KLM (a pseudonym) v Foley
[2025] WADC 41
•4 JULY 2025
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 plaintiff?
(c)Are those circumstances, either alone or together, exceptional, such that they warrant an exercise of the court's discretion to set aside the dismissal of the action (and, if so, on what terms)?
Those issues derive from, and are to be determined in accordance with, the rules summarised below.
What rules apply to inactive cases?
Relevant to this matter, 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.[3]
[3] See commentary in: 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 when no document is filed in the action over a period of 12 months: DCR r 44A.
When a case is taken to be inactive under DCR r 44A, the Principal Registrar must put the case on the ICL and give parties to the case notice thereof: DCR r 44D(1).
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).
If a case is dismissed under DCR r 44G(1), the court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal: DCR r 44G(5).
I observe that the rules dealing with inactive cases operate within the context of rules of court[4] that:
(a)place the attainment of the objectives of case management at the centre of the interpretation and application of all other rules;[5] and
(b)implement and enshrine the operation of an electronic case management system (ECMS).[6]
[4] As that term is defined in DCR r 3, and noting that (except as otherwise provided) the Rules of the Supreme Court 1971 (WA) (RSC) apply to cases in this court: DCR r 6.
[5] RSC O 1 r 4A and O 1 r 4B(1) ‑ those objectives 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.
[6] 'ECMS' is defined in RSC O 1 r 4; DCR r 3.
What are the circumstances of this case?
Relevant procedural history
The question of whether there are 'extraordinary circumstances' is assessed in the context of the circumstances of the case as a whole, including the relevant procedural history.
Given the thrust of certain of the submissions made orally in the application,[7] I pause to observe that a court may, in my view, properly have regard to the court record in making findings about the relevant procedural history. That is because the rules of court:
(a)are, as noted earlier, directed to avoiding delay and promoting positive case flow management[8] and, to that end, include rules concerning the time by which steps in an action must be taken; and
(b)operate in the context of the ECMS being expressly contemplated as the record of such steps being taken. Notably, for example, a document filed electronically is 'taken to have been filed on the day and at the time recorded by the ECMS'.[9]
[7] Counsel for the plaintiff submitted, in relation to a particular court record (described at [21(a)] of these reasons), that it would be problematic from a fact-finding perspective if I 'went on the strength of' the court record when that record was not supported by affidavit: ts 15.
[8] RSC O 1 r 4A, O 1 r 4B.
[9] DCR r 20(5).
This is not to say that the court should not have regard to other evidence. Rather, the court is not confined to evidence given orally or on affidavit, to the exclusion of the court record, in making findings about procedural steps (subject, of course, to the demands of procedural fairness).
Briefly, the following relevant history (which is broadly consistent with the affidavit evidence) appears from the court record, and I find that:
(a)the writ of summons was filed on 1 September 2023;
(b)no document was filed in the action in the period 1 September 2023 to 1 September 2024;
(c)on 2 September 2024, the court issued a notice that the case had become inactive pursuant to DCR r 44D(2) (Inactive Notice);
(d)on 9 September 2024, the plaintiff filed an affidavit of service of the writ, which was not rejected by the court;
(e)on 4 March 2024, the court issued a notice that the case had been dismissed pursuant to DCR r 44G; and
(f)on 13 March 2024, the plaintiff filed this application.
Some tension, however, arises between:
(a)a court record[10] which shows that, upon the Inactive Notice being issued on 2 September 2024, an email alert from the court was automatically generated (contested email) and:
(i)at 2.25 pm, sent to the email address of the plaintiff's solicitors (TGB) on record (TGB email address); and
(ii)retrieved at the TGB email address at 3.32 pm on the same day;
and
(b)the plaintiff's affidavit evidence, summarised below, to the effect that no email from the court regarding the Inactive Notice was received at the TGB email address on 2 September 2024.
[10] A printed copy of which was provided to the plaintiff's counsel at the hearing on 13 June 2025, with the hearing adjourned for further affidavit evidence to be filed.
I will deal with that part of the evidence later in these reasons, in the disposition of the application.
Affidavit evidence
In support of the application, the plaintiff filed the affidavits of:
(a)the plaintiff's solicitor, Lianna Ferraro, made on 13 March 2025, 26 May 2025 and 19 June 2025 (respectively, the first, second and third Ferraro affidavit); and
(b)Roger Lomman, an operations manager at TGB, made on 19 June 2025 (Lomman affidavit).
