HIJ (a pseudonym) v The State of Western Australia - [2025] WADC 39

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   HIJ (a pseudonym) -v- THE STATE OF WESTERN AUSTRALIA [2025] WADC 39
CORAM:   PRINCIPAL REGISTRAR MCGIVERN
HEARD:   1 MAY & 17 JUNE 2025
DELIVERED          :   27 JUNE 2025
FILE NO/S:   CIV 4370 of 2021
BETWEEN:   HIJ (a pseudonym)
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Where case dismissed for want of prosecution - Whether dismissal irregular - Whether case invalidly put on the inactive cases list - Whether exceptional circumstances warrant setting aside dismissal

Legislation:

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

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr T J Hammond SC and Ms J R Wedlock
Defendant	:	Mr A Nolan

Solicitors:

Plaintiff	:	Tindall Gask Bentley
Defendant	:	State Solicitor for Western Australia

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

Connor v Veitch [2023] WASCA 186
Elwood v Goodman [2014] WADC 143
Guillaume v City of Stirling [2020] WADC 41
Rowe v Stoltze [2012] WADC 84
Rowe v Stoltze [2013] WASCA 92
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2017] WASCA 142
Wintle v Stevedoring Industry Finance Committee (No 3) [2002] VSC 369

PRINCIPAL REGISTRAR MCGIVERN:

The plaintiff, HIJ, was a police officer between 1996 and 2021. In November 2021, she commenced an action against the State of Western Australia, claiming damages for psychiatric injuries said to be sustained in the course of that work. She is represented in these proceedings by a firm of solicitors (TGB).
On 7 October 2024, the court issued a notice to all parties that the action had been dismissed for want of prosecution pursuant to r 44G of the District Court Rules 2005 (WA) (DCR).
The present proceeding is, fundamentally, an application to set aside the dismissal of the action.[1] That application is advanced on two grounds:
(a)first, that the dismissal was an irregularity by reason of the action having been invalidly put onto the inactive cases list (ICL); and
(b)second, and in the alternative, that there are exceptional circumstances that warrant setting the dismissal aside.
[1] The application is also for various programming orders, which depend upon the dismissal of the action being set aside, and for an order removing the case from the inactive cases list.
In dealing with the application, I will consider the following issues:
(a)Was the case invalidly put on the ICL?
(b)If so, should the court, under O 2 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC), set aside the dismissal as being irregular, and if so, on what terms?
(c)If not, are there exceptional circumstances that warrant an exercise of the court's discretion under DCR r 44G(5) to set aside the dismissal of the action and, if so, on what terms?
(d)Does DCR r 44F apply and, if so, should the action be removed from the ICL?
In support of the application, the plaintiff filed:
(a)outlines of submissions filed on 10 April 2025 and 13 June 2025, respectively; and
(b)the affidavits of her solicitors:
(i)Lianna Ferraro, made on 20 December 2024, 10 April 2025 and 12 June 2025 (respectively, the first, second and third Ferraro affidavit); and
(ii)Timothy White, made on 1 May 2025 (White affidavit).
In opposition to the application, the defendant filed:
(a)an outline of submissions filed on 29 April 2025; and
(b)the affidavits of its solicitors:
(i)Jennifer Perera, made on 11 March 2025 and 24 April 2025 (respectively, the first and second Perera affidavit); and
(ii)John Bishop, made on 17 April 2025 (Bishop affidavit).
The application was heard on 1 May 2025 and 17 June 2025.
For the reasons that follow, the application is dismissed.

Was the case invalidly put on the ICL?

Applicable rules

Relevant to this case, the DCR include a regime for managing cases which are not being carried on in a timely manner. Amongst other things, provision is made for such cases to be placed on an ICL.[2]
[2] Rowe v Stoltze [2012] WADC 84 (Rowe 2012) [9].
One of the ways in which an action becomes inactive and is put on the ICL is by a failure to enter the action for trial within the timeframes set by the court.[3]
[3] Rowe 2012 [12].
Under the DCR, this comes about in a particular way:
(a)first, if the plaintiff does not enter the case for trial within the time allowed under DCR r 37, or as extended by the court from time to time,[4] the court registry must issue a 'notice of default (entry for trial)' in a prescribed form (default notice): DCR r 38(1);
(b)upon receipt of a default notice, the plaintiff must (or another party may) enter the case for trial within the time specified in the default notice (which must, in turn, be a period of at least 14 days from the date the notice is issued): DCR r 38(2); and
(c)if a plaintiff does not comply with r 38(2)(a), the case is 'taken to be inactive': DCR r 44.
[4] Pursuant to RSC O 3 r 5, the court may by order extend the period by which a person is required to do any act. Except to the extent that they are excluded or modified by the DCR (or another written law), the RSC apply to cases in this court: DCR r 6.
When a case is taken to be inactive under DCR r 44, the Principal Registrar must put the case on the ICL and give parties to the case notice thereof: DCR r 44D.
Once a case is on the ICL:
(a)DCR r 44E has the effect of limiting the documents that may be filed; and
(b)pursuant to DCR r 44F, the only ways in which the case may be removed from the ICL are by entering the case for trial, filing a consent order finalising the action or by order of the court.
A case that is on the ICL for six continuous months is 'taken to have been dismissed' for want of prosecution, upon which the Principal Registrar must give notice of that fact to all parties: DCR r 44G(1) ‑ r 44G(2).

