Carter v South Metropolitan Health Service - [2025] WADC 74

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   CARTER -v- SOUTH METROPOLITAN HEALTH SERVICE [2025] WADC 74
CORAM:   JEYAMOHAN DCJ
HEARD:   7 OCTOBER 2025
DELIVERED          :   20 OCTOBER 2025
FILE NO/S:   CIV 3358 of 2023
BETWEEN:   SIMON MATTHEW CARTER
Plaintiff
AND
SOUTH METROPOLITAN HEALTH SERVICE
Defendant

Catchwords:

Appeal from registrar's decision - Appeal to remove case form Inactive Cases List - Application to set aside dismissal for want of prosecution - Whether exceptional circumstances warrant setting aside dismissal

Legislation:

District Court Rules 2005 (WA) r 38, r 44, r 44D, r 44E, r 44F, r 44G
Rules of Supreme Court 1971 (WA) O 2 r 1

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	Mr A Vucak

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Hall & Wilcox (Perth)

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

ATS v F S Kotai Pty Ltd, C J Broun Pty Ltd, Elizabeth Berkley Wysocki and Carol Elizabeth Mcgrath t/as Glen Forrest Medical Centre [2020] WADC 115
Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74
Cyclis Group Pty Ltd as trustee for The Garside Health Property Trust v Kabway Pty Ltd [2019] WADC 41
Gibbs v Royalblue Securities Pty Ltd [2017] WADC 80
Guillaume v City of Stirling [2020] WADC 41
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Ogbonna v CTI Logistics Pty Ltd [2018] WADC 27
Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79
Rowe v Stoltze (2013) 45 WAR 116
Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142
Stewart v Hames [2019] WASCA 127

JEYAMOHAN DCJ:

Introduction

The appellant plaintiff, Simon Matthew Carter, brought proceedings against the respondent defendant, the South Metropolitan Health Service (SMHS), by amended writ of summons filed on 23 August 2023 for damages and costs incurred as a result of alleged medical negligence.
On 11 September 2023, SMHS filed a memorandum of appearance.
On 11 September 2024, the Principal Registrar issued a notice pursuant to District Court Rules 2005 (WA) (DCR) r 44D(1)(a) placing the case on the Inactive Cases List as no document had been filed in the case for the preceding 12 months.
By chamber summons filed on 9 March 2025 (dated 10 March 2025), Mr Carter filed an application to remove the case from the Inactive Cases List.
On 11 March 2025, the Principal Registrar issued a notice that the case had been dismissed on 11 March 2025 pursuant to DCR r 44G as the case had been on the Inactive Cases List for six continuous.
By chamber summons filed on 28 March 2025, Mr Carter brought an application to set aside the decision to dismiss the proceedings pursuant to DCR r 44G(5) (Set Aside Application).
By order of the learned deputy registrar made 25 June 2025, following the hearing of the Set Aside Application, the application was dismissed with Mr Carter ordered to pay the costs of SMHS (Decision).
By notice of appeal dated 25 June 2025, Mr Carter, appeals against the Decision.
For the reasons which set out below, the appeal should be dismissed and the application to set aside the dismissal of the case is dismissed.