The affidavit evidence of the plaintiff's solicitor, Ms Ferraro, is to the effect that:
(a)she has carriage of the plaintiff's case within TGB;
(b)the writ of summons and statement of claim were filed on 1 September 2023;
(c)on 15 August 2024, she wrote to the Insurance Commission of Western Australia (ICWA),[11] enquiring whether it would accept service on behalf of the named defendant but, on 28 August 2024, was advised that service upon the defendant directly was required;
[11] Although not explicitly stated, it is implicit that this enquiry was made on the basis of ICWA being the compulsory third party insurer of a driver of a registered vehicle in this State.
(d)TGB immediately thereafter made contact with various process servers to ascertain who could be retained to effect service given the remote location;
(e)there 'were difficulties locating the defendant' as he was incarcerated at the relevant time;[12]
[12] First Ferraro affidavit, par 6 and 'LMF3' - as to which, see [41(a)].
(f)on 4 September 2024, the defendant was served;[13]
[13] Third Ferraro affidavit, 'LMF3'.
(g)on 9 September 2024, she:
(i)sent a copy of the affidavit of service to ICWA under cover of an email that read:[14]
[14] First Ferraro affidavit, par 7 and 'LMF4' - as to which, see [41(a)].
You will note the difficulties through the Affidavit with locating the Defendant given he is now incarcerated.
Please have you solicitors file a memorandum of appearance as soon as possible to prevent the matter becoming inactive.
and
(ii)filed the affidavit of service;[15]
[15] Third Ferraro affidavit, par 5(h) and 'LMF3'.
(h)on 11 September 2024 and 27 February 2025, she emailed 'the Defendant [sic] following up the Memorandum of Appearance';[16]
[16] Third Ferraro affidavit, par 7(d) ‑ 7(e) and 'LMF12' and 'LMF14'. (From the annexures, it appears that the reference to 'the Defendant' in these paragraphs is a reference to ICWA).
(i)on 4 March 2025, upon receipt of the court's notice that the case had been dismissed for want of prosecution, she contacted ICWA to enquire who was acting;
(j)on 12 March 2025, she received a letter from the solicitors appointed by ICWA in terms that, as the action had been dismissed, it was no longer possible to file a memorandum of appearance;
(k)in the period between the filing of the writ (on 1 September 2024) and the dismissal of the action (on 2 March 2025, and notified on 4 March 2025):
(i)neither she nor the plaintiff 'was provided with any notice that the case had been placed on the inactive cases list';[17] and
[17] Second Ferraro affidavit, par 4(b).
(ii)she did not 'receive a Memorandum of Appearance from the Defendant';[18]
[18] Second Ferraro affidavit, par 4(f).
(iii)'the Defendant' did not 'take issue with the service of the Writ and Statement of Claim or advise [Ms Ferraro] that effective service had not been made';[19]
(l)upon inquiry, the information technology personnel at TGB cannot find a record that TGB received or retrieved an email from the court in connection with the action having been put on the ICL;[20]
(m)upon enquiry to the court, made on 10 June 2025, Ms Ferraro received the following response:[21]
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.
(n)although the affidavit of service was filed after the date that the action was put on the ICL, it was not rejected by the court. It is the experience of Ms Ferraro that documents that are not described in DCR r 44E are rejected by the court when filed after a case is put on the ICL;[22] and
(o)prior to the action being dismissed, Ms Ferraro was not aware that the action had been put on the ICL.[23]
[19] Third Ferraro affidavit, par 8.
[20] Third Ferraro affidavit, par 12.
[21] Third Ferraro affidavit, par 12(j)(ii) and 'LMF20'.
[22] Third Ferraro affidavit, par 5.
[23] Third Ferraro affidavit, par 6.
The affidavit evidence of Mr Lomman is to the effect that:
(a)he is an operations manager employed by TGB since 2005;
(b)the TGB email address is a Microsoft Outlook email account which was established in or about February 2018 and which is accessed by an administrative team at TGB;
(c)any item sent to or from the TGB email address will be retained indefinitely; and
(d)Mr Lomman conducted a search of the TGB email address account, including in deleted items, and could not find an email received from the court on 2 September 2024.
What circumstances are relied upon by the plaintiff?