What happened in this case?

The action was commenced by writ of summons filed on 11 November 2021 and a statement of claim was filed on 23 January 2023.
A defence was filed on 22 February 2023 and, on the same date, the court issued a case management timetable notifying the parties that, unless otherwise ordered, the plaintiff was to enter the case for trial before 22 June 2023.[5]
[5] Pursuant to DCR r 37(1).
A default notice was issued on 23 June 2023, in terms that required the plaintiff to enter the action for trial on or before 8 July 2023.
On 27 June 2023, the plaintiff filed a minute of consent orders to the effect that the parties consented to the making of an order extending the time to enter the case for trial to 14 September 2023. An order to that effect was made on 30 June 2023.
The action was not entered for trial and a further default notice was issued on 15 September 2023, in terms that required the plaintiff to enter the action for trial before 30 September 2023.
On 29 September 2023, the plaintiff filed a minute of consent orders to the effect that the parties consented to the making of an order extending the time to enter the case for trial to 15 December 2023. An order to that effect was made on 5 October 2023.
A further extension of the time to enter the action for trial was proposed by a minute of consent orders filed on 14 December 2023, and on 20 December 2023, an order in terms of that minute, extending the time allowed to 4 March 2024, was made.
The action was not entered for trial and, on 5 March 2024, the court issued a default notice in terms that required the plaintiff to enter the action for trial before 20 March 2024.
On 19 March 2024 (being the day before the time to comply with the default notice expired), the plaintiff filed a minute of consent orders (first minute) to the effect that the parties consented to the making of an order in terms that extended the time to enter the case for trial to 3 May 2024.
The minute of consent orders filed on 19 March 2024 was filed in the court's electronic case management system (ECMS) as the document type 'Minute of Proposed Orders' rather than as a 'Consent Order Pursuant to O 43 R16 ‑ in for Settling'.
No order extending the time allowed to enter the action for trial was made and, on 21 March 2024, the court issued a notice that the case had been put on the ICL (first inactive notice).
As appears from the affidavit evidence, the solicitor having the day‑to‑day conduct of the case for the plaintiff, Ms Owen, has now left TGB and there is no direct affidavit evidence from her.[6] However, various notes she made and pieces of correspondence appear as annexures to the affidavits filed in the application.
[6] White affidavit, pars 4 - 6.
Of particular relevance, the plaintiff points to an email exchange on 22 March 2024 between Ms Owen and Mr Bishop, in which the former wrote:
Hi Toby
I have spoken to the Court.
They missed the minute of consent orders, so the matter was inadvertently entered onto the inactive cases list. They are rectifying the matter as we speak, but also require me to refile the consent orders which I will do as soon as the matter has ceased to be inactive.
It appears that TGB sought, on 26 March 2024, to file a further minute in terms of the first minute as a 'Consent Order Pursuant to O 43 R16 ‑ in for Settling' (second minute).[7]
[7] Third Ferraro affidavit, par 12, 'LMF15'.
By letter dated 3 April 2024, the court gave notice that:
(a)the second minute had been rejected because the action was on the ICL;[8] and
(b)a chamber summons application and supporting affidavit would be required to remove the action from the ICL.
[8] Such rejection being consistent with the operation of DCR r 44E.
On 5 April 2024, the court issued a further notice to the effect that the action had been put on the ICL (second inactive notice).[9] Shortly after it was issued, that notice was 'uplifted'. By email dated 10 June 2025, a court officer offered an explanation to Ms Ferraro that this was because the notice had been 'issued in error, as it was a duplicate of the Inactive Notice from 21 March [2024]'.[10]
[9] First Perera affidavit, par 25, 'JJEP-3'; Third Ferraro affidavit, par 14, 'LMF17' and 'LMF18'.
[10] Third Ferraro affidavit, par 15, 'LMF19'.
On 7 October 2024, the court issued a notice to the parties that, pursuant to DCR r 44G, the action had been dismissed for want of prosecution on 5 October 2024.
On 28 November 2024, the plaintiff brought this application.[11]

Parties' contentions

[11] But see [73] of these reasons.

