Newboult v Madgen

[2021] WADC 16

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   NEWBOULT -v- MADGEN [2021] WADC 16

CORAM:   DEPUTY REGISTRAR HEWITT

HEARD:   17 FEBRUARY 2021

DELIVERED          :   4 MARCH 2021

FILE NO/S:   CIV 1204 of 2019

BETWEEN:   REBECCA NEWBOULT

Plaintiff

AND

NATELLE JANE MADGEN

Defendant

Catchwords:

Practice and procedure - Application to set aside dismissal under r 44(G)(1) of District Court Rules 2005 (WA) - Turns on its own facts

Legislation:

District Court Rules 2005 (WA), r 44G(1) and r 44G(5)

Result:

Dismissal set aside

Representation:

Counsel:

Plaintiff	:	Ms F A Stanton
Defendant	:	Mr R D McCabe

Solicitors:

Plaintiff	:	Taylor Smart
Defendant	:	Kott Gunning

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

Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142

DEPUTY REGISTRAR HEWITT:

1. In this matter the plaintiff's claim is for damages for personal injuries sustained in a motor vehicle accident on 9 April 2016.  Following that accident the plaintiff made claim and an officer of the Insurance Commission of Western Australia (Insurance Commission) wrote to the plaintiff making an offer for settlement of the claim.  On approximately 2 November 2018 the plaintiff's solicitors wrote to the Insurance Commission advising that they had been appointed in respect of the matter.  That letter was acknowledged.  Despite a number of reminders to the plaintiff's solicitor no response was received to the offer which was made by the Insurance Commission.  Those enquiries as to the attitude of the plaintiff to settlement were made on 12 December 2018, 22 January 2019, 15 February 2019, 31 May 2019, 26 August 2019, 17 October 2019, 15 November 2019.  No response was received to any of those enquiries but in the meantime the plaintiff's solicitors had filed a writ of summons in the District Court on 1 April 2019 in the words of these solicitors to 'preserve her claim'. 

2. On 11 June 2019 the solicitor saw the plaintiff and wrote to the Insurance Commission advising that they were taking instructions and anticipated being in a position to provide a substantive response shortly.  By 28 November 2019 the solicitors for the plaintiff wrote to the Insurance Commission advising that their client was still considering the offer which had been made on 20 September 2018 and advising that the writ of summons had been filed.  No further progress was made but on 20 March 2020 the solicitors for the plaintiff forwarded a copy of the writ to which the defendant filed an appearance on 6 April 2020.  In the meantime an inactive notice had been issued dated 1 April 2020 on the basis that there had been no movement on the file since the date it was filed on 1 April 2019.  There then followed a request from the defendant for the provision of any relevant medical documents and eventually on 7 August 2020 the plaintiff put forward an offer for the settlement of the matter.  That offer was not accepted and a counter offer from the Insurance Commission was forthcoming.  Again that offer was not accepted.

3. In the meantime the plaintiff having realised that the action was on the Inactive Cases List made application for it to be removed from that list. That application was filed on 29 September 2020 and was dismissed on 30 September 2020. On 1 October 2020 the court issued a notice advising the parties that the case had been dismissed pursuant to r 44G of the District Court Rules 2005 (WA). That decision was initially appealed but that appeal has now been abandoned and the plaintiff has now made application for the dismissal to be set aside and various other associated orders. The application relies on the provisions of r 44G(5) which 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. Subrule 1 is the basis upon which the present case was dismissed.

4. The nature of the provision of r 44G(5) has received the attention of the Supreme Court in the case Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142. At [26] of that case the court recounted a number of what the primary judge had identified as general principles to be applied in exercising her discretion under r 44G(5). Those principles are:

   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)

5. It was noted by the court that the parties to the appeal with which the court was dealing did not take issue with any of the statement of general principles nor on my reading of the decision did the court itself. As the court recognised the power inferred by r 44G(5) is a discretionary power and therefore one for which hard and fast principles as to its exercise are not readily applicable.

