 June 2016 he was told by the defendant's solicitors by way of facsimile transmission that they were not prepared to provide a date until such time as they had received the report of Dr Harper.
The report of Dr Harper was in fact received by the plaintiff's solicitors on 2 August 2017 and forwarded to the defendant's solicitors at that time, again, with the request for their unsuitable dates. No reply was forthcoming and this was followed up again by correspondence of 25 October 2016 …
[2] ts 4 (21 December 2017).
At that point the principal registrar analyses the evidence given by the plaintiff's solicitor of the standard procedure of his office; what transpired upon receipt of Dr Harper's report; and of the failure to attend to entering the matter for trial.
The principal registrar continues as follows:[3]
[3] ts 5 – 7 (21 December 2017).
… I'm left little the wiser as to what the failure to make a notation in the firm diary upon receipt of the report of 2 August 2016 would have had on the effect of the administration of this claim from the plaintiff and her solicitor's point of view.
In summary it seems to me months were pointlessly wasted endeavouring to get unsuitable dates for a pre‑trial conference from the defendant's solicitors. Why the plaintiff spent so much time writing numerous letters seeking unsuitable dates is not explained.
Whilst in my view there's a laudable case for professional courtesy in all transactions between party solicitors, an idiosyncratic view of what that entails cannot override the legislative requirements of the District Court Rules to enter the matter for trial by the time prescribed by the rules or by order.
By repeatedly delaying the pursuit of her action, the plaintiff effectively handed over control of the case management of this action to the defendant. The District Court Rules by rule 37(4) require a plaintiff to request dates that the defendant will be unavailable to attend a pre‑trial conference within 40 days after the case is entered for trial.
The request is to be made at least 14 days before the entry for trial. The District Court Rule goes on to provide that if the defendant does not provide these dates as requested within seven days, the defendant is taken to be available at any date.
The rules deal with this issue. It was, in my view, inappropriate for the plaintiff's solicitor to continually write for no response and take no positive action to enter the matter for trial.
Further, the defendant's desire for the medical report of Mr Harper and the plaintiff's desire also to obtain the medical report of Mr Harper before entering the matter for trial should not, in my view, have delayed the plaintiff's obligation to enter the matter for trial as required by the rules or alternatively to seek to have the case removed from the inactive cases list and the entry for trial milestone reset and extended.
The rules as they then were – the applicable rules as they then were relating to expert evidence were the rules of the Supreme Court Order 36A which in their then form was such that leave was not required to adduce medical evidence at trial.
And the entry for trial form prescribed under the District Court Rules being the rule – the form 1 did not require certification of anything that on the evidence that's before me that could not have been certified to.
In short, it's my view that the desire to obtain a report from Mr Harper without regard to any other considerations was not a good reason for not entering the matter for trial as required by this subsidiary legislation.
Further, the plaintiff already had an opinion from Mr Mastaglia from 2005 predating the issue of the writ in which he expressed the view there was no reason to delay settlement and in which he assessed the permanent impairment.
The notices of default outlined in the evidence and in the transcript along with particular rules constitute a process the operation of which is regulated by the effluxion of time. Each notice had been given in accordance with a particular rule. Each notice specified the requirements of a particular rule. In issuing each notice reference was had to the datum specified in a particular rule. The information notified in each notice would supersede that conveyed by a prior notice.
The purpose of the process is to implement a strategy to move actions to an earlier trial than had previously been the case. The strategy draws upon the considerations outlined in O 1 r 4B RSC.
Action 1484 of 2015 had been put on the inactive cases list because it had not been entered it for trial by a specified date. Once on that list, according to r 44E DCR, entering the action for trial was one option open to the plaintiff. At the conclusion of the period that the action was on the inactive cases list the plaintiff had not been in default of a requirement that a particular action be performed by a particular date; rather as r 44(1) DCR specifies would be the case, action 1484 of 2015 was deemed dismissed for want of prosecution due to the period of time that it had remained on that list.