Procedural background

By writ of summons filed 5 July 2023, Mr Carter commenced District Court action no CIV 3358 of 2023 against the 'Medico Legal Team Fiona Stanley Fremantle Hospital Group' for payment of damages and costs incurred as a result of medical negligence of 'employees of Fiona Stanley Fremantle Hospitals Group' with the 'period of medical negligence' said to be 'from Tuesday, 18 October 2022 to the current date' and 'ongoing'.
By order of the court made on 9 August 2023, following an application of Mr Carter by chamber summons filed 18 July 2023, Mr Carter filed an amended writ of summons on 23 August 2023 naming SMHS as the defendant. The amended writ of summons claims as against SMHS the following:
1.Payment of damages of $250,000, in addition to the costs of making this claim, including any legal fees, fees to gather evidence, loss of rental incomes, costs to re-enrol in the two university courses of Notre Dame University affected by SMHS's medical negligence in 2022.
2.The claim is for damages and costs incurred as a result of medical negligence of employees of Fiona Stanley Fremantle Hospitals Group against Mr Carter.
3.The period of medical negligence is from Tuesday, 18 October 2022 to the current date and is ongoing.
4.The claim is also to recover medical expenses paid for psychology and psychiatric health services as a result of medical negligence that has caused harm to Mr Carter. The claim will include ongoing costs to pay for treatments required as a result of medical negligence by SMHS's employees.
5.The claim is also seeking a written apology by SMHS's, correction of falsified medical records, to Mr Carter and other affected parties affected by the medical negligence.
On 11 September 2023, SMHS filed a memorandum of appearance.
On 11 September 2024, the Principal Registrar issued the Inactive Case Notice. The case was placed on the Inactive Cases List from the date of that notice pursuant to DCR r 44D(1)(a).
By chamber summons filed on 9 March 2025 (dated 10 March 2025), Mr Carter filed an application to remove the case from the Inactive Cases List. The application was supported by the affidavit of Simon Carter sworn 9 March 2025 (First Carter Affidavit) and deposed (relevantly) to the following:
1.That on 12 September 2024, Mr Carter received communications from SMHS's lawyers that the matter had been placed on the Inactive Cases List and that to remove the matter requires a chamber summons and affidavit.
2.That Mr Carter intended to pursue civil action against SMHS in this court.
3.That the delay in progressing this action is due to SMHS allegedly refusing to provide information to Mr Carter under a Freedom of Information (FOI) request that has been escalated to the FOI Commissioner for external review.
4.That the FOI Commissioner had provided the parties with her preliminary views on the matter.
5.That Mr Carter requests the case to be removed from the Inactive Cases List to allow the FOI Commissioner to conclude her review.
6.That Mr Carter intends to provide a statement of claim to SMHS in the next 6 ‑ 9 months at the latest and is 'fully invested' in brining civil against SMHS.
On 11 March 2025, the Principal Registrar issued a notice that the case had been dismissed on 11 March 2025 pursuant to DCR r 44G as the case had been on the Inactive Cases List for six continuous months.
By letter dated 14 March 2025, Mr Carter wrote to the Principal Registrar informing her of the chamber summons filed 9 March 2025 seeking to remove the case from the Inactive Cases List and seeking a reversal of the dismissal and for the case to be made active.
On 21 March 2025, the Principal Registrar made orders granting Mr Carter leave to amend the application to remove the case from the Inactive Cases List and that that chamber summons stand as an application under DCR r 44G(4) to set aside the dismissal of the action for want of prosecution. By letter dated 24 March 2025, further to the orders made in respect of the application, the Principal Registrar wrote to Mr Carter relevantly setting out the following:
1.That any application to an action from the Inactive Cases List must be both made and determined, with orders removing the action from the list, before the expiration of the six‑month period provided for under r 44G of DCR.
2.It is not enough that the application is filed; if no order has been made by the time that period expires, the dismissal of the action occurs by operation of DCR r 44G(1).
3.That any application therefore needs to be made in sufficient time for the court to deal with it.
4.That DCR r 44G(4) provides that, if a case is dismissed under subrule (1), a party may apply to the court for, and the court may make, any order needed as a consequence of the dismissal.
5.That under DCR r 44G(5), the court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).
That in the circumstances, Mr Carter is required to apply to have the dismissal set aside.
In concluding, the Principal Registrar expressly drew Mr Carter's attention to the requirement under DCR r 44G(5) and for Mr Carter to satisfy the court that exceptional circumstances exist.
Further to the orders made on 21 March 2025, by chamber summons filed on 28 March 2025, Mr Carter amended the application to remove the case from the Inactive Cases List to the Set Aside Application. The application was supported by the affidavit of Simon Carter sworn 28 March 2025 (Second Carter Affidavit). Mr Carter in the Second Carter Affidavit, relevantly deposes to the following:
1.That on 10 March 2025, Mr Carter was informed by the court that 'they would get in front of a registrar to review' the application to remove the case from the Inactive Cases List before the 11 March 2025 dismissal date.
2.The court registry staff had 'accidentally' failed to give that application to a registrar and had created an administrative.
3.Mr Carter was under the impression that he had until 11 March 2025 to remove the case from the Inactive Cases List.
4.Mr Carter is self-represented and could not have known how much time the court needed prior to 11 March 2025 for the court to have enough time to consider the application to remove the case from the Inactive Cases List and allocate a hearing date.
