KLM (a pseudonym) v Foley
[2025] WADC 83
•24 NOVEMBER 2025
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 24 June 2025, the Application was dismissed (Decision).
By notice of appeal dated 14 July 2025, the plaintiff appeals against the Decision.
The appeal proceeded to substantive hearing before this court on 11 November 2025 and was a hearing de novo.
In order for the Dismissal to be set aside, the plaintiff must satisfy the court that exceptional circumstances exist.
For the reasons which follow, I am satisfied that the principal ground of appeal is made out, the appeal should be allowed, the Decision the Principal Registrar made on 4 July 2025 and the order for the Dismissal made on 2 March 2025 be set aside, and the case removed from the Inactive Cases List.
Procedural background
By Writ and SoC filed 1 September 2023, the plaintiff commenced District Court action CIV 4378 of 2023 against Byron Joseph William George Foley for damages and costs for injuries sustained as a result of an alleged incident involving the plaintiff and defendant's vehicles on 9 September 2020. The incident occurred in circumstances where the defendant was allegedly attempting to evade arrest by the plaintiff, a commissioned Western Australian police officer at the time.
The plaintiff's pleaded case as it appears in the SoC is as follows:
1.At all material times, the plaintiff was a commissioned police officer with the Western Australia Police Force (WA Police).[1]
2.At all material times, the defendant was driving a stolen dark grey Toyota Prado which was being pursued by WA Police and was attempting to evade arrest by the plaintiff.[2]
3.On 9 September 2020, at approximately 9.00 am, the plaintiff was on duty in South Hedland in the State of Western Australia when at approximately 10.00 am the plaintiff observed the defendant's vehicle travelling in the opposite direction.[3]
4.The plaintiff's vehicle pursued the defendant's vehicle until it came to a stationary position. The plaintiff approached the defendant's vehicle and opened the driver‑side door of the defendant's vehicle in order to identify and attempt the arrest of the defendant (attempted arrest).[4]
5.During the attempted arrest the defendant sought to flee by manoeuvring his foot so as to accelerate the defendant's vehicle whilst the plaintiff had a hold of the defendant's arm (attempted escape).[5]
6.During the attempted escape the plaintiff was wedged between the plaintiff and defendant's vehicles and dragged approximately 10 m (incident).[6]
7.The incident was caused by the negligence of the defendant, as a result of which the plaintiff sustained an injury to the plaintiff's left and right ankle, bruxism with resulting headaches and post‑traumatic stress disorder.[7]
8.As a result of the incident the plaintiff has suffered loss of income and has incurred and will continue to incur past and future medical expenses, loss of income, gratuitous services and travel expenses.[8]
[1] SoC, par 2.
[2] SoC, par 3.
[3] SoC, pars 4 - 5.
[4] SoC, par 7.
[5] SoC, par 8.
[6] SoC, par 9.
[7] SoC, pars 10 and 12.
[8] SoC, pars 11, 13 - 22 (inclusive).
On 2 September 2024, the Principal Registrar issued a notice pursuant to 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.
On 9 September 2024, the plaintiff filed a document entitled 'Affidavit of Service of Janine Ross of writ of summons sworn 5 September 2024' (Affidavit of Service). Janine Ross of Pathfinder Investigations Pty Ltd, relevantly deposed to the following in the Affidavit of Service:
1.That on Tuesday, 3 September 2024, she caused a process server to make inquiries in South Hedland regarding the whereabouts of the defendant.[9]
2.As a result of those inquiries, at 6.32 pm, she commenced an email stream with Roebourne Regional Prison.[10]
3.That on Wednesday, 4 September 2024 at 3.22 pm, a movements officer served the defendant with a true copy of the Writ and SOC in this action filed 1 September 2023 by delivering it to him in person.[11]
4.That on Wednesday, 5 September 2024, the movements officer indorsed on the Writ the details of service confirming service of the Writ and SoC on the defendant on 4 September 2024.[12]
[9] Affidavit of Service, par 1.
[10] Affidavit of Service, par 2; Annexure JR1.
[11] Affidavit of Service, par 5; Annexure JR2.
[12] Affidavit of Service, par 3.
On 4 March 2025, the Principal Registrar issued the Dismissal pursuant to DCR r 44G as the case had been on the Inactive Cases List for six continuous months.
By chamber summons filed on 13 March 2025, the plaintiff brought the Application to set aside the Dismissal pursuant to DCR r 44G and to remove the case from the Inactive Cases List pursuant to DCR r 44F.
By order of the court made 26 May 2025, the plaintiff was ordered to file any further affidavit evidence and any written submissions in support of the Application by 9 June 2025 with the Application otherwise being adjourned to 13 June 2025.
By order of the court made 13 June 2025, the time by which the plaintiff was to comply with par 1 of the orders made 26 May 2025 was extended to 4.00 pm on 20 June 2025 and with the Application otherwise being adjourned to 24 June 2025 at 9.30 am.
