Rowe v Stoltze

[2013] WASCA 92

ROWE -v- STOLTZE [2013] WASCA 92

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASCA 92
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:61/2012	Heard:	28 NOVEMBER 2012
Coram:	PULLIN JA NEWNES JA MURPHY JA	Delivered:	9/04/13
No of pages:	21	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	A
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Parties:	NADENE ROWE JOSHUA TANGEY by next friend TREVOR TANGEY LYN STOLTZE
Catchwords:	Practice and procedure District Court Inactive Cases List District Court Rules 2005 (WA), pt 4 subdiv 3(6) Case put on the Inactive Cases List Case taken to be dismissed under r 44G(1) Application to reinstate case dismissed Whether court has power to extend time for application to remove case from Inactive Cases List after case taken to be dismissed under r 44G(1) Whether court has power to set aside dismissal Whether r 44G(1) ultra vires
Legislation:	District Court of Western Australia Act 1969 (WA), s 8, s 88 District Court Rules 2005 (WA), r 43, r 44A, r 44D, r 44E, r 44F, r 44G Rules of the Supreme Court 1971 (WA), O 2 r 1(2), O 3 r 5
Case References:	Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170 Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84 Cleland v Boynes (1978) 19 SASR 464 FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Grassby v The Queen (1989) 168 CLR 1 Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311 Hughes v Gales (1995) 14 WAR 434 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421; (1993) 113 ALR 643 McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1 Minister of State for the Army v Padbury Henty & Company Pty Ltd [1945] HCA 52; (1945) 70 CLR 459 Murcia & Associates v Grey [2001] WASCA 240; (2001) 25 WAR 209 Poyser v Minors (1881) 7 QBD 329 Re Coldham; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 522 Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 Sali v SPC Ltd (1993) 67 ALJR 841 State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161 Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ROWE -v- STOLTZE [2013] WASCA 92 CORAM : PULLIN JA

NEWNES JA
MURPHY JA

HEARD : 28 NOVEMBER 2012 DELIVERED : 9 APRIL 2013 FILE NO/S : CACV 61 of 2012 BETWEEN : NADENE ROWE

First Appellant

JOSHUA TANGEY by next friend TREVOR TANGEY
Second Appellant

AND

LYN STOLTZE
Respondent

ON APPEAL FROM:

Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Coram : COMMISSIONER GETHING

Citation : ROWE -v- STOLTZE [2012] WADC 84

File No : CIV 2710 of 2010

(Page 2)

Catchwords:

Practice and procedure - District Court - Inactive Cases List - District Court Rules 2005 (WA), pt 4 subdiv 3(6) - Case put on the Inactive Cases List - Case taken to be dismissed under r 44G(1) - Application to reinstate case dismissed - Whether court has power to extend time for application to remove case from Inactive Cases List after case taken to be dismissed under r 44G(1) - Whether court has power to set aside dismissal - Whether r 44G(1) ultra vires

Legislation:

District Court of Western Australia Act 1969 (WA), s 8, s 88

District Court Rules 2005 (WA),r 43, r 44A, r 44D, r 44E, r 44F, r 44G
Rules of the Supreme Court 1971 (WA), O 2 r 1(2), O 3 r 5

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

First Appellant : Mr B W Ashdown
Second Appellant : Mr B W Ashdown
Respondent : No appearance

Intervenor : Mr R M Mitchell SC & Mr A K Sharpe

Solicitors:

First Appellant : Slater & Gordon
Second Appellant : Slater & Gordon
Respondent : No appearance

Intervenor : State Solicitor for Western Australia

(Page 3)

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

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39; (1981) 148 CLR 170
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84
Cleland v Boynes (1978) 19 SASR 464
FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Grassby v The Queen (1989) 168 CLR 1
Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311
Hughes v Gales (1995) 14 WAR 434
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421; (1993) 113 ALR 643
McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1
Minister of State for the Army v Padbury Henty & Company Pty Ltd [1945] HCA 52; (1945) 70 CLR 459
Murcia & Associates v Grey [2001] WASCA 240; (2001) 25 WAR 209
Poyser v Minors (1881) 7 QBD 329
Re Coldham; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 522
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1
Sali v SPC Ltd (1993) 67 ALJR 841
State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161
Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1


(Page 4)

1 PULLIN JA: I agree with Newnes JA.

2 NEWNES JA: This is an appeal against a decision of Commissioner Gething in the District Court, refusing the appellants' application to reinstate a case which is taken to have been dismissed under r 44G(1) of the District Court Rules 2005 (WA).