5.Since November 2022, Mr Carter has been attempting to access an unredacted copy of his medical record to accurately complete a statement of claim in describing the facts of his case that includes medical negligence, defamation, assault and battery and unlawful arrest and detainment.
6.It is Mr Carter's opinion that the release of FOI request made by Mr Carter has been delayed by SMHS.
7.Mr Carter is awaiting the outcome of an external review of the FOI request.
8.Mr Carter has in the interim provided SMHS with a draft statement of claim which contains inaccuracies which will need to be remediated once he has access to the requested medical record(s) the subject of the FOI request.
9.Given his poor education and understanding of the legal processes, Mr Carter failed to understand that he could have subpoenaed his medical records through the court prior to filing a writ.
SMHS relies on the affidavit of Alison Yeong Hornsby sworn 24 April 2025 (Hornsby Affidavit) in opposition to the Set Aside Application. Ms Hornsby in her affidavit, deposes to the following:
1.That on 21 May 2024, Ms Hornsby drafted and caused to be sent, a letter to Mr Carter seeking a timeframe for filing and service of his statement of claim and informing him that his action would be placed on the Inactive Cases List if a statement of claim was not filed by 10 September 2024. Annexed to the Hornsby Affidavit is a copy of that letter marked 'AYH-1'.
2.That on 2 August 2024, Ms Hornsby drafted and caused to be sent, a letter to Mr Carter informing him, amongst other things, that his action would be placed on the Inactive Cases List if a statement of claim was not filed by 10 September 2024. Annexed to the Hornsby Affidavit and marked 'AYH-2' is a true copy of that letter.
3.That on 12 September 2024, Ms Hornsby drafted and caused to be sent, a letter to Mr Carter enclosing the court Inactive Case Notice issued on 11 September 2024 and informing him, amongst other things, that the case would be automatically dismissed on 11 March 2025 for want of prosecution if the case remained on the Inactive Cases List for six continuous months. Annexed to the Hornsby Affidavit and marked 'AYH-3' is a true copy of that letter.
4.That on 31 January 2025, Ms Hornsby drafted and caused to be sent, a letter to Mr Carter informing him, amongst other things, that the case remained on the Inactive Cases List and would be automatically dismissed on 11 March 2025 for want of prosecution. Annexed to the Hornsby Affidavit and marked 'AYH-4' is a true copy of that letter.
5.SMHS opposes the application on the basis that Mr Carter was forewarned of the consequences of the action remaining on the Inactive Cases List and had ample time to file an application to remove the action from the Inactive Cases List before it was dismissed on 11 March 2025.
By order of the court made on 28 April 2025, the Set Aside Application was listed to be heard at a special appointment on 25 June 2025 with the orders made in respect of the filing and service of any affidavit material and submissions by both parties in relation to the application.
By order of the learned Deputy Registrar made 25 June 2025, following the hearing of the application, the Set Aside Application was dismissed with Mr Carter ordered to pay the costs of the defendant.
By notice of appeal dated 25 June 2025, Mr Carter, appeals against the Decision. The notice of appeal contains a single 'ground', namely 'Decision to dismiss my order to set aside the dismissal of CIV 3358'.
The notice of appeal was supported by the affidavit of Simon Carter sworn 4 August 2025 (Third Carter Affidavit) that deposes to the following:
1.The background to Mr Carter's claim against SMHS.
2.Mr Carter's basis of claim against SMHS.
3.That Mr Carter is self‑represented and is not familiar with legal processes as a qualified legal practitioner or employees of the court would be.
4.That Mr Carter had informed the court that he had not yet secured rental accommodation in Wollongong, New South Wales and to direct all his court communications to his email.
5.That Mr Carter understood, based on court orders, that he had until 11 March 2025 to take action and request his case be removed from the Inactive Cases List.
6.That Mr Carter had engaged with multiple phone calls with court registry staff to identify all the forms he was required to fill out to successfully complete his application.
7.That Mr Carter was unaware that the court had duplicated his customer profile so that there were two accounts under his name.
8.That whilst Mr Carter could access other court proceedings under his name, CIV 3358 of 2023 was not accessible to Mr Carter through the eCourts portal.
9.That Mr Carter did submit the correct forms to the court on Sunday, 9 March 2025 requesting that the case be removed from the Inactive Cases List.
10.That he believed, with nothing from the court suggesting otherwise, that he could file his application prior to 11 March 2025 and that his request would be automatically approved by the courts, in providing him more time to progress his legal case.
11.That the court were already aware before the dismissal that Mr Carter was experiencing problems accessing his unredacted medical file from SMHS and that Mr Carter had attempted previously to request the court to support a subpoena on SMHS to produce an unredacted copy of the medical file but was not assisted by the court.
12.That Mr Carter had since been attempting to access his unredacted medical file from SMHS including under FOI in addition to making direct requests of SMHS.
13.That on 10 March 2025, Mr Carter spoke with a court registry staff member and explained the urgency of his application filed 9 March 2025 to remove the case from the Inactive Cases List and was told that 'he will make sure the application is seen by a registrar today who can then make a determination on it today, don't worry I will mark this as urgent' and that he was otherwise told that there was nothing more he could do and was informed that the court were experiencing a five day backlog in processing applications.
14.That Mr Carter also sent SMHS a copy of the application.
The appeal proceeded to hearing on 7 October 2025. Mr Carter was self‑represented and appeared via audio link at his request, which the court was able to accommodate.
SMHS was represented by counsel at the hearing of the appeal.