6. In the present case it would appear the solicitor representing the plaintiff was under a misapprehension as to the effect of the defendant filing an appearance.  He thought that the filing of an appearance would automatically remove the matter from the Inactive Cases List and he so informed his client.  That was clearly wrong as events made obvious.  Of some relevance is the fact that the notice that a case is on the Inactive Cases List provides those who receive one with a substantial amount of information. 

7. In the present case the matter was put on the Inactive Cases List before the appearance was filed.  Although the rules permit a memorandum of appearance to be filed in a case which is on the Inactive Cases List there is nothing whatever in the notice which would suggest that the filing of an appearance had the effect of removing a matter from the Inactive Cases List.  Notwithstanding that observation I accept that the solicitor misinterpreted the position and conveyed his misinterpretation to the client.  What is rather more perplexing is the fact that having received an appearance the solicitors took no steps to progress the action.  The rules under which this court operates require certain documents to be filed within certain time limits.  One of the obvious documents to be filed is a statement of claim.  Had there been any attempt to file a statement of claim it would have become immediately apparent to the plaintiff's solicitors that the matter was in fact on the Inactive Cases List.  The fact is that the plaintiff's solicitors had issued a writ to protect her from the limitation defence which might otherwise accrue and it is clear they had no interest in progressing the action at any great pace.  Very little progress was made during the year following the filing of the writ and that situation continued after the writ was filed.  There was clearly no urgency or appreciation that it was necessary to do the various acts which were required of a plaintiff by the Rules of the Supreme Court 1971 (WA).

8. The conduct of the plaintiff made it clear that the intention was to get things done in her own time and if a settlement could not be achieved then to consider whether to proceed with the action.  In my opinion the failure to appreciate the meaning of the default notice was unfortunate.  To ignore the requirements of the Rules of the Supreme Court was deliberate.  Can it then be said that the dismissal of the action was due to an exceptional circumstance.  In the present case the solicitors for the plaintiff, by agreement, served the Insurance Commission with a writ which was valid for service.  The Insurance Commission instructed solicitors who filed an appearance on behalf of the Defendant.  In times past the action would have proceeded in the normal manner.  What has changed to prevent that process was the issuing of a default notice.  In reality there was no default; the plaintiff had done what is required of a plaintiff i.e. service (in this case by agreement) of a writ which was valid for service.  The rule in 44E which led to the matter going on the Inactive Cases List, although designed to encourage parties to proceed with cases expediently, has in fact led to the opposite, the wastage of time and resource in the present application and that heard by Deputy Registrar Harman.

9. In the Sovereign Grange case the court considered, with what I regard as approval, of the primary judge's enumeration of factors to be considered in the exercise of discretion.  Relevant in the present case is the fact that the circumstances of the accident in which the plaintiff was involved make it clear that there can be no suggestion of any default or contributory negligence on her part which led to the collision and the injuries which she suffered.  The collision was a rear end collision in a car in which she was a passenger together with her husband and children.  The merit of her case is clear. 

10. There is clear prejudice to the plaintiff if the dismissal is not set aside because she will lose the opportunity for compensation for injuries received in what is clearly a meritorious claim.  There is some level of prejudice to the defendant simply in the sense that it would be exposed to payment of a judgment which it would otherwise avoid.  Given that in a very real way the defendant is not the person nominated on the writ as such, but the Insurance Commission, which has as the very reason for its existence the compensation of individuals injured in motor vehicle accidents I see little to remark upon in the nature of prejudice.  In the Sovereign Grange case the Court of Appeal in my view approved the comment by Chief Judge Wager:

    Rule 44G(5) is not remedial.  It should be interpreted as giving the court a broad power to relieve against injustice. 

11. In this case I consider it something of an injustice that a woman injured in a motor vehicle accident would lose the right to recover damages for her injuries from the very body which is established by statute to provide a compensatory scheme for such injuries and losses.

12. In summary therefore my view is that the combination of circumstances which led to this case being dismissed under r 44G(1) should be regarded as exceptional and as a consequence I consider it is appropriate to set aside the judgment which has been entered against the plaintiff and to give her the opportunity to litigate her action. On reaching that decision however I comment that I am not impressed by the rate at which the action has proceeded and intend to programme the matter to ensure that further delays are not incurred.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

MEB

Associate

4 MARCH 2021