Ruby v Doric Group Holdings Pty Ltd - [2012] WADC 58

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION: PERTH

CITATION: RUBY -v- DORIC GROUP HOLDINGS PTY LTD [2012] WADC 58

CORAM: COMMISSIONER GETHING

HEARD: 5 APRIL 2012

DELIVERED : 20 APRIL 2012

FILE NO/S: CIV 3670 of 2010

BETWEEN: RODNEY MARK RUBY
Plaintiff
AND
DORIC GROUP HOLDINGS PTY LTD
Defendant
STL ENGINEERING PTY LTD
First Third Party

Catchwords:

Practice and procedure - Case management - Dismissal for want of prosecution

Legislation:

District Court Rules 2005 (WA) r 44G

Result:

Application dismissed

Representation:

Counsel:

Plaintiff:     Mr G Stubbs
Defendant:     Mr P E Jarman
First Third Party          :     Mr G P Bourhill

Solicitors:

Plaintiff:     Shine Lawyers
Defendant:     Jarman McKenna
First Third Party          :     Tottle Partners

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

Cropper v Smith (1884) 26 Ch D 700
Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268
Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86
Melville v East End Holdings Inc [2003] WASCA 133
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 7) [2010] WASC 351

COMMISSIONER GETHING:

Background

The present application, dated 13 January 2012, is for orders to revive a case taken to have been dismissed for want of prosecution by virtue of being on the inactive cases list for six continuous months pursuant to District Court Rules 2005 (WA) (DCR) r 44G(1). District Court Rules Pt 4 Div 3(6), in which r 44G is contained, came into operation on 1 July 2011. The present application is the first occasion on which the court has been asked to revive a case so dismissed. For this reason, when it came on for hearing before a registrar, the registrar referred the application to a judge for determination pursuant to DCR r 12.
The application raises the issue of whether the court has the power to revive a case taken to have been dismissed for want of prosecution pursuant to DCR r 44G. The defendant was content to abide by the decision of the court. The third party opposed the application.
The present case was commenced by writ on 26 May 2010. At the same time as filing its defence on 23 February 2011, the defendant issued a third party notice.
On 24 February 2011, a case management timetable was issued by the court requiring the plaintiff to enter the action for trial by 23 June 2011. On 24 June 2011, the court issued a notice of default pursuant to DCR r 38 notifying the plaintiff that unless he entered the action for trial on or before 9 July 2011, the action would become inactive. The plaintiff did not enter the action for trial on or before 9 July 2011, and has not done so since.
On 11 July 2011, the Court issued the plaintiff a notice pursuant to DCR r 44D advising the plaintiff that on 10 July 2011 the case was placed on the inactive cases list for failure to enter the case for trial within the time specified in the notice of default.
On 12 January 2012 the case was dismissed pursuant to DCR r 44G and the plaintiff was notified on this by letter dated the same date.
The plaintiff did not assert that the procedural requirements in the DCR were not complied with so as to make the dismissal pursuant to DCR r 44G irregular.

Rule framework

The DCR sets out a timetable which the parties to a case are expected to comply with so as to efficiently progress the action. In particular, the action is to be entered for trial within 120 days of the first defence being filed: DCR r 30, r 37. A copy of the timetable is sent to each party on the filing of the first defence.
If a plaintiff does not enter the case for trial on or before the date set out in the timetable, the court will send the party a form 2 notice of default (entry for trial): 2005 DCR r 38. This form sets out a date by which the plaintiff must enter the action for trial. If the plaintiff does not enter the action for trial by this date, the case is taken to be inactive (DCR r 44(2)) and is placed on the inactive cases list: DCR r 44D(1). On this occurring, the principal registrar is to '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': DCR r 44D(1). A practitioner receiving such a notice is to notify their client of the effect of the notice: DCR r 44D(2).
Once a case is on the inactive cases list, there are then limits placed on the types of documents that may be filed, as follows (DCR r 44E):
44EConsequences 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)a 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.
A case may be removed from the inactive cases list by being finalised, by being entered for trial or by order of the court (DCR r 44F):
44FRemoving 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.
(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.
The consequence of a case being on the inactive cases list for six continuous months is that it is dismissed (DCR r 44G):
44GCertain 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.
The District Court Rules Pt 4 Div 3(3) is very similar to RSC O 4A Div 5. RSC O 4A does not apply to the District Court: DCR r 29. In particular, RSC O 4A r 28 provides for the same consequences if the case is on the inactive cases list for 6 continuous months:
28.Certain inactive cases to be 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 no procedural step (except an application to dismiss the case for want of prosecution) is taken in the 6 months after the date on which a case is ordered to be taken off the Inactive Cases List, the case is taken to have been dismissed for want of prosecution.
(3)If under subrule (1) or (2) a case is dismissed, the Principal Registrar must give all parties to the case written notice of the fact.