Case management principles

The case management principles in pt 4 div 3 of the DCR includes the following relevant rules:
44A.Cases inactive for 12 months deemed inactive
If no document is filed in a case for 12 months by any party to the case, the case is taken to be inactive unless the Court orders otherwise.
…
44D. Parties to be notified of case being on Inactive Cases List and to advise clients
(1)When a case is taken to be inactive under rule 44 or 44A, or an order is made under rule 44B(4), or an order made under rule 44C(1) takes effect, the Principal Registrar must -
(a)put the case on the Inactive Cases List; and
(b)give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rules 44E and 44G.
(2)If under subrule (1) a practitioner for a party is notified, the practitioner must, as soon as practicable, notify the party of -
(a)the fact that the case is on the Inactive Cases List and why; and
(b)the effect of rules 44E and 44G.
…
44F.Removing cases from Inactive Cases List
(1)If a Form 1 (Entry for Trial), or a consent order finalising the case, is filed in a case on the Inactive Cases List, the case is taken to have been taken off the list.
(2)Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.
(3)The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.
(4)An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.
44G.Certain Inactive Cases taken to have been dismissed
(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.
(5)The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).
(6)For the purposes of subrule (5) it does not matter that the case was dismissed before the commencement of that subrule.

Appeal jurisdiction - registrar appeals

A party who is dissatisfied with a decision of a registrar may appeal to a judge.[1] The appeal is to be by way of a new hearing of the matter that was before the registrar.[2] The appeal is a hearing de novo: Hazart Pty Ltd v Rademaker.[3] The judge hearing the appeal is to treat the application as if it was before the court for the first time, save that the party appealing has the right as well as the obligation to open the appeal.[4] The appellant is not required to demonstrate error to succeed on the appeal.[5]
[1] DCR r 15(1).
[2] DCR r 15(6).
[3] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ) (Hazart).
[4] Stewart v Hames [2019] WASCA 127 [8].
[5] Hazart [28].
I am therefore to treat the application which led to the making of the orders the subject of the appeal as though it had not been previously determined. It is not necessary for Mr Carter to establish an appealable error on the part of the registrar.

