Bird v Telstra Corporation Ltd - [2018] WADC 121

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   BIRD -v- TELSTRA CORPORATION LTD [2018] WADC 121
CORAM:   REGISTRAR KUBACZ
HEARD:   14 SEPTEMBER 2018
DELIVERED          :   3 OCTOBER 2018
FILE NO/S:   CIV 4454 of 2016
BETWEEN:   ELIZABETH ANN BIRD
Plaintiff

AND

TELSTRA CORPORATION LTD
Defendant

Catchwords:

Practice and procedure - Case management - Removal from Inactive Cases List - Turns on own facts

Legislation:

District Court Rules 2005

Result:

Plaintiff's application successful

Representation:

Counsel:

Plaintiff	:	Mr A Nolan
Defendant	:	Mr G Nutt

Solicitors:

Plaintiff	:	Simon Walters
Defendant	:	Sparke Helmore Lawyers

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

Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74
Lashansky v Legal Practice Board [No 2] [2010] WASC 159

REGISTRAR KUBACZ:

This is the plaintiff's application to have this matter removed from the Inactive Cases List pursuant to r 44F of the District Court Rules 2005 (WA) (the Rules). The application is supported by the affidavit of Damon Lawrence Marsh sworn 5 July 2018.
The application is opposed by the defendant on grounds that the plaintiff had not satisfied the provisions of r 44F(3) with the defendant further arguing in the affidavit of Ebony Elizabeth Vail sworn 30 August 2018 that should the matter be reactivated, it should then be dismissed as an abuse of process.
During oral submissions the defendant conceded that it had no application before the court for the matter to be dismissed for an abuse of process and therefore it was proceeding solely on the basis that the plaintiff had not satisfied the provisions of r 44F(3).
Rule 44F(3) provides that the court may order a case to be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.
The court's power to order that a case be removed from the Inactive Cases List is discretionary and is expressed in wide terms, more particularly, satisfaction by the court that the case will be conducted in a timely way in the future if allowed back into the court's active list. The discretion may also be invoked for any other good reason: Belendaine Pty Ltd v Primary Consulting Services Pty Ltd[2014] WADC 74, Stevenson DCJ [3].
In Lashansky v Legal Practice Board [No 2] [2010] WASC 159, Justice Beech held that in exercising the discretion, it will be relevant to inquire whether there is evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. It will be relevant whether there is some evidence as to the state of the action and how it is proposed that it will be progressed through to trial.
This matter, in its current incarnation and in its previous form, has had a long and protracted history. In exercising my discretion, I need to take into account how the matter came to be on the Inactive Cases List. I therefore must look at the history of the plaintiff's proceedings in this court.
This is the second set of proceedings commenced by the plaintiff arising from personal injuries she sustained on 17 March 2014 when she allegedly tripped over a 'pit cover' on a footpath which she alleges was owned and controlled by the defendant, thereby making the defendant the 'occupier' of that part of the footpath pursuant to the Occupiers Liability Act 1985 (the Act).
The first set of proceedings were commenced on 30 April 2015 bearing the action number 1484 of 2015 (the first action). A statement of claim was filed in the first action on 25 June 2015 and a defence filed on 5 August 2015. The entry for trial milestone was set for 3 December 2015.
By the filing of consent orders, the entry for trial milestone was extended on a number of occasions. First on 4 December 2015 to 3 February 2016 and second on 3 February 2016 to 20 April 2016.
The matter was eventually placed on the Inactive Cases List by the court on 18 May 2016 for the plaintiff's failure to enter the matter for trial by 20 April 2016. In the Notice of Default issued by the court, the plaintiff was advised that if the matter was on the Inactive Cases List for six continuous months, the matter would be dismissed for want of prosecution pursuant to r 44G(1). On 21 November the court issued a notice to the parties that the matter had been dismissed for want of prosecution on 18 November 2016 pursuant to r 44G.
On 17 February 2017, the plaintiff made an application to the court by way of chamber summons seeking to have the dismissal of the first action set aside. The first return date of the application was on 7 March 2017 at which time Deputy Registrar Harman adjourned the matter to a special appointment hearing on a date to be fixed. The matter was listed for hearing on a number of occasions, each being adjourned until eventually it was heard by Principal Registrar Melville on 15 December 2017. Principal Registrar Melville delivered his reserved decision on 21 December 2017 dismissing the plaintiff's application to have the dismissal set aside.
Soon after the first action was dismissed for want of prosecution on 18 November 2016, the plaintiff commenced this second action number 4454 of 2016 (the second action), by Writ of summons on 30 November 2016. No action was taken on this matter for over a year and the matter was placed on the inactive cases list on 1 December 2017.
By chamber summons filed on 20 February 2018, the plaintiff sought to have the matter removed from the Inactive Cases List. The application came before me on 8 March 2018 where I made orders removing the matter from the Inactive Cases List and ordering the plaintiff to file and serve her statement of claim by 13 May 2018.
The statement of claim was filed on 12 March 2018 in the exact same terms as the statement of claim in the first action save that the plaintiff provided fuller particulars on the amounts of damages claimed. No further action was taken on the matter and subsequently the matter was placed back onto the Inactive Cases List on 21 June 2018.
The plaintiff again filed a chamber summons on 5 July 2018 seeking the matter be removed from the Inactive Cases List. The matter came on for hearing before Deputy Registrar Hewitt on 2 August 2018 where the defendant objected to the orders sought. The matter was therefore listed for a special appointment and Deputy Registrar Hewitt made further orders for the defendant to file and serve any affidavit in support of an application for the second matter to be dismissed as an abuse of process within 28 days.
The defendant filed that affidavit on 30 August 2018.