Power to set aside – District Court Rules2005 r 44G(4)

The first source of power which the plaintiff relied on is DCR r 44G(4), which I have quoted above. The issue is whether an order setting aside the dismissal of the action made pursuant to r 44G(1) an order 'needed as a consequence of the dismissal'.
An example of an order clearly falling within r 44G(4) would be an order for costs. Another would be an order finalising third party proceedings commenced by the defendant in whose favour judgment was awarded pursuant to r 44G(1).
In my view, the power in r 44G(4) does not extend to an order in effect setting aside the dismissal of the case pursuant to r 44G(1). The power in r 44G(4) assumes that the dismissal is operative, and empowers the court to make orders consequential to that dismissal.

Power to set aside – Rules of the Supreme Court1971 O 3 r 5

The second source of power which the plaintiff relied on was the general power to extend in RSC O 3 r 5. The RSC O 3 r 5 provides:
5.Extending and abridging time
(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.
(3)The period within which a person is required by these rules, or by any order or direction, to serve, file or amend any pleading or other document may be extended by consent (given in writing) without an order of the Court being made for that purpose.
Counsel for the plaintiff also referred to the general principles in RSC O 1 r 4A and 4B, in particular, that the first stated objective of case flow management is to promote 'the just determination of litigation'. Those rules provide in their entirety:
4A.Delays, elimination of the practice, procedure and interlocutory processes of the Court shall have as their goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
4B.Case flow management, use and objects of
(1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of —
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c)maximising the efficient use of available judicial and administrative resources; and
(d)facilitating the timely disposal of business; and
(e)ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f)that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
(2)These rules are to be construed and applied and the processes and procedures of the Court conducted so as best to ensure the attainment of the objects referred to in sub rule (1).
It is well accepted that RSC O 3 r 5 provides authority to extend the time for compliance with a self executing or springing order: FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13; (1988) 165 CLR 268; Melville v East End Holdings Inc [2003] WASCA 133 [17]; Rapid Metal Developments (Australia) Pty Ltd v Anderson Formrite Pty Ltd (No 7) [2010] WASC 351 [3] ‑ [4].
The plaintiff submitted that a judgment pursuant to DCR r 44G(1) is in effect the same as a springing order and that, by parity of reasoning, O 3 r 5 applies. In the present case, it would apply by authorising the court to extend the time within which the case is to be entered for trial pursuant to DCR r 30 and r 37. Once this time is extended, the basis for the operation of DCR r 44G(1) would fall away, and the judgment would be set aside.
The nature of the power in RSC O 3 r 5 was considered by the High Court in FAI. Wilson J (with whom Brennan, Deane and Dawson JJ agreed) stated of the equivalent rule in the Supreme Court Rules 1970 (NSW) (283 ‑ 284, reference omitted):
The plain meaning of these words is very wide. The Court may extend 'any time' fixed by 'any ... order' and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired. ….it gives 'very full discretionary power; indeed, I can hardly imagine a more extended discretion'. It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.
Gaudron J, who agreed in the conclusion, stated (288 ‑ 289):
Here an order for dismissal does no more than effect a situation in which fresh proceedings may be brought (involving additional expense and duplication of court time if, as here, there has been a hearing as to the issues in dispute or some of them) then it seems to me that the administration of law and justice may be well served by a power to reinstate proceedings. That consideration, particularly having regard to the terms of Pt 40, r. 8(1), provides part of the context in which Pt 2, r. 3 should be construed.
….
Although it has been common to speak of a conditional order for dismissal as self-executing or of a proceeding upon which such an order has operated as 'dead', that seems to me to obscure the fact that a conditional order, of its nature, necessitates the exercise of the further judicial function of determining that the condition was not satisfied at the specified time. Where such an issue remains to be determined in relation to a proceeding it cannot be said that the court is functus officio.
Her Honour placed weight on the fact that a conditional order did not render the court functus officio nor did it (on the circumstances before that court) preclude fresh proceedings being brought (290):