The plaintiff contends, in summary, that the evidence establishes the following circumstances which, viewed together, are exceptional within the meaning of DCR r 44G(5):[24]
(a)prior to the dismissal notice, the attention of TGB was not, or not adequately, drawn to the fact that the action was on the ICL and they believed that 'all was fine with the action' because:
(i)TGB did not get an email from the court in connection with the case being put on the ICL; and
(ii)TGB filed an affidavit of service which was not rejected by the court;
(b)the defendant failed to notify TGB that service had not been properly effected;
(c)'the defendant' does not oppose the application; and
(d)the plaintiff will suffer prejudice if the dismissal is not set aside because, by reason of the expiration of the relevant limitation period, any further action would now be statute barred.
[24] Plaintiff's written submissions, pars 18 ‑ 24.
Disposition
Relevant principles
As regards DCR r 44G(5), I direct myself to the general principles set out in Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2],[25] as follows:
[25] 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;[26]
[26] 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.[27] 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;[28]
[27] Sovereign Grange [74].
[28] 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;[29]
[29] 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;[30]
(e)the circumstances must be both exceptional and causally related to the dismissal of the action;[31]
(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,[32] noting that a plaintiff bears the ultimate responsibility for progressing their action;[33] and
(g)other factors to be considered include:[34]
(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.
Notice of the action being put on the ICL
[30] Sovereign Grange [26], citing Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73.
[31]Sovereign Grange [26].
[32] Sovereign Grange [56] ‑ [61].
[33] Sovereign Grange [26], [60], [81].
[34] Sovereign Grange [26].
A central plank of the application is that, prior to the action being dismissed, the plaintiff's solicitors believed that 'all was fine with the action' because:
(a)TGB did not receive the contested email from the court in connection with the action being put on the ICL; and
(b)the court did not reject the affidavit of service filed on 9 September 2024 (being after the action was put on the ICL).
The plaintiff contends that '[t]here is a factual controversy about the receipt of the Inactive Cases Notice'.[35] As to that contention:
[35] Plaintiff's written submissions, par 8(d).
(a)the phrase 'about the receipt of the Inactive Cases Notice':
(i)does not reflect the language of DCR r 44D(1)(b); and
(ii)elides the questions of whether the contested email was received by TGB, and whether the plaintiff was given notice that the case was on the ICL;
(b)I accept that the affidavit evidence relied upon by the plaintiff does give rise to a real controversy about whether TGB did in fact receive the contested email;
(c)I am content, for this purpose, to proceed on the basis that the contested email was sent to, but not received or retrieved at, the TGB email address; and
(d)for the reasons that follow:
(i)while I accept that the non-receipt by TGB of the contested email may be regarded as an unusual circumstance, I do not accept that it is causally relevant to the dismissal; and
(ii)in any event, I do not accept that there is any real controversy about whether the plaintiff was given notice that the action had been put on the ICL in accordance with DCR r 44D(1)(b).
First, it is patent that the rules of court expressly contemplate that certain consequences will flow automatically by operation of the rules themselves,[36] and a requirement for the court to give notice is a related but distinct step. Relevant to this matter, by the operation of:
(a)DCR r 44A, a case becomes inactive if no document is filed for a period of 12 months; and
(b)DCR r 44G(1), a case is dismissed for want of prosecution if the case remains on the ICL for a period of six months.
[36] See, for example: Rowe 2012 [48].
Second, I note that a feature of the system of electronic case management under the rules of court include a practical requirement for all legal representatives of parties to proceedings in this court to be registered users of the ECMS.[37]
[37] DCR r 20 provides that if a document is to be filed by a legal practitioner on behalf of a client, the legal practitioner must be a registered user and the document must (unless particular conditions are met) be filed electronically.
Third, the provisions of the DCR distinguish between:
(a)'service of a document' by the court (as to which, see DCR r 21A); and
(b)a requirement that the court 'give notice' of various matters, including that a case has been put on the ICL (under DCR r 44D(1)) or has been dismissed (under DCR r 44G(2)).
Fourth, when the court is required to give any notice, RSC O 1 r 8 expressly provides that, if the person is an authorised user of the ECMS, then the court 'may give the document to the person by means of the ECMS'.
In this case, I find that:
(a)at all relevant times, the plaintiff was represented by TGB who are and were authorised users of the ECMS;[38]
(b)the Inactive Notice was issued via the ECMS on 2 September 2024; and
(c)accordingly, the plaintiff, by her solicitors, was given notice by means of the ECMS that the action had been put on the ICL as required by DCR r 44D(1)(b).
[38] This is patent from the affidavit evidence filed in support of the application and is uncontroversial (ts 2).