On 4 July 2025, the Principal Registrar dismissed the Application following the application being heard on 26 May 2025, 13 June 2025 and 24 June 2025.
By notice of appeal dated 14 July 2025, the plaintiff appeals against the Decision. The notice of appeal seeks the following orders:
1.Set aside the decision of Principal Registrar McGivern dated 4 July 2025.
2.Set aside the dismissal for want of prosecution issued on 2 March 2025.
In programming the appeal for hearing, orders were made by the court on 16 September 2025 including that the plaintiff appellant have 28 days to file any further affidavit in support of the appeal. Subsequent to the making of that order, no further affidavit in support was filed with the court.
By email dated 7 November 2025, the plaintiff's solicitors emailed the court, but did not file, its outline of submissions in support of the appeal.
The appeal proceeded to hearing on 11 November 2025.
The plaintiff was represented by counsel at the hearing of the appeal. At the hearing of the appeal, counsel for the plaintiff confirmed that the plaintiff relies on the Third Ferraro Affidavit and the Lomman Affidavit and otherwise relies on the First Ferraro Affidavit and the Second Ferraro Affidavit for the purposes of setting out the background of the matter.
Counsel for the plaintiff otherwise confirmed that in addition to counsel's oral submissions at the hearing of the appeal, the plaintiff relies on the outline of submissions dated 7 November 2025. I made an order that the plaintiff is to file the outline of submissions dated 7 November 2025 by 11 November 2025.
By email dated 12 November 2025, the plaintiff's solicitors emailed the court, and subsequently filed a supplementary outline of submissions in support of the appeal. I am prepared to accept the supplementary submissions for the purposes of the appeal.
The evidence of the plaintiff
The Application was supported by the affidavit of the solicitor with carriage of the matter on behalf of the plaintiff, Lianna Marie Ferraro sworn 13 March 2025 (First Ferraro Affidavit). Ms Ferraro in the First Ferraro Affidavit relevantly deposes to the following:
1.That she has carriage of this matter on behalf of the plaintiff.[13]
[13] First Ferraro Affidavit, par 1.
2.That on 15 August 2024, she wrote to the Insurance Commission of Western Australia (ICWA) querying whether they would accept service of the Writ and SoC.[14]
[14] First Ferraro Affidavit, par 4; Annexure LMF1.
3.That on 28 August 2024, she received a response from ICWA advising to serve the defendant directly and an address for service was provided.[15]
[15] First Ferraro Affidavit, par 5; Annexure LMF2.
4.That her office immediately made contact with various process servers to ascertain who could be retained to effect service on the defendant given the remote area and that she understood that there were difficulties locating the defendant as he was now incarcerated.[16]
[16] First Ferraro Affidavit, par 6; Annexure LMF3.
5.That on 9 September 2024, she wrote to ICWA and provided a copy of the filed affidavit of service.[17]
[17] First Ferraro Affidavit, par 7; Annexure LMF4.
6.That on receiving notice from the court dated 4 March 2025, she immediately phoned Ms Angela Teo of ICWA.[18]
7.That on 8 March 2025, she emailed ICWA following up as she had yet to receive any correspondence from their solicitors.[19]
8.That on 12 March 2025, she received correspondence from the solicitors engaged to act on behalf of ICWA and she notes from that correspondence that the defendant does not oppose an order to set aside the Dismissal.[20]
9.That if the Dismissal is not set aside the plaintiff's claim will be statute barred and the plaintiff will not have any further opportunity to have her claim resolved or determined by the court.[21]
10.That the plaintiff is a police officer who was injured in the course of her duties and as a result of her injuries has been financially and medically impacted and will be substantially prejudiced if she cannot pursue her action.[22]
11.That since the initiation of these proceedings, the plaintiff has undergone medico‑legal examinations to assist with determining the quantum of her claim and to assist with the preparation of her particulars of damage.[23]
12.That the plaintiff requests that the Dismissal be set aside and the case timetable adjusted to extend the entry for trial milestone to 30 April 2025 to allow final medical evidence to be obtained and the particulars of damage filed in accordance with the DCR.[24]
[18] First Ferraro Affidavit, par 8; Annexure LMF5.
[19] First Ferraro Affidavit, par 9; Annexure LMF6.
[20] First Ferraro Affidavit, pars 10 - 11; Annexure LMF7.
[21] First Ferraro Affidavit, par 12.
[22] First Ferraro Affidavit, par 13.
[23] First Ferraro Affidavit, par 14.
[24] First Ferraro Affidavit, par 15.
Ms Ferraro filed a further affidavit in support of the Application sworn 26 May 2025 (Second Ferraro Affidavit). Ms Ferraro in the Second Ferraro Affidavit, relevantly deposes to the following:
1.That she was the solicitor with conduct of the action from the date that the Writ and SoC was filed, namely 1 September 2023 to the date of the swearing of the affidavit.[25]
[25] Second Ferraro Affidavit, par 4(a).