The plaintiff contends, in summary, that:
(a)if 'no action was taken' after the default notice issued on 5 March 2024, an inactive notice should have been issued on 21 March 2024;
(b)the first inactive notice was issued on 21 March 2024 'notwithstanding the parties filing consent orders to extend the entry for trial milestone on 19 March 2024';
(c)if the first inactive notice was rescinded on the day it was issued, then the 14‑day period under DCR r 38(2) should have recommenced and, if no further action was taken by the parties to enter the case for trial was taken, then a further inactive notice should have been issued on 5 April 2024, which occurred;
(d)the 'only logical explanation' for the second inactive notice being issued is that the action was active when the second minute was filed on 26 March 2024;
(e)the case was invalidly put onto the ICL on 21 March 2024 and again on 5 April 2024 because, on both occasions, the plaintiff's solicitor attempted to file a minute of consent orders to extend the time to enter the action for trial 'when the matter was active'; and
(f)if the action was not validly on the ICL, the dismissal of the proceedings is invalid and ought, in the interests of justice to be set aside.
In support of those contentions, the plaintiff's counsel submitted that, by reason of the matters in [19], [20] and [27], the court had tacitly adopted the position that an action will not be put on the ICL if proposed consent orders are filed prior to the expiration of the period for compliance with a default notice.
In opposition to the application, the defendant contends, in summary, that:
(a)the plaintiff's contention that the action was invalidly put on the ICL misconstrues the nature of a minute of consent orders and implies that the court was obliged to make orders in the terms proposed;
(b)the making of orders by consent is in the court's discretion and is not a foregone conclusion;
(c)the orders proposed were not in fact made before the time for compliance expired and the case was taken to be inactive, in accordance with DCR r 44, from 21 March 2024; and
(d)in those circumstances, there is nothing invalid or irregular with the action being put on the ICL.