The notice of dismissal of action 1484 of 2015 issued absent a finding at common law either that the plaintiff had been in contumelious default of an order of the court or that a period of inaction on the part of the plaintiff had resulted in detriment to the defendant sufficient to generate a real prospect that there would not be a fair trial of the matters in issue in the action.
The defendant does not contend that any particular conduct of the plaintiff in action 1484 of 2015 would qualify as contumelious disregard of an order of the court. There is no evidence that would establish that any period of inaction on the part of the plaintiff had resulted in detriment to the defendant sufficient to generate a real prospect that there would not be a fair trial of the issues in the action.
The words 'dismissed for want of prosecution' that appear in r 44G(1) DSC may have been borrowed from common law however in the context they are expressed they simply describe the context in which the r 44G(1) DSC would take effect: that an action had remained on the inactive list for six continuous months. They may have some utility for the purposes of an application under the balance of the provisions of the rule.
A useful guide through commentary that often burdens references to case management is provided by a passage from the reasons for decision of the High Court in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 154. It cited a passage in the reasons of the Full Court of the Supreme Court of Queensland in a case where the appellant had sought to make a late amendment to its pleading. It had stated as follows:
1.Unless we are to mouth the repeated cautions about discretionary judgments, case management, efficiency, practice and procedure, and the advantages of the managing judge, only to ignore them when it comes to the crunch, this appeal must be dismissed.
The High Court had this to say in response:
65.Case management is not an end in itself. It is an important and useful aid for ensuring the prompt and efficient disposal of litigation. But it ought always be borne in mind, even in changing times, that the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim.
Bringing that response to bear upon the propositions put by the defendant suggest that the court ought not be predisposed or even disposed to discern the measure of public interest in particular litigation; whether particular litigation would fail a test of a sufficient measure of efficiency in the allocation or use of court resources; and the extent to which particular litigation might bring the administration of justice into disrepute.
To reach a point in a process of reflecting upon whether to give voice to public interest or perhaps to elevate public interest over private interests would present itself only if there was reason to so differentiate actions. There is no procedure of general application. There is nothing that emerges from the evidence and information that I have canvassed that would elevate the degree of want of public interest suggested by the submission over a range of competing inferences that the public interest would more closely accord with the notion that disputes put before the court be disposed of according to the merits of the cases put by each party. There is nothing to suggest that the plaintiffs pleaded case is without merit.
To infer that allowing any particular action to proceed would not amount to an efficient use of court resources would be speculative. Experience suggests that the history of a representative sample of actions brought on a range of causes of action before this court would reveal a range of alternative inferences. Because few actions proceed to trial it would be simplistic to alight on a proposition along the lines that hearing times allocated to the action would not be available to other litigants.
Clearly the opportunity to commence an action on a recognised cause is not extinguished by r 44G DCR. In the context in which the court so expressed itself it is evident that it had not been concerned that after r 44G DCR had taken effect a plaintiff would commence fresh proceedings on the same cause. In my opinion that conclusion would foreclose upon drawing particular inferences that the defendant contends are open: that bringing an action identical to an action that has been dismissed would be neither in the public interest nor an efficient use of court resources, would be an abuse of process and bring the administration of justice into disrepute.
There is no evidence to suggest that by the action the defendant has been subjected to improper vexation or oppression such that it would be considered to be seriously and unfairly burdensome, prejudicial or damaging to the defendant. Absent some indication of oppression there is no reason to reflect upon what stands as an unfounded submission.
A feature of the application that resonates with the reasons for decision in Brocx is that the plaintiff has not provided sufficient evidence to preclude adverse inferences being drawn in relation to her prior conduct. Indeed she has provided no evidence at all. I have no difficulty with the proposition that at the hearing such a risk had been exposed.
During the period that the action was on the inactive cases list the only activity of the plaintiff of which I am aware is that canvassed in the reasons for decision of the principal registrar.
