Cyclis Group Pty Ltd as trustee for the Garside Health Property Trust v Kabway Pty Ltd

[2019] WADC 41

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CYCLIS GROUP PTY LTD as trustee for THE GARSIDE HEALTH PROPERTY TRUST -v- KABWAY PTY LTD [2019] WADC 41

CORAM:   PRINCIPAL REGISTRAR MELVILLE

HEARD:   15 MARCH 2019

DELIVERED          :   25 MARCH 2019

FILE NO/S:   CIV 1809 of 2017

BETWEEN:   CYCLIS GROUP PTY LTD as trustee for THE GARSIDE HEALTH PROPERTY TRUST

Plaintiff

AND

KABWAY PTY LTD

KEVIN JOE HUGHES

Defendants

Catchwords:

Application for order for removal from the inactive cases list - Application made within time but no order made within time

Legislation:

District Court Rules 2005 r 44G

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr M Mcphee
Defendants	:	Ms M Adams

Solicitors:

Plaintiff	:	M J McPhee Barristor and Solicitors
Defendants	:	Pacer Legal

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

Gibbs v Royalblue Securities Pty Ltd [2017] WADC 80

Rowe v Stoltze [2013] WASCA 92

PRINCIPAL REGISTRAR MELVILLE:

1. The plaintiff has brought an application pursuant to r 44F of the District Court Rules 2005 (DCR) for an order that the case be taken off the inactive cases list. An issue now arises as to whether that application can be continued or whether the case is now taken to be dismissed for want of prosecution pursuant to DCR r 44G(1).

2. On the 6 August 2018 a notice was issued by the District Court to the parties stating that unless the plaintiff entered the action for trial on or before the 21 August 2018 the case would become inactive.

3. The case was not entered for trial on or before the 21 August 2018 and on the 22 August 2018 a notice issued that the case was on the inactive cases list.  More particularly, it stated:

   Due to the failure to enter the case for trial within the time specified on the notice of default (entry for trial), I hereby put this case on the inactive cases list as from the date of this notice pursuant to r 44D(1)(a).

4. The notice also stated:

   Pursuant to r 44G(1), a case that is on the inactive cases list for six continuous months is taken to have been dismissed for want of prosecution.

5. By chamber summons dated 24 January 2019 the plaintiff applied for an order for removal of the case from the inactive cases list.  It was given a return date for the 21 February 2019, which would have been the day before it would otherwise had been dismissed for want of prosecution.

6. At the request of the plaintiff and the perceived urgency of the matter the hearing date was brought forward to the 5 February 2019.

7. On the 5 February 2019 the following orders were made:

   1.The plaintiff's application filed 24 January 2019 be adjourned to a special appointment on the 15 March 2019 at 11.00 o'clock.

   2.The defendants do have leave to file over the counter or via email to the court an affidavit in opposition to the plaintiff's application on or before 22 February 2019.

   3.The parties do have leave to file submissions over the counter or by email to the court.

   4.The plaintiff do have leave to file over the counter or by email to the court a minute of proposed amendment writ of summons, a minute of proposed further amendment statement of claim and a supporting affidavit on or before 15 February 2019.

   5.Costs be reserved to the special appointment.

8. The transcript reveals that on the 5 February 2019 there was considerable discussion between the registrar and counsel for the plaintiff regarding the appropriateness of adjourning the matter in light of r 44G(1) which provides that a case that is on the inactive cases list for six continuous months is taken to be dismissed for want of prosecution. The registrar expressed the view that because the application was filed and was in the system to be heard, nothing will happen because the application was in on time. The registrar went on to state 'so we can deal with that administratively at the special appointment once we hear from both parties'.

9. Mr McPhee stated 'on your assurance today, that would be fine for me, your Honour'.

10. No formal order was made removing the case from the inactive cases list or otherwise somehow suspending the effluxion of time, assuming it is possible to do so.

11. In Rowe v Stoltze [2013] WASCA 92, the Court of Appeal was required to consider the operation of r 44G(1) of the DCR. The court observed that no order of the court is necessary to give effect to the deemed dismissal. In other words, dismissal occurs by operation of law. At [48], the Court of Appeal stated that administrative action plays no role in the dismissal and at [49] stated that the operation of r 44G(1) 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 44G(1) have not kept alive.

12. In Gibbs v Royalblue Securities Pty Ltd [2017] WADC 80 [25] 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.

13. There is a clear distinction between the applying for orders on the one hand and obtaining orders on the other. An application for an order is by way of chamber summons which must be served on another effected parties who have a right to be heard and have a right 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. In my view, on a proper interpretation of r 44G the order to remove from the inactive cases list must be obtained within six months. If it was intended that time would stop running by the filing of an application, which in the world of elodgement could take place at 11.59 pm on the day before the six continuous months elapses, the rule could easily be expressed to reflect that.

14. 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. 

15. Accordingly, for this action to be able to proceed it will be necessary for the plaintiff to now bring an application seeking to set-aside the dismissal on the grounds of exceptional circumstances as provided for in r 44G(5). No doubt the circumstances in which the dismissal came about will be taken into account in deciding whether there are exceptional circumstances.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

ET
Court Officer

25 MARCH 2019