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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WADC 121
Decision Date: 3 OCTOBER 2018

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Bird v Telstra Corporation Ltd involved a dispute between the plaintiff, Bird, and the defendant, Telstra Corporation Ltd. Bird sought compensation for alleged breaches of contract and misleading or deceptive conduct in relation to services provided by Telstra. The matter was removed from the Inactive Cases List, with the defendant arguing that the case was suitable for such removal due to the plaintiff's lack of progress. The central legal issue was whether the case was appropriately categorised as inactive, warranting its removal from the list.

The court examined the criteria for determining the status of a case as inactive, considering the plaintiff's history of inactivity and the absence of any recent attempts to progress the matter. It was noted that Bird had failed to respond to procedural orders, had not provided necessary documents, and had not advanced the case in any meaningful way. The court also considered the specific circumstances of the case, including the plaintiff's previous legal history and the defendant's efforts to facilitate the resolution of the matter. Ultimately, the court found that the case met the criteria for removal from the Inactive Cases List, as Bird had not demonstrated any intent or capability to proceed with the matter.

Given the plaintiff's lack of action and the defendant's proactive steps, the court upheld the decision to remove the case from the list. The ruling emphasised the importance of parties diligently pursuing their claims and the court's power to manage its caseload effectively. The case underscored the necessity for litigants to actively engage in the proceedings and comply with procedural requirements to avoid their matters being deemed inactive. The final orders included the removal of the case from the Inactive Cases List and a direction for the plaintiff to show cause as to why the matter should not be dismissed.

Orders