Guillaume v City of Stirling
[2020] WADC 41
•3 APRIL 2020
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL
LOCATION: PERTH
CITATION: GUILLAUME -v- CITY OF STIRLING [2020] WADC 41
CORAM: LEVY DCJ
HEARD: 16 OCTOBER 2019
DELIVERED : 3 APRIL 2020
FILE NO/S: CIV 3271 of 2017
BETWEEN: FRANCISCO JAVIER GUILLAUME
Appellant
AND
CITY OF STIRLING
Respondent
Catchwords:
Appeal from registrar's decision - Appeal to remove case from the Inactive Cases List - Application to set aside dismissal for want of prosecution - Whether registrar erred in refusing adjournment application - Whether registrar erred in finding subsequent interlocutory application to be an abuse of process
Legislation:
District Court Rules 2005 (WA), r 15, r 38, r 44, r 44A, r 44D, r 44F, r 44G, r 51
Result:
Appeal dismissed
Application dismissed
Representation:
Counsel:
| Appellant | : | Mr A Nolan |
| Respondent | : | Mr J Campbell |
Solicitors:
| Appellant | : | Simon Walters |
| Respondent | : | DLA Piper Australia |
Case(s) referred to in decision(s):
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74
Bloch v Bloch (1981) 180 CLR 390
Commonwealth of Australia v Albany Port Authority [2006] WASCA 185
Cyclis Group Pty Ltd as trustees for The Garside Health Property Trust v Kabway Pty Ltd [2019] WADC 41
Gibbs v Royal Blue Securities Pty Ltd [2017] WADC 70
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
House v The King (1936) 55 CLR 499
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Liu v The Age Company Pty Ltd (2016) 92 NSWLR 679
Maxwell v Keun [1928] 1 KB 645
Murcia & Associates (a firm) v Grey (2001) 25 WAR 209
Myers v Myers [1969] WAR 19
Nominal Defendant v Manning (2000) 50 NSWLR 139
Rowe v Stoltze (2013) 45 WAR 116
Ruby v Doric Constructions (Australia) Pty Ltd (2013) 45 WAR 131
Sovereign Grange Pty Ltd v AV Truck Service Pty Ltd [No 2] [2017] WASCA 142
The Owners of One Brighton Strata Plan 519488 v Pindan Constructions Pty Ltd [2018] WADC 77
The Owners of SP13443, 129-133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands [2015] WADC 133
UBS v Tyne (2018) 92 ALJR 968
LEVY DCJ:
This is an appeal brought by Francisco Javier Guillaume (the appellant), against the decision of a deputy registrar of the District Court dismissing his application to have his case against the City of Stirling (the respondent) removed from the Inactive Cases List. The case was dismissed by operation of r 44G of the District Court Rules 2005 (WA) (DCR),[1] so the appellant also applies to have that dismissal set aside.
[1] Unless otherwise stated, all references to rules are references to the District Court Rules 2005 (WA).
Background
On 6 September 2017, the appellant commenced proceedings against the respondent by writ of summons claiming damages for personal injuries. The appellant claims he sustained injuries which resulted from the negligence of the respondent whilst he was at Scarborough Beach on 8 April 2015. The injuries occurred when he ran into a wire fence separating sand dunes from a grassed area whilst 'engaged in a game of "catch me" with a friend at night'.[2] The appellant was 56 years old at the time of the incident.
[2] Appellant's (Plaintiff's) Statement of Claim dated 15 December 2017, par 4.
On 7 January 2019, the appellant's case was placed on the Inactive Cases List pursuant to r 44D(1)(a). The appellant made two unsuccessful applications to have the case removed from the Inactive Cases List. The appellant was represented by the same counsel on each occasion.
Deputy Registrar Harman heard the first application to remove the case from the Inactive Cases List on 3 July 2019 (the first hearing). During that hearing, counsel for the appellant applied to adjourn the application. Both the application to adjourn the matter and the application to remove the case from the Inactive Cases List were dismissed.
On 3 July 2019, after the first hearing, the appellant filed a fresh application to remove the case from the Inactive Cases List. This application was heard by Deputy Registrar Hewitt (the second hearing) on 4 July 2019 and was dismissed as an abuse of process.
On 7 July 2019, having been on the Inactive Cases List for six continuous months, the case was dismissed for want of prosecution by operation of r 44G(1).
This appeal was filed against the decision of Deputy Registrar Hewitt. The 'Notice of Appeal' contained a single 'ground', namely '[t]hat the Deputy Registrar erred in fact and in law by dismissing the [appellant's] Application to Remove the Matter from the Inactive Cases List'.
The appellant's outline of submissions in support of the appeal, dated 11 October 2019, sought to 'quash' the decision made by Deputy Registrar Hewitt on the second hearing and various other orders, including '[t]he dismissal of the action pursuant to Rule 44G(1) of the District Court Rules 2005 be set aside'. However, no application to set aside the dismissal of the action was made prior to the hearing of the appeal.
During the hearing of the appeal on 16 October 2019, counsel for the appellant made an oral application to set aside the dismissal of the action.[3] Both the appeal against Deputy Registrar Hewitt's decision and the application to set aside the dismissal of the case were opposed by the respondent.
[3] ts 35.
As noted above, the appellant filed a Notice of Appeal[4] setting out a 'ground' of appeal. An appeal from a registrar to a judge is a hearing de novo.[5] Consequently, although the 'appeal notice' contends that Deputy Registrar Hewitt erred in fact and law, the appellant is not required to demonstrate error to succeed on the appeal.
[4] A Notice of Appeal (Form 6) relates to appeals brought pursuant to r 51 against an 'appealable decision' which is defined by r 49 to means 'an award, a determination, a finding, a judgment or any other decision, that by virtue of a written law may be the subject of an appeal to the Court but not a decision of a registrar.'
[5] DCR r 15(6).