Disposition as to irregularity

For the reasons that follow, I find that the action was not invalidly placed on the ICL and, therefore, that the dismissal of the action was not irregular on that basis.
I commence by noting that the provisions of the DCR regime relating to inactive cases:
(a)are, with other rules of court, to be construed and applied in a manner so as best to ensure the attainment of the objects of contemporary case management;[12]
(b)are designed to ensure that actions are progressed in a timely manner;
(c)include several features that avoid surprise and afford an opportunity for a party to avoid the consequence of having the action dismissed for want of prosecution, namely including:
(i)provision for the issue of default notices, with a period of at least 14 days within which to remedy the default; and
(ii)provision for the issue of notices relating to the case being put on the ICL, with a six-month period within which to take steps to avoid dismissal, including by making application to have the action removed from the ICL;
and
(d)comprise a combination of provisions that operate automatically upon the effluxion of time, and others that require some action to be taken.
[12] Which include: promoting the just determination of litigation; avoiding delays and disposing efficiently of the business of the court, and maximising the efficient use of available judicial and administrative resources; and ensuring proportionality between the subject matter and complexity of a dispute, and the procedure and costs of resolving it: RSC O 1 r 4A and O 1 r 4B(1).
One particular feature of the regime is that there is a distinction between:
(a)a case becoming inactive, which may occur:
(i)by operation of the rules under DCR r 44 or r 44A;[13] or
(ii)by an order of the court under DCR r 44B(4) or r 44C(1);[14]
and
(b)the case being put on the ICL and a notice to that effect being issued under DCR r 44D, which are steps taken by the Principal Registrar.[15]
[13] Under DCR r 44, upon non-compliance with DCR r 38(2)(a) and under DCR r 44A, if no document is filed in a case for 12 months. See also: Rowe 2012 [11], [12].
[14] Under DCR r 44B(4), if a registrar is not satisfied that the case is being conducted in a timely way and under DCR r 44C if a 'springing order' is made that deems the case inactive. See also: Rowe 12 [10].
[15] Including by a delegated court officer: see Elwood v Goodman [2014] WADC 143 (Elwood).
As to a case becoming inactive pursuant to DCR r 44 in particular:
(a)the plaintiff's submission at [33(a)] does not accurately reflect the combined operation of DCR r 38(2) and r 44, and appears to conflate the operation of DCR r 44 and r 44A;
(b)an action does not become inactive under DCR r 44 if there is 'no activity taken' within the period specified in a default notice. Rather, a case is taken to be inactive if there is non‑compliance with DCR r 38(2);
(c)the latter provision, in turn, prescribes the time (being the date specified in the notice, which must be at least 14 days from the date of issue) and action (entry for trial) for compliance; and
(d)filing a consent order is not an 'activity' capable of complying with DCR r 38(2). Unlike DCR r 44A, the filing of a document is not of itself relevant to the operation of DCR r 44.
Because:
(a)a case may become inactive 'automatically', by operation of the rules; but
(b)the case being put on the ICL requires steps to be taken by the court,
there may be (but does not need to be) a short period of time between those things occurring.
On occasion, if a party has filed a minute of proposed consent orders before the action becomes inactive, and a registrar decides to make orders in terms of that minute before the action is put on the ICL, the latter step may be avoided. When this occurs,[16] it is the product of fortunate timing and the exercise of discretion, not of entitlement or the operation of any rule.
[16] As it did in this case in the instance described at [20], [21]. I note too that in each of those instances, the proposed orders were filed in the ECMS as a 'Consent Order Pursuant to O 43 R16 ‑ in for Settling' and not a 'Minute of Proposed Orders'.
The filing of a minute of consent orders does not 'stop the clock' on the effluxion of the time to comply with a rule or order of the court. Nor is a minute of consent orders either self‑executing or mandatory in effect.
As is patent from the express terms of RSC O 43 r 14:
(a)a minute filed under that rule operates only to notify the court that the parties consent to certain orders being made; and
(b)the court may then settle and make such order without requiring further application.
It is well established that making a consent order is a judicial act and, even when all parties consent, the court may decline to make or delay making any such order.[17]
[17] Connor v Veitch [2023] WASCA 186 [21]; Wintle v Stevedoring Industry Finance Committee (No 3) [2002] VSC 369 [16] ‑ [19].
That the court explicitly retains, and has not by practice or otherwise limited, its discretion in relation to the making of consent orders in this context is reflected in the guidance issued by the court in its Circular to Practitioners - Civil, par 1.5.2.[18]
[18] Which is relevantly in terms that the court may accept a consent order extending the time within which the action must be entered for trial if the memorandum is filed prior to the action being placed on the ICL, and the reason for the proposed extension is stated by the parties and accepted by the court.
It is not contentious, and I find, that:
(a)the default notice issued on 5 March 2024 specified the time for compliance as being 20 March 2024, unless otherwise ordered; and
(b)prior to the expiration of that time:
(i)no order was made extending the time for compliance; and
(ii)the action was not entered for trial.
Accordingly, I find that:
(a)by operation of DCR r 44, the action became inactive on 21 March 2024; and
(b)it was not irregular, let alone invalid, for the court to put the action on the ICL and issue a notice to that effect pursuant to DCR r 44D(1) on 21 March 2024.
Once a case is on the ICL, the means by which it can be removed are limited by DCR r 44F to: entering the case for trial, filing a consent order finalising the action, or by order of the court.
An account of a telephone exchange between Ms Owen and a court officer, relayed in an email between solicitors, appears at [27]. Taking that account on its face, whatever a court officer may have said about the first inactive notice being issued:
(a)the action had at that time been put on the ICL, and the only means by which it could then be removed (other than by finalising the action or entering it for trial) was by order of the court;
(b)the operation of DCR r 44F is plain on its face, is discernible to a legal practitioner (noting that the plaintiff is and was legally represented), and is not capable of being varied by a telephone conversation with a court officer;
(c)an order removing a case from the ICL is a judicial, rather than an administrative, act; and
(d)it is uncontentious, and I find, that no such order was made.