Having had regard to the procedural history of the matter, I was mindful that I made the order on 9 August 2023 granting Mr Carter leave to file the amended writ of summons in my then role as a registrar of this court. Whilst the orders made were unrelated to matters the subject of this appeal, as a matter of prudence, I advised the parties of this in writing on 6 October 2025 in circumstances where I was presiding on the appeal. Prior to the hearing of the appeal, both parties confirmed that they had no objection to me presiding over the appeal notwithstanding the orders made on 9 August 2023.

Leave to adduce additional evidence on appeal

In programming the appeal for hearing, the following orders were made by the Registrar on 12 August 2025:
1.The respondent file and serve any further affidavit by 9 September 2025.
2.The appeal be listed for hearing before a Judge on 7 October 2025 at 11.00 am for a half day hearing.
3.The appellant file and serve his written submissions by 23 September 2025.
4.The respondent file and serve its written submissions by 30 September 2025.
5.The costs of today be reserved to the appeal.
Subsequent to the making of the orders, Mr Carter filed the following affidavits:
1.Affidavit of Simon Carter sworn 12 August 2025 (Fourth Carter Affidavit).
2.Affidavit of Simon Carter sworn 25 September 2025 (Fifth Carter Affidavit).
3.Affidavit of David Carter sworn 6 August 2025 (David Carter Affidavit).
Mr Carter in the Fourth Carter Affidavit deposes to the following:
1.That Mr Carter was allegedly detained against his will in his home on 18 October 2022.
2.That due to continued harassment by Mr Carter's neighbours and the absence of assistance from the Fremantle Council and the Fremantle Police, matters escalated such that Mr Carter obtained an interim violence restraining order against a neighbour.
3.That whilst at Fremantle Hospital, Mr Carter was detained in a room against his will and guarded by a Western Australia police officer and subject to medical and psychiatric examination.
4.That following his release on or about late October 2022, Mr Carter was contacted by the Alma Street Mental Health Unit.
5.That Mr Carter's brother purportedly received a phone call from a nurse from the Alma Street Mental Health Unit on 3 November 2022 and that the call was in respect of a further appointment which Mr Carter says was fabricated as he never agreed to attend the same.
Mr Carter in the Fifth Carter Affidavit deposes to the following matters in detail:
1.That the reason for the late provision of this affidavit was due to alleged delays on the part of SMHS in providing the requested medical documents.
2.That on a review of the documents, Mr Carter claims (amongst other things) that he was misdiagnosed and was administered force medication on a number of occasions
3.That he continued to be administered medication contrary to medical orders given on 20 October 2022, which Mr David Carter can confirm.
Mr David Carter in his affidavit deposes to matters relating to the circumstances of Mr Carter's claim and includes matters Mr David Carter says he observed. The David Carter Affidavit seeks to depose to matters of fact of evidence that relate to the substantive claim Mr Carter seeks to advance against SMHS.
In addition to these affidavits, Mr Carter relies on the Third Carter Affidavit in support of this appeal.
Mr Carter's submissions is that he was not aware that leave was required prior to filing the additional affidavits. Mr Carter submits that the affidavits are necessary as:
1.They demonstrate the delays on the part of SMHS.
2.Provide evidence from medical records supportive of Mr Carter's claims.
3.In order for the court to be in a position to properly consider the merits of the case.
SMHS objects to the Third, Fourth and Fifth Carter Affidavits and the David Carter Affidavit evidence being admitted on the basis that:
1.Leave has not been granted.
2.The Third Carter Affidavit seeks to deal with the merits of MrCarter's claim and is irrelevant to the appeal and does not otherwise relate to the question of whether there were exceptional circumstances such as to warrant setting aside the dismissal of the proceedings.
3.The Fourth Carter Affidavit seeks to deal with the merits of Mr Carter's claim and is irrelevant to the appeal and is otherwise is not fresh evidence. There is therefore no legitimate reason why Mr Carter could not have adduced the evidence in the primary application.
4.The Fifth Carter Affidavit seeks to deal with the merits of Mr Carter's claim and is irrelevant to the appeal and further does not relate to whether there were exceptional circumstances such as to warrant setting aside the dismissal of the proceedings. Further, the affidavit was provided to SMHS at a very late stage prior to the hearing of the appeal.
5.The David Carter Affidavit does not go to the issues regarding 'exceptional circumstances' relevant to DCR r 44G(5) and has been provided at a very late stage prior to the hearing of the appeal.

Disposition

An appeal to a judge of this court from the decision of a registrar is by way of a new hearing.[6] As the appeal is by way of a new hearing of the matter that came before the registrar, the parties are not confined to the evidence presented to the registrar, and the court should ordinarily allow the parties to rely on additional evidence, subject to a discretion to exclude.[7]
[6] DCR r 15(6).
[7] Hazart (29) - (30) (Malcolm CJ); Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74 [14] (Stevenson DCJ) as endorsed in Ogbonna v Programmed Integrated Workforce Ltd [No 2] [2022] WASCA 79 [98].
Having heard from both parties, further to the parties' respective written positions communicated to the court on 3 and 6 October, and noting that:
1.Mr Carter seeks to rely on the Third Carter Affidavit, the Fourth Carter Affidavit, the Fifth Carter Affidavit and the David Carter Affidavit to establish the exceptional circumstances said to warrant setting aside the dismissal;
2.whilst SMHS additional affidavit evidence, SMHS does not assert prejudice including in respect of the late provision of the David Carter Affidavit and says that its position, having reviewed, the content of the affidavits, is unchanged;
3.no procedural prejudice is asserted by SMHS as a result of the inclusion of the additional evidence; and
4.no additional time is sought by SMHS to adduce further evidence in response, leave to adduce the additional evidence was granted.