However, due to the nature of counsel's submissions and the application to set aside the dismissal of the case, it is necessary to canvass the history of the case, the relevant rules, the evidence before the learned deputy registrars and their findings.
Chronology
Date Act/event 8 April 2015 Appellant claims he suffered the injury the subject of the action. 6 September 2017 Appellant's writ of summons filed. 15 September 2017 Respondent's memorandum of appearance filed. 18 December 2017 Appellant's statement of claim filed. 16 January 2018 Respondent's defence filed. 11 May 2018 The deadline to enter the case for trial was extended from 16 May 2018 to 20 September 2018 by consent of the parties.[6] 21 September 2018 The deadline to enter the case for trial extended to 20 December 2018 by consent of the parties. 21 December 2018 Form 2 (Notice of default (entry for trial)) sent to parties, noting the action will be placed on the Inactive Cases List if it is not entered for trial on or before 5 January 2019. 7 January 2019 Principal Registrar sent notice to the parties advising them that the case was moved to the Inactive Cases List. 14 June 2019 Appellant's first application to remove the case from the Inactive Cases List filed. 3 July 2019 Deputy Registrar Harman heard and dismissed the first application to remove the case from the Inactive Cases List. 3 July 2019 Appellant's second application to remove the action from the Inactive Cases List filed. 4 July 2019 Deputy Registrar Hewitt heard and dismissed the second application to remove the case from the Inactive Cases List. 7 July 2019 Case dismissed for want of prosecution. 10 July 2019 Appellant filed the 'Appeal Notice' against the decision of Deputy Registrar Hewitt on the second hearing. [6] DCR r 6, r 37; Rules of the Supreme Court 1971 (WA) O 43 r 16.
Relevant District Court Rules
The case management principles in pt 4 div 3 of the DCR includes the following relevant rules:
37.Entering a case for trial
(1)Unless otherwise ordered, the plaintiff must enter the case for trial within 120 days after the date on which a defence (or if there is more than one defendant, the first defence) is filed.
…
38.Plaintiff failing to enter case for trial, consequences
(1)If the plaintiff does not enter the case for trial in accordance with rule 37(1), the relevant registry must send each party a Form 2 (Notice of default (entry for trial)).
(2)After receiving a Form 2 –
(a)the plaintiff must, on or before the date specified in the form (which must be at least 14 days after the date of the form), enter the case for trial; …
44.Effect of non-compliance with Notice of Default
If a plaintiff does not comply with rule 38(2)(a), the case is taken to be inactive
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.
The first hearing
As already noted, the first application to remove the case from the Inactive Cases List was heard by Deputy Registrar Harman on 3 July 2019. On that date, Mr Marsh, who appeared as counsel on behalf of the appellant, applied to have the case removed from the Inactive Cases List and the deadline to enter the case for trial extended to 9 August 2019.
Pursuant to r 44F(3), the court (in this case constituted by a deputy registrar at the first and second hearings) may remove an action from the Inactive Cases List if 'satisfied the case will be conducted in a timely way or for any other good reason'.
The only evidence before Deputy Registrar Harman was the affidavit of Mr Marsh, filed on 27 June 2019 in support of the application. Counsel for the appellant submitted that 'if this matter [was] removed from the Inactive Cases List, [the] action [would] be able to progress to a pre‑trial conference in the near future'.[7]
[7] Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 15.
The affidavit of Mr Marsh outlined the reasons for the delay in applying to remove the case from the Inactive Cases List. First, 'due to administrative error, no action was taken to extend the entry for trial milestone in this matter prior to 7 January 2019'.[8] The nature of this administrative error was not disclosed nor elaborated upon during the first hearing. Secondly, 'on or around 12 May 2019, a fire occurred at the office of Simon Walters Solicitor [the solicitors for the appellant] which caused extensive damage to the office'.[9]
[8] Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 8.
[9] Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 12.
Mr Marsh's affidavit did not explain why the matter had not been entered for trial by the 20 December 2018 deadline or explain the delay between 7 January 2019 and 12 May 2019. No further explanation was provided at the first hearing.
The affidavit also outlined the progress of the matter generally. The appellant had not filed particulars of damage and the respondent had not provided an informal list of discoverable documents. There had been very little correspondence between the parties. The solicitors for the respondent wrote to the solicitors for the appellant on 21 November 2018, requesting a response to correspondence dated 17 August 2018.[10] The solicitors for the appellant apparently did not receive the earlier message, and responded on 22 November 2018, indicating that they intended to immediately take instructions from the appellant.[11] However, as at 27 June 2019 the appellant had not provided instructions.[12] Given the appellant's statement of claim was filed on 18 December 2017 and the respondent's defence filed on 16 January 2018, little progress had been made on the matter by 27 June 2019.
[10] Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 5.
[11] Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 6.
[12] ts 2.
Counsel informed Deputy Registrar Harman from the bar table that his principal, Mr Simon Walters, had spoken to the appellant by telephone that morning. The appellant told Mr Walters that he was 'keen to progress his claim' and would provide urgent written instructions in response to the letter from the respondent's solicitors dated 21 November 2018.[13]
[13] ts 2.
After Deputy Registrar Harman expressed the preliminary view that the admissible evidence did not support a finding that the case would be conducted in a timely way, counsel for the appellant made an oral application to adjourn the matter to adduce further evidence, in affidavit form, of the appellant's intention to progress the matter and to make the application 'more compelling'.[14]
[14] ts 4 - ts 5.
Counsel for the respondent opposed both the application to remove the case from the Inactive Cases List and the application to adjourn the hearing.
Deputy Registrar Harman refused the application to adjourn. Based on the admissible evidence, the registrar was not satisfied the case would be conducted in a timely manner. Furthermore, when considering whether there was 'any other good reason' to remove the case from the Inactive Cases List, Deputy Registrar Harman acknowledged the limitation period had expired, however was of the view that that factor alone did not justify removal from the list.
Consequently, Deputy Registrar Harman dismissed both the application to adjourn the hearing and the application to remove the case from the Inactive Cases List.[15]
[15] ts 6.
