Culleton v Kershaw [No 2] - [2018] WASC 238

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   CULLETON -v- KERSHAW [No 2] [2018] WASC 238
CORAM:   KENNETH MARTIN J
HEARD:   26 JUNE 2018
DELIVERED          :   10 AUGUST 2018
FILE NO/S:   CIV 1465 of 2016
BETWEEN:   RODNEY NORMAN CULLETON
Plaintiff
AND
BRADLEY KERSHAW
First Defendant
CHRIS PETIT
Second First Defendant
TORI KIRK
Second Defendant
REBECCA FORD
Third Defendant
COURTNEY KETT
Fourth Defendant
MARK REAGAN
Fifth Defendant
MAUREEN ADAMS
Sixth Defendant
GEMMA HADRICK
Seventh Defendant
THERESE GILMORE
Eighth Defendant
YASMIN DUNBAR
Ninth Defendant
SHELLY ORCHARD
Tenth Defendant
RORY McDOUGALL
Eleventh Defendant
JAMES MEDLEN
Twelfth Defendant
EMMA TAYLOR
Thirteenth Defendant
SHERYL WORRELL
Fourteenth Defendant
CARLEY THOMPSON
Fifteenth Defendant
PETER McGIVERN
Sixteenth Defendant
LYNN FRANKLIN
Seventeenth Defendant

Catchwords:

Practice and procedure - Inactive cases list - Running of six month time period allowed to remove from list - Action deemed to be dismissed for want of prosecution - Plaintiff's defamation action not removed from inactive cases list within six month period - Application by plaintiff after expiry of six month period for extension of time to remove action from inactive cases list - Application made out of time - Action dismissed by effect of rules of court

Legislation:

Bankruptcy Act 1966 (Cth)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	No appearance
Second First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Ms S M Radovanovic
Fourth Defendant	:	No appearance
Fifth Defendant	:	Ms S M Radovanovic
Sixth Defendant	:	No appearance
Seventh Defendant	:	Ms S M Radovanovic
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	Ms S M Radovanovic
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance
Seventeenth Defendant	:	No appearance

Solicitors:

Plaintiff	:	In person
First Defendant	:	No appearance
Second First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	Mony de Kerloy Barristers and Solicitors
Fourth Defendant	:	No appearance
Fifth Defendant	:	Mony de Kerloy Barristers and Solicitors
Sixth Defendant	:	No appearance
Seventh Defendant	:	Mony de Kerloy Barristers and Solicitors
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	Mony de Kerloy Barristers and Solicitors
Eleventh Defendant	:	No appearance
Twelfth Defendant	:	No appearance
Thirteenth Defendant	:	No appearance
Fourteenth Defendant	:	No appearance
Fifteenth Defendant	:	No appearance
Sixteenth Defendant	:	No appearance
Seventeenth Defendant	:	No appearance

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

Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578
Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632
Culleton v Kershaw [2016] WASC 334
Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552
Hermes Capital Australia Ltd v Melia [2017] WASC 185
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Nyoni v Pharmacy Board of Australia [No 4] [2017] FCA 911
Re Culleton [No 2] [2017] HCA 4; (2017) 341 ALR 1
Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112
Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 7] [2016] WASC 329

KENNETH MARTIN J:

The background to the plaintiff's defamation action can be obtained from my previous reasons for decision in this action: see Culleton v Kershaw [2016] WASC 334 delivered 14 October 2016. Since that time very little has happened.
On 17 November 2016, there was a directions hearing. There was no appearance on behalf of the plaintiff, Mr Culleton. Ms Radovanovic appeared as counsel for the third, fifth, seventh and tenth defendants. At that time, I issued what was effectively a springing order in these terms:
Unless by 4.00 pm on Monday, 28 November 2016 the plaintiff causes to be filed, and files and serves at the court, a further minute of proposed amended indorsement of claim then, without further order [the plaintiff's proposed minute of amended indorsement of claim dated 13 July 2016 and the plaintiff's indorsement of claim dated 22 March 2016 would be struck out as against the third, fifth, seventh and tenth defendants and at that time the plaintiff's claim against those defendants would be dismissed.]
The springing order I issued at that time in the end did not 'spring'.
On 28 November 2016, there was a document filed at the court entitled 'Minute of Proposed Amended Indorsement'. This document was filed by the plaintiff acting in person who gave his address as 'the plaintiff, [redacted] Fourth Avenue, East Maylands WA 6059' followed by a telephone number ending in 376. Leave to amend was obviously required as the proposed minute had, by its indorsement, effectively struck through the entirety of the previous amended indorsement of claim. It foreshadowed reformulated or possibly new claims against all 17 defendants.
However, there was no subsequent application for leave to amend the plaintiff's indorsement in the terms of that minute filed 28 November 2016.
The need for the plaintiff to obtain leave to amend his writ appears to have been overtaken by events I discuss next.