The issue on the appeal

The issues that arise for determination are as follows:
1.Was the case properly dismissed for want of prosecution?
2.Do exceptional circumstances exist justifying the setting aside of the dismissal of the case pursuant to r 44G(5)?

Was the case properly dismissed for want of prosecution?

Mr Carter relies on his oral submissions made at the hearing of the appeal and his outline of submissions dated 25 September 2025 and the matters deposed to in his various affidavits and the David Carter Affidavit and his outline of submissions. Mr Carter deposes to the matters said to arise subsequent to the filing of his chamber summons application on 9 March 2025 (dated 10 March 2025) to remove the matter from the Inactive Cases List, a detailed summary of which is set out above.
SMHS's position, as it appears in the outline of submissions and the Hornsby Affidavit and counsel's submissions. As set out in the Hornsby Affidavit, SMHS corresponded in writing with Mr Carter on several occasions after the case had been placed on the Inactive Cases List informing Mr Carter that he would need to take steps to remove the case from the list. SMHS submits that Mr Carter was forewarned of the consequences of the action remaining on the Inactive Cases list and had ample time to file an application to remove the action from the Inactive Cases list before it was dismissed on 11 March 2025.

Disposition

No document was filed on the case since SMHS filed a memorandum of appearance on 11 September 2023. As a result, on 11 September 2024, the Principal Registrar issued the Inactive Cases Notice and the case was placed on the Inactive Cases List from the date of that notice. It is irrelevant to the operation of DCR r 44A how it came about that no document was filed within the 12‑month period. It is enough that no document was filed.[8]
[8] Rowe v Stoltze (2013) 45 WAR 116.
In issuing the Inactive Case Notice on 11 September 2024, Mr Carter was given notice in writing by the Principal Registrar that the case had been put on the Inactive Cases List and of the effect of DCR r 44E and r 44G.
The Inactive Case Notice relevantly provided as follows:
Pursuant to r 44D(2), as soon as practicable after receiving this notice, a practitioner must notify the party they represent of the fact that the case is on the Inactive Cases List and the effect of r 44E.
Pursuant to r 44G(1), a case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.
On my review of the materials, it is clear that Mr Carter was aware that the case had been placed on the Inactive Cases List on 11 September 2024. Mr Carter, in the First Carter Affidavit, deposes that on 12 September 2024 he received communications from SMHS's solicitors advising him that the case had been placed on the Inactive Cases List and that to remove the matter requires a chamber summons and affidavit.[9] SMHS's solicitors, in that letter, expressly informed Mr Carter as follows:[10]
We enclose a notice from the District Court of Western Australia advising that your action has been placed on the Inactive Cases List.
An application can be made to the District Court to have the action removed from the Inactive Cases List: see rule 44F(2) District Court Rules 2005 (WA).
For such an application, you will need a Chamber Summons and Affidavit in support. There are civil procedure template forms on the District Court website which may assist you in preparing an application. Applicants in possession of eligible concession cards can apply for a waiver or a reduction of the Chamber Summons filing fee.
As per the notice, if the action remains on the Inactive Cases List for 6 continuous months it will be automatically dismissed by the District Court on 11 March 2025 for want of prosecution.
[9] See First Carter Affidavit, par 2. Also see Hornsby Affidavit, par 6; Annexure 'AYH-3'.
[10] Hornsby Affidavit; Annexure 'AYH-3'.
By letter dated 31 January 2025, SMHS's solicitors again wrote to Mr Carter and informed him, amongst other things, that the case remained on the Inactive Cases List and would be automatically dismissed on 11 March 2025 for want of prosecution.[11] SMHS's solicitors, in that letter, expressly informed Mr Carter as follows:[12]
We refer to our previous correspondence dated 12 September 2024 enclosing a notice from the District Court of Western Australia dated 11 September 2024.
We note that your action remains on the Inactive Cases List. As per the Court notice, your action will be automatically dismissed by the District Court on 11 March 2025 for want of prosecution.
We understand that an application has been made for external review with the Information Commissioner. Please note that you will still need to apply to the District Court to have the action removed from the Inactive Cases List (see rule 44F(2) District Court Rules 2005 (WA)), notwithstanding that the external review may not yet be finalised.
Procedurally, to make such an application, you will need to file a Chamber Summons and Affidavit in support. There are civil procedure template forms on the District Court website. Applicants in possession of eligible concession cards can apply for a waiver or a reduction of the Chamber Summons filing fee.
Lastly, we take this opportunity to suggest that you seek your own independent legal advice on the content of our letter, and your claim generally. You can contact the Law Society of Western Australia to seek recommendation of lawyers practising in medical negligence.
[11] See Hornsby Affidavit, par 7; Annexure 'AYH-4'.
[12] See Hornsby Affidavit, Annexure 'AYH-4'.
It is clear that Mr Carter had clear notice of the fact that the case had been placed on the Inactive Cases List from both the Principal Registrar and subsequently SMHS's solicitors and that the case would be automatically dismissed on 11 March 2025 if an application was not made to remove the case from the Inactive Cases List before then. SMHS's solicitors even took the additional step of prompting Mr Carter of this consequence by letter dated 31 January 2025 and informing him of what an application to remove the case from the Inactive Cases List would entail.
In Rowe v Stoltze, the Court of Appeal in considering the operation of DCR r 44G(1) observed that:[13]
… it is not correct to say, as the appellants do, that the action was dismissed by administrative action. The deemed dismissal of the action came about by the operation of rules of court made by the judges of the court. While r 44G(2) requires the Principal Registrar to give the parties written notice of the dismissal of an action, that administrative action plays no role in the dismissal itself; it is merely notice, after the fact, that the action has been dismissed.
Nor can it be said that in some way the operation of r 44G(1) derogates from the exercise of the jurisdiction of the court under s 8 of the District Court Act. The operation of r 44G(1) does not affect the exercise of the jurisdiction of the court under s 8 of the District Court Act. It involves no determination of the substantive rights of a party or the making of any judgment or order of the court. It simply brings to an end, by a deemed dismissal, proceedings which the parties, having been put on notice under r 44D(1), have not kept alive.
[13] Rowe v Stolze [48] and [49].
In Gibbs v Royalblue Securities Pty Ltd[14] her Honour said:
The decision of Rowe v Stoltze … makes it clear that an action is taken to have been dismissed under r 44G(1) DCR simply because it had been on the Inactive Cases list for six continuous months, regardless of how this had come about.
[14] Gibbs v Royalblue Securities Pty Ltd [2017] WADC 80 [25].
In short, no order of the court is necessary to give effect to the deemed dismissal. The dismissal occurs by operation of law and involves no determination of the substantive rights of the parties or the making of any judgment or order of the court. It simply brings to an end, by deemed dismissal, proceedings which the parties, having been put on notice under r 44D(1) have not kept alive.
On the question of this timing, Mr Carter submits that the application was made prior to the case being dismissed and in circumstances where he 'was under the impression that he had until 11 March 2025 to remove the case from the Inactive Cases List' and that as someone who is self‑represented, he could not have known how much time the court needed prior to 11 March 2025 for the court to have enough time to consider the application and allocate a hearing date.[15] Mr Carter further points to a number of other factors he placed reliance on to advance his submission that he had understood that in filing the chamber summons application on Sunday, 9 March, the court would be in a position to address the application prior to the case being automatically dismissed on 11 March 2025.[16] These matters included, amongst other things, Mr Carter having engaged with multiple phone calls with the court registry, being purportedly informed that there was a serious backlog in processing and administrative 'complications' to do with Mr Carter having duplicated his customer profile so that there were two accounts under his name. At the crux of Mr Carter's submissions on timing is that he filed the application by chamber summons to remove the matter from the Inactive Cases List prior to the date on which the case was to be automatically dismissed and that he otherwise placed reliance on discussions had with court registry staff about the application being in effect 'fast tracked' to be brought to the attention of a registrar of the court.
[15] Second Carter Affidavit, par 1.
[16] See for example Second Carter Affidavit, pars 1(a) and 1(b); Third Carter Affidavit, pars 5, 6, 7 and 8.
There is a clear distinction between the applying for orders on the one hand and obtaining orders on the other. It was not intended that time would stop running simply by the filing of an application. An order to remove a case from the Inactive Cases List must be obtained within the six month period; it is not sufficient that an application to remove the case from the Inactive Cases List is made within the six month period.[17] The power in DCR r 44G(4) does not extend to allowing the court to extend the time periods stipulated in r44A or r44G(1).[18] The Rules of the Supreme Court 1971 (WA) O3 r 5 does not apply to allow the court to extend the time in DCR r 44G(1) and the incidental or implied powers of the District Court cannot be used to extend the time period in DCR r 44G(1).[19]
[17] Cyclis Group Pty Ltd as trustee for The Garside Health Property Trust v Kabway Pty Ltd [2019] WADC 41 (Cyclis Group v Kabway) [13].
[18] Rowe v Stolze [14] - [21].
[19] Rowe v Stolze [22] - [26] and [28] - [32].
As was observed in Cyclis Group Pty Ltd as trustee for The Garside Health Property Trust v Kabway Pty Ltd:[20]
Accordingly, any argument that an application to remove the case from the Inactive Cases List has the effect of somehow suspending the running of time for the purposes of r 44G(1) or that the problem created by bringing an application within time but not having it determined until after time could somehow be administratively corrected, or that an order could somehow be given retrospective effect is unfortunately mistaken and not in accordance with the court of appeal decision in Rowe v Stoltze.
[20] Cyclis Group v Kabway [14].
It is for the plaintiff to seek an abridgment of time for an application to be heard.[21]
[21] Ogbonna v CTI Logistics Pty Ltd [2018] WADC 27.
In my view, Mr Carter had ample opportunity to take steps to file a chamber summons application to remove the case from the Inactive Cases List prior to the case being dismissed on 11 March 2025. Despite this, Mr Carter only chose to file his application on 9 March 2025, which was a Sunday, and in effect, one day prior to the dismissal taking effect. Further, no allowance was made by Mr Carter in any event for service of the chamber summons on SMHS who not only had a right to be heard and on the application, but to be given a reasonable time in which to prepare their response if any in opposition to the application. The application may be unsuccessful, and an order never made.
As to the surrounding matters Mr Carter asks this court to have regard to in respect of circumstances leading up to the dismissal, including reliance placed by Mr Carter on conversations purportedly had with court registry staff, having had regard to these matters, they do not and cannot defeat the automatic deemed dismissal of the case by virtue of DCR r 44G(1).
This ground of appeal has not been established.