Further, the relevant 'milestones' in this case were patent. I note that:
(a)the writ was filed by TGB, on behalf of the plaintiff, on 1 September 2023 and, therefore:
(i)pursuant to RSC O 7 r 1, the original writ was valid for a period of 12 months ending on 1 September 2024; and
(ii)pursuant to DCR r 44A, if no other document was filed in the action in the period 1 September 2023 to 1 September 2024, the action would become inactive;
(b)until the writ was served on the defendant and the defendant had entered an appearance, the plaintiff was the only person capable of filing a document in the action;
(c)the writ was not served on the defendant until 4 September 2024;[39] and
(d)accordingly, the 12-month period within which the writ needed to be, but was not, served coincided with a 12-month period in which the plaintiff was the only party who could have filed, but did not file, a document in the action.
[39] Third Ferraro affidavit, par 6 and 'LMF3'.
In the circumstances identified in [34] and [35]:
(a)the plaintiff had notice that the action was on the ICL;
(b)the plaintiff and TGB could not, in my view, properly form the view that 'all was fine with the action', or be taken by surprise by the action becoming inactive on 2 September 2024, in the absence of receiving the contested email; and
(c)accordingly, I do not consider the non-receipt of the contested email by TGB to be causally relevant to the dismissal of the action.
I also find that the acceptance of the affidavit of service filed on 9 September 2024, despite the action being on the ICL, was neither unusual nor causally relevant. That is because:
(a)contrary to the plaintiff's contention, an affidavit of service of a writ falls within the scope of DCR r 44E because:
(i)a memorandum of appearance is a document that may be filed: DCR r 44E(aa);
(ii)the time within which an appearance must be entered is calculated by reference to the date on which a writ is served on a defendant: RSC O 5 r 11 and O 13 r 1; and
(iii)therefore, an affidavit of service of a writ is a document that relates to a memorandum of appearance and so falls within the scope of DCR r 44E(e);
and
(b)in any event, in the circumstances identified in [34] and [35], I do not accept that the plaintiff could properly form the view that 'all was fine with the action' in the absence of the affidavit of service being rejected.
Improper service of the writ
For the reasons that follow, I find that the defendant's[40] 'failure to notify the Plaintiff that it did not believe service was properly affected [sic]'[41] is not properly regarded as an unusual or causally relevant circumstance.
[40] The plaintiff's written submissions elide the identities of the named defendant and ICWA. From the context of this submission, it is apparent that the latter is intended.
[41] Plaintiff's written submissions, par 22.
I note that the plaintiff was legally represented and find that:
(a)it was patent on the face of RSC O 7 r 1 that the writ would become invalid after 1 September 2024 unless, before then, an application was brought and orders were made to extend its validity;
(b)no application to extend the validity of the writ was made by or on behalf of the plaintiff; and
(c)on the affidavit evidence filed in support of the application, TGB only engaged a process server on or about 3 September 2024, and the writ was served on the named defendant on 4 September 2024.[42]
[42] First Ferraro affidavit 'LMF3'; Third Ferraro affidavit 'LMF13'.
In those circumstances, with or without any notice given by or on behalf of the defendant, the plaintiff could not properly form the view that service of a valid writ had been effected or that 'all was fine with the action'.
Other relevant circumstances and considerations
I observe that:
(a)on the affidavit evidence filed in support of the application, it appears that the plaintiff, by her solicitors, made no attempt to serve the writ of summons, or enquire about ICWA's willingness to accept service, prior to 15 August 2024 (being some two and a half weeks before the writ became stale). I note, in this regard, that the affidavit of service[43] is inconsistent with the statement of Ms Ferraro that 'there were difficulties locating the defendant as he was now incarcerated'.[44] The evidence of the process server is that:
[43] First Ferraro affidavit 'LMF3'.
[44] First Ferraro affidavit, par 6. See also [24(e)] and [24(g)] of these reasons.