I find that the action was put on the ICL on 21 March 2024 and was not thereafter removed.
That the case was not removed from the ICL on 22 March 2024 is reflected in the rejection by the court of the second minute when TGB attempted to file it on 26 March 2024, communicated to the plaintiff by the court's letter dated 3 April 2024.
If follows, too, that I find that the action was not put onto the ICL on 5 April 2024 (because it had never been removed). Rather, a further inactive notice was issued on that date. As observed by the Court of Appeal in Rowe v Stoltze,[19] and as reflected by the wording and structure of DCR r 44D(1) itself, a notice being issued by the court is distinct from the matter being notified.
[19] Rowe v Stoltze [2013] WASCA 92 (Rowe 2013) [48] ‑ this observation was made in the context of the dismissal of an action, but the reasoning is equally apposite in this context.
Accordingly, I find that the dismissal of the action was not irregular by reason of the case being invalidly put on the ICL. That finding attends to the ground on which this part of the application was advanced.
For completeness, however, I note that the issue of a second inactive notice may well have resulted in understandable confusion as to the start and end of the six‑month period contemplated by DCR r 44G(1).
Even if the plaintiff contends that, by reason of the matters in [27], the plaintiff was led to believe that the first inactive notice had been 'rescinded' on 22 March 2024:
(a)from 21 March 2024, the action was and remained inactive pursuant to DCR r 44;[20] and
(b)by 5 April 2024, at the latest, the plaintiff had notice that the action had been put on the ICL.
[20] As to which, see [46] and [47(a)] of these reasons.
Accordingly, I do not consider that any prejudice or unfairness arises that might be said to result in irregularity. The action was not dismissed until 5 October 2024. The plaintiff was not, by reason of any confusion as to the date on which the action was put on the ICL, deprived of a six‑month opportunity to apply to have the action removed from the ICL (and, indeed, this is not asserted by the plaintiff).
The case was not dismissed other than in accordance with DCR r 44G because, whether time is reckoned from 21 March 2024 or 5 April 2024, the action had remained on the ICL for at least six months at the time it was dismissed. Accordingly, the dismissal of the action was not irregular by reason of the issue of the second inactive notice.

Should the dismissal be set aside under RSC O 2 r 1?

RSC O 2 r 1 has the effect that:
(a)the dismissal of an action other than in accordance with the rules of court is irregular, but is not a nullity (that is, it has effect unless and until varied or set aside); and
(b)the court may, because of the irregularity, and on such terms as to costs or otherwise as it thinks just:
(i)set aside the dismissal; and
(ii)make any order dealing with the proceedings generally as it thinks fit.
It follows from my findings at [53] and [57] that:
(a)I do not consider RSC O 2 r 1 to be engaged;[21] and
(b)I find that the dismissal of the action should not be set aside by reason of irregularity.
[21] This view is fortified by the analysis of the Court of Appeal in Rowe 2013 [35] ‑ [38], although I accept that there is some distinction between the circumstances leading to the dismissal in that case and the circumstances of this case.

Should the dismissal be set aside under DCR r 44G(5)?

The remaining ground of the application is that the dismissal of the action should be set aside pursuant to DCR r 44G(5), which provides that the court:
… may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).