Are there exceptional circumstances that warrant an exercise of the court's discretion under DCR r 44G(5) to set aside the dismissal of the action and, if so, on what terms?

Mr Carter relies on his written outline of submissions dated 25 September 2025, the matters deposed to in each of his various affidavits including the Third, Fourth and Fifth Carter Affidavits and the David Carter Affidavit, and the oral submissions put to the court at the hearing of the appeal on 7 October 2025. Mr Carter's position can be summarised as follows:
1.That the Set Aside Application was filed two days prior to the automatic dismissal date.
2.That Mr Carter was diligently monitoring the file and acting as soon as practicable in a manner consistent with the principles in Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2].[22]
3.That the dismissal had occurred in circumstances where Mr Carter had already filed an application to remove the matter from the Inactive Cases List.
4.That the court acted on duplicate and inaccurate records which deprived Mr Carter of procedural fairness.
5.That Mr Carter has a serious and arguable cause of action in negligence, assault and battery, false imprisonment and defamation such that he has a meritorious case which warrants determination on its merits rather than being defeated by procedural dismissal.
6.That the delay in the progress of the matter was allegedly caused by the defendant's refusal and failure to provide records 'as soon as practicable' contrary to the Mental Health Act 2014 (WA).
7.Further, that the delay in the progress of the matter was caused by delays beyond Mr Carter's control including in respect of requests made to the FOI Commissioner.
8.That these matters demonstrate prompt action and diligence on the part of Mr Carter in all of the circumstances.
9.That Mr Carter was denied procedural fairness.
10.That the dismissal would cause substantial prejudice to Mr Carter as he would be deprived of pursuing his claim.
[22] Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142 (Sovereign Grange [No 2]).

SMHS submits that the burden lies on Mr Carter to establish that exceptional circumstances exist. SMHS submits that in circumstances where:
1.There is nothing unusual, special or atypical in the circumstances leading to the dismissal.
2.It was the Mr Carter's delay in filing the application to remove the case from the Inactive Cases List that led to the dismissal and it was simply left to the last minute.
3.Mr Carter's failure to respect the court processes and case management rules is a relevant consideration per Rowe v Stolze.
4.There is no causal connection between the FOI external review process and the dismissal of the plaintiff's case.
5.Self‑representation is not, of itself, extraordinary.
6.No exceptional circumstances exist in this case and Mr Carter's application should be dismissed.