3 As the appeal is against an interlocutory decision, the appellants require leave to appeal: s 79(1)(b) of the District Court of Western Australia Act 1969 (WA) (the District Court Act). On 1 August 2012 Pullin JA ordered that the application for leave to appeal be heard with the appeal.

4 The respondent has taken no part in the appeal but the Attorney General for Western Australia has intervened under s 78A of the Judiciary Act 1903 (WA). In the absence of a contradictor, the Attorney General has helpfully addressed not only the constitutional issue but also each of the other grounds of appeal.

Background

5 The first appellant, and the second appellant as the next friend of Joshua Tangey, commenced proceedings against the respondent, a medical practitioner, by a District Court writ of summons issued on 3 September 2010. In the action, the appellants claimed damages for negligence in connection with the birth of Joshua Tangney on 16 September 2008. The writ of summons was served on the respondent's insurers on 1 August 2011. The respondent did not enter an appearance in the action.

6 No further steps were taken in the action and, on 6 September 2011, the District Court issued a notice, pursuant to r 44D of the District Court Rules, stating that the action had been placed on the Inactive Cases List. The notice was received by the appellants' solicitors but apparently did not come to the attention of the solicitor with the conduct of the matter.

7 On 6 March 2012, the action having been on the Inactive Cases List for six continuous months, was taken to be dismissed for want of prosecution, pursuant to r 44G(1). A notice to that effect was served on the appellants' solicitors, pursuant to r 44G(2).

(Page 5)

8 On 14 March 2012, the appellants applied for the action to be reinstated. The appellants relied, in substance, on the following grounds in support of the application:

(a) by virtue of O 2 of the Rules of the Supreme Court1971 (WA) the failure of the appellants to comply with the rules was an irregularity, and the dismissal of the action could and should be set aside;

(b) the time for compliance with r 44G(1) could and should be extended under O 3 r 5 of the Supreme Court Rules;

(c) the words 'taken to be dismissed' in r 44G(1) mean that there was no final judgment dismissing the case unless and until an extracted order to that effect is sealed by the court, and as there was no such order the dismissal of the action could and should be set aside;

(d) the dismissal had no effect as the appellants have a right to have their action heard and determined on the merits, a right that cannot be taken away unless the words of r 44G(1) are sufficiently clear to do so, which they are not; and

(e) rule 44G(1) of the District Court Rules is beyond the rule making power of the District Court judges as it provides for the exercise of the jurisdiction of the court by registry staff and not by the judges of the court, in breach of s 8 of the District Court Act.

9 Each of those contentions was rejected by the commissioner. His Honour found that the court had no power to reinstate the action. The appellants appeal against his Honour's decision.

10 It is convenient to set out the relevant rules of the District Court before turning to the issues which arise on the appeal.

District Court Rules

11 The relevant rules comprise subdiv 3(6) of pt 4 of the District Court Rules and are as follows:

43A. Term used: Inactive Cases List

In this Subdivision -

Inactive Cases List means a list of inactive cases kept by the Court under rule 44D.

(Page 6)

…

44A.Cases inactive for 12 months deemed inactive


If no document is filed in a case for 12 months by any party to the case, the case is taken to be inactive unless the Court orders otherwise.

…

44D.Parties to be notified of case being on Inactive Cases List and to advise clients


(1) When a case is taken to be inactive under rule … 44A, … the Principal Registrar must -

(a) put the case on the Inactive Cases List; and

(b) give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rules 44E and 44G.


(2) If under subrule (1) a practitioner for a party is notified, the practitioner must, as soon as practicable, notify the party of -

(a) the fact that the case is on the Inactive Cases List and why; and

(b) the effect of rules 44E and 44G.

44E.Consequences of case being on Inactive Cases List

If a case is on the Inactive Cases List, only these documents can be filed in the case -

(a) a Form 1 (Entry for trial);

(b) consent order finalising the case;

(c) a summons for an order under rule 44F(3);

(d) a summons for an order dismissing the case for want of prosecution;

(e) any document that relates to a document listed above.


44F. Removing cases from Inactive Cases List

(1) If a Form 1 (Entry for trial), or a consent order finalising the case, is filed in a case on the Inactive Cases List, the case is taken to have been taken off the list.

(Page 7)

(2) Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.

(3) The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.

(4) An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.

44G. Certain inactive cases taken to have been dismissed

(1) A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.

(2) If a case is dismissed under subrule (1), the Principal Registrar must give all parties to the case written notice of the fact.