Parties' evidence and contentions

The affidavit evidence filed in support of the application:
(a)is limited to the affidavit evidence of the plaintiff's solicitors. Further, that evidence is itself limited by the fact that, prior to the application, Ms Owen (who was acting at most relevant times) had left TGB (for reasons unconnected with this matter) and had since 'declined to be involved in any detailed discussion about' the circumstances giving rise to the application;[22]
(b)beyond the history outlined in [16] - [31], is to the effect that:
(i)the plaintiff's lawyers had the conduct of another case, involving similar facts and issues, against the same defendant (Other Case) which was running separately but concurrently with this case;
(ii)the plaintiff was aware of the Other Case and had instructed her solicitors to await its outcome before proceeding with her case;[23]
(iii)'it was agreed' between the parties that the Other Case would run as a 'test case' and this action was to 'run after it';[24]
(iv)after receipt by TGB of the first inactive notice, there was 'an administrative oversight' by which no alert dates were entered and no steps were taken between 21 March 2024 and 7 October 2024 to have the action removed from the ICL;[25] and
(v)after the events described in [27], there was 'an administrative oversight' in that 'no reminders were diarised to follow up that the [first inactive notice] was rescinded and the entry for trial milestone had in fact been extended';[26] and
(c)states that the plaintiff has obtained expert evidence in support of her claim and will be in a position to progress the action if the dismissal is set aside and the action is removed from the ICL.
[22] White affidavit, pars 4 - 6.
[23] First Ferraro affidavit, pars 7 - 9; Second Ferraro affidavit, pars 10 - 11.
[24] First Ferraro affidavit, par 10; Second Ferraro affidavit, par 10.
[25] White affidavit, par 7.
[26] Second Ferraro affidavit, par 8.
In summary, the plaintiff contends that:
(a)there was an understanding between the parties that this case would be delayed pending resolution of a related 'test case';
(b)the circumstances of the action being put on the ICL and then dismissed are unusual because:
(i)the parties had previously, and in similar circumstances, filed consent orders to extend the entry for trial date, which orders had been made by the court;
(ii)the matters outlined in [27] led the plaintiff's solicitor to believe that the first inactive notice would be rescinded; and
(iii)the court issued the second inactive notice and later inactivated that notice;
(c)administrative oversights on the part of the plaintiff's solicitors led to steps not being taken after 21 March 2024 to remove the action from the ICL;
(d)the application was brought at the first available opportunity, when it came to the plaintiff's attention that the case was inactive;
(e)if the dismissal is not set aside, the plaintiff will suffer prejudice because any further action would now be statute barred;
(f)there is expert evidence that supports the merit of the plaintiff's claim; and
(g)cumulatively, the circumstances in this case should be considered exceptional such as to warrant the exercise of the court's discretion to set the dismissal aside.
The affidavit evidence of the defendant's solicitors, filed in opposition to the application, is to the effect that:
(a)in the period from May 2023 to March 2024, the defendant's solicitor, Mr Bishop, exchanged emails and had various telephone conversations with the plaintiff's solicitor, Ms Owen, relating to the conduct of this action and the Other Case;[27]
(b)although various specific delays (pertaining to discovery, expert evidence and particulars of damage) in each case were the subject of conferral, the defendant (by its solicitors) did not enter into any understanding with the plaintiff (by her solicitors) that this action would be 'on hold' or would await the outcome of the Other Case;[28]
(c)the defendant's solicitors did not receive any correspondence or communication regarding this action from the plaintiff or the plaintiff's solicitors in the period between 22 March 2024 and 26 November 2024;[29] and
(d)the defendant was notified of the application by email dated 12 February 2025 and the application was served on the defendant by email dated 19 February 2025.[30]
[27] Bishop affidavit, pars 12 - 21, 'JTB-1' - 'JTB-9'.
[28] Bishop affidavit, par 25; First Perera affidavit, par 28; Second Perera affidavit, par 12.
[29] Bishop affidavit par 24; Second Perera affidavit par 11.
[30] First Perera affidavit, par 34, 'JJEP-6'.
In summary, the defendant contends that:
(a)the plaintiff had notice that the action was placed on the ICL, but took no steps to have it removed before it was dismissed;
(b)irrespective of any understanding between the parties as to this action being 'on hold' pending determination of the Other Case (which, in any event, is not consistent with the defendant's evidence), an obligation to progress the action, and to take steps to remove the action from the ICL, remained with the plaintiff;
(c)to the extent that there was an 'oversight' by the plaintiff's solicitors in taking any steps, that oversight is not properly explained (because, as the plaintiff's solicitor was aware the action had been put on the ICL, it is unclear how an administrative reminder would have changed that position);
(d)mere inadvertence or inattention by a solicitor does not ordinarily constitute an exceptional circumstance that would absolve the plaintiff from personal responsibility to pursue the action;
(e)the evidence filed in support of the application is deficient in that there is no evidence from the plaintiff, who bears the ultimate responsibility for progressing the action; and
(f)the defendant will suffer prejudice, occasioned by delay, if the dismissal is set aside.

Relevant principles

In dealing with this ground, I direct myself to the general principles set out in Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2],[31] as follows:
[31] Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2017] WASCA 142 (Sovereign Grange).
(a)first, the reference in DCR r 44G(5) to 'exceptional circumstances' regulates the manner in which the court's discretion is to be exercised, rather than establishing a condition precedent to the existence of a discretion. The rule poses a single question for the court: whether exceptional circumstances warrant setting aside the dismissal of an action;[32]
[32] Sovereign Grange [76].
(b)second, any assessment of whether circumstances are exceptional involves an evaluative judgment, on which reasonable minds might differ. The evaluation requires careful consideration of the facts of the particular case, against the rationale of the rule itself.[33] The rationale is 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;[34]
[33] Sovereign Grange [74].
[34] Sovereign Grange [75].
(c)in that context, it is not enough that there is something about the circumstances of the case which is unusual or out of the ordinary; rather, the nature of the exceptional circumstances must be such as to warrant the exercise of the discretion to set aside the dismissal of the action;[35]
[35] Sovereign Grange [75].
(d)'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;[36]
(e)the circumstances must be both exceptional and causally related to the dismissal of the action;[37]
(f)alongside any other circumstances leading to the dismissal of an action, it is proper to have regard to any failure of the plaintiff to take steps to avoid that consequence, and any reasons given for that failure,[38] noting that a plaintiff bears the ultimate responsibility for progressing their action;[39] and
(g)other factors to be considered include:[40]
(i)the merits of the plaintiff's case (there being no point in reinstating a case that has no merit);
(ii)the prejudice to the plaintiff if the dismissal of the action is not set aside (including the expiry of any relevant limitation period); and
(iii)the prejudice to the defendant if the dismissal of the action is set aside.