2.That between the date that the Writ and SoC was filed (1 September 2023) and the date that notification was provided by the court that the case had been dismissed on 2 March 2025 (4 March 2025) neither she, her firm nor the plaintiff was provided with any notice that the case had been placed on the Inactive Cases List.[26]
[26] Second Ferraro Affidavit, par 4(b).
3.That she is now advised that the matter became inactive on 2 September 2024 by the operation of DCR r 44A.[27]
[27] Second Ferraro Affidavit, par 4(c).
4.That as previously attested to, the Writ and SoC was served on the defendant on 4 September 2024 and that she caused an affidavit of service to be filed in the court on 9 September 2024.[28]
[28] Second Ferraro Affidavit, par 4(d).
5.That also on 9 September 2024, she provided the ICWA with the affidavit of service which contained the Writ and SoC such that the defendant could have filed a memorandum of appearance pursuant to DCR r 44E(aa).[29]
[29] Second Ferraro Affidavit, par 4(e).
6.That at no point between 2 September 2024 and 2 March 2025 did she receive a memorandum of appearance from the defendant.[30]
[30] Second Ferraro Affidavit, par 4(f).
7.That in relation to par 14 of the First Ferraro Affidavit, she has undertaken the following steps to progress the plaintiff's action since 1 September 2023:
(a)arranged for the plaintiff to attend Dr Matthew Samuel, psychiatrist on 20 November 2024;[31]
(b)arranged for the plaintiff to attend Dr Steve Overmeire, occupational physician on 21 November 2024;[32]
(c)followed up a request to the treating psychiatrist, Dr Michaela Iliescu, which was sent on 2 August 2023, and to date no response has been received and her firm has followed up on four separate occasions between 27 March 2024 to 20 August 2024;[33] and
(d)liaised with counsel in relation to evidence gathering and progressing the matter generally.[34]
[31] Second Ferraro Affidavit, par 5(a); Annexure LMF8.
[32] Second Ferraro Affidavit, par 5(b); Annexure LMF9.
[33] Second Ferraro Affidavit, par 5(c).
[34] Second Ferraro Affidavit, par 5(d).
Ms Ferraro filed an additional affidavit in support of the Application sworn 19 June 2025 (Third Ferraro Affidavit). Ms Ferraro in the Third Ferraro Affidavit, relevantly deposes to the following:
1.That in relation to par 7 of the First Ferraro Affidavit:
(a)the action went on the Inactive Cases List on 2 September 2024;[35]
[35] Third Ferraro Affidavit, par 5(a).
(b)she became aware of this fact after the action was dismissed;[36]
[36] Third Ferraro Affidavit, par 5(b).
(c)she has had conduct of various personal injury actions in the District Court of Western Australia since 2020/2021;[37]
[37] Third Ferraro Affidavit, par 5(c).
(d)it has been her experience that once an action enters the Inactive Cases List only those documents enumerated at DCR r 44E may be filed;[38]
[38] Third Ferraro Affidavit, par 5(d).
(e)when she has sought to file non‑r 44E documents, that the court rejects the document and certainly does not stamp it as being filed;[39]
[39] Third Ferraro Affidavit, par 5(e).
(f)it has been her experience that the court will also notify, by way of letter, in terms:[40]
[40] Third Ferraro Affidavit, par 5(f); Annexure LMF10.
The document has not been accepted/deemed filed for the following reasons: An Inactive Notice was issued prior to the document being filed. This action is now on the inactive case list. A chamber summons application and supporting affidavit will be required to remove the action from the inactive case list.
(g)on another Inactive Case where a non‑r 44E document was sought to be filed, the eCourts portal would not allow you to 'view' the document you have filed, therefore never allowing you to be provided with a copy of the document with a filed stamp on it;[41] and
[41] Third Ferraro Affidavit, par 5(g).
(h)no such advice or information was provided to her by the court upon the filing of the 'LMF3' affidavit of service ‑ the court did in fact accept the document as being filed as is evidenced by the court filed stamp.[42]
[42] Third Ferraro Affidavit, par 5(h).
2.That as to pars 4(e) and (f) of the Second Ferraro Affidavit:
(a)she sought to effect service on the defendant on 9 September 2024;[43]
[43] Third Ferraro Affidavit, par 7(a); First Ferraro Affidavit; Annexure LMF4.
(b)as can be seen from that email sent 9 September 2024 at 6.52 pm, she said to the defendant 'please have your solicitors file a memorandum of appearance as soon as possible to prevent the matter from becoming inactive';[44]
[44] Third Ferraro Affidavit, par 7(b).
(c)she did not receive a response to this email;[45]
[45] Third Ferraro Affidavit, par 7(c).
(d)on 11 September 2024 at 8.29 pm, she again emailed the defendant forwarding her original service email and enclosing the process server's tax invoice;[46] and
[46] Third Ferraro Affidavit, par 7(d); Annexure LMF12.
(e)further on 27 February 2025 at 3.27 pm she again emailed the defendant following up the memorandum of appearance and defence in this matter and forwarded to the defendant the two earlier emails.[47]
[47] Third Ferraro Affidavit, par 7(e); Annexure LMF14.
