Pearce v Versaci
[2021] WASC 333
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: PEARCE -v- VERSACI [2021] WASC 333
CORAM: REGISTRAR GRIFFIN
HEARD: 23 SEPTEMBER 2021
DELIVERED : 30 SEPTEMBER 2021
PUBLISHED : 30 SEPTEMBER 2021
FILE NO/S: CIV 2705 of 2019
BETWEEN: RODNEY PEARCE
Plaintiff
AND
GIACOMO NATALE VERSACI
First Defendant
SUSAN ELIZABETH VERSACI
Second Defendant
Catchwords:
Practice and procedure - Case management - Inactive Cases List - Application to remove matter from the Inactive Cases List - Whether case will be conducted in a timely way - Timeliness of bringing application - Absence of adequate evidence - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | No Appearance |
| First Defendant | : | No Appearance |
| Second Defendant | : | No Appearance |
Solicitors:
| Plaintiff | : | Hardies Lawyers |
| First Defendant | : | Not Applicable |
| Second Defendant | : | Not Applicable |
Case(s) referred to in decision(s):
Lashansky v Legal Practice Board [No 2] [2010] WASC 159
Ormarc Engineering v Downer EDI Mining Blasting Services [2020] WASC 7
Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24
REGISTRAR GRIFFIN:
This is the plaintiff's application for the removal of this case from the Inactive Cases List, pursuant to O 4A r 27(1) of the Rules of the Supreme Court 1971 (WA) (RSC).
The application was made by way of letter dated 22 September 2021 to the Associate to the Principal Registrar (Application). The Application was received by the court on 22 September 2021 and listed for hearing on 23 September 2021. There was no other date upon which the Application could be listed, as 23 September 2021 was the day upon which the case would be deemed dismissed for want of prosecution pursuant to O 4A r 28(1) RSC.
The plaintiff's solicitor was notified of the hearing by email sent on 22 September 2021.
The plaintiff's solicitor did not attend the hearing and could not be reached by his office upon the court's attempts to contact him with respect to his attendance. No explanation was, or to the date of these reasons, has been, provided for the lack of attendance.
Accordingly, the Application proceeded on the papers and was dismissed for the reasons which follow.
Background
This case was commenced by way of writ on 26 September 2019. Affidavits of service on both defendants were filed on 31 October 2019. No further steps were taken.
The plaintiff was notified that the case had been placed on the Inactive Cases List (List) pursuant to O 4A r 24 RSC by reason of no procedural step having been taken in the case for 12 months by any party. That notification was by way of letter sent by email to the plaintiff's solicitors dated 23 March 2021.
The effect of that notification was that, if the case was on the List for six continuous months from the date of the notice, pursuant to O 4 r 28 RSC, it would be taken to be dismissed for want of prosecution. The six month period expired on 23 September 2021.
No step was taken until the Application was received on 22 September 2021. The Application is not a 'step in the proceedings'.
The Application states:
No further procedural steps were taken in the case in the 12 months prior to it being put on the Inactive Cases List, and in the subsequent 6 months, because the parties were in negotiations to settle the matter. Unfortunately, settlement negotiations have since broken down.
We believe the matter can be dealt with summarily, either by way of an application for default judgment or summary judgement, and if the plaintiff's request is granted it is our intention to seek leave to bring the appropriate application as soon as possible. In this regard, we are not aware of any defence that the defendants may have to the plaintiff's claim.
This action was properly placed on the List. The plaintiff was properly notified that he could apply to remove the action from the List under O 4A r 27 RSC.
Principles
An application for removal from the Inactive Cases List should not be regarded as mechanical. Some evidence should be advanced to show that the party is committed to advancing proceedings. Ideally, a timetable should be set, perhaps backed up by a springing order: Swick Nominees Pty Ltd v Norncott Pty Ltd;[1] Lashansky v Legal Practice Board[No 2]('Lashansky').[2]
[1] Swick Nominees Pty Ltd v Norncott Pty Ltd [2008] WASC 24 [11].
[2] Lashansky v Legal Practice Board[No 2] [2010] WASC 159 [68] ('Lashansky').
The plaintiff's evidence should demonstrate how the matter came to be on the List and how the plaintiff will ensure the matter will not again become inactive. This includes evidence as to the state of preparation of the case and steps to bring the matter to a hearing: Lashansky;[3] Ormarc Engineering v Downer EDI Mining Blasting Services('Ormarc').[4]
[3] Ibid [74], [82] - [83].
[4] Ormarc Engineering v Downer EDI Mining Blasting Services[2020] WASC 7 [41] ('Ormarc').
In the absence of adequate evidence of how the case will be conducted going forward, the history of the conduct of the case may be determinative.[5]
[5] Ibid [61].
The plaintiff's unexplained delay in applying to have the case removed from the List will weigh significantly against the favourable exercise of the discretion to order removal of the case from the List. The lack of timeliness in taking that essential step is a relevant consideration in assessment whether the case will be conducted in a timely way if taken off the List: Lashansky;[6] Ormarc.[7]
[6] Lashansky [80].
[7] Ormarc [42].
These principles are further enumerated at 4A.27.2 of Civil Procedure Western Australia.[8]
[8] Judge Michael Gething, Rachel Joseph and Matthew Curwood, Civil Procedure Western Australia, vol 1 (at service 191) [4A.27.2].
Disposition
No evidence was adduced in support of the Application.
Removal from the List is not, as the authorities point out, a mechanical exercise. The court must exercise its discretion and be satisfied that the case will be conducted in a timely way, or for any other good reason.
There is no basis upon which I can find that the case will be conducted in a timely way. Whilst I acknowledge the content of the Application and its reference to ongoing negotiations, that is, first, not evidence. The highest it can be put is as a submission or as evidence 'from the bar table'. Second, it does not explain when or why negotiations failed. The plaintiff has been on notice that 23 September 2021 was an important date. The plaintiff has taken no steps to progress the case during the six months or to inform the court that negotiations were underway.
The plaintiff has not provided any evidence as to the way in which he plans to progress this matter, other than to say that 'it is our intention to seek leave to bring the appropriate application as soon as possible'. Per Ormarc, in the absence of adequate evidence of how the case will be conducted going forward, the history of the conduct of the case may be determinative.[9] More than two years have passed since there has been any step taken in this case, or any communication to the court, so the statement that action is 'intended' to be taken 'as soon as possible' is not strong support for a view that the matter is likely to be progressed in a timely fashion.
[9] Ormarc [61].
The plaintiff brought the Application the day before the case would be dismissed by operation of O 4A r 28. The plaintiff has not explained the reason for the lateness of the application. This is a significant factor weighing against the exercise of a discretion to remove the case from the List.
Conclusion
In light of the lateness of this application to remove the case from the List, the absence of any evidence explaining the inactivity of the case, or any plan for future conduct to avoid ongoing delays and the absence of any explanation as to the lateness of the Application, the application to remove the case from the Inactive Cases List is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AW
Associate
30 SEPTEMBER 2021
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