(i)on 3 September 2024, a process server made inquiries regarding the whereabouts of the defendant at a residential address in South Hedland and at the South Hedland Police Station;
(ii)on the evening of the same day, the process server identified that the defendant was incarcerated at Roebourne Prison; and
(iii)on the following day, the (stale) writ was served on the defendant;
(b)none of the circumstances raised in the affidavit evidence filed in support of the application, or addressed in the plaintiff's submissions, explain why the plaintiff, by her solicitors:
(i)did not take earlier steps to effect service of the writ;
(ii)more significantly, knowing that the writ had not been served and would become stale after 1 September 2024,[45] made no application to extend the validity of the writ before that date;[46] and
(iii)proceeded to instruct process servers to serve the writ after 2 September 2024, knowing that it was no longer valid;
(c)an application to extend the validity of the writ, made in accordance with RSC O 7 r 1(2), would in itself have prevented the case from becoming inactive (because that application would necessarily need to have been made before the expiration of the 12-month period ending on 1 September 2024); and
(d)it follows that the plaintiff's failure to take any steps to renew the writ before it became stale is a circumstance that is:
(i)causally significant to the case becoming inactive (and thereafter being dismissed); and
(ii)not explained.
[45] Knowledge as to service is explicit in, and knowledge about the writ becoming stale may be inferred from, the affidavit evidence summarised at [24].
[46] As required by RSC O 7 r 1(2).
Further, there is no affidavit evidence, either of the plaintiff or of her solicitors, as to:
(a)why, having filed the writ on 1 September 2023, no steps were taken over the ensuing 12 months to prevent the action from becoming inactive;
(b)what, if any, systems and steps were in place to review the case and to monitor and respond to important case management 'milestones' - and whether, and if so why, those systems and steps failed in this case;
(c)why, despite having electronically filed the affidavit of service of the writ on 9 September 2024, the plaintiff's solicitors:
(i)either did not review the electronic court file; or
(ii)reviewed the electronic court file and did not take steps to respond to the Inactive Notice which, at that date, had been issued and appeared in the ECMS; and
(d)what, if any, information was given to, or inquiries or steps undertaken by, the plaintiff that bears upon the action's progress (noting that the plaintiff bears the ultimate responsibility of progressing the action).
Further, the circumstances identified in the application (and the materials filed in support of it) do not adequately explain why:
(a)in the circumstances outlined in [34] and [35];
(b)despite the expiration of 18 months from the time the writ was filed; and
(c)knowing there was no appearance in the action,
the plaintiff took no positive steps to ascertain whether the action had become inactive and, thereafter, took no formal steps to prevent the action being dismissed.
I note that:
(a)inattention or inadvertence by a solicitor may in some cases be considered an exceptional circumstance, but this must always be considered in the context of case management;[47] and
(b)in any event:
(i)the application is not advanced the ground that there has been inattention or inadvertence on the part of TGB, but rather that TGB's attention was not drawn to the matters identified in [26(a)] ‑ [26(b)] by the court or the defendant; and
(ii)even if the application were advanced on that ground, then, by reason of the matters identified in [41] ‑ [43], I find that such inattention or inadvertence does not constitute an exceptional circumstance for the purposes of DCR r 44G(5).
[47] Sovereign Grange [26].
As to delay:
(a)I accept that the application was made shortly after the action was dismissed; but
(b)I also take account of the context in which the application was made, which includes delay occasioned by the circumstances in [41] ‑ [43] that are not, or are inadequately, explained by the evidence filed in support of the application.
As to the merits of the underlying claim:
(a)the plaintiff has not served a valid writ on the defendant and the defendant has not entered an appearance ‑ necessarily, therefore, any assessment of the merits of the plaintiff's case is limited to the statement of claim; and
(b)on that limited basis, the claim does not obviously lack merit.
As to prejudice:
(a)I accept that the plaintiff will be prejudiced if the dismissal is not set aside because any fresh proceedings may now be statute‑barred; but
(b)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.[48] While relevant to the exercise of the court's discretion, this alone is not sufficient to determine the application.
[48] See, for example, Sovereign Grange; Guillaume v City of Stirling [2020] WADC 41.
Finally, as to the plaintiff's contention that the defendant does not oppose the application:
(a)the defendant, not having entered an appearance, could take no part in the application;
(b)the plaintiff's contention appears to rest on a letter from ICWA which is in terms that, if the plaintiff intended to progress the claim, an application would need to be made; and
(c)I do not consider this to constitute an exceptional circumstance.
Conclusion
It follows from the foregoing reasons that I reject the plaintiff's contention at [26].
Even 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 considerations, either alone or in combination with the other circumstances relied upon by the plaintiff, do not amount to exceptional circumstances warranting the setting aside of the dismissal of the case.
I find that the plaintiff has not proved that exceptional circumstances exist such as to warrant the setting aside of the dismissal of the case.
The application is dismissed.
I will hear submissions as to the precise terms of the orders that should be made.
I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
EW
Registrar's Associate
4 JULY 2025
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