3.That at no point between 2 September 2024 and 2 March 2025 did the defendant take issue with the service of the Writ and SoC or advise her that effective service had not been made.[48]
[48] Third Ferraro Affidavit, par 8.
4.That after the action was dismissed she was informed that a memorandum of appearance was not filed because the Writ was stale when served and that the Writ was stale by two days given the defendant was served on 4 September 2024.[49]
[49] Third Ferraro Affidavit, pars 9 and 10; First Ferraro Affidavit; Annexure LMF3.
5.That as to par 5(c) of the Second Ferraro Affidavit:
(a)exhibited thereto and marked 'LMF15', 'LMF16', 'LMF17' and 'LMF18' are true copies of emails from TGB to Dr Iliescu, the plaintiff's treating psychiatrist; and
(b)TGB has been following up this report and case notes to assist with understanding the level of impairment, causative link to the accident and injury prognosis.[50]
[50] Third Ferraro Affidavit, par 11.
6.That as to par 4(b) of the Second Ferraro Affidavit:
(a)she resides and practices in Adelaide, South Australia;[51]
[51] Third Ferraro Affidavit, par 12(a).
(b)she has the carriage of a mix of South Australian and Western Australian matters;[52]
[52] Third Ferraro Affidavit, par 12(b).
(c)TGB has an office in West Perth;[53]
[53] Third Ferraro Affidavit, par 12(c).
(d)as at 2 September 2024 TGB's procedure was that the administrative team in the West Perth office monitors the inbox for the email address: [email protected];[54]
[54] Third Ferraro Affidavit, par 12(d).
(e)when an email is received into that inbox the administrative team save the email into their document management system and then forward the email to the solicitor(s) with conduct of the matter and that she is told by the administrative team, they do not delete any emails from the inbox;[55]
[55] Third Ferraro Affidavit, par 12(e).
(f)she has now made enquires of TGB's information technology personnel in relation to any email from the court sent on 2 September 2024 at 2.25 pm;[56]
[56] Third Ferraro Affidavit, par 12(f).
(g)she is advised and verily believes that TGB never received an email from the court on this matter at that time;[57]
[57] Third Ferraro Affidavit, par 12(g).
(h)she is also advised and verily believes that emails, even those deleted, can be retrieved yet none was found on this action;[58]
(i)she recently caused enquires to be made with the court to obtain a copy of its email to TGB enclosing the Inactive Notice;[59] and
(j)she received the following response from a case management officer of the court registry advising:[60]
Please be advised that those emails are autogenerated from our no‑reply email that we do not have access to. I note that we will be unable to provide a copy of that email that may have served the notice issued on the 2 September 2024.
[58] Third Ferraro Affidavit, par 12(h).
[59] Third Ferraro Affidavit, par 12(i).
[60] Third Ferraro Affidavit, par12(j); Annexure LMF20.
Roger Lomman, operations manager at TGB filed an affidavit in support of the Application sworn 19 June 2025 (Lomman Affidavit). Mr Lomman in the Lomman Affidavit, relevantly deposes to the following:
1.He manages TGB's information technology department.[61]
[61] Lomman Affidavit, par 1.
2.He has been TGB's operations manager for almost 20 years commencing 4 July 2005.[62]
[62] Lomman Affidavit, par 2.
3.He has 34 years' industry experience and the following IT qualifications: CISCO certified network engineer.[63]
[63] Lomman Affidavit, par 3.
4.TGB's email system is called Microsoft Outlook and it saves and stores email going back indefinitely.[64]
[64] Lomman Affidavit, par 5.
5.TGB's email [email protected], at the relevant time:[65]
[65] Lomman Affidavit, par 6.
(a)was an inbox accessed by an administrative team;
(b)there were no 'retention policies' applied, which means there were never any items either deleted or archived automatically on this mailbox. Essentially any item sent to or from this mailbox would be retained indefinitely;
(c)has email in it from 13 February 2018 which from what he recalls is when he would have set up that email address; and
(d)displayed a screenshot of the bottom of the mailbox which also indicated there were 8,167 items in that inbox.[66]
[66] Lomman Affidavit, par 6; Annexure RL1.
6.On 2 May 2025 he conducted a search of the [email protected] email address and that this search involved contacting TGB's external IT consultant to retrieve and review relevant logs where possible. Nothing existed at the relevant time and date.[67]
[67] Lomman Affidavit, pars 7 - 8.
7.The fact that an email is recorded by a sender's server or mailbox as 'sent' does not mean it has been received by the intended recipient.[68]
[68] Lomman Affidavit, par 9.
8.He could not find any email received from the District Court of Western Australia on this matter on 2 September 2024:
(a)exhibited thereto and marked 'RL2' is a screenshot of the search undertaken and the results thereto; and
(b)exhibited thereto and marked 'RL3' is a copy of all that exists in the [email protected] inbox in relation to this matter.[69]
[69] Lomman Affidavit, par 10.