Other events

On 2 July 2016, a Federal election was held in which the plaintiff was nominated as a candidate in a group nomination for the 'Pauline Hanson's One Nation Party': see Re Culleton [No 2] [2017] HCA 4; (2017) 341 ALR 1, delivered 3 February 2017.
On 2 August 2016, the Australian Electoral Officer for the State of Western Australia returned the writ for the Federal election certifying 12 elected senators. Mr Culleton was noted as being elected in 11th place and was certified as a chosen senator: see Re Culleton [No 2] [2017] HCA 4 [8].
On 8 and 19 December 2016, Barker J in the Federal Court of Australia dealt with a creditor's bankruptcy petition brought by a creditor against the plaintiff (Mr Culleton) and which was opposed by him: see Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578.
On 23 December 2016, Barker J published written reasons which at [179] concluded that Mr Culleton had, as respondent debtor, committed the act of bankruptcy as alleged in the creditor's petition and that the date of the relevant act of bankruptcy was 29 August 2016.
On 27 January 2017, a Full Court of the Federal Court of Australia heard an appeal by Mr Culleton against the decision of Barker J (Allsop CJ, Dowsett and Besanko JJ).
On 3 February 2017, that Full Federal Court published its written reasons dismissing Mr Culleton's appeal with costs. By [111] of the reasons of the Full Federal Court, see Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8; (2017) 343 ALR 632, proceedings under the sequestration were briefly stayed until midnight on Monday, 6 February 2017.
On 3 February 2017, the High Court of Australia (Kiefel CJ, Bell, Gageler, Keane and Nettle JJ) published joint written reasons concluding Mr Culleton had been incapable of being chosen as a senator at the 2016 Federal election: see Re Culleton [No 2] [2017] HCA 4; (2017) 341 ALR 1. The outcome arose by reason of his conviction in the New South Wales Local Court which, although subsequently annulled, meant Mr Culleton had been ineligible to be nominated for election under s 44(ii) of the Constitution.
Mr Culleton was thus 'incapable of being chosen' as a senator. Consequently, there was a vacancy in the representation of Western Australia for the Senate.

The state of the court's record as regards Mr Culleton acting for himself or otherwise in this action