The second hearing
On 3 July 2019, immediately after the first hearing, the solicitor for the appellant filed a fresh application to remove the case from the Inactive Cases List and a supporting affidavit sworn personally by the appellant. This application noted the urgency of the matter, given the action was due to be dismissed on 7 July 2018.
The second hearing came before Deputy Registrar Hewitt the following day, being 4 July 2019. Counsel relied on the new affidavit filed by the appellant. The appellant's affidavit noted that on 4 December 2018 his lawyer requested written instructions to facilitate a response to the letter from the respondent's solicitors dated 21 November 2018,[16] and as of 4 July 2019 he was still in the process of providing these instructions.[17] The appellant explained the delay in providing instructions was due to his father's advancing dementia and his mother's infirmity.[18] The appellant expressed a desire, and endeavoured to perform all actions necessary, to progress the matter.[19] He did not explain how either his father's advancing dementia or his mother's infirmity had prevented him from providing instructions to his lawyer over the preceding 22 months. Nor did the appellant indicate when he would likely provide the necessary instructions to his solicitors.
[16] Affidavit of Mr Francisco Javier Guillaume filed 3 July 2019, par 5.
[17] Affidavit of Mr Francisco Javier Guillaume filed 3 July 2019, par 11.
[18] Affidavit of Mr Francisco Javier Guillaume filed 3 July 2019, par 8.
[19] Affidavit of Mr Francisco Javier Guillaume filed 3 July 2019, par 10.
Deputy Registrar Hewitt expressed the opinion that the appellant's affidavit did not add much to what had been set out by Mr Marsh's earlier affidavit. Furthermore, Deputy Registrar Hewitt was of the view that the delay in making an application to have the case removed from the Inactive Cases List had not been adequately explained, in part because there was no evidence of when the appellant was informed the case was placed on the Inactive Cases List.[20] Consequently, the inaction of the appellant and his solicitors between 7 January 2019 and the date of the fire remained unexplained.[21] Deputy Registrar Hewitt also noted that the appellant's expressed desire to progress the matter and perform all requisite actions was without substance.[22]
[20] ts 13.
[21] ts 9, ts 12 - ts 13.
[22] ts 14.
Whilst Deputy Registrar Hewitt noted the evidence and strength of the application to remove the case from the Inactive Cases List, it was ultimately dismissed as an abuse of process as the second application was brought immediately after the dismissal of the first and sought the same orders.[23]
[23] ts 9, ts 14 - ts 15.
The issues on the appeal
As already noted, the appeal was initially brought against the decision of Deputy Registrar Hewitt dismissing the second application to have the case removed from the Inactive Cases List. As the appeal developed, it became apparent that irrespective of whether the appeal succeeded, it was necessary to consider whether the dismissal of the case pursuant to r 44G(1) should be set aside. In that context, other issues also arose for consideration. The issues that arise are as follows:
1.Was the case properly dismissed for want of prosecution on 7 July 2019?
2.If the case was dismissed for want of prosecution on 7 July 2019, does that render the appeal nugatory?
3.If the appeal is not nugatory, should the case be removed from the Inactive Cases List pursuant to r 44F(3)?
4.Do exceptional circumstances exist justifying the setting aside of the dismissal of the case pursuant to r 44G(5)?
4.1Did Deputy Registrar Harman err by refusing the appellant's adjournment application on the first hearing?
4.2Did Deputy Registrar Hewitt err by finding that the second application was an abuse of process?
General principles relating to appeals to a judge of the District Court against a registrar's decision
An appeal to a judge of this court from the decision of a registrar is by way of a new hearing.[24] Although new evidence may be admitted on a new hearing,[25] no new evidence has been raised on the appeal. The appellant relies upon the material that was before Deputy Registrar Hewitt at the second hearing.
[24] DCR r 15(6).
[25] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 29 - 30 (Malcolm CJ); Belendaine Pty Ltd v Primary Consulting Services Pty Ltd [2014] WADC 74 [14] (Stevenson DCJ).
Appellant's submissions
In written submissions, the appellant contends that 'the dismissal of the action only occurred due to Deputy Registrar [Hewitt's erroneous] decision to dismiss the [appellant's] application to have the action removed from the inactive cases list and extend the entry for trial milestone'.[26] During the hearing of the appeal Mr Nolan, counsel for the appellant, submitted that the dismissal of the case was not properly made as 'the application to remove the matter from the Inactive Cases List was not determined correctly by the learned deputy registrar'.[27] Counsel for the appellant submitted that this error by the court is causally linked to the dismissal of the action, and constitutes exceptional circumstances for the purposes of r 44G(5).[28]
[26] Appellant's Outline of Submissions, filed on 14 October 2019, par 29.
[27] ts 32.
[28] ts 42; Appellant's Outline of Submissions, filed on 14 October 2019, par 30.
In oral argument, counsel raised two rulings made by the learned deputy registrars which the appellant submits were erroneous. First, Deputy Registrar Harman, at the first hearing, dismissed the application to adjourn the hearing to allow the appellant's affidavit to be sworn and filed. Secondly, Deputy Registrar Hewitt, at the second hearing, did not hear the merits of the application, instead finding an abuse of process, and dismissing the application on that basis.
The appellant's submissions were not entirely without ambiguity. I take these submissions in combination to raise two possible substantive arguments, being:
1.As the case was not properly dismissed, the appeal is not nugatory and the case should be removed from the Inactive Cases List pursuant to r 44F(3).
2.In the alternative, if the case was dismissed, had either Deputy Registrar Hewitt or Harman not erred, the case would have been removed from the Inactive Cases List and consequently not dismissed by operation of r 44G(1). This warrants setting aside the dismissal.
In written submissions, counsel for the appellant noted various helpful authorities on whether subsequent interlocutory applications seeking identical orders as previously refused could constitute an abuse of process. The appellant contends that the second hearing did not constitute an abuse of process because whilst an appeal could have been lodged against the learned Deputy Registrar's decision on the first hearing, for a number of reasons, it was equally open to the appellant to file a second application.