(3) If under subrule (2) a practitioner for a party is notified, the practitioner must, as soon as practicable, send a copy of the notice to the party.

(4) If a case is dismissed under subrule (1), any party to it may apply to the Court for, and the Court may make, any order needed as a consequence of the dismissal.

Grounds of appeal

12 It is unnecessary to set out the grounds of appeal in full. The substance of the appellants' contentions on the appeal were adequately summarised in the appellants' submissions as follows:

1. The District Court has the power to extend the time for compliance with the requirements of r 44A and/or r 44G(1) of the District Court Rules and to set aside the dismissal of the action, pursuant to:

(a) rule 44G(4) (ground 1);

(b) Order 3 r 5 of the Rules of the Supreme Court (ground 2);

(c) the implied or incidental powers of the District Court to govern its own procedures (ground 3);

(Page 8)

(d) Order 2 r (1)(2) of the Rules of the Supreme Court (ground 4).

2. Subdiv 6 of pt 4 of the District Court Rules:

(a) is contrary to s 8 of the District Court Act as it is inconsistent with, and derogates from, the exercise of jurisdiction by a judge;

(b) is not within the powers granted by s 88 of the Act; and further or alternatively;

(c) is otherwise ultra vires (ground 5).


3. The effect of subdiv (3)6 of pt 4 (or r 44A and/or r 44G) of the District Court Rules is to render the District Court incompatible with its role as a repository of federal jurisdiction under ch III of the Commonwealth Constitution (ground 6).

Disposition of the appeal

13 It was not in issue that the appellants' action was placed on the Inactive Cases List by the principal registrar and that the action remained on that list for a period of six continuous months. The fundamental issue on the appeal was whether the dismissal of the action under r 44G(1) could be set aside.

Ground 1

14 The appellants' contention that the District Court has power under r 44G(4) to extend the stipulated period of 12 months in r 44A and/or of six months in r 44G(1), or to set aside the dismissal of the action, turns on the proper construction of r 44G(4). That rule, it will be recalled, provides:

If a case is dismissed under subrule (1), any party to it may apply to the Court for, and the Court may make, any order needed as a consequence of the dismissal.

15 It was submitted on behalf of the appellants that r 44G(4) conferred on the court a broad power to relieve against any injustice which might be caused by the operation of r 44G(1). It was not a power which should be read narrowly. Counsel for the appellants referred in that connection to what was said by the plurality in FAI General Insurance Company Ltd v Southern Cross Exploration NL (1988) 165 CLR 268, 283 - 284, in relation to a rule enabling the court to extend time. He submitted that,
(Page 9)

like the rule considered in that case, r 44G(4) was 'a remedial provision which confers on a court a broad power to relieve against injustice', conferring a discretion which 'is not readily to be limited by judicial fiat'.

16 The appellants argued that while 'any order needed as a consequence of the dismissal' would obviously include costs orders and other orders necessary to give effect to the dismissal, there was no reason to limit the operation of r 44G(4) to orders of that nature. In its plain meaning, r 44G(4) was capable of applying to an order extending the time periods in r 44A and/or r 44G(1), or setting aside the dismissal. Such an order is needed 'as a consequence of' the dismissal, in that such an order would not be needed had the dismissal not occurred.

17 I do not consider there is any substance in that submission. In this context, the meaning of 'a consequence' is 'a thing or circumstance which follows as an effect or result from something preceding': New Shorter Oxford Dictionary, 5^th ed, 2002; 'the act or fact of following as an effect or result upon something antecedent, that which so follows, an effect or result': Macquarie Dictionary, 5^th ed, 2009.

18 No amount of linguistic ingenuity is capable of turning r 44G(4) into a power to reverse the dismissal. The power under r 44G(4) is a power to make orders dealing with matters which arise because the action stands dismissed and which are incidental or ancillary to the dismissal. The obvious example is orders relating to costs, but there may well be a number of loose ends which need to be tied up once an action has been dismissed, such as by orders in relation to a counterclaim or third party proceedings.

19 Rule 44G(4) is not in any way comparable to the rule considered in FAI, which was a general provision for the extension of time. It provided, in effect, that the court may extend or abridge any time fixed by the rules, or by any judgment or order of the court, before or after the time had expired and whether or not an application for the extension was made before the time had expired (cf O 3 r 5 of the Supreme Court Rules). Rule 44G(1) is not a general remedial provision of that nature but a provision directed to the resolution of any matters which require attention because the action is at an end.