There may be occasions when it is appropriate to approach the question of the proper meaning of the grant of power on the basis that only the clearest express intention can displace fundamental legal principle or basic policy consideration. However, as a conditional order for dismissal such as that presently under consideration neither renders the Court functus officio nor of itself precludes the bringing of fresh proceedings there is no question of fundamental legal principle or policy brought into issue by the grant of power in Pt 2, r. 3. That being so, and the language of the rule being such as to comprehend the power, Pt 2, r. 3 must be construed as authorizing the Court to enlarge the time fixed by a duly entered conditional order for dismissal notwithstanding that the time so fixed has expired, unless such authority is expressly excluded by statute or other rule of court.
The operation of RSC O 3 r 5 was considered in the context of the time within which an appeal may be brought by Owen J in Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552. In that case, the appellant had commenced appeals from two interlocutory orders made in chambers. Rules of the Supreme Court O 63A r 5(2) then provided that 'an appeal shall be entered within seven days after the directions hearing and if not so entered shall be taken to have been discontinued'. The appellant did not enter the appeals for hearing within time, and applied for an extension of time pursuant to O 3 r 5. Owen J held that there was no power to extend time as O 3 r 5 had been excluded by necessary implication.
Owen J considered the passages I have quoted from the decision in FAI and identified three reasons distinguishing the case before his Honour from that in FAI (556):
I think this is a different case from FAI. There are three reasons. First, there is nothing conditional about O 63A r 5(2). An appeal is either entered within time or it is not. There is nothing left to be decided. This distinguishes it from FAI, where it remained open to question whether the document that the plaintiff lodged was sufficient compliance with the order for particulars. Secondly, the structure of O 63A r 5 has its own in-built mechanism to prevent injustice. It does not shut the appellant out entirely. The word used is 'discontinued'. This is a different concept from 'dismissal': see The Kronprinz (1887) 12 App Cas 256 at 259. Fresh appellate proceedings can be instituted subject (where necessary) to the exercise of a judicial discretion to extend time. In this regard it is to be noted that O 63A r 3(1), which contains the 21 day time limit for the commencement of an appeal, does not have any self-executing properties. I would have no hesitation in saying that the general power to extend time applies to O 63A r 3(1). Thirdly, this rule concerns appellate proceedings. The appellant has had the merits of the interlocutory dispute determined at first instance. It wishes to pursue an appeal, and it cannot be criticised for so doing. However, there is a significant difference between the situation which arose in FAI and that with which the appellant is confronted. In the former, the effect of the order was to deny the plaintiff a determination of the substantive dispute. Here, the rule does not have that effect and nor does it necessarily prevent the appellant from pursuing its appeal against the interlocutory order.
His Honour concluded (557):
Order 63A was introduced into the Rules in November 1996 to overcome what was seen as a mischief seriously impeding the administration of the civil justice system. The mischief was that appeals from interlocutory orders were treated in the same way (subject to the need to obtain leave in some cases) as appeals from final orders. This was adding to the delays then being experienced in getting matters to trial. The object of O 63A was to have appeals and applications that come within it disposed of in the shortest possible time so as to minimise delays in getting the substantive litigation to trial.
…. [T]here is no lack of clarity in the wording of O 63A r 5(2). The plain meaning of the words is consistent with a policy that there should be some real and effective sanction if the parties fail to pursue the appeal with vigour and expedition. Again as I have already said, the rule does not bring an appeal to an end irreversibly. Although it is self-executing, it does not shut the appellant out completely. In this way it serves the policy aims of the Order. A party who is (accidentally or deliberately) tardy must convince the Court that there are good reasons why it should have a second chance.
The context in which O 63A r 5(2) appears also suggests a strict construction according to the plain meaning of the words. Order 63 r 7(1), which sets the time within which an ordinary appeal is to be entered for hearing, contains an express power to extend time and does not import the notion of discontinuance as a consequence of failure to comply. Order 63 r 7(1) applies, by general importation, to other types of appeals which come under the Rules of the Supreme Court: see, for example, O 64 and O 65A. This is in stark contrast to O 63A. An interlocutory order, by its very nature, is unlikely to effect a final resolution of the substantive dispute between the parties. Hence, the distinction between an appeal against an interlocutory order and an appeal against a final order. That the two should be treated differently, so far as concerns the obligation to enter for hearing promptly, is not surprising.
…
In my opinion, O 63A r 5(2) should be construed strictly according to its tenor. It is self-executing and it excludes, by necessary implication, the general discretion to extend time that is to be found in O 3 r 5.

