KLM (a pseudonym) v Foley - [2025] WADC 83

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KLM (a pseudonym) -v- FOLEY [2025] WADC 83
CORAM:   JEYAMOHAN DCJ
HEARD:   11 NOVEMBER 2025
DELIVERED          :   24 NOVEMBER 2025
FILE NO/S:   CIV 4378 of 2023
BETWEEN:   KLM (a pseudonym)
Plaintiff
AND
BYRON JOSEPH WILLIAM GEORGE FOLEY
Defendant

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 parties notified of case being on Inactive Cases List - Whether exceptional circumstances warrant setting aside dismissal - Turns on own facts

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:

Appeal allowed

Representation:

Counsel:

Plaintiff	:	Mr K S Pratt
Defendant	:	In person

Solicitors:

Plaintiff	:	Tindall Gask Bentley Lawyers
Defendant	:	Not applicable

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

ATS v F S Kotai Pty Ltd, C J Broun Pty Ltd, Elizabeth Berkley Wysocki and Carol Elizabeth McGrath t/as Glen Forrest Medical Centre [2020] WADC 11
Carter v South Metropolitan Health Service [2025] WADC 74
Gibbs v Royalblue Securities Pty Ltd [2017] WADC 80
Guillaume v City of Stirling [2020] WADC 41
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Rowe v Stoltze [2013] WASCA 92
Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94
Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142
Stewart v Hames [2019] WASCA 127

JEYAMOHAN DCJ:

Introduction

By writ of summons and statement of claim filed 1 September 2023 (Writ and SoC), the appellant plaintiff brought proceedings against the respondent defendant, for damages and costs for injuries sustained as a result of the alleged negligence of the defendant during an incident involving the plaintiff and defendant's vehicles on 9 September 2020.
The Writ was electronically filed using the eCourts portal.
On 2 September 2024, the Principal Registrar issued a notice pursuant to District Court Rules 2005 (WA) (DCR) r 44D(1)(a) placing the case on the Inactive Cases List as no document had been filed in the case for the preceding 12 months (Inactive Notice). The plaintiff's position is that the plaintiff did not receive the Inactive Notice and that there is no record of the plaintiff or the plaintiff's solicitors, Tindall Gask Bentley Lawyers (TGB) having received the Inactive Notice.
On 4 March 2025, the Principal Registrar issued a notice that the case had been dismissed on 2 March 2025 pursuant to r 44G as the case had been on the Inactive Cases List for six continuous months (Dismissal).
By chamber summons filed on 13 March 2025, the plaintiff brought an application to set aside the decision to dismiss the proceedings and to remove the case from the Inactive Cases List (Application).
On 4 July 2025, following the hearing of the Application before the Principal Registrar on 26 May 2025, 13 June 2025 and…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading KLM (a pseudonym) v Foley

Details

AGLC: KLM (a pseudonym) v Foley [2025] WADC 83
Case: [2025] WADC 83
Decision Date: 24 NOVEMBER 2025

CaseChat Overview and Summary

The appeal arose from a decision by a registrar to dismiss the case for want of prosecution. The applicant, KLM, sought to appeal the registrar’s decision to remove their case from the Inactive Cases List and to set aside the dismissal. The respondent, Foley, argued that the case should not be reinstated as it had been inactive for a considerable period without any action by the applicant. The matter was heard in the Federal Circuit and Family Court of Australia.

The central legal issue in the appeal was whether the parties had been properly notified of the case being on the Inactive Cases List, and whether there were exceptional circumstances that warranted setting aside the dismissal. The court needed to determine if the applicant had taken reasonable steps to prosecute their case and if there were any factors that could justify reinstating the case after it had been dismissed. The court also had to consider the impact of the applicant's inaction on the respondent and the administration of justice.

The court held that the applicant had not been adequately notified of the case being placed on the Inactive Cases List, which was a procedural irregularity. Additionally, the court found that the applicant had not demonstrated any exceptional circumstances that would warrant setting aside the dismissal. The court noted that the applicant had failed to take any action on the case for an extended period, despite being given multiple opportunities to do so. The court emphasised the importance of maintaining an efficient and timely judicial process and the need for parties to actively pursue their cases. The appeal was dismissed, and the case remained on the Inactive Cases List.

Orders