First, it is submitted that the appellant's affidavit was new evidence as it could not have been before the court on the first hearing because instructions were only provided by telephone shortly before the hearing of the first application.[29] This new evidence was brought to rectify the deficiency in the original application and makes the second application different in nature to the first.[30]
[29] ts 27; Appellant's (Plaintiff's) Supplementary Submissions on the Question of Abuse of Process, filed 23 October 2019, par 6.
[30] ts 23, ts 28.
Secondly, even if the appellant's affidavit does not constitute new evidence, there is no preclusive rule deeming all subsequent interlocutory applications which seek the same orders to be an abuse of process.
Thirdly, the case was due to be dismissed two business days later. A fresh application could be justified as the quickest way the matter could be before the court.[31]
[31] ts 27.
Fourthly, the fresh application did not unduly prejudice the respondent because whether the hearing was an appeal or a fresh application, it would have required the defendant to address a hearing de novo.[32]
[32] ts 26.
Counsel submitted that had either Deputy Registrars Harman or Hewitt not erred, the case would have been removed from the Inactive Cases List. Relying on the evidence before Deputy Registrar Hewitt, counsel pointed to various factors relevant to the test pursuant to r 44F(3). Counsel primarily relies on the affidavit of Mr Guillaume sworn on 3 July 2019, pointing to the plaintiff's explanation for delay, being the ill health and infirmary of his parents, and the plaintiff's manifest intention to perform all necessary actions required to progress the matter.[33] Counsel also points to the fire at the plaintiff's solicitor's office and the administrative error by the plaintiff's solicitors, being the failure to enter the matter for a pre-trial conference or extend the deadline to enter the case for trial.[34] Lastly, counsel notes, consistent with the two consent orders, the parties were previously content to extend the trial milestone.[35]
[33] ts 37.
[34] ts 36.
[35] ts 36.
In the alternative, if the case has been dismissed, the principal circumstance the appellant submits as exceptional is that, had the registrars not erred, the case would have been removed from the Inactive Cases List.
Counsel for the appellant conceded that 'absent the Court finding the matter ought to have been removed from the inactive cases list prior to its dismissal', the [appellant] might 'have some difficulty convincing a court that the power under rule 44G(5) ought to be exercised'.[36]
[36] ts 30 - ts 31.
Respondent's submissions
The respondent submits that, since the case was dismissed on 7 July 2019 in accordance with r 44G(1), the appeal is nugatory and that the court has no power to remove the matter from the Inactive Cases List, nor to extend the time for the entry for trial.
Accordingly, the respondent submits that even if the appellant were to succeed in his appeal, the court could not reinstate the action by virtue of the overturning of the orders made on 4 July 2019.
The respondent submits that the remedy available to a person in the appellant's position who has had their case dismissed pursuant to r 44G(1) is to bring an application to set aside the dismissal pursuant to r 44G(5).[37]
[37] The Owners of One Brighton Strata Plan 519488 v Pindan Constructions Pty Ltd [2018] WADC 77.
The respondent does not take issue with the court dealing with the appellant's belated oral application to have the dismissal of the case set aside, although the respondent submits that the application 'must be governed by the principles applying to rule 44G(5) and not those applicable to an appeal under rule 15'.[38] The setting aside of a dismissal under r 44G(5) is at the discretion of the court, which the respondent submits requires consideration of the balance of convenience test.
[38] Respondent's further Outline of Submissions, filed 25 October 2019.
As to whether the court should exercise its power to set aside the dismissal of the case, the respondent submits that the court must be satisfied that 'there are exceptional circumstances causally related to the dismissal of the matter; and that the Court should exercise its discretion to set aside the dismissal'.[39]
[39] Gibbs v Royal Blue Securities Pty Ltd [2017] WADC 70 [10] (Petrusa DCJ), citing The Owners of SP13443, 129-133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue Maylands[2015] WADC 133 [54] (Davis DCJ).
In both its initial written submissions filed on the appeal and the subsequent written submissions filed on 25 October 2019, the respondent submits that there is nothing amounting to exceptional circumstances causally connected to the dismissal of the case that could warrant the setting aside of the dismissal. The respondent contends it was the delay in making the application to remove the case from the Inactive Cases List which led to the dismissal. The respondent accepts that there was a fire at the solicitor's premises and does not dispute the personal circumstances raised by the appellant. However, the respondent submits that the delay in making the application to remove the case from the Inactive Cases List, and the delay progressing the matter generally, was largely due to the inadvertence of the appellant and his solicitor. That delay was both lengthy and largely unexplained. The respondent submits that nothing raised by the appellant, either alone or in combination, could constitute exceptional circumstances.
Furthermore, the respondent submits that Deputy Registrar Hewitt was correct to dismiss the application brought at the second hearing as an abuse of process. The respondent submits that the affidavit of the appellant not only could, but should, have been filed prior to the first hearing. In any event, considering the merits of the second application to remove the case from the Inactive Cases List, the respondent submits Deputy Registrar Hewitt was correct in the view that the affidavit did not elevate the appellant's position.
The respondent also submits that the evidence available on the appeal falls well short of satisfying the court that the appellant will progress the case in a timely manner.
Whilst the respondent accepts that the appellant will suffer prejudice if the dismissal is not set aside, it submits that the respondent will also suffer significant prejudice if the dismissal of the case is set aside.
Consequently, the respondent submits that the circumstances of the case are not sufficiently exceptional to enliven the court's discretion under r 44G(5) to set aside the dismissal of the case. The respondent also submits that the 'balance of convenience' test does not favour the exercise of the court's discretion to set aside the dismissal.
Question 1: Was the appellant's case properly dismissed for want of prosecution on 7 July 2019?