9.He could not find any internal email on this matter from the Perth office of TGB to anyone else in TGB (WA or SA) on 2 September 2024 or thereafter forwarding an Inactive Notice.[70]
10.He could not find any upload of an Inactive Notice on this matter to the document management system on or around 2 September 2024.[71]
11.That TGB's mail system automatically saves and stores all received, sent and deleted emails. They are also stored on a backup system through a product named Veeam. This product also performs daily backups that are retained for seven years.[72]
12.That he conducted a search of all deleted emails and he could not find any deleted email from the District Court on this matter in or around 2 September 2024 or thereafter.[73]
[70] Lomman Affidavit, par 11.
[71] Lomman Affidavit, par 12.
[72] Lomman Affidavit, par 13.
[73] Lomman Affidavit, par 14.
Case management principles
The case management principles in pt 4 div 3 of the DCR includes the following relevant rules:
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.
Appeal jurisdiction - Registrar appeals
A party who is dissatisfied with a decision of a registrar may appeal to a judge: DCR r 15(1). The appeal is to be by way of a new hearing of the matter that was before the registrar: DCR r 15(6). The appeal is a hearing de novo: Hazart Pty Ltd v Rademaker.[74] The judge hearing the appeal is to treat the application as if it was before the court for the first time, save that the party appealing has the right as well as the obligation to open the appeal.[75] The appellant is not required to demonstrate error to succeed on the appeal.[76]
[74] Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ) (Hazart).
[75] Stewart v Hames [2019] WASCA 127 [8].
[76] Hazart [28].
I am therefore to treat the Application which led to the making of the orders the subject of the appeal as though it had not been previously determined. It is not necessary for the plaintiff to establish an appealable error on the part of the registrar.
The issue on the appeal
The sole issue that arises for determination is whether exceptional circumstances exist justifying the setting aside of the Dismissal of the case pursuant to DCR r 44G(5).
Are there exceptional circumstances that warrant an exercise of the court's discretion under District Court Rules 2005 (WA) r 44G(5) to set aside the Dismissal of the action and, if so, on what terms?
The plaintiff's position can be summarised as follows:
1.DCR r 44G (5) permits the court, in exceptional circumstances and on such terms as it thinks just, to set aside the dismissal of a case under subrule (1).
2.The principles applicable to the determination of the plaintiff's application are those set out by the Court of Appeal (WA) in Sovereign Grange [No 2].[77]
3.What occurred in this action was very rare. Relevantly:
(a)there is cogent evidence in Lomman's Affidavit that 'something went awry'; and
(b)that evidence is consistent with what has been deposed to in the Ferraro Affidavits: notably evidence from an officer of the court.
4.The court is, therefore, confronted with most exceptional circumstances en passant, there was no reason to conclude that the records of the electronic case management system (ECMS) of the court are more reliable than the evidence proffered by the plaintiff.
5.In those circumstances, the precondition for the exercise of the discretion is satisfied and there is no relevant consideration which weighs against the exercise of that discretion favourably to the plaintiff.
[77] Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142 [26] (Sovereign Grange [No 2]); Guillaume v City of Stirling [2020] WADC 41 [70] (Guillaume).
The plaintiff in essence submits that the plaintiff not having received the Inactive Notice, and therefore not having knowledge of the case being placed on the Inactive Cases List, amounts to exceptional circumstances.
The plaintiff submits that had the plaintiff received notice, the plaintiff could have taken steps to remove the case from the Inactive Cases List prior to the Dismissal.
The plaintiff relies on Sovereign Grange [No 2]; Rowe v Stoltze[78] and Ruby v Doric Constructions (Australia) Pty Ltd.[79]
Notice not a precondition to being on Inactive Cases List or dismissal of case
[78] Rowe v Stoltze [2013] WASCA 92 (Rowe v Stoltze).
[79] Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94.
I have had regard to the eCourts portal which shows the Inactive Notice issued on 2 September 2024. The notice records (amongst other things) that on 2 September 2024, the Principal Registrar gave notice pursuant to DCR r 44D(1)(a) that the case was put on the Inactive Cases List, relevantly:
Date Issued by Principal Registrar of the District Court of WA on: 02 September 2024
cc: Tindall Gask Bentley Lawyers [email protected]
cc: Byron Joseph William George FOLEY [address]
There is no suggestion by the plaintiff that at all relevant times, the Inactive Notice could not be viewed or accessed by the plaintiff or the plaintiff's solicitors. Similarly, there is no suggestion by the plaintiff that the email address of the plaintiff's solicitors recorded in the Inactive Notice contains an error or is different to the nominated registered email address communications from the court are to be sent to via the eCourts portal system.
Further, having had regard to Ms Ferraro's evidence, the email address recorded in the Inactive Notice is consistent with the email address that the administrative team in the West Perth office of TGB monitors.[80]
[80] Third Ferraro Affidavit, par 12(d).