Disposition

DCR r 44G(5) provides that the court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).
The general principles in determining whether there are exceptional circumstances were outlined by the Court of Appeal in Sovereign Grange [No 2][23] in upholding the primary court's decision, and summarised as follows by Principal Registrar Melville in ATS v F S Kotai Pty Ltd:[24]
[23] Sovereign Grange [No 2] [26]; Guillaume v City of Stirling [2020] WADC 41 [70].
[24] ATS v F S Kotai Pty Ltd, C J Broun Pty Ltd, Elizabeth Berkley Wysocki and Carol Elizabeth Mcgrath t/as Glen Forrest Medical Centre [2020] WADC 115 (ATS) [20].
1.For circumstances to be 'exceptional' under r 44G(5) they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique or unprecedented or very rare however they will not be exceptional if they are regularly, or routinely, or normally encountered.
2.The fact that the Inactive Cases List was introduced to further case management must be borne in mind. The wider interest of other litigants wanting to have cases heard and the public interest in the proper and efficient use of scarce public resources of the court must be taken into account.
3.The exceptional circumstances must be causally related to the dismissal of the action and it must be established that the circumstances which have led to the dismissal of the action are exceptional.
4.There is no particular circumstance that can be defined as exceptional. 'Exceptional circumstances' may relate to a single exceptional matter or to a combination of exceptional facts or a combination of ordinary facts that when taken together in combination may reasonably be regarded as amounting to exceptional circumstances. Each case must be determined on its own facts.
5.Rule 44G(5) is not remedial. It should be interpreted as giving the court a broad power to relieve against injustice.
6.Inattention or inadvertence by a solicitor may in some cases be considered an exceptional circumstance. However, r 44G(5) must be considered in the context of case management. Consistent with the principles of case management in r 38 and r 44A of the Rules, the onus is on the party (not the party's solicitors) to enter the action for trial and to file documents. For this reason, case management directions and interlocutory orders are made against the party not against the party's lawyer.
7.Mere inadvertence or inattention by a solicitor would ordinarily not constitute an exceptional circumstance that would absolve a plaintiff from any personal responsibility to pursue the action.
8.Factors to be considered in the exercise of the discretion include:
(a)whether there has been any delay in bringing the application to set aside the dismissal and the reason for that delay;
(b)the merits of the plaintiff's case (there being no point in reinstating a case that has no merit);
(c)the prejudice to the plaintiff if the dismissal of the action is not set aside (including the expiry of any relevant limitation period); and
[d]the prejudice to the defendant if the dismissal of the action is set aside.
(footnotes omitted)
The reference to 'exceptional circumstances' regulates the manner in which the discretion is to be exercised. It is not to be interpreted as a two‑step process whereby the existence of exceptional circumstances is a condition precedent to the existence of a discretion.[25]
[25] Sovereign Grange [No 2] [75] - [76].
The decision in Sovereign Grange[No 2] makes it clear that the DCR r 44G(5) poses a single question for the court in the context of an application to set aside a dismissal - whether exceptional circumstances warrant the setting aside of the dismissal.[26] The burden lies on Mr Carter as the applicant/plaintiff to establish the exceptional circumstances.
[26] Sovereign Grange [No 2] [76].
I relevantly note as follows.
First, that on my review of the materials, the court record shows little progress from the time of the filing of the SMHS's memorandum of appearance on 11 September 2023 and the matter being placed on the Inactive Cases List on 11 September 2024. Mr Carter's affidavit evidence speaks to delays said to be caused by SMHS and third party delays in obtaining requested documents. This in itself does not show anything out of the ordinary, and does not demonstrate why steps could not have been taken to otherwise progress the matter procedurally. Further, Mr Carter in the Second Carter Affidavit deposes to the fact that a draft statement of claim has been provided to SMHS. Whilst noting that this occurred after the dismissal, this does however show that steps could have been taken by Mr Carter prior to the dismissal to progress the proceedings.
Secondly, the fact that Mr Carter is self‑represented is not in itself extraordinary.[27] Mr Carter himself has otherwise clearly demonstrated that he is able to engage with the court process as and when required, including by way of filing documents, adducing evidence and appearing at hearings, including in the context of this appeal. Further, Mr Carter had clear notice from the court that the case had been placed on the Inactive Cases List and that he would need to take steps to remove the case from that list. Similar notice and explanation was provided to Mr Carter by SMHS as demonstrated by the matters deposed to in the Hornsby Affidavit.
[27] ATS [45].
Thirdly, a further relevant factor is the merits of Mr Carter's case. As to this, the basis of the claim is limited to the matters set out in the amended writ of summons Mr Carter filed an amended writ of summons filed on 23 August 2023. As already noted, Mr Carter claim is for damages as a result of SMHS's alleged medical negligence in 2022 and ongoing.
Whilst any assessment of the strength of the Mr Carter's claim is limited to the amended writ of summons, it cannot be said that the claim has no merit. However, the claim is broad, contains a myriad of allegations not set out in any meaningful form. The claim also includes matters that would sit outside a claim for damages such as the request for a written apology by SMHS, correction of allegedly falsified medical records, to Mr Carter and other affected parties affected by the medical negligence, who are themselves not party to the proceedings the subject of the dismissal. It follows that at this stage, it is difficult to make a proper assessment of the merits of the claim given the documents and information available are essentially limited to Mr Carter's amended writ of summons.
Accepting that there might be some merit to Mr Carter's claim, and that a plaintiff will suffer prejudice if the dismissal is not set aside, those factors either alone or in combination with any other factors identified by Mr Carter do not amount to exceptional circumstances warranting the setting aside of the dismissal of the case. In any event, the DCR do not demand that the court set aside a dismissal of an action which may have merit where the plaintiff has been given, but failed to take advantage of, a reasonable opportunity to prosecute the claim.[28]
[28] Sovereign Grange[No 2] [65].
I note for completeness that the dismissal of an action under DCR r 44G(1) does not in itself bar a fresh action for the same relief. No question of res judicata or issue estoppel arises as there has been no determination on the merits. Nor will the fact that the action was dismissed under DCR r 44G(1) necessarily mean that any fresh action will constitute an abuse of process; that will depend upon the particular circumstances.[29]
[29] Rowe v Stolze [45].
Finally, to the extent Mr Carter asserts that he was denied procedural fairness, nothing is meaningfully advanced in support of this and in any event on my review of the matter, such an assertion is unsupported. The rules of procedural fairness only require that each party be provided with a reasonable opportunity to be heard, something which is to be judged not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court.[30]
[30] Sovereign Grange [No 2] [63].
In all of the circumstances, on a careful consideration of the facts of the pleaded case, and having had regard to the well‑established principles set out in Sovereign Grange [No 2], the materials and evidence relied on by Mr Carter do not show anything out of the ordinary such that it could be said to constitute 'exceptional circumstances' within the meaning of DCR r 44G(5).
This ground of appeal has not been established.

Conclusion

In circumstances where no order was obtained removing the matter from the Inactive Cases List prior to the deemed dismissal having occurred on 11 March 2025, the action was properly dismissed pursuant to DCR r 44G(1). Accordingly, in order for this action to be able to proceed, it will be necessary for Mr Carter to successfully obtain an order in this appeal setting aside the dismissal on the grounds of exceptional circumstances as provided for in DCR r 44G(5).
For the reasons which I have set out above, Mr Carter has failed to prove that exceptional circumstances exist justifying the setting aside of the dismissal of the case.
Consequently, the appeal should be dismissed.

Orders

1.Leave to adduce additional evidence on appeal is allowed.
2.The appeal is dismissed.
3.The application to set aside the dismissal of the case is dismissed.

I will hear the parties as to costs

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
Associate
21 OCTOBER 2025