The appellant was required to enter the case for trial on or before 20 December 2018. Having failed to do so, the court sent the solicitors for each of the parties a Form 2 (Notice of default (entry for trial)) dated 21 December 2018 noting the action would be placed on the Inactive Cases List if it was not entered for trial on or before 5 January 2019.[40]
[40] DCR r 38(1).
By notice from the principal registrar of the court dated 7 January 2019, the solicitors for the parties were informed that '[a]s no document [had] been filed in the case for the preceding 12 months' the case had been placed 'on the Inactive Cases List … pursuant to r 44D(1)(a)'. This was not correct. The respondent had filed its defence in the preceding 12 months.
On 8 July 2019, the court sent the solicitors for the parties a notice informing them that the case had been dismissed on 7 July 2019 by operation of r 44G(1).
Dismissal of actions – the operation of r 44G(1) generally
In Rowe v Stoltze the Court of Appeal held that, by operation of r 44G(1), any case on the Inactive Cases List for six continuous months is deemed to be dismissed, regardless of why the time lapsed:[41]
Rule 44G(1) does not operate because a party has failed to do an act, within a stipulated time or otherwise. Whether or not a party has failed to comply with an order of the court or the rules is irrelevant. An action is taken to have been dismissed under r 44G(1) if it has been on the Inactive Cases List for six continuous months, regardless of how that has come about.[42]
[41] Rowe v Stoltze (2013) 45 WAR 116 (Rowe). See also Ruby v Doric Constructions (Australia) Pty Ltd (2013) 45 WAR 131 (Ruby).
[42] Rowe (123) [25] (Newnes JA).
Does the error in the principal registrar's notice invalidate the dismissal of the case?
As noted above, the court made an error in the notice dated 8 January 2019. The principal registrar's notice seemingly applied r 44A, which operates to deem a case to be inactive 'if no document is filed in a case for 12 months by any party to the case, unless the Court orders otherwise' (emphasis added). However, as noted above, the defence was filed on 16 January 2018. Rule 44A could not operate before 15 January 2019.[43]
[43] Interpretation Act 1984 (WA) s 62(3).
This error was not raised by the parties either before or during the hearing of the appeal on 16 October 2019. The court subsequently raised the error with the parties, invited and received further written submissions on the issue.
Both the appellant and respondent accept that the error in the principal registrar's notice is of no moment.[44] That concession by the parties is correct.
[44] Respondent's Outline of Submissions filed 13 February 2020; Appellant's (Plaintiff's) Supplementary Submissions Regarding the Rule 44D Notice dated 24 February 2020.
First, the case was deemed inactive by operation of r 38(2)(a) and r 44 when read together. Secondly, the parties were notified of the correct outcome, namely that the action had been placed on the Inactive Cases List, on the correct date, 7 January 2019.
Rule 44 reads: 'If a plaintiff does not comply with rule 38(2)(a), the case is taken to be inactive'. Rule 38(2)(a) required the appellant to enter the case for trial on or before the date specified in the Form 2 (Notice of default (entry for trial)) which was required to be at least 14 days after the date of the form. Pursuant to r 37(1) and r 38(1), the Form 2 could only be sent if the appellant did not enter the case for trial in accordance with the extended deadline of 20 December 2018. By 7 January 2019, the deadline of 5 January 2019, being 14 days after the date of the Form 2, had passed.[45] As a result, it is clear that the appellant did not comply with r 38(2)(a), and the case was properly deemed to be inactive pursuant to r 44.
[45] Interpretation Act 1984 (WA) s 61(1)(g).
Consequently, the error in the principal registrar's notice is immaterial. The appellant's case was properly dismissed for want of prosecution on 7 July 2019.
Question 2: If the case was dismissed for want of prosecution on 7 July 2019, does that render the appeal nugatory?
Counsel for the appellant filed the 'Appeal Notice' on 10 July 2019, seeking an order that the case be removed from the Inactive Cases List. However, by this date the case had already been dismissed. As noted above, why the time lapsed does not matter. If the case has been on the Inactive Cases List for six continuous months, by operation of r 44G(1), it is deemed to be dismissed.[46] Consequently, neither a finding that Deputy Registrar Hewitt erred in dismissing the application, nor a finding by this court that the case should be removed from the Inactive Cases List, affects the validity of the dismissal of the case. Therefore, the appeal is nugatory. The real issue is whether the dismissal of the case should be set aside. Nonetheless, in the event that I am wrong about that, the merits of the appeal are considered before turning to whether the dismissal should be set aside.
Question 3: If the appeal is not nugatory, should the case be removed from the Inactive Cases List pursuant to r 44F(3)?
[46] Rowe; Ruby.
As already noted, since this appeal is by way of rehearing, the appellant does not need to demonstrate that either or both of the learned deputy registrars erred.
Rule 44F(3) provides a discretion for the court to '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'.
The history of the case has been set out above. The appellant's affidavit filed on the second hearing went no higher than an expressed desire to progress the matter and that he would endeavour to perform all actions necessary to progress the matter.[47] Much of the delay in progressing the matter was, and still is, unexplained. There was nothing before either Deputy Registrar Harman or Deputy Registrar Hewitt that was sufficient to satisfy a court that the case would be conducted in a timely way. That position did not change on appeal.
[47] Affidavit of Mr Francisco Javier Guillaume date 3 July 2019, par 10.
Turning to the second limb of r 44F(3), namely whether there is 'any other good reason' satisfying the court that the case should be removed from the Inactive Cases List, whilst it was the fact that the appellant's case was due to be dismissed imminently if it were not removed from the Inactive Cases List, that fact alone does not justify its removal from the list.
Consequently, I am not satisfied that the case will be conducted in a timely manner if it is removed from the Inactive Cases List. Nor is there any other good reason justifying the removal of the case from the list.
Question 4: Do exceptional circumstances exist justifying the setting aside of the dismissal of the case pursuant to r 44G(5)?