What is revealed on an overview of the evidence and the passages I have cited from the reasons of the principal registrar is that until at least August 2016 the plaintiff had not been ready to enter the action for trial. Between mid-August 2016 and the date of the operation of r 44G(1) DCR the only indications of the plaintiff's intentions are her requests of the defendant of 2 August 2016 and of 25 October 2016 for its unavailable dates for a pre-trial conference. As the principal registrar records, seeking that information was part of the process to be undertaken in entering the action for trial. I accept that the evidence and information is sparse but it leads to no conclusion other than that the plaintiff had intended to enter the action for trial.
Reflecting upon the issue of the writ incites reflection on the fact that the plaintiff allowed action 1484 of 2015 to be dismissed. There is clearly scope to consider that the plaintiff had failed to act in her own interest however that conclusion does not necessarily generate an adverse view of the commencement of the action; particularly that she did so to vex or otherwise oppress the defendant. In my opinion there is nothing in the evidence and information that I have canvassed that suggests either that failure to list action 1485 of 2015 for trial either prior or subsequent to the notice that the action had been put on the inactive cases list had any particular consequence for the defendant or that this action is somehow seriously and unfairly burdensome, prejudicial or damaging to the defendant.
In my opinion the circumstances that I have canvassed do not provide reason to consider that the plaintiff disobeyed an order and thereby impugned the authority of the court. There is no reason to consider that either the failure of the plaintiff to enter action 2484 of 2015 for trial or the fact that it remained on the inactive cases list for 6 months and was deemed dismissed under r 44G(1) DCR would justify a predisposition or even disposition to drawing an inference adverse to the plaintiff along the lines suggested in the defendant's submissions.
The fact that the defendant has brought the application at the point at which the action has been entered for trial presents an interesting context in which to consider the proposition that issuing the writ was an abuse of process. To the extent that over that period that the defendant has chosen not to apply, it would contend that the action has corroded public interest, unjustly consumed the resources of the court and generated its oppression and brought the administration of justice into disrepute, it must accept some responsibility.
In considering the prospect that the plaintiffs past conduct would speak to the prospect of similar conduct at some later point in the action, it would be difficult to draw the particular inference at this point; the action having been entered for trial prior to the date on which she had been required to do so.
The lateness of the application would also diminish the scope for the plaintiff to impede the progress of the action to trial. Apart from fixing a date for the pre‑trial conference it may only be necessary for the action be listed for a trial listing conference. That step is undertaken at the conclusion of the pre‑trial conference.
As for the defendant's submission that the failure of the plaintiff to provide evidence would preclude her from establishing a special reason to allow the action to proceed, I take it that it engages the commentary of Woolf LJ in his reasons for decision in Arbuthnot Latham Bank Ltd v Trafalgar Holdings Ltd [1998] 1 WLR 1426 to which Newnes JA referred at [89] and [90]. It was delivered in the context of an application to dismiss for want of prosecution. Woolf LJ proposed that:
In exercising its discretion as to whether to strike out the second action, the court should start with the assumption that if a party has had one action struck out for abuse of process some special reason has to be identified to justify a second action being allowed to proceed.

I have no difficulty with the sentiment however whether considered either in the context before His Lordship or Newnes JA the passage is no more than that. It is not apt to the context established by the application.
The case put in the application draws upon the grounds expressed the rules and commentary. Neither the ground of the application nor its support draw upon anything more than the broad propositions put by the defendant that I have canvassed. The defendant has not referred to evidence of any conduct of the plaintiff that calls for more than adverse comment. Despite referring to prejudice in general terms it does not present any evidence that suggests any adverse impact of the action.
Taking into account the other features of the defendant's case for leave that I have canvassed, I am not drawn to the proposition that the court should undertake the task of considering whether to draw inferences to assist the defendant in the substantive application.
In my opinion the application for leave to apply should be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
Court Officer
24 JULY 2019