20 The appellants' counsel sought to draw some assistance from the fact that an application under r 44G(4) may be made, not only by a defendant(s), but by 'any party', arguing that that included a plaintiff whose only interest could be in having the dismissal set aside. There is

(Page 10)

nothing in that. It is evident that a party other than the defendant(s), such as a third party or a party by counterclaim, may wish to seek orders consequent upon the dismissal of the action.

21 The construction contended for by the appellants is simply not open. Ground 1 must be rejected.

Ground 2

22 The appellants next seek to rely upon O 3 r 5 of the Rules of the Supreme Court. Order 3 r 5 applies to proceedings in the District Court: District Court Act, s 87; District Court Rules, r 6. Order 3 r 5 (relevantly) provides:

1. The court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorised by these rules, or by any judgment, order or direction, to do any act in any proceedings.

2. The court may extend any such period as is referred to in subrule (1) although the application for extension is not made until after the expiration of that period.

23 Counsel for the appellants sought to draw an analogy between the dismissal of an action under r 44G(1) and dismissal by reason of the failure of a party to comply with a springing order. It was submitted that the operation of r 44G(1) was no different in principle to the operation of a springing order. As O 3 r 5 permitted the court to extend time for compliance with a springing order even after the order had taken effect (referring to FAI), so it permitted the court to extend time to permit a plaintiff to apply for an action to be taken off the Inactive Case List under r 44F(2) even after the action was taken to have been dismissed. It was submitted that the commissioner (at [24(e)] and [25]) had erred in finding that the operation of O 3 r 5 was limited to the six-month period before the action was taken to have been dismissed.

24 The appellants' argument proceeds upon a false analogy. An action is dismissed under a springing order where the plaintiff fails to do the act required of it by the order within the stipulated time. Under O 3 r 5, the court may extend the time within which the act is required to be done under the order, even after that time has expired. The effect of the extension of time in such cases is to revive the action, although the action is, of course, liable to be dismissed again if the act is not done within the extended time.

(Page 11)

25 The position under r 44G(1) is quite different. Rule 44G(1) does not operate because a party has failed to do an act, within a stipulated time or otherwise. Whether or not a party has failed to comply with an order or the rules is irrelevant. An action is taken to have been dismissed under r 44G(1) simply because it has been on the Inactive Case List for six continuous months, regardless of how that has come about. No question can arise of an extension of time under O 3 r 5 'to do any act' under r 44G(1). Similarly, nor can there arise any question of an extension of time 'to do any act' under r 44A. That rule does not operate because a party has failed to do an act required by an order or the rules; it operates simply because no document has been filed in the action for 12 months, regardless of how that has come about.

26 The appellants sought to sidestep that by seeking an extension of time to bring an application under r 44F(2) to have the action taken off the Inactive Cases List. That, however, does not assist the appellants. In the first place, it is doubtful that O 3 r 5 has any relevant operation. There was no 'period' within which the appellants were 'required or authorised' by the rules or an order of the court to bring such an application. In any event, an extension of time to bring such an application would not affect the operation of r 44G(1); that is, it would not alter the fact that the action was on the Inactive Cases List for six continuous months and therefore, by operation of r 44G(1), stands dismissed. What, in effect, the appellants want is an extension of the six-month time period stipulated in r 44G(1) so as to enable an application to be brought under r 44F(2). For reasons I will come to under ground 3, such an extension is not available.

27 I would dismiss ground 2.

Ground 3

28 The appellants also sought to rely on the incidental or implied powers of the District Court. The District Court has no inherent jurisdiction: Murcia & Associates v Grey[2001] WASCA 240; (2001) 25 WAR 209 [16]. It does, however, have such powers as are reasonably incidental to the exercise of its statutory jurisdiction: District Court Act, s 6; Grassby v The Queen (1989) 168 CLR 1, 16; Murcia [16].

29 The appellants' counsel submitted that the District Court was not functus officio while there remained any judicial function which might be performed in relation to a proceeding. An action is taken to be dismissed under r 44G(1) by way of an administrative procedure. As there was no determination on the merits and no order of the court dismissing the action, the District Court was not functus officio in relation to this action.

(Page 12)

It was therefore open to the court to exercise its incidental or implied powers in relation to the action.

30 It was argued that as part of the court's incidental or implied power to control its own procedures a court can enlarge time even after the relevant time period has elapsed. Counsel referred to Re Coldham; Ex parte Australian Building Construction Employees' and Builders Labourers' Federation (1985) 159 CLR 522, 530. He submitted that under its incidental or implied powers the District Court could therefore extend the time for the appellants to comply with r 44G(1) so as to permit an application under r 44F(2) to remove the case from the Inactive Cases List to be made and determined.