In oral submissions, counsel for the plaintiff submitted that the matters raised in the first action are irrelevant to these proceedings and gives a timeline only. Further, it was submitted that there is evidence that the second action will be progressed in a timely matter.
I do not accept the plaintiff's submissions that the matters raised in the first action are irrelevant and further I do not accept that there is any real evidence before me to show the plaintiff's intention to progress this matter in a timely manner. In fact, her actions to date suggest otherwise.
The inactivity in the first action which saw the action being dismissed for want of prosecution is reflected to date in the second action. There is no evidence before me to explain why there was a delay in taking any positive steps in this action between the filing of the Writ on 30 November 2016 and the action becoming inactive for the first time over twelve months later on 1 December 2017.
In oral submissions, counsel suggested that this was because the plaintiff was waiting to see the outcome of the application to set aside the dismissal in the first action. Whilst this may be so, it is not a valid reason why nothing was done to progress the matter for 12 months and to simply let it fall into the Inactive Cases List.
The only evidence before me as to why the second matter was placed onto the inactive cases list for the second time can be found in par 9 of the affidavit of affidavit of Damon Lawrence Marsh sworn 5 July 2018 which was because the defendant did not file a defence.
This was elaborated upon in oral submissions with counsel submitting that given the defendant had not filed its defence, the plaintiff could lodge entry for trial papers. This is no excuse for not taking any positive steps to progress this matter. There were a number of pro-active steps the plaintiff could have taken to prevent the matter from being put onto the Inactive Cases List including asking the court to list the matter for an urgent directions hearing or issuing a chamber summons compelling the defendant to file its defence within a period of time. These actions would have been reflective of positive case flow management. Simply doing nothing is not showing the court that positive steps were being taken to progress the matter, particularly in light of the history of inactivity in the matters to date.
In oral submissions, counsel for the plaintiff conceded that these steps could have been taken and could provide no explanation as to why nothing was done.
Unfortunately, it appears that 'doing nothing' has been the plaintiff's modus operandi in both this action and the first action.
As far as progressing the matter, again the only evidence I have before me as to the plaintiff's intention to progress the matter is in par 11 of Damon Lawrence Marsh's affidavit sworn 5 July 2018 which simply states that it is the plaintiff's intention to proceed with an application for summary judgment when the case is removed from the Inactive Cases List.
I fail to see how this is evidence of the intention to progress the matter in a timely manner. In fact, any application for summary judgment would be fraught with difficulty for the plaintiff, particularly given the lateness of any such application and appears to seek to simply prolong the action further.
There is no evidence before me to show how the plaintiff intends to change her strategy or intentions to progress this matter in a timely matter and absent that evidence, I am of the opinion that this second matter will be no different from the first action and that if I remove it from the Inactive Cases List it will find itself back on that list in due course.
I therefore do not believe that the plaintiff has made out the requirements of r 44F(3) or the principles stated in Lashansky v Legal Practice Board with respect to showing evidence to explain how the case came to be on the Inactive Cases List and why it should not be expected that, if it is removed from the list, it would return to the list. Further there is no evidence before me as to how it is proposed that it will be progressed through to trial.
On this basis the plaintiff's application must fail.
However, r 44F(3) provides that the court may order a case to be taken off the Inactive Cases List 'for any other good reason'.
I must therefore consider whether there is any other good reason for this matter to be taken off the Inactive Cases List.
Judge Stevenson stated in Belendaine Pty Ltd v Primary Consulting Services Pty Ltd & Anor at [44] and [45]:
At the end of the day the court is the place where litigants in civil cases come for resolution of disputes if they cannot resolve those disputes between themselves using an alternative process. The rules ought not be used in a way which would prevent resolution of sensible and reasonable disputes between the parties. And, nor should the rules permit parties who seek to invoke the jurisdiction of the court for the determination of their disputes be shut out unnecessarily or unreasonably.
Although there was no evidence before me, it was submitted by the plaintiff's counsel that the plaintiff is willing to proceed with her case and is content for the court to impose any conditions on the progression of the matter should it be removed from the Inactive Cases List. I can only take this at face value.
It was further submitted that if the matter is not removed from the inactive cases list and is ultimately dismissed, it would severely prejudice the plaintiff as her claim is now statute barred and she would not have any further opportunity to have her claim resolved. It was submitted that there would be an element of natural justice that would be denied to the plaintiff if the matter is not removed from the Inactive Cases List.
This matter is a slip and trip case. This type of litigation is commonplace in the District Court and is considered to be a sensible and reasonable dispute. Given that if this matter is not removed from the Inactive Cases List, there is no further recourse to the plaintiff she should not be shut out of the court unreasonably. For these reasons, I find that there are 'other good reasons' why this matter should be removed from the Inactive Cases List.
Whilst I will make orders removing the matter from the Inactive Cases List, I will also be imposing tight case management orders on the parties to ensure that the matter is now conducted efficiently by the parties enabling the court itself to ensure that its business is conducted effectively and efficiently in the disposal of this action: Belendaine Pty Ltd v Primary Consulting Services Pty Ltd & Anor [40].

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
AC
COURT OFFICER
27 SEPTEMBER 2018