The application to set aside the dismissal of the case
During the course of the appeal hearing, counsel for the appellant was permitted to orally apply to set aside the dismissal of the case. An application to set aside a dismissal pursuant to r 44G(5) is ordinarily a matter which should be heard by a registrar at first instance.[48] Since counsel for the appellant had expressly addressed r 44G(5) in written submissions lodged prior to the hearing of the appeal, and to avoid any further delay, I allowed the fresh oral application to be heard before me at the hearing of the appeal.[49] Neither party asked for the new application to be adjourned or heard by a registrar.
[48] DCR r 8(2)(c).
[49] DCR r 11(f).
Counsel for both parties were given leave to file further written submissions subsequent to the hearing of the matter addressing whether the second hearing constituted an abuse of process. Counsel for the respondent was also permitted to address whether the dismissal of the action should be set aside.
Setting aside a dismissal - general principles
Rule 44G(5) provides that: 'The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of the case…'. The Court of Appeal considered r 44G(5) in Sovereign Grange Pty Ltdv AV Truck Service Pty Ltd [No 2].[50] Rule 44G(5) regulates the manner in which the court's discretion is exercised, rather than establishing a condition precedent to the existence of a discretion.[51] This discretion should be exercised consistently with the rationale of the rule, being 'to secure the just and efficient determination of proceedings before the court, the efficient use of curial resources and the timely disposal of the court's business'.[52] The reasons of the court highlight the discretionary nature of the test.
[50] Sovereign Grange Pty Ltdv AV Truck Service Pty Ltd [No 2] [2017] WASCA 142 (Sovereign Grange).
[51] Sovereign Grange [76].
[52] Sovereign Grange [74] – [75].
The court in Sovereign Grange did not take issue with the list of non‑exhaustive considerations relevant to r 44G(5) outlined by the primary judge, which have application to this matter, including:[53]
[53] Sovereign Grange [26] – [27].
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, although such circumstances are rare. 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 DCR, 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.
Are there exceptional circumstances warranting the dismissal of the case to be set aside?
Accepting that there are no defined categories of what may amount to exceptional circumstances, it is necessary to examine the matters raised by the appellant in the context of his application to set aside the dismissal of his case. It may be that whilst one factor alone may not be sufficient to amount to exceptional circumstances, when viewed in combination with another or other factors, exceptional circumstances exist.
As noted, the principal circumstance the appellant submits as exceptional is that, had the registrars not erred, the case would have been removed from the Inactive Cases List. Had an appeal been heard and determined on this issue prior to the dismissal of the action, the appellant would have had a full hearing de novo before a judge. There would have been no need to establish an error made by the registrars, and the merits of the application pursuant to r 44F(3) would have been determinative. Now that the case has been dismissed, the application pursuant to r 44G(5) requires the appellant establish that 'exceptional circumstances' exist justifying the setting aside of the dismissal.
An error of law made by Deputy Registrars Harman or Hewitt which is causally linked to the dismissal of the case, when the test in r 44F(3) could otherwise be satisfied, can constitute an exceptional circumstance relevant to the decision as to whether the dismissal of the case should be set aside pursuant r 44G(5).[54] However, the circumstances of the case must be looked at as a whole. If the error made by this court was immaterial, it may not satisfy the test of r 44G(5).
[54] See for example Cyclis Group Pty Ltd as trustees for The Garside Health Property Trust v Kabway Pty Ltd [2019] WADC 41.
As the appellant seeks to establish an error in a discretionary decision, it is not enough that a different decision-maker would have exercised the discretion differently.[55] Rather, it must appear, either expressly or by implication, that some error of fact or law has been made in exercising the discretion.[56]
Did Deputy Registrar Harman err by refusing the appellant's adjournment application on the first hearing?
[55] Sovereign Grange [73] – [74].
[56] Sovereign Grange [74] citing House v The King (1936) 55 CLR 499, 505.
A registrar of this court has a discretion to grant or refuse an adjournment application. The discretion is a wide one,[57] and appellate courts are generally slow to review such a decision.[58] However, if the effect of the refusal to adjourn the matter results in the defeat of the rights of a party altogether and amounts to injustice, then it may be appropriate for an appellate court to intervene.[59]
[57] Myers v Myers [1969] WAR 19.
[58] Bloch v Bloch (1981) 180 CLR 390, 395 - 396 (Wilson J, with whom the other members of the court agreed).
[59] Bloch, 396 citing Maxwell v Keun [1928] 1 KB 645, 653 (Atkin LJ).
The discretion to adjourn is not made solely on the basis of the interests of one party, nor indeed each of the parties. A judicial officer presiding over a busy court may, when exercising a discretion to grant or refuse an adjournment, take into account court resources and the effect on other litigants waiting to be heard.[60] In Lashansky,[61] a case often cited for the principles governing the removal of an action from the Inactive Cases List, Beech J noted with reference to Aon Risk Services Australia Limited,[62] that case management principles may be relevant to the determination of issues raised pursuant to r 44F(3). However, Beech J was not required to determine the issue.
[60] Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175, 190 [26] (French CJ) (Aon Risk).
[61] Lashansky v Legal Practice Board [No 2] [2010] WASC 159 [75].
[62] Aon Risk (190) [26] (French CJ).
Whilst it may have been preferable for Deputy Registrar Harman to have allowed the adjournment application, which would have enabled the appellant to file an affidavit confirming his instructions, ultimately nothing turns on the dismissal of that application. The affidavit filed by the appellant at the second hearing contained essentially the same information conveyed to Deputy Registrar Harman from the bar table at the first hearing. Deputy Registrar Harman was cognisant of the evidence that the appellant's counsel proposed the affidavit would address. That information, as Deputy Registrar Hewitt correctly found on the second hearing, did not improve the appellant's position. Consequently, nothing turns on Deputy Registrar Harman's decision to refuse to allow the adjournment.
The real issue before Deputy Registrar Harman was whether the appellant's case should have been taken off the Inactive Cases List. Ultimately, the refusal to allow the adjournment did not materially change the appellant's position.