Disposition

[36] Sovereign Grange [26], citing Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016]

[37] Sovereign Grange [26].

[38] Sovereign Grange [56] - [61].

[39] Sovereign Grange [26], [60], [81].

[40] Sovereign Grange [26].

Consistent with the evidence filed in support of the application, I find that the plaintiff, by her solicitors, was on notice that:
(a)unless otherwise ordered, the case management timetable required the action to be entered for trial by 22 June 2023;[41]
(b)by orders made on 30 June 2023,[42] 5 October 2023[43] and 20 December 2023,[44] the latest date by which the action was to be entered for trial was extended to 4 March 2024;
(c)the action would be placed on the ICL if it was not entered for trial by 20 March 2024;[45]
(d)the action had been put on the ICL on 21 March 2024, and, if it remained on the ICL for a period of six months, it would be dismissed for want of prosecution;[46]
(e)as at 3 April 2024, the action remained on the ICL and an application by chamber summons was required to remove it from the ICL;[47] and
(f)as at 5 April 2024, the action was on the ICL and, if it remained on the ICL for a period of six months, it would be dismissed for want of prosecution.[48]
[41] Case Management Timetable, issued on 22 February 2023. See also the Plaintiff's supplementary submissions, par 10(b).
[42] Third Ferraro affidavit, par 4,'LMF4'.
[43] Third Ferraro affidavit, par 5, 'LMF5'.
[44] Third Ferraro affidavit, par 6, 'LMF9'.
[45] Third Ferraro affidavit, par 7, 'LMF10'.
[46] Third Ferraro affidavit, par 10, 'LMF14'.
[47] Third Ferraro affidavit, par 13, 'LMF16'.
[48] Third Ferraro affidavit, par 14; First Perera affidavit, par 26, 'JJEP-3'.
Notwithstanding such notice, the plaintiff took no formal steps to have the action removed from the ICL.
There is no affidavit evidence from the plaintiff, and no other direct evidence in relation to the plaintiff's knowledge or instructions to her solicitors, at the time the action was put on the ICL, or thereafter before the action was dismissed.[49]
[49] Ms Ferraro did not assume conduct of the case until or about 21 November 2024, after the action had been dismissed: First Ferraro affidavit, par 4.
Although I do regard the circumstances outlined at [27] ‑ [30] to be unusual, those circumstances are not causally related to the dismissal of the action because:
(a)after the action was put on the ICL on 21 March 2024, and despite the matters outlined at [27]:
(i)the minute of consent orders filed on 26 March 2024 was rejected by reason of the action being on the ICL; and
(ii)no order was ever made removing the action from the ICL (as to which, see [49]);
(b)there is no evidence that the issue of the second inactive notice caused the plaintiff, or her solicitors, any confusion as to the date upon which the six‑month period under DCR r 44G(1) would end;
(c)in any event, as I have identified at [55] ‑ [56], any such confusion could not be causally related to the dismissal of the action because the action was not dismissed until 5 October 2024; and
(d)the uplift of the second inactive notice has no bearing because:
(i)as observed earlier in these reasons, the issue of a notice is a related but distinct step to putting the action on the ICL under DCR r 44D(1);
(ii)the rules require a party to have notice, and this requirement was met by the first inactive notice which, once issued, remained on the electronic court record;[50]
(iii)as long as the requirement for notice is met, the presence or uplift of an inactive notice on the court record has no bearing on an action being or remaining on the ICL (this is demonstrated by inactive notices remaining on the court record even if an order removing the action from the ICL is subsequently made); and
(iv)once an action is on the ICL, it can only be removed in a manner prescribed by DCR r 44F.
[50] As to which see: RSC O 1 r 8.
The action was dismissed because it remained on the ICL for a period of six months. Accordingly, the circumstances that are causally related to the dismissal are circumstances going to the reason the action remained on the ICL. I turn, then, to the evidence going to those circumstances.
To the extent that the evidence is to the effect that the action was 'on hold' because the plaintiff was awaiting the outcome of the Other Case (even if one puts aside the conflict in the parties' evidence in this regard), that evidence does not assist the plaintiff in the application because:
(a)a deliberate decision not to progress a case is precisely the sort of circumstance that will attract the operation of the inactive case management regime under the DCR;[51] and
(b)to the extent that there was a good reason to await the outcome of the Other Case, application could and should have been made to the court to remove the action from the ICL and extend the time allowed on this ground (so that the court could weigh the merit of any agreement between the parties in this regard against the objectives of contemporary case management).
[51] It is not, for example, exceptional when the progress of litigation is put 'on hold' to accommodate settlement discussions and those discussions subsequently stall: Sovereign Grange [79]. See also: Elwood [69].
As to the 'administrative oversights' cited in the affidavit evidence filed in support of the application, I consider that evidence to be inadequate because:
(a)as to Ms Ferraro's evidence that the nature of the 'oversight' was not following up with the court as to whether the first inactive notice had been 'rescinded', I do not regard that circumstance as causally relevant. I repeat my observations and findings at [49] and at [69(c)] - [69(d)];
(b)as to Mr White's evidence that the 'oversight' was an administrative failure to implement any alerts on the file, that kind of failure is not in my view exceptional in nature;[52]
(c)there is no affidavit evidence of the plaintiff, who has the ultimate responsibility for progressing her case, as to any reason that she did not or could not take, or instruct her lawyers to take, the requisite steps; and
(d)viewed collectively, the explanations that have been provided lack detail and weight.[53]
[52] See, for example, Guillaume v City of Stirling [2020] WADC 41 (Guillaume) [95] - [96].
[53] Guillaume [96].
As to the question of delay in making the application, I note that, while the plaintiff's solicitors filed an application to set aside the dismissal of the action on 28 November 2024, that application:
(a)was filed in the wrong action; and
(b)was not served on the defendant for a further period of almost three months.[54]
[54] First Perera affidavit, par 34, 'JJEP-6'.
I note that the plaintiff's written submissions include that the application was brought at the first available opportunity, 'when it came to the plaintiff's attention that the case was inactive'.[55] It is unclear whether that submission was drafted in error (specifically, whether the last word was intended to be 'dismissed'). To the extent it is advanced in the terms it was drafted, that submission is rejected. The plaintiff's own evidence is that no steps were taken between the time that the case was put on the ICL and the time that the action was dismissed.[56]
[55] Plaintiff's submissions, dated 7 April 2025, par 28.
[56] White affidavit, par 7.