There were no developments at all in Mr Culleton's defamation litigation in the Supreme Court of Western Australia during most of 2017.
Consequently, on 18 December 2017, a request was received from the lawyers of record for the third, fifth, seventh and tenth defendants seeking that this action be placed upon this court's inactive cases list pursuant to O 4A r 24 of the Rules of the Supreme Court 1971 (WA) (RSC). That duly followed, but I need to explain some prior background events as regards Mr Culleton's periods of legal representation and self‑representation.
At the time of my previous published reasons in this action delivered 14 October 2016, the plaintiff had engaged as his lawyers of record a Melbourne firm, Boutique Defamation Lawyers. At that time the firm had replaced Mr Culleton who had previously, from his commencement of this action, acted for himself in person.
Mr Culleton's original writ commencing his action was filed in this court on 22 March 2016. It shows on its face that he as plaintiff was then acting in person and that he had provided the same Fourth Avenue, East Maylands address for himself which I have previously mentioned.
On 30 November 2016, my associate communicated with Mr Culleton via email as regards his minute of proposed amended indorsement. It had been sent to the court via Mr Culleton's email address and a facsimile of 28 November 2016.
Mr Culleton's November 2016 minute of amended indorsement had not been filed by Boutique Defamation Lawyers. It was lodged by Mr Culleton in person. Nevertheless, the document was accepted by the court. Its acceptance avoided the springing of the order I had previously issued against Mr Culleton, which would, had it sprung, have ended this action then.
On 30 November 2016, my associate drew the issue of Mr Culleton's legal non‑representation and the court record to Mr Culleton's attention. He was then informed:
1.It would appear, based upon the minute, that you now intend to act in person in relation to this matter (CIV 1465 of 2016).
2.An intention to act in person is also consistent with communications from Mr Mark Stanarevic of Boutique Defamation Lawyers indicating that his firm is unable or unwilling to continue to act for you in this matter and seeking orders from the court declaring that Boutique Defamation Lawyers has ceased to be the lawyers acting for you in this matter. I note that an order in those terms has not been made and Boutique Defamation Lawyers remain your solicitor of record at this time.
3.An intention to act in person is also consistent with a lack of response by you to a request (made by email on 17 November 2016) that you indicate by 5.00 pm (Perth time) on Monday, 21 November 2016, whether you oppose the application by Boutique Defamation Lawyers to cease acting as the solicitor of record for you.
That communication also informed Mr Culleton as to the effect of RSC O 8 r 5 and r 5A requiring him to file a form called a 'Notice of Intention to Act in Person', if he was now acting in person. To assist Mr Culleton, a copy of the relevant 'in person' form was sent to him at that time.
The 30 November 2016 email continued to inform Mr Culleton that:
Currently as regards service and correspondence for this matter, it is not clear to whom the court and the defendant party should be corresponding with. It is also not clear to what postal (or email address, if consent is given to the use of an email address for the service of documents on you) the court or the defendant parties should use when needing to correspond with you or to serve documents.
That 30 November 2016 communication from my associate to Mr Culleton was not answered.
Hence, a reminder was sent by my associate to Mr Culleton on 13 December 2016, again drawing his attention to his need to file a notice of intention to act in person. For the second time he was sent a copy of that relevant form to sign and lodge so as to address the representation issue.
On 10 January 2017, my associate received a communication from Boutique Defamation Lawyers (Mr Mark Stanarevic) inquiring 'has Mr Culleton lodged his form of notification of self‑representation?' It continued, 'we will lodge our form with the court early this week otherwise for formal orders for ceasing to act on our part otherwise ‑ we apologise for the delay due to my mother's death and my departed staff member as I have been left on my own to manage the practice'.
On 18 January 2017, the court received the following email from the usual Gmail email address for Mr Culleton:
Dear Associate,
I am writing to inform his Honour that for the interim I will take carriage of the matter whilst my lawyers and funds are engaged in more pressing matters. However we wish to move this on and request that, as His Honour has the obscene defamatory material before him, could we please have some feedback as to what stage this matter is at as it needs to be dealt with forthwith.
Regards
Rod Culleton
That led to my associate emailing Mr Culleton the same day, in these terms:
Dear Mr Culleton
I refer to your email sent to the court today at 8.02 am enquiring as to the status of matter CIV 1465 of 2016 Culleton v Kershaw & Ors - a form 5AA, Notice of Change of Representation, previously sent to you on 13 December 2016 advising the court that you act in person must be filled in and filed at the court. Please see the email below.
For your convenience, I have attached to this email the relevant form again.
Once the form 5AA has been filed with the court, future progress of the matter can be discussed. Please contact me if I can be of further assistance.
Despite the change of representation form being sent to him for the third time, Mr Culleton still did not attend to its execution and filing. However, in effect, Mr Culleton's email of 18 January 2017, advised that he was acting for himself.
Boutique Defamation Lawyers did not subsequently bring an application to obtain the orders foreshadowed on 10 January 2017. Nevertheless, the minute of proposed amended indorsement filed by Mr Culleton in person on 28 November 2016, was accepted for filing by the court. Its acceptance for filing interrupted what would otherwise have been the springing order outcome taking effect and dismissing Mr Culleton's action.
Therefore, this court has effectively accepted that probably since 29 November 2016, but assuredly from 18 January 2017, Mr Culleton had reverted to acting in person in this action. That is clearly the position notwithstanding irregularities that arise from his failing to complete and lodge formal paperwork in that respect.
The court's record has now been corrected to reflect the fact that Mr Culleton has acted in person as plaintiff since January 2017 in this action.

