| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : LI -v- HACKLING [No 2] [2014] WADC 63 CORAM : DEPUTY REGISTRAR HARMAN HEARD : 23 APRIIL 2014 DELIVERED : 23 APRIL 2014 FILE NO/S : CIV 2994 of 2012 BETWEEN : DONG GUANG LI Plaintiff
AND
MARK HACKLING
First Defendant
MURRAY LAMPARD
Second Defendant
TONY FETHERSTON
Third Defendant
EDITH COWAN UNIVERSITY
Fourth Defendant
Catchwords: Practice - Western Australia - Practice under the District Court Rules 2005 - Plaintiff to show cause why action should not be placed on inactive cases list r 44B District Court Rules 2005 Legislation: Nil Result: Action not put on inactive cases list
Representation: Counsel:
Plaintiff : In person
First Defendant : Mr J P Wilson
Second Defendant : Mr J P Wilson
Third Defendant : Mr J P Wilson
Fourth Defendant : Mr J P Wilson
Solicitors:
Plaintiff : Not applicable
First Defendant : WHL Legal Pty Ltd
Second Defendant : WHL Legal Pty Ltd
Third Defendant : WHL Legal Pty Ltd
Fourth Defendant : WHL Legal Pty Ltd
Case(s) referred to in judgment(s):
Nil
1 DEPUTY REGISTRAR HARMAN: On 23 April 2014 the action was listed for directions. Although they were perhaps not fully developed submissions were then made relating to the question whether the action should be placed on the list of inactive cases. It is fair to say that initially I had some reservations concerning whether the procedure set out by the rules had been complied with but in any event, I indicated that judged by the criteria of inactivity established by the rules, there was nothing to justify a determination that the action be put on the list of inactive cases. I did not express a concluded view on the subject or specify as much on my fiat and it occurs to me after the event that I should provide some written reasons in order to record the conclusion of the process commenced by the order made at an earlier directions hearing on 16 October 2013. On that date, the following order was made:
2. If the plaintiff wishes to show cause why the action should not be placed on the inactive cases list, then by 7 February 2014 he must file and serve an affidavit setting out the facts on which he relies and annexing a copy of any relevant medical certificate or report; … The hearing was adjourned to 14 February 2014. 2 The plaintiff filed such an affidavit on 7 February 2014 attached to which is a certificate of a medical practitioner although it is neither introduced nor identified by evidence. The relevant parts of the plaintiff's evidence are as follows: 3. There are following causes: a. the plaintiff's case is a very serious matter and has sound merits that must be judged by hearings; b. although the plaintiff has been suffering an ongoing mental illness, the court should allow him more time to prepare his case; c. the plaintiff has been actively looking for a pro bono lawyer to represent him; d. in case a suitable lawyer cannot be found, the plaintiff's wife would be able to represent him in court to assist in order to moving forward in the case. 4. The plaintiff applies for NOT putting the case on the inactive cases list. 3 The plaintiff's claim in the action is for damages for defamation. The writ was filed on 4 October 2012. On 1 February 2013 he filed a statement of claim. On 10 July 2013 by order of the court in the course of a directions hearing the requirement for each defendant to file a defence was suspended until further order. That suspension has not been lifted. 4 Along with those features of the case the activity recorded on the court's file reveals that by application filed 8 November 2012 the plaintiff had sought judgment in default of appearance but that on 3 December 2012 it was dismissed. The plaintiff subsequently appealed that determination and on 9 May 2013 the appeal was dismissed. Thereafter the court required the parties to attend in chambers for directions on 29 May 2013 and from time to time such hearings have been re-listed on particular dates. 5 Rule 44B of the District Court Rules 2005 is as follows: 6 As for the requirements of the rules and the circumstances of the case, in the ordinary course it would remain open to the plaintiff to obtain judgment in default of defence. His opportunity to do so has been removed. 7 I took it from the defendant's submissions that the intention of each defendant had been and presently is to strike out the statement of claim and that their desire not to incur the costs associated with filing defences had been accommodated by the court. 8 The measure of deemed inactivity expressed at r 44A of the District Court Rules is that no document has been filed in the case for 12 months by any party. As at the date that the order to show cause was made the last document filed other than in the context of the appeal was the statement of claim. It had been filed eight months prior to the order to show cause. 9 The motivation for the court making the order on 16 October 2013 may be revealed by the proposition that the plaintiff would annexe relevant medical certificates or reports to his affidavit, but it is not clear to me how or why the medical condition of a party would justify so complicating the litigation. The attachment characterised as the exhibit to the plaintiff's affidavit by which he sought to show cause purports to be a medical certificate relating to the plaintiff which speaks for his unfitness for work until 8 March 2014. It is dated 9 December 2013. I note that it has some resonance with the other material that has been placed informally on the file in the form of attachments to a letter sent by the plaintiff's wife to the registrar dated 3 July 2013. 10 That information would speak to some period of inactivity however other factors that have complicated the proceedings may have been significant considerations that have resulted in the lack of progress in the action to date. 11 I am not persuaded that it either was or is now appropriate to characterise the case as inactive.
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