31 That submission is misconceived. The appellants are not required to 'comply' with r 44G(1). That rule simply has effect when a case has been on the Inactive Cases List for a period of six continuous months. Nor is the action dismissed by an administrative procedure but as a result of the operation of rules of court. What, in effect, the appellants seek under this ground is an extension of the six-month period stipulated in r 44G(1) to enable them to bring an application to remove the case from the Inactive Cases List.

32 The District Court has no power to grant such an extension. There is no express power to do so and to do so would clearly not fall within the court's implied or incidental powers. The court may order that a case is not deemed to be inactive if no document is filed for 12 months: r 44A. It may also order that the case be taken off the Inactive Cases List if it is satisfied that good reason exists to do so: r 44F(3). But it cannot, by reliance on implied or incidental powers or otherwise, by order alter the operation of r 44G(1). Such an order would conflict with the terms of the rule. It is clear that a court cannot exercise its inherent or implied powers in a manner which would conflict with a provision of a statute or the rules of court: Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421; (1993) 113 ALR 643, 650.

33 I should mention that it was not submitted, as it was submitted below, that as there was no perfected order of the court dismissing the action, the deemed dismissal of the action under r 44G(1) could be set aside at any time. Any such contention would be without merit. No order of the court is necessary to give effect to the deemed dismissal.

34 Ground 3 must fail.

(Page 13)

Ground 4

35 The appellants next rely on O 2 r 1 of the Supreme Court Rules. That rule (relevantly) provides, in effect, that where in the course of or in connection with any proceedings there has, by reason of anything done or left undone, been 'a failure to comply with the requirements of the rules', the failure shall be treated as an irregularity and the court may set aside either wholly or in part the proceedings, or any step or order in the proceedings, and may make any order dealing with the proceedings generally as it thinks fit.

36 It was submitted on behalf of the appellants that the rule was wide enough to include a failure to file a document within the 12-month period. Alternatively, the rule was wide enough to include a failure to make an application under r 44F(2) to remove the case from the Inactive Cases List. The placing of the action on the Inactive Cases List and its dismissal under r 44G(1) are therefore steps which can be set aside under O 2 r 1(2).

37 There is no substance in that submission. The case was placed on the Inactive Cases List, and is taken to have been dismissed, not by reason of a 'failure to comply with [the rules]', but simply because no document was filed in the action for 12 months, and, then having been placed on the Inactive Cases List, it remained on that List for six continuous months. As explained above, r 44A does not have effect by reason of a failure of a party to comply with the rules; it is irrelevant to the operation of r 44A how it came about that no document was filed within the 12-month period. It is enough that no document was filed. And the appellants were plainly under no obligation to file an application under r 44F(2) to remove the action from the Inactive Cases List. The fact that they did not do so could not constitute a 'failure to comply with [the rules]'.

38 Order 2 r 1(2) has no application in the present circumstances. Ground 4 should be dismissed.

Ground 5

39 The appellants contend under this ground that pt 4 subdiv 3(6) of the District Court Rules is ultra vires. Three reasons are advanced for that contention. It is said that pt 4 subdiv 3(6):

(a) is beyond the rule-making power of the District Court;

(b) is inconsistent with, and derogates from, the exercise of jurisdiction by a judge; or

(Page 14)

(c) is 'otherwise' ultra vires.

40 It is convenient to take each of those propositions in turn.

The rule-making power

41 The rule-making power of the District Court is contained in s 88 of the District Court Act. Section 88 provides (relevantly) that the judges of the court, or a majority of them, may make rules, not inconsistent with the Act, 'regulating and prescribing the practice and procedure … to be followed in the Court'. It also provides that rules of court may be made, among other things, for a registrar to exercise such jurisdiction as a judge sitting in chambers may exercise: s 88(2)(g).

42 The appellants submitted that in providing for the deemed dismissal of proceedings for want of prosecution, r 44G(1) went beyond a matter of 'practice and procedure' in that it denied to a plaintiff the right to have an action heard and access to a remedy.