Inaction in the litigation generally

Mr Culleton was unable to attend to the filing of a simple change of representation form sent to him on three separate occasions. But more relevantly, he took no steps at all to advance his defamation litigation from December 2016 onwards. That was the case throughout the course of most of the 2017 calendar year right up to 18 December 2017.
Consequently, this then 'inactive' action came to be entered to the court's inactive cases list pursuant to RSC O 4A r 24 ‑ on a basis that no procedural step had been taken in the action for 12 months. The request for the action to be put on the inactive cases list had been made by the lawyers of record for the third, fifth, seventh and tenth defendants ‑ by the email sent to my associate of 18 December 2017.
Next, on 18 December 2017, my associate acting under the delegated authority of the Principal Registrar, emailed the parties to the action advising that the action was taken to be 'inactive' and attaching a letter. The letter advised of the procedure that applied generally to inactive cases list matters. The email address used to advise Mr Culleton of these matters was the usual Gmail email address under which Mr Culleton had previously communicated with the court directly (see his 8.02 am email to the court of 18 January 2017, responded to at 10.43 am on the same day) and as seen, he continues to use to the present.
The attached letter of 18 December 2017 advised the parties in the following terms:
As no procedural step has been taken in this case for 12 months by any party to the case it is taken to be inactive pursuant to O 4A r 24 of the Rules of the Supreme Court 1971. I now advise that:
(a)I have put the case on the inactive cases list; and
(b)Pursuant to O 24A r 26:
1)the only documents that may be filed at the court in relation to the case are:
(a)summons for an order under O 4A are 27(1) that the case has been taken off the Inactive Cases List;
(b)a notice of discontinuance by the plaintiff under O 23 r 2;
(c)an application for leave to discontinue the case or to withdraw the defence or counterclaim made by the plaintiff or the defendant under O 23 r 2;
(d)a written consent under O 43 r 16 to the making of an order that would finally dispose of the case.
…
Should the case remain on the inactive cases list for six continuous months then, pursuant to O 4A r 28(1), it is to be taken to be dismissed for want of prosecution.
…
That communication of 18 December 2017 was fashioned by reference to the requirements of RSC O 4A r 25(1)(b) ‑ as regards giving all parties to an action, written notice of the fact that a case was on the inactive cases list, why that was and as to the effect of r 28. Rule 28 provides that if a case remains on the court's inactive cases list for six continuous months after the date at which notice is given to the parties of that status, the case is 'taken to have been dismissed for want of prosecution': see RSC O 4A r 28(1).
Moreover O 4A r 28(3) provides:
If under subrule (1) … a case is dismissed, the Principal Registrar must give all parties to the case written notice of the fact.
It is apparent that Mr Culleton's action was placed on the court's inactive cases list as at 18 December 2017, in accord with the requirement of RSC O 4A r 25(1)(a).

Events after 18 December 2017

Nothing at all then happened between 18 December 2017 and 18 June 2018 concerning this action. No application was brought by Mr Culleton or on his behalf within that six month period seeking to have action CIV 1465 of 2016 removed from the inactive cases list.
On 18 June 2018, the lawyers for the third, fifth, seventh and tenth defendants contacted the court by email. They were inquiring as to the position of this action ‑ given that the six continuous month period as allowed under RSC O 4A r 28(1) ‑ had prima facie, run out. In that event, the matter was 'taken to have been dismissed for want of prosecution'. Mr Culleton was copied into that email.
The court then received an email communication from 'Rod Culleton' the same day, ie on 18 June 2018 (albeit the email also expressed as being from 'Ioanna Culleton'). It emanated from the same Gmail address used by Mr Culleton throughout. It said:
'Through personal injury and harm I have currently other matters before the court involving the contested bankruptcy which is foreshadowed to be filed in the High Court and, once that matter is dealt with, I will be progressing with this matter. It must also be noted that once the High Court matter is set aside over my eligibility, I will be looking at how the actions of these individuals in retrospect, could be seen as an offence against a public Commonwealth official exercising political rights and/or duty as defined in ss 28 15(f) Crimes Act 1914. I reserve all my rights and remedies'.
At my behest, an email communication was sent to Mr Culleton under my associate's email of 18 June 2018, to the usual Gmail address and advising him:
On the face of it, it would appear that the terms of the Rules of the Supreme Court (RSC O 4A r 28(1)) are engaged. You are afforded 72 hours within which to bring such application as you may see fit, pending the likely issue therefore of a notice under RSC O 4A, r 28(3) by delegate of the Principal Registrar.