It follows that it cannot be the case here that notice was not given by the Principal Registrar pursuant to DCR r 44D(1)(a).
However, the evidence of both Ms Ferraro and Mr Lomman, which I accept and address in further detail below, is that TGB never received an email from the court (and the Inactive Notice) on this matter at that time.[81] This is despite the court's records showing that upon the Inactive Notice being issued on 2 September 2024, an email alert from the court was automatically generated and: (i) at 2.25 pm, sent to the email address of the plaintiff's solicitors on record; and (ii) retrieved at the plaintiff's solicitors email address at 3.32 pm on the same day. As noted above, a copy of that email was not provided to the plaintiff.
[81] Third Ferraro Affidavit, par 12(g); Lomman Affidavit, pars 11, 12 and 14.
The fact that a party did not receive notice or was not aware that the case had been placed on the Inactive Cases List does not amount to an irregularity and does not nullify the case being deemed inactive. To construe DCR r 44D in such a manner would be inconsistent with the operation of DCR r 44A which deems a case inactive by virtue of no document being filed in a case for 12 months.
In short, a case will only be put on the Inactive Cases List where the case has not been prosecuted with reasonable expedition.
In this case, on my review of the materials, the court record shows that no document was filed in the case until the filing of the Affidavit of Service on 9 September 2024, by which time the case had already been deemed inactive pursuant to DCR r 44A.
It is irrelevant to the operation of DCR r 44A how it came about that no document was filed within the 12‑month period. It is enough that no document was filed.[82]
[82] Rowe v Stoltze.
As the procedural history of this case shows, on 4 March 2025 (six months after the Inactive Notice was issued) the Principal Registrar issued the dismissal notice pursuant to DCR r 44G and the case was dismissed for want of prosecution.
The giving of notice under DCR r 44D(1) is not, and cannot, be a condition of the case being dismissed. The dismissal occurs by operation of law and involves no determination of the substantive rights of the parties or the making of any judgment or order of the court. It simply brings to an end, by deemed dismissal, proceedings which the parties, having been put on notice under DCR r 44D(1) have not kept alive. No order of the court is necessary to give effect to the deemed dismissal.[83]
[83] See also Carter v South Metropolitan Health Service [2025] WADC 74 [53].
As was observed by the Court of Appeal in Rowe v Stoltze:[84]
… it is not correct to say, as the appellants do, that the action was dismissed by administrative action. The deemed dismissal of the action came about by the operation of rules of court made by the judges of the court. While r 44G(2) requires the principal registrar to give the parties written notice of the dismissal of an action, that administrative action plays no role in the dismissal itself; it is merely notice, after the fact, that the action has been dismissed.
[84] Rowe v Stoltze [48] and [49].
The operation of DCR r 44G(1) does not affect the exercise of the jurisdiction of the court under s 8 of the District Court Act. It involves no determination of the substantive rights of a party or the making of any judgment or order of the court. It simply brings to an end, by a deemed dismissal, proceedings which the parties, having been put on notice under r 44D(1), have not kept alive.
The view in Rowe v Stoltze that an action is taken to have been dismissed under DCR r 44G(1) simply because it had been on the inactive cases list for six continuous months, regardless of how this had come about was adopted in Gibbs v Royalblue Securities Pty Ltd.[85]
[85] Gibbs v Royalblue Securities Pty Ltd [2017] WADC 80 [25].
It should be added that the plaintiff does not challenge that the action was dismissed by operation of the DCR.
Express notice requirement r 44D(1)
The court's notice given under DCR r 44D(1) is the warning to the parties that steps must be taken to progress the claim with r 44E setting out the consequences of the case being on the Inactive Cases List.
The Inactive Notice importantly contains an express warning that pursuant to DCR r 44G(1), a case that is on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution. Pursuant to DCR r 44D(2) it is incumbent on 'a practitioner for a party who is notified' pursuant to DCR r 44D(1) to, as soon as practicable, notify the party of the fact that: (a) the case is on the Inactive Cases List and why; and (b) the effect of DCR r 44E and DCR r 44G.
That the term 'must' is used in DCR r 44D(2) makes this express obligation clear.
Disposition
In order for the Dismissal to be set aside, the plaintiff must satisfy the court that exceptional circumstances exist. Relevantly, DCRr 44G(5) 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).
The general principles in determining whether there are exceptional circumstances were outlined by the Court of Appeal in Sovereign Grange [No 2][86] in upholding the primary court's decision, and as summarised by Principal Registrar Melville in ATS v F S Kotai Pty Ltd.[87]
[86] Sovereign Grange [No 2] [26].
[87] 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 115 [20].
The reference to 'exceptional circumstances' regulates the manner in which the discretion is to be exercised. It is not to be interpreted as a two‑step process whereby the existence of exceptional circumstances is a condition precedent to the existence of a discretion.[88]
[88] Sovereign Grange [No 2] [75] - [76].