Deputy Registrar Harman did not, in the exercise of his discretion, make any error of fact or law.
Did Deputy Registrar Hewitt err by finding that the second application was an abuse of process?
The District Court, as a creature of statute, does not share the inherent supervisory or disciplinary jurisdiction of the Supreme Court.[63] However, the District Court has incidental powers necessary for the exercise of its conferred jurisdiction, including the ability to prevent abuses of process.[64] Such an abuse includes the misuse of court procedures 'in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation … or would otherwise bring the administration of justice into disrepute among right-thinking people'.[65]
[63] Murcia & Associates (a firm) v Grey (2001) 25 WAR 209 [16] (Steytler J) (Murcia).
[64] Murcia [16] (Steytler J).
[65] See for example, UBS v Tyne (2018) 92 ALJR 968 [71] (Gageler J).
The doctrine of abuse of process as relevant to interlocutory decisions has been considered in various cases, and was helpfully summarised in Liu v The Age Company Pty Ltd.[66] There is no preclusive rule against bringing a second interlocutory application concerning the same, or what is substantially the same, issue previously brought by an unsuccessful litigant.[67] Nor is it the case that a second application cannot be brought unless there is either a change of circumstances or the evidence sought to be relied upon could not reasonably have been obtained earlier.[68]
[66] Liu v The Age Company Pty Ltd (2016) 92 NSWLR 679 (Liu).
[67] Liu (717) [178] (McColl JA) citing Nominal Defendant v Manning (2000) 50 NSWLR 139 (Manning). See also Commonwealth of Australia v Albany Port Authority [2006] WASCA 185 [72] (Pullin JA) (Albany Port Authority).
[68] Manning [72] (Heydon JA); Albany Port Authority [72] (Pullin JA).
The overriding principle governing the approach of the court to abuse of process and interlocutory applications is that the court should do whatever the interests of justice require in the particular circumstances of the case.[69] That consideration also applies to successive similar interlocutory applications.[70] As outlined by McColl JA in Liu:[71]
[I]n determining what the interests of justice require, the court will have regard, among other matters, to the nature of the first interlocutory application, the nature of the change in position and whether any matter relied upon to change the basis upon which the challenged earlier order was made, was open to be advanced at the earlier hearing.
[69] Liu (721) [199] (McColl JA), (738) [292] (Ward JA agreeing).
[70] Liu (721) [199] (McColl JA).
[71] Liu (721) [199] (McColl JA).
Her Honour referred to Heydon JA in Manning, who emphasised that subsequent applications risk an adverse exercise of judicial discretion when relying on evidence available earlier, particularly where that evidence was deliberately not tendered at the first hearing.[72] Other relevant factors outlined by Heydon JA include 'the unnecessary vexing of respondents, the diminution of certainty in the conduct by respondents of their affairs, damaging public confidence in the integrity of judicial decisions, expending time and money on litigation unnecessarily and the blameworthiness of the applicant'.[73]
[72] McColl JA in Liu [182] citing Manning [72] - [73] (Heydon JA).
[73] McColl JA in Liu [182] citing Manning [72] - [73] (Heydon JA).
Following Aon Risk Services Australia Limited, McColl JA accepted the wider objects of the administration of justice are relevant to the determination of whether conduct constitutes an abuse of process.[74]
[74] Liu (720) [190].
Ultimately, the need for maintaining finality is relevant, but 'is less compelling in relation to an interlocutory application made with a view to ensuring a trial on the merits in due course'.[75]
[75] Manning (154) [67] (Heydon JA); Liu (715) [170], (717) - (718) [181] (McColl JA).
The application brought by the appellant at the second hearing was brought with additional evidence, namely the appellant's affidavit. It is clear that a lawyer for the appellant received instructions from the appellant by telephone that morning and was not able to prepare an affidavit in time for the application that day. Nonetheless, why the instructions were only provided to the appellant's lawyers that morning and not earlier remains largely unexplained. Whilst the affidavit may have been obtained prior to the first hearing, it is clear that counsel for the appellant was not able to prepare the affidavit in the time between the telephone call and appearing in court.
All of the above factors are relevant to the application made to Deputy Registrar Hewitt. Those factors, when considered in the full context of this case, lead to a conclusion that the second hearing did amount to an abuse of process.
Furthermore, counsel for the appellant at the second hearing failed to inform Deputy Registrar Hewitt that the first hearing before Deputy Registrar Harman also involved an application to adjourn the matter which had been dismissed. Whilst it may not have been counsel's intention, the effect of the second hearing was to defeat the order of Deputy Registrar Harman refusing the adjournment application. For that reason alone, the application made at the second hearing did constitute an abuse of process.
In my view, Deputy Registrar Hewitt did not make an error when he dismissed the second application as an abuse of process.
Neither registrar was in error
No error was made by either of the learned deputy registrars. Regardless, I have already found that in this case the test in r 44F(3) could not be satisfied on the available evidence. The appellant has failed to satisfy the test that exceptional circumstances exist on the basis that the case should have been removed from the Inactive Cases List at the first or second hearing.
As neither Deputy Registrar Harman nor Hewitt made an error, it is not necessary to determine whether such an error would be causally linked to the dismissal.
However, the mere fact that two applications were brought to have the case removed from the Inactive Cases List is a relevant consideration to whether the dismissal should be set aside, as they evidence a desire to progress the matter. Of course the merit of those applications, the delay in bringing the applications, and the reason for the delay, if any, are also relevant considerations.
Does the inattention or inadvertence by the appellant's solicitors amount to exceptional circumstances?
On 21 September 2018, a consent order was filed by the parties extending the time by which the appellant was required to enter the case for trial to 20 December 2018. On 14 June 2019, 23 days before the action was to be dismissed pursuant to r 44G(1), the appellant filed an application to remove the case from the Inactive Cases List.