The court was next advised by Mr Culleton (from his usual Gmail address) on 21 June 2018 at 8.32 am in terms:
Dear Associate
For his Honour's information and as per his Honour's Orders, please find the interlocutory summons and affidavit filed yesterday 20 June 2018 for the attention of the Registrar.
Kind regards
Rod Culleton
Mr Culleton acting in person had filed electronically a chamber summons of 20 June 2018. It was expressed to be 'Prepared By: plaintiff as self litigant'. The same Fourth Avenue, East Maylands address for Mr Culleton was again indicated on this chamber summons. As seen, the summons was directed to the attention of the Registrar.
I will mention the other content of Mr Culleton's chamber summons in due course. However, the orders he then sought were in terms:
1)Matter be taken of (sic, off) the inactive list, O4A r 27(1) pursuant and set down for further directions and timetable.
2)Grant substituted service to electronically serve the remaining parties.
3)Provide unavailable dates.
4)Direct Parties to mediate.
5)Any other order the court deems fit.
Mr Culleton's chamber summons concluded:
This summons was taken out by a self‑litigant being Rodney Norman Culleton solicitor to be advised.
Mr Culleton's typed name below what appears to be his applied longhand signature can be observed on the summons.
Apparently filed at the same time as his chambers summons, was Mr Culleton's affidavit of 20 June 2018. It identifies the same address, namely, Fourth Avenue, East Maylands, coupled with the usual Gmail address.
The Principal Registrar of this court, obviously noting that this action had been previously case managed within my CMC list, then referred Mr Culleton's chamber summons to me for a hearing at an allocated hearing date of 26 June 2018 at 10.30 am in chambers.
Despite initial objections about the inconvenience of that date emanating by email from Iona Culleton, on the basis that it was not one of Mr Culleton's 'available dates', the allocated time and date in chambers was convenient to the lawyers of record for the third, fifth, seventh and tenth defendants.
Consequently, the application of Mr Culleton was made returnable before me on 26 June 2018 in chambers. The third, fifth, seventh and tenth defendants were then represented by Ms Radovanovic of counsel. Mr Culleton participated at this hearing in person over a mobile telephone link from Brisbane.

The issue

The essential question arising from Mr Culleton's chamber summons application is whether it was open to bring that application or whether time had already run in the way of six continuous months for the purposes RSC O 4A r 28(1) ‑ delivering the consequence that Mr Culleton's action was thereby 'dismissed for want of prosecution'. That was the contended position of the legally represented defendants through counsel, drawing my attention to two prior decisions of this court upon that threshold issue.
First is a decision of Master Sanderson in Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86. That decision was made at a time when the inactive cases list rules (in like terms) were then found within RSC O 29A ‑ prior to them being relocated to be a component of the new O 4A dealing with case management.
The learned Master observed at par 14:
Second, it would appear that there is no power to extend the time for the bringing of an application to have the matter removed from the List. That is to say, once the case has been on the List for six months, it is deemed dismissed. There is no scope for an extension of time under O 3 r 5. Indeed, if an application to have a case removed from the List is brought within the six-month period but not heard within that period, it must be open to doubt whether any order can be made… But there appears to be no doubt that it is not possible to extend the time to bring an application to be removed from the List.
The Master referred in support to the decision of Owen J in Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552 addressing the then O 63A r 5(2): Lifelong Investments Pty Ltd v Karageorge at [15].
The legally represented defendants next relied upon a decision of Le Miere J in Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 7] [2016] WASC 329, delivered 13 October 2016; decision affirmed see Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112 especially at [34]. Reliance was placed on his Honour's observations in [10] to [15] of that decision.
I first note [12] of those reasons. His Honour had said:
The proper construction of O 4A r 28(1) together with O 4A r 25(1) is that a case that is on the inactive cases list for six continuous months after the Principal Registrar has given notice that the case is on the inactive cases list is taken to have been dismissed for want of prosecution: see Leighton v Garnham [No 4]; Timcal Pty Ltd v Sons of Gwalia Ltd (Subject to Deed of Company Arrangement) [No 2] [2011] WASC 58. The action is not dismissed by the Principal Registrar giving the parties notice that the case has been dismissed nor is the action dismissed by any administrative procedure of the court. The action is dismissed as a result of the operation of the rules. No order of the court is necessary to give effect to the deemed dismissal: Rowe v Stoltze [2013] WASCA 92 [31], [33] (Newnes JA, Pullin & Murphy JJA agreeing).
He continued at [13]:
The action was not dismissed by the Principal Registrar's letter, it was taken to have been dismissed on the expiry of six months after the Principal Registrar had given notice that the case was on the inactive cases list. That is, by operation of the rules the action was taken to have been dismissed on 19 July 2015.
See also Le Miere J's observations at [15].
I also note that at [16] his Honour advanced to consider the application on an alternative hypothesis. That was, assuming he did hold power under RSC O 2 r 1(2) to set aside a dismissal of the action, was there enough to support such an order? His Honour concluded that even in those hypothetical circumstances, he would not exercise that power. See his reasons at [17] indicating what was the (terminal) lack of effort to take steps to advance that case.