43 That submission cannot be accepted. The composite term 'practice and procedure' is well-understood. It refers to the method by which a legal right is established or enforced, as distinct from the law which gives or defines that right: Poyser v Minors (1881) 7 QBD 329, 333 - 334; Minister of State for the Army v Padbury Henty & Company Pty Ltd [1945] HCA 52; (1945) 70 CLR 459, 489. In Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc[1981] HCA 39; (1981) 148 CLR 170, 176 - 177, Gibbs CJ, Aickin, Wilson and Brennan JJ, referred with approval to the following passage from Salmond on Jurisprudence (10^th ed, 1974) 476:

Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals with the means and instruments by which those ends are to be attained. The latter regulates the conduct and relations of courts and litigants in respect of the litigation itself; the former determines their conduct and relations in respect of the matters litigated.

44 It can be accepted that in its practical application that distinction is not always easy to draw; there is no bright line which distinguishes one from the other: see McKain v RW Miller & Co (SA) Pty Ltd (1991) 174 CLR 1, 40. And while a power to make rules regulating practice and procedure does not confer a power to make rules which alter or make substantive rights, that is not to say that rules regulating practice and procedure may not affect the enforcement of substantive rights. Inevitably they do. As the court pointed out in Cleland v Boynes (1978)
(Page 15)

19 SASR 464, 473 - 474, the rights of the parties 'are necessarily altered, canalized and regulated by the rules of procedure'.

45 In my view, however, no difficulty of categorisation arises here. The rules contained in subdiv 3(6) of pt 4 of the District Court Rules, including r 44G(1), are properly to be categorised as regulating or prescribing matters or practice and procedure. They do not alter the substantive rights of the parties. They regulate the conduct of proceedings in the court by providing a facility by which, after due notice to the parties, litigation which has remained inactive for a lengthy period of time or has been pursued in an unduly tardy fashion may be brought to an end. As the commissioner observed, the dismissal of an action under r 44G(1) does not bar a fresh action for the same relief: see Hughes v Gales (1995) 14 WAR 434, 438. No question of res judicata or issue estoppel arises as there has been no determination on the merits. Nor will the fact that the action was dismissed under r 44G(1) necessarily mean that any fresh action will constitute an abuse of process; that will depend upon the particular circumstances: see Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84. The operation of any relevant limitation period may, of course, affect whether fresh proceedings can be brought, but that comes about by virtue of the Limitation Act 2005 (WA), not the operation of pt 4, subdiv 3(6) of the District Court Rules. It is unnecessary to consider whether in the present case a fresh action would be out of time under the Limitation Act.

46 This contention must fail.

Inconsistency with, or derogation from, the exercise of the court's jurisdiction

47 It was submitted by the appellants that the effect of r 44G(1) was inconsistent with the District Court Act in that it permitted an action to be dismissed by administrative action, whereas s 8 of the District Court Act provided for the court's jurisdiction to be exercised by a judge or, subject to delegation by rules made under s 88(2)(g), by a registrar. It was further submitted that the proper exercise of the court's jurisdiction required that a judge determine whether a plaintiff ought to be deprived of the right to have their claim determined. In excluding such involvement by a judge, r 44G(1) altered or diminished the jurisdiction of the District Court.

48 Those submissions cannot be accepted. As mentioned previously, it is not correct to say, as the appellants do, that the action was dismissed by administrative action. The deemed dismissal of the action came about by the operation of rules of court made by the judges of the court. While r 44G(2) requires the principal registrar to give the parties written notice

(Page 16)

of the dismissal of an action, that administrative action plays no role in the dismissal itself; it is merely notice, after the fact, that the action has been dismissed.

49 Nor can it be said that in some way the operation of r 44G(1) derogates from the exercise of the jurisdiction of the court under s 8 of the District Court Act. The operation of r 44G(1) does not affect the exercise of the jurisdiction of the court under s 8 of the District Court Act. It involves no determination of the substantive rights of a party or the making of any judgment or order of the court. It simply brings to an end, by a deemed dismissal, proceedings which the parties, having been put on notice under r 44D(1), have not kept alive.

Is 'otherwise' ultra vires

50 As I understood the appellants' submissions, two contentions were advanced under this rubric. The first was more implied than express. It was contended, in effect, that the rule-making power in s 88(1) should not be construed as authorising the making of rules which abrogate the rules of procedural fairness. Rule 44G(1), it was submitted, is ultra vires because it denies a party a right to have their case heard and determined on the merits and thereby abrogates the rules of procedural fairness. The underlying proposition, as I understood it, was that s 88(1) did not, by the clear language which would be necessary, authorise rules of court which abrogated the rules of procedural fairness. The contention that r 44G(1) abrogated the rules of procedural fairness was based on the submission that 'everyone has a right to bring an action and have it determined on its merits'.