The decision in Sovereign Grange[No 2] makes it clear that DCR r 44G(5) poses a single question for the court in the context of an application to set aside a dismissal ‑ whether exceptional circumstances warrant the setting aside of the dismissal.[89] The burden lies on the applicant/plaintiff to establish the exceptional circumstances.
[89] Sovereign Grange [No 2] [76].
As was observed by the Court of Appeal in Sovereign Grange [No 2]:[90]
[90] Sovereign Grange [No 2] [26]; Guillaume [70].
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. 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 Rules, 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
(c)the prejudice to the defendant if the dismissal of the action is set aside.
(footnotes omitted)
I relevantly note as follows.
First, as to the procedural progress of the case, I have had regard to the evidence and materials before this court. Ms Ferraro in the First Ferraro Affidavit deposes to the fact that since the initiation of these proceedings, the plaintiff has undergone medico‑legal examinations to assist with determining the quantum of her claim and to assist with the preparation of her particulars of damage.[91]
[91] First Ferraro Affidavit, par 14.
Ms Ferraro goes on to expand on these matters in the Second Ferraro Affidavit which deposes to details of various medical appointments arranged on behalf of the plaintiff in connection with the case: Dr Matthew Samuel, psychiatrist on 20 November 2024;[92] Dr Steve Overmeire, occupational physician on 21 November 2024;[93] and Dr Michaela Iliescu ‑ ongoing requests from 2 August 2023 to 20 August 2024.[94]
[92] Second Ferraro Affidavit, par 5(a); Annexure LMF8.
[93] Second Ferraro Affidavit, par 5(b); Annexure LMF9.
[94] Second Ferraro Affidavit, par 5(c).
Ms Ferraro's evidence also speaks to the timing of a response received from ICWA (28 August 2024),[95] steps taken to locate process servers[96] and subsequent communications with ICWA following the Dismissal.[97]
[95] First Ferraro Affidavit, par 5; Annexure LMF2.
[96] First Ferraro Affidavit, par 6; Annexure LMF3.
[97] First Ferraro Affidavit, par 8; Annexure LMF5.
In my view, these matters of and in themselves, do not show anything out of the ordinary. The communication with ICWA for example occurred sometime after the initial filing of the Writ and SoC on 1 September 2023.
Further, no reasonable explanation is given as to the delay in a process server being engaged by the plaintiff in the first place to make inquiries in South Hedland regarding the whereabouts of Mr Foley. Similarly, there is no evidence that the plaintiff engaged with ICWA after 9 September 2024[98] (when ICWA was provided with a copy of the filed Affidavit of Service) until the Dismissal on 2 March 2025.[99]
[98] First Ferraro Affidavit, par 7; Annexure LMF4.
[99] Second Ferraro Affidavit, par 4(b).
Had any of these steps been taken by the plaintiff, this may have alerted the plaintiff to the case being on the Inactive Cases List and prompted the plaintiff to take action pursuant to DCR r 44F prior to the Dismissal. There is nothing inherently incredible or implausible about this possible sequence of events.
However, this must be balanced against the evidence before the court which relevantly is as follows:
1.The evidence of Ms Feraro is that 'neither she, her firm nor the plaintiff was provided with any notice that the case had been placed on the Inactive Cases List'[100] and that she became aware of this fact after the action was dismissed.[101]
2.The evidence of Ms Feraro is that TGB never received an email from the court (and the Inactive Notice) at that time.[102]
3.The evidence of Mr Lomman, who manages TGB's technology department and who has been TGB's operations manager for almost 20 years is that he could not find:
(a)any email received from the court on this matter on 2 September 2024;[103]
(b)any internal email to anyone else in TGB (WA or SA) on 2 September 2024 or thereafter forwarding the Inactive Notice;[104] or
(c)any upload of the notice on the document management system on or around that date.[105]
4.The evidence of Mr Lomman is that having conducted a search of all deleted emails, he could not find any deleted email from the court on this matter in or around 2 September 2024 or thereafter[106] noting that TGB's mail system also automatically saves and stores all received, sent and deleted emails, including on a backup system that performs daily backups that are retained for seven years.[107]
5.On receipt of the Dismissal on 4 March 2025, the plaintiff brought the Application to set aside the Dismissal in a relatively short period of time (ie by chamber summons filed on 13 March 2025).
[100] Second Ferraro Affidavit, par 4(b).
[101] Third Ferraro Affidavit, par 5(b).
[102] Third Ferraro Affidavit, par 12(g).
[103] Lomman Affidavit, par 10.
[104] Lomman Affidavit, par 11.
[105] Lomman Affidavit, par 12.
[106] Lomman Affidavit, par 14.
[107] Lomman Affidavit, par 13.
There is no suggestion that Mr Lomman's evidence is to be taken as anything other than evidence as to the matters he deposes to based on his role at the plaintiff's practitioner's firm. That is, I do not treat Mr Lomman's evidence as expert opinion evidence.