My conclusions

The position in this case is that the overwhelming weight of local authority stands firmly against allowing Mr Culleton's application by his chamber summons of 20 June 2018 to have the matter taken off the inactive cases list. The application is simply too late. Applying the two case authorities to which I have referred and relied upon by the legally represented defendants, it is now too late for the court to remove this matter from the inactive cases list ‑ given that the six continuous month period has fully run. That is a stark position and it is terminal to the fate of Mr Culleton's application.
Mr Culleton looks to have been an undischarged bankrupt over this six month period. However, that feature did not detract from his right to otherwise pursue this action for defamation, applying the reasoning of Siopis J in the Federal Court of Australia in Nyoni v Pharmacy Board of Australia [No 4] [2017] FCA 911. That decision explains related provisions, namely, s 60(4) and s 116(2)(g) of the Bankruptcy Act 1966 (Cth): see [11] ‑ [16]. A cause of action in defamation falls within the nomenclature of a 'wrong' done to a bankrupt for the purposes of s 116(2)(g)(1) of the Bankruptcy Act.
In this court, the taking effect of the court's rules as regards O 4A and the inactive cases list rules if and when engaged, does not amount to the taking of any step contrary to s 60(2) of the Bankruptcy Act. Usually, an action is stayed against a bankrupted plaintiff until their trustee makes an election in writing to prosecute or discontinue the action for the purposes of s 60(2). But as Siopis J explained in Nyoni, that subsection is qualified by s 60(4): see [14] of those reasons.
I explained in Hermes Capital Australia Ltd v Melia [2017] WASC 185 at [11] and [22] that this court in acting to enforce its previous orders would not constitute the taking of any 'fresh step' in the proceedings: see s 58(3)(b) Bankruptcy Act.
I nevertheless considered Mr Culleton's brief affidavit of 20 June 2018 filed in support of his application. If, like Le Miere J in Rosebridge [No 7], I hypothesise a potentiality here of me still holding a power to extend time for this application to be made to take the action off the inactive cases list, I still would not do that. That is because there is nothing I can find in Mr Culleton's affidavit of any potential relevance to justify this being done. There is nothing that possibly indicates a basis for any future confidence that, per the requirements of RSC O 4A r 27(2), Mr Culleton's action would in future be 'conducted in a timely way'. In fact, the whole tenor of Mr Culleton's affidavit, particularly the 'grounds' as are seen set out in his chamber summons, all suggest to me that Mr Culleton is diverted by and preoccupied with more pressing matters (for him) than this defamation litigation. Nor is there anything said to arguably satisfy me for some 'other good reason' that this action should be taken off the inactive cases list, were that course a live option. The better view, however, is that this question is no longer live ‑ given a running of six continuous months with Mr Culleton's defamation action on the inactive cases list.
It is important to recall that these defamation proceedings were commenced in person by Mr Culleton as far back as 22 March 2016. Yet there is still no statement of claim. The action has been bedevilled by many flaws, all attributable to the plaintiff, since inception. Essentially, it has not progressed. I identified a catalogue of problems at 14 October 2016 under my then reasons upon that strike out application brought against the writ (see Culleton v Kershaw [2016] WASC 334). The litigation driven stresses and anxieties for all defendants being held over a long period as captive subjects of Mr Culleton's immobilised defamation action for so long measured against no real progress being made in the litigation, is unsatisfactory. The underlying circumstances of what are demonstrable conceptual deficiencies in the writ go to highlight what is an unacceptable level of prejudice that these defendants have been forced to endure ‑ as Mr Culleton's action has effectively slumbered along and eventually atrophied.
I consider that the proceedings are now at an end as regards all defendants. That consequence took effect by the operation of the Rules of the Court, as Le Miere J has explained in Rosebridge [No 7].
Hence, Mr Culleton's chamber summons of 20 June 2018 must be dismissed. It will be dismissed with the usual accompanying order that he pay the costs of the third, fifth, seventh and tenth defendants to be taxed (for what that is worth given his status as an undischarged bankrupt).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TG
RESEARCH ASSOCIATE TO THE HONOURABLE JUSTICES KENNETH MARTIN AND CORBOY
10 AUGUST 2018