Between 21 September 2018 and 14 June 2019, very little was done by either the appellant or his solicitors to progress the matter to trial. This was despite the fact the appellant's solicitors were advised by notice dated 7 January 2019 that the case had been placed on the Inactive Cases List. The available evidence reveals that the following steps or actions were taken by either the appellant or his solicitors:
1.On 21 November 2018 the appellant's solicitors received a letter from the respondent's solicitors requesting a response to their earlier letter dated 17 August 2018.[76] On 22 November 2018, the appellant's solicitors replied, informing the respondent's solicitors that they would immediately take instructions on the letter dated 17 August 2018.[77]
2.On 4 December 2018 the appellant spoke to his solicitor Mr Simon Walters by telephone regarding the respondent's solicitor's letter dated 17 August 2018. The appellant was advised by Mr Walters to confirm his instructions in writing.[78] It is of note that as at 3 July 2019 the appellant was still in the process of providing those written instructions.
[76] Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 5.
[77] Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 6.
[78] Affidavit of Mr Francisco Javier Guillaume filed 3 July 2019, par 5.
On the available evidence, the delay in seeking to either extend the deadline for trial or remove the matter from the Inactive Cases List arose out of a combination of factors. First, the 'administrative error' on the part of the appellant's solicitors, which was not explained at the first hearing, but was clarified in the second hearing to simply be the failure to seek and obtain consent to extend the entry for trial milestone.[79] Secondly, the fire at the office of Simon Walters on 12 May 2019.[80] Thirdly, the appellant's father's advancing dementia and his mother's infirmity.[81]
[79] ts 13; Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 8.
[80] Affidavit of Mr Damon Lawrence Marsh filed 27 June 2019, par 12.
[81] Affidavit of Mr Francisco Javier Guillaume filed 3 July 2019, par 8.
Much of the delay remains unexplained. The explanations that have been provided lack sufficient detail to properly explain the delay. Furthermore, consistent with the principles of case management in r 38 and r 44, the onus is on the appellant, not his solicitors, to enter the action for trial and to file documents. Despite the appellant's assertion that he was 'keen to progress this matter to a Pre-Trial Conference and will endeavour to perform all actions required of [him] by [his] solicitors to ensure that this will occur in a timely manner',[82] at the time of the hearing of the appeal on 16 October 2019 he still had not provided written instructions to his solicitor.
[82] Affidavit of Mr Francisco Javier Guillaume filed 3 July 2019, par 11.
Given the limited steps and lack of progress displayed by the appellant to date, I am unpersuaded that the appellant has any real commitment to prosecute this matter in a timely fashion.
None of the reasons given for either the appellant or the appellant's solicitor's inadvertence or inattention, either alone or in combination, amount to exceptional circumstances.
The merits of the appellant's case
A factor in considering whether exceptional circumstances exist includes an examination of the merits of the appellant's case. If a case has no merit, there would be little point in setting aside a dismissal of the case.
As already noted, the appellant's case is that he sustained injuries which resulted from the respondent's negligence whilst he was at Scarborough Beach on 8 April 2015.
At this stage it is difficult to make a proper assessment of the merits of the claim, given that the documents and information available are essentially limited to the appellant's statement of claim and the respondent's defence. The appellant alleges that the respondent's 'negligence and/or breach of statutory duty of care owed by [it], their servants or agents to the [appellant]'[83] arises in circumstances where, on the night in question, he was a 'lawful invitee on the premises', and 'was engaged in a game of "catch me" with his friend' when he 'ran towards his friend [and] suddenly and without warning, he collided with the wires of the fence resulting in injuries [to him]'.[84]
[83] Appellant's (Plaintiff's) Statement of Claim dated 15 December 2017, par 5.
[84] Appellant's (Plaintiff's) Statement of Claim dated 15 December 2017, par 4.
The particulars of negligence and/or breach of statutory duty of care are essentially said to be the respondent's failure to:[85]
(a)install fencing made from soft or malleable material;
(b)install fencing that was clearly visible;
(c)erect warning signs advising of the risk posed by the fence;
(d)take measures to avoid the hazard posed by the fence including installing adequate lighting; and
(e)take precautions to ensure the appellant would not suffer injury or damage.
[85] Appellant's (Plaintiff's) Statement of Claim dated 15 December 2017, par 5.
The injuries that the appellant claims he suffered includes soft tissue injury to his right index finger and left hand, together with a comminuted fracture to the surgical neck of the right humerus, as a result of which he has experienced pain and suffering, as well as emotional and psychological injury. He also claims past and future medical expenses. He also alleges that he has suffered economic loss.
The appellant claims damages, interest and costs.
Whilst any assessment of the strength of the appellant's case is limited to the statement of claim and defence, it cannot be said that the claim has no merit.
Prejudice to the parties if the dismissal is set aside
If the dismissal of the appellant's case is not set aside, the appellant will suffer prejudice as he will be unable to litigate his claim.
The respondent accepts that the failure to set aside the dismissal of the case will mean that the appellant will suffer prejudice, most particularly that the matter will be statute barred. On the other hand, the respondent submits that it will suffer significant prejudice if the dismissal of the case is set aside. The respondent points to the fact that it is now approaching five years since the incident giving rise to the appellant's claim. Further delay would be expected if the dismissal of the case was set aside. Apart from the delay and its consequential effects, including the negative affect that it might have on witnesses' memories, the respondent also points to the costs associated with the various applications brought by the appellant.
Conclusion on whether the dismissal of the case should be set aside
Accepting that there might be some merit to the appellant's claim and that he will suffer prejudice if the dismissal is not set aside, those factors either alone or in combination with any other factors identified by the appellant do not amount to exceptional circumstances warranting the setting aside of the dismissal of the case. Consequently, the appellant has failed to prove that exceptional circumstances exist justifying the setting aside of the dismissal of the case.
Orders
The appeal is dismissed.
The application to set aside the dismissal of the case is dismissed.
Costs
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.
DF
Associate to Judge Levy3 APRIL 2020
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