Rowe v Stoltze

Case [2013] WASCA 92

ROWE -v- STOLTZE [2013] WASCA 92



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2013] WASCA 92
THE COURT OF APPEAL (WA)
Case No:CACV:61/201228 NOVEMBER 2012
Coram:PULLIN JA
NEWNES JA
MURPHY JA		9/04/13
21Judgment Part:1 of 1
Result: Appeal dismissed
A
PDF Version
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…

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ROWE -v- STOLTZE [2013] WASCA 92
Case
[2013] WASCA 92
Decision Date

CaseChat Overview and Summary

In the matter of Rowe v Stoltze, the plaintiff sought to challenge the dismissal of his case by the District Court. The plaintiff's case had been placed on the Inactive Cases List and subsequently taken to be dismissed under rule 44G(1) of the District Court Rules 2005 (WA). The plaintiff's application to reinstate the case was dismissed, and he sought to appeal this decision. The legal issues that arose from this case included whether the court had the power to extend the time for an application to remove a case from the Inactive Cases List after it had been taken to be dismissed under rule 44G(1), whether the court had the power to set aside the dismissal, and whether rule 44G(1) was beyond the court's powers (ultra vires).

The court considered these issues and found that the District Court had no power to extend the time for an application to remove a case from the Inactive Cases List once it had been taken to be dismissed under rule 44G(1). The court also found that the District Court had no power to set aside the dismissal of the case, and that rule 44G(1) was not beyond the court's powers. The court held that the plaintiff's appeal was without merit and dismissed the appeal. The court found that the District Court had acted within its powers in dismissing the plaintiff's case and that there were no grounds for the plaintiff to challenge the decision.

The final orders of the court were that the appeal was dismissed, and the plaintiff was not granted leave to appeal to the Court of Appeal. The court found that the District Court's decision to dismiss the plaintiff's case was correct and that there were no grounds for the plaintiff to challenge this decision. The court held that the plaintiff's application to reinstate the case was properly dismissed, and that the District Court had no power to extend the time for an application to remove the case from the Inactive Cases List after it had been taken to be dismissed under rule 44G(1). The court also found that the District Court had no power to set aside the dismissal of the case, and that rule 44G(1) was not beyond the court's powers.

Orders

Orders of the court

Appeal dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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