51 That latter submission greatly overstates the position. It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper

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and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].

52 Part 4 subdiv 3(6) falls to be considered in that context. In considering whether a party has had a reasonable opportunity to have their case heard it is important to bear in mind that a case is put on the Inactive Cases List only where:

(a) no document has been filed in a case for 12 months (r 44A);

(b) a plaintiff has failed to enter the action for trial following service on the plaintiff of a Form 2: r 44;

(c) on a summons to show cause a registrar is not satisfied the action has been conducted in a timely way, and so orders: r 44B(4); or

(d) as a result of a failure to comply with a springing order which so provides: r 44C(1).

53 In other words, a case will only be put on the Inactive Cases List where the case has not been prosecuted with reasonable expedition.

54 Moreover, r 44G(1) only takes effect after a further six months elapses following express notice to the parties that the action will be dismissed if nothing is done to remove it from the Inactive Cases List within that time. In that six-month period any party can apply to have it removed and the court may remove it if satisfied that the case will thenceforth be conducted in a timely way or for other good reason: r 44F(3).

55 A plaintiff who does not seek to have the case removed or, having applied, is unable to persuade the court that there is any good reason why it should be removed, cannot be said to have been deprived of a

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reasonable opportunity to have their case heard. A failure to have an action removed is consistent only with a failure on the part of the plaintiff to evince any real interest or will to pursue the action in an appropriate manner. In those circumstances there is no reason why in the administration of its affairs the court should devote scarce resources to keep the action afloat. The contention that pt 4 div 3(6), or r 44G(1) in particular, deprives a plaintiff of a reasonable opportunity to have their case heard cannot be sustained.

56 The other contention under this head was that r 44G(1) was ultra vires because it lacked proportionality.

57 The commissioner accepted (at [80]) that a rule of court, as delegated legislation, will be ultra vires if it is lacking in reasonable proportionality to the end sought to be achieved by the enabling legislation; that is, if it is so lacking in reasonable proportionality as not to be a real exercise of the power: see State of South Australia v Tanner [1989] HCA 3; (1989) 166 CLR 161, 168.

58 The appellants submitted, in effect, that r 44G(1) was entirely disproportionate to any proper end sought to be achieved by the power under s 88 to prescribe and regulate the practice and procedure to be followed in the District Court. Rule 44G(1), it was argued, led to the dismissal of actions by the imposition of standard times without regard to the subject-matter, complexity, merits or particular circumstances of the litigation. It was manifestly arbitrary and led to injustice or partiality.

59 That cannot be accepted. Assuming, but without deciding, that what was said in Tanner is applicable in this context, it does not assist the appellants. For the reasons set out above, r 44G(1) does not deprive a litigant of a reasonable opportunity to have their case heard and it is not outside the proper regulation of the conduct and relations of the court and the litigants in respect of litigation in the court.

60 This ground of appeal must fail.

Ground 6

61 The appellants submitted that pt 4 subdiv 3(6) was invalid because it would render the District Court inconsistent with its status as a repository of federal jurisdiction under ch III of the Commonwealth Constitution. That invalidity was said to arise because under those rules:

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(1) there was a delegation of the judicial power and decision-making process to dismiss an action for want of prosecution; and

(2) dismissal for want of prosecution operates by way of a deeming provision and an administrative act without any order or decision of the court, thereby depriving an affected party of any right of review.

62 It was submitted that the exercise of the court's jurisdiction and decision-making was abdicated and replaced by an administrative task because the effect of pt 4 subdiv 3(6) was that a case was deemed to have been dismissed without the exercise of any decision-making process of the court and without the intervention of a judge exercising the jurisdiction of the court under s 8 of the District Court Act. Moreover, as there was no judgment or order, but only a deemed dismissal, no right of appeal was available. The right of appeal under s 79(1) of the District Court Act applies to a judgment or order of the court. It has no application where an action is 'taken to have been dismissed'.

63 In my view, there is no substance in this ground.

64 The question under this ground, properly understood, is whether pt 4 subdiv 3(6) in general, and r 44G(1) in particular, are valid exercises of the rule-making power under s 88 of the District Court Act. It was not suggested, and nor could it be suggested, that s 88 of the District Court Act itself exceeds the limits of ch III of the Commonwealth Constitution. The making of procedural rules of court is an incident of judicial power which may be conferred on a court consistently with ch III: Harrington v Lowe [1996] HCA 8; (1996) 190 CLR 311, 324.

