KLM (a pseudonym) v Foley - [2025] WADC 41

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   KLM (a pseudonym) -v- FOLEY [2025] WADC 41
CORAM:   PRINCIPAL REGISTRAR MCGIVERN
HEARD:   26 MAY, 13 & 24 JUNE 2025
DELIVERED          :   4 JULY 2025
FILE NO/S:   CIV 4378 of 2023
BETWEEN:   KLM (a pseudonym)
Plaintiff
AND
BYRON JOSEPH WILLIAM GEORGE FOLEY
Defendant

Catchwords:

Practice and procedure - Application to set aside dismissal of case for want of prosecution - Where no document filed for period of 12 months after writ issued - Whether notice that action was put on the inactive cases list was given - Where defendant served with invalid writ - Whether affidavit of service was improperly accepted for filing - Whether exceptional circumstances warrant setting aside dismissal

Legislation:

District Court Rules 2005 (WA), r 44A, r 44D, r 44E, r 44F, r 44G
Rules of the Supreme Court 1971 (WA), O 1 r 8, O 7 r 1

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr A Gunasekera
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Tindall Gask Bentley Lawyers
Defendant	:	Not applicable

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

Guillaume v City of Stirling [2020] WADC 41
Rowe v Stoltze [2012] WADC 84
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

PRINCIPAL REGISTRAR MCGIVERN:

The plaintiff, KLM, was a police officer on duty in South Hedland when, she alleges, she was injured on 9 September 2020 in the course of attempting to arrest the defendant while he was driving a stolen vehicle. She commenced proceedings against the defendant in relation to that incident by a writ of summons indorsed with a statement of claim filed on 1 September 2023.
On 2 September 2024, the action was put on the inactive cases list (ICL).
On 2 March 2025, the action was dismissed for want of prosecution pursuant to r 44G of the District Court Rules 2005 (WA) (DCR), and the court issued a notice to that effect on 4 March 2025.
The present proceeding is, fundamentally, an application to set aside the dismissal of the action.[1]
[1] By the chamber summons filed on 13 March 2025 and a minute of proposed orders filed on 24 June 2025, application is also made for an order removing the case from the ICL and other programming orders, which depend upon the dismissal of the action being set aside.
That application is advanced on the ground that the circumstances leading to the dismissal are, viewed collectively, exceptional and warrant setting the dismissal aside.[2]
[2] See [26] of these reasons.
The application was heard over three chambers appointments on 26 May 2025 and 13 June 2025 and 24 June 2025.
For the reasons that follow, the application is dismissed.
In dealing with the application, I will consider the following issues:
(a)What are the circumstances of this case?
(b)What circumstances are relied upon by the…

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 41
Case: [2025] WADC 41
Decision Date: 4 JULY 2025

CaseChat Overview and Summary

The applicant, KLM, sought to set aside the dismissal of their case against the defendant, Foley, for want of prosecution. The case was dismissed by the court due to the applicant's failure to file any documents for 12 months after the writ was issued. KLM argued that they had not been notified that their case was placed on the inactive cases list, and that the defendant was served with an invalid writ. They also contended that an affidavit of service was improperly accepted for filing and that there were exceptional circumstances warranting the setting aside of the dismissal. The court had to determine whether these arguments were sufficient to justify setting aside the dismissal of the case.

The primary legal issues before the court were whether KLM had been adequately notified that their case was on the inactive cases list, whether the defendant was served with a valid writ, whether the affidavit of service was improperly accepted for filing, and whether exceptional circumstances existed that would warrant setting aside the dismissal. The court needed to consider the procedural requirements for setting aside a dismissal for want of prosecution and assess the merits of the applicant's arguments in light of these requirements.

The court found that KLM had not been given proper notice that their case was on the inactive cases list and that the defendant was served with an invalid writ. However, the court held that the affidavit of service was properly accepted for filing, as it complied with the relevant rules. The court also found that there were no exceptional circumstances that warranted setting aside the dismissal. The applicant's failure to file any documents for 12 months after the writ was issued was a serious procedural default, and the court was not satisfied that there were exceptional circumstances that would justify setting aside the dismissal. The court dismissed the application to set aside the dismissal of the case.

The court ordered that the dismissal of the case for want of prosecution be upheld. The applicant was directed to pay the respondent's costs of the application, to be paid within 14 days.

Orders