Turning to the merits of the plaintiff's claim, I note that:
(a)the case advanced against the defendant is that the plaintiff, as a police officer, carried out functions in the child sex offence teams of the police force and, by reason of doing so, suffered psychiatric injury;
(b)the plaintiff argues that such injury was caused or contributed to by the defendant breaching various duties to her in its capacity as her employer; and
(c)the defendant has denied the duties alleged against it and the extent of the alleged injury, and has put on a positive defence in relation to the causative effect of factors that do not pertain to the plaintiff's work.
I note that in the application the plaintiff has adopted the position that the Other Case involved similar facts and issues and was being run as a 'test case' on the issue of liability.
In the circumstances, there is little on which I can form a view on the merits of the plaintiff's claim, other than that the case is arguable, but will be tested.
Finally, as to the question of prejudice:
(a)I accept that if the dismissal is not set aside, the plaintiff will suffer prejudice because her claim will likely be statute barred; and
(b)I also accept that if the dismissal is set aside, the defendant will suffer the prejudice of delay and its consequential effects.
It is not unusual, in circumstances where an action is dismissed for want of prosecution, for limitation issues to arise that may prevent a plaintiff from issuing fresh proceedings.[57] While relevant to the exercise of the court's discretion, this alone is not sufficient to determine the application.
[57] See, for example, Sovereign Grange; Guillaume.
Accepting that there might be some merit to the plaintiff's claim and that she will suffer prejudice if the dismissal is not set aside, those factors either alone or in combination with any other factors advanced in the application, do not in my view amount to exceptional circumstances warranting the setting aside of the dismissal of the case.
I am not satisfied that the plaintiff has established that there are exceptional circumstances that warrant the setting aside of the dismissal of the action under DCR r 44G(5).

Does DCR r 44F apply?

By reason of my foregoing decision that the dismissal of the action ought not be set aside, the discretion under DCR r 44F is not engaged.

Conclusion

The application is dismissed.
I will hear submissions as to the precise terms of the orders that should be made, including as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EW
Registrar's Associate
27 JUNE 2025

WADC 73.