65 However, the rule-making power under s 88 is to be construed as subject to the limits of the legislative power of the state: Interpretation Act 1984 (WA), s 7. Those limits include the limits which arise from ch III of the Commonwealth Constitution. Rules inconsistent with ch III would therefore be ultra vires. (See generally Wotton v Queensland [2012] HCA 2; (2012) 246 CLR 1 [9] - [10], [21]). Accordingly, in order to determine whether pt 4 subdiv 3(6) is a valid exercise of the rule-making power under s 88 of the District Court Act it is necessary to have regard to the limits which arise by virtue of ch III.

66 It was not in issue that the District Court is a 'court of a State' within the meaning of s 77(iii) of the Commonwealth Constitution. It is unnecessary to consider the ambit of the essential characteristics of a court for the purposes of ch III. Suffice it to say that a state may not require or

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authorise a court of a state to exercise power in a manner which is inconsistent with the defining characteristics of a court, and a statutory provision will be invalid if it confers on the court authority which is 'repugnant to the judicial process in a fundamental degree': see Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51, 132; International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49, (2009) 240 CLR 319 [98], [136], [140].

67 Turning to the appellants' first contention, it is not correct to say that r 44G(1) effects an impermissible delegation of judicial power. There is no delegation of judicial power. The dismissal of a case under r 44G(1) occurs, not as a result of an administrative act as asserted by the appellants, but as a result of the operation of r 44G(1). That is, it occurs by the operation of procedural rules of court made by the judges of the court. For the reasons given earlier, r 44G(1) and the other rules contained in pt 4 subdiv 3(6) do not exceed the bounds of procedural rules.

68 The appellants' further contention that r 44G(1) is invalid because it deprives an affected party of any right of review, is also without merit. It will always be open to the court to determine whether the conditions necessary for the deemed dismissal have been satisfied, even after an action is purportedly dismissed under r 44G(1). There is also no merit in the submission by the appellants that the absence of any process by which a dismissal under r 44G(1) may be set aside is repugnant to the judicial process. In that connection, counsel for the appellants sought to rely on International Finance Trust for the proposition that provision for a party to apply to discharge an order made ex parte is 'an elementary rule of justice': [130], [134], [146]. What was said in that respect in International Finance Trust has no application in this case. A case is not dismissed under r 44G(1) without notice to the parties. As mentioned earlier, the parties are given written notice of the effect of r 44G(1) and have six months to take action, if they see fit, to have the case removed from the Inactive Cases List. There is no proper analogy to the position where an order is made without notice.

69 Finally, the appellants submitted that a provision for dismissal of a case without the party affected being heard denies that party procedural fairness and 'distorts the institutional integrity of the court'. That submission is also without merit. There is nothing in r 44G(1) which renders it repugnant to the judicial process in Australia.

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70 The contention that the effect of the operation of that rule is to deny the affected party procedural fairness has been dealt with earlier. The fact that r 44G(1) operates without a hearing on the merits does not render it repugnant to the judicial process. There are many instances where an action may be brought to an end without any hearing on the merits. Apart from rules in the Supreme Court (O 4A div 5 of the Supreme Court Rules) and South Australia (Supreme Court Rules 2006 (SA), r 123) to the same effect as subdiv 3(6) of pt 4, as senior counsel for the Attorney pointed out, there are, for instance, provisions for 'springing orders' in r 42.16.1(b) of the High Court Rules 2004 (Cth), and r 5.21, r 5.23 of the Federal Court Rules 2011 (Cth); the deemed abandonment of special leave applications in r 41.13 and 41.10.4.1 of the High Court Rules; and the expiration of the validity of a writ for service in O 7 of the Supreme Court Rules.

71 As mentioned earlier, the procedural rules of court are no longer to be considered as concerned solely with the resolution of the dispute between the parties to a proceeding, but must also take into account the effects of delay in the administration of justice, the interests of other litigants waiting to have their cases heard, and the public interest in the cost-effective and efficient use of the scarce public resources of the court. The notion that a case which the plaintiff has manifested a lack of any interest or will to prosecute might simply lie dormant, hanging over the head of the defendant and clogging up the administration of the court indefinitely, is contrary to modern concepts of the proper and effective administration of justice.

72 There is nothing which would render r 44G(1) or any other provision of pt 4 subdiv 3(6) repugnant to the judicial process in Australia.

73 This ground of appeal should be dismissed.

Conclusion

74 I would grant leave to appeal but dismiss the appeal.

75 MURPHY JA: I agree with Newnes JA.