Whilst the court's records show that upon the Inactive Notice being issued on 2 September 2024, an email alert from the court was automatically generated and sent to TGB's email address on record as the plaintiff's solicitors and retrieved at that address on the same day, I accept the evidence of Ms Ferraro and Mr Lomman that there is no record of Ms Ferraro or anyone else in TGB or TGB itself having received a copy of the Inactive Notice.
Secondly, it is clear from the evidence that on receipt of the Dismissal, there was no undue delay in bringing the Application to set aside the Dismissal.
The plaintiff's evidence does not address the steps the plaintiff would have taken had the Inactive Notice been received. However, that steps were being taken by the plaintiff to progress her case generally (albeit not procedurally) including the obtaining of medical evidence and liaising with counsel in the period between the Inactive Notice and Dismissal (ie 2 September 2024 and 2 March 2025), is established by the evidence before this court.
It is in this overall context that I have had particular regard to the Court of Appeal's observations. That notice that a case has been placed on the Inactive Cases List constitutes a warning is observed by the Court of Appeal in Sovereign Grange [No 2]:[108]
The appellant may have been deprived of a legitimate claim. But that was the result of its persistent failure to take up the reasonable opportunity given to it to prosecute that claim, even in the face of the warning constituted by the court's notice that its case had been placed on the Inactive Cases List.
[108] Sovereign Grange [No 2] [63].
The important role that due notice plays in the context of case management in the context of regulating practice and procedure which do affect the rights of the parties was also commented on by the Court of Appeal in Rowe v Stoltze:[109]
The rules contained in subdiv 3(6) of pt 4 of the District Court Rules, including r 44G(1), are properly to be categorised as regulating or prescribing matters or practice and procedure. They do not alter the substantive rights of the parties. They regulate the conduct of proceedings in the court by providing a facility by which, after due notice to the parties, litigation which has remained inactive for a lengthy period of time or has been pursued in an unduly tardy fashion may be brought to an end.
[109] Rowe v Stoltze[45].
In this case, as a consequence of the plaintiff not having received the Inactive Notice, it cannot be said that the plaintiff had a reasonable opportunity to apply to the court to have the case removed from the Inactive Cases List.
Thirdly, I have considered the merits of the plaintiff's case. As to this, the Writ and SoC plead to the incident having occurred in the course of the plaintiff's employment as a commissioned police officer with the WA Police.[110]
[110] SoC, par 2.
The plaintiff claims damages and costs from the defendant including loss of income, past and future medical expenses, loss of income, gratuitous services and travel expenses as a result of the incident.[111] Whilst it cannot be said that this claim has no merit, it is difficult to make a proper assessment of the merits of the claim given the documents and information available to this court.
[111] SoC, pars 11, 13 - 22 (inclusive).
The plaintiff submits that she is at risk of her claim being statute barred if the Dismissal is not set aside.[112] Accepting therefore that there might be some merit to the plaintiff's claim, and that a plaintiff will suffer prejudice if the Dismissal is not set aside, those factors either alone or in combination with any other factors identified by the plaintiff do not amount to exceptional circumstances warranting the setting aside of the dismissal of the case.
[112] First Ferraro Affidavit, par 12.
No prejudice is asserted by Mr Foley, nor can there be in circumstances where no appearance has been filed and the question of the stale Writ served remains. However, the solicitors engaged to act on behalf of ICWA do not oppose an order to set aside the Dismissal.[113] Whilst I attach limited weight to Mr Foley and ICWA's position in the circumstances, I note the position.
[113] First Ferraro Affidavit, pars 10 - 11; Annexure LMF7.
In any event, the rules do not demand that the court set aside a dismissal of an action which may have merit where the plaintiff has been given, but failed to take advantage of, a reasonable opportunity to prosecute the claim.[114]
[114] Sovereign Grange [No 2] [65].
This is not a case where the Dismissal can be said to have occurred as a result of mere inadvertence or inattention by the plaintiff's solicitor. Rather, the Dismissal occurred in circumstances where the Inactive Notice was not received by the plaintiff or the plaintiff's solicitors.
Having regard to the evidence, this particular circumstance is causally related to the dismissal of the action and I find that the plaintiff has established that the circumstances which have led to the dismissal of the action are exceptional.
Conclusion
For the reasons which I have set out above, the plaintiff has established that exceptional circumstances exist justifying the setting aside of the dismissal of the case.
In circumstances where the plaintiff is the only party that participated in the appeal, I consider that an appropriate order as to costs is that there be no order as to costs.
Orders
Accordingly, I allow the appeal and I make the following orders:
1.The appeal is upheld.
2.The decision of Principal Registrar McGivern dated 4 July 2025 is set aside.
3.Pursuant to District Court Rules 2005 (WA) r 44G(5) the dismissal of the case for want of prosecution on 2 March 2025 is set aside.
4.Pursuant to District Court Rules 2005 (WA) r 44F the action be removed from the Inactive Cases List.
5.There be no order as to costs.
I will hear from the plaintiff in relation to the making of any consequential case management orders.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
MO
Associate
24 NOVEMBER 2025
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