The application of RSC O 3 r 5 to the equivalent rule to DCR r 44G in the RSC (then RSC O 29A Pt 4) was considered by Master Sanderson in Lifelong Investments Pty Ltd v Karageorge [2008] WASC 86. In that case, the court made a springing order that unless the plaintiffs filed and served an application to amend their statement of claim by a certain date, the action would be entered into the inactive cases list. No application was made and the action was duly entered in the inactive cases list. No further steps were taken, and the action was ultimately dismissed for want of prosecution. An order to that effect was extracted.
The plaintiff sought orders pursuant to RSC O 3 r 5 extending the time for compliance with the initial springing order. Master Sanderson stated that there did not need to be an order removing the matter from the inactive cases list as the action, being a concluded matter, was no longer on that list [5].
The Master commented of the policy underpinning the then RSC O 29A Pt 4 as follows ([12] ‑ [14]):
12Part 4 of O 29A represents a significant departure from the traditional approach to litigation taken by this court. Prior to the introduction of these rules, cases could, and often did, languish for years with no steps in the action being taken by any party. Eventually, a defendant, tired of having an action hanging over his head for years, might bring an application to dismiss an action for want of prosecution. A significant body of law has grown up providing a guide as to the disposition of such applications. But it is fair to say, I think, that courts have generally been sympathetic to a tardy litigant and have been reluctant to grant a strike out application, particularly if it is a first application. But pt 4 brings a new rigour to this area of practice. The court is proactive in ensuring that a case progresses with reasonable dispatch, with significant and self-executing consequences for a tardy litigant.
13Two further points should be borne in mind. First, these rules are a case management tool. They are designed to ensure the expeditious handling of cases. As such, the overall principles of justice are paramount - case management not being an end in itself. This was made clear by the High Court in The State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146, 154. That does not mean that effect should not be given to the terms of the rule. After all, the terms of the rule are clear. But rigid adherence to the rule in circumstances which have an adverse effect on a party and lead to injustice should, if possible, be avoided.
14Second, it would appear that there is no power to extend the time for the bringing of an application to have the matter removed from the List. That is to say, once the case has been on the List for six months, it is deemed dismissed. There is no scope for an extension of time under O 3 r 5. Indeed, if an application to have a case removed from the List is brought within the six-month period but not heard within that period, it must be open to doubt whether any order can be made. That question is not directly raised by this application and can be left for another day. But there appears to be no doubt that it is not possible to extend the time to bring an application to be removed from the List.
In Lifelong Investments, it was accepted by counsel for the defendants that there was a power to extend time for compliance with the springing order, citing FAI. The master accepted this and exercised the discretion to extend the time for the filing of any application to amend the statement of claim.
The implications of the decision in Lifelong Investments to the present case are unclear. On the one hand, the master states that O 3 r 5 would not allow an extension of the time within which to remove an action from the inactive cases list. On the other, the master held that a case dismissed for being on the inactive cases list may be revived by using O 3 r 5 to extend the time for compliance with a springing order that provided the foundation for placing the action in the inactive cases list in the first place.
In the present application, the dismissal is final, closer to the former O 63A considered by Owen J in Eaton Developments and in distinction to the conditional nature of a springing order, considered in FAI. The DCR r 44G uses the term 'dismissed' not 'discontinued' making the case a stronger one for RSC O 3 r 5 not to apply than Eaton Developments.
On the other hand, there is no in built mechanism in DCR r 44G to prevent injustice. Neither is there any other mechanism in the DCR to revive a case dismissed pursuant to DCR r 44G. Nor has the plaintiff had the merits of his action considered. These factors make the present application closer to that in FAI and not that in Eaton Developments. The present application is distinguishable from that in Lifelong Investments in that there is no springing order which provides the foundation for placing the case on the inactive cases list in the first place.
Ultimately, the decision turns on the terms of DCR r 44G in its context. The starting point is that RSC O 3 r 5 is not excluded by operation of the 2005 DCR and thus applies to the District Court: District Court of Western Australia Act 1969 (WA) s 87. The rule applies on its face to the time limits in DCR r 30 and r 37. These rules set 'the period within which a person is required… by these rules ... to do any act in any proceedings'. The fact that the time for compliance has passed, does not prevent the power from being exercised: RSC O 3 r 5(2). As with the context considered by Owen J in Eaton Developments, the relevant question is whether DCR r 44G, by necessary implication, excludes the operation of RSC O 3 r 5.
The regime in DCR r 44E, r 44F and r 44G provides for a six month window within which a plaintiff may apply for orders that a case be taken off the inactive cases list. At least where there has been a breach of the entry for trial milestone, in order that the case does not immediately go back on the inactive cases list, the order removing it from that list will need to (an invariably does) include an order extending the time within which the case may be entered for trial. This order is made pursuant to RSC O 3 r 5. There is thus a six month window within which RSC O 3 r 5 may be used.
The fact that there is a six month window within which RSC O 3 r 5 may be used, in my view, necessarily implies that once the window closes, RSC O 3 r 5 may not be used.
There is an express power to remove a case from the inactive cases list prior to it being dismissed (DCR r 44F). It was open to the judges of the court to have included an express power to set aside the dismissal of a case pursuant to DCR r 44G(1). This power could have been expressed in similar terms to the power to set aside a default judgment (RSC O 13 r 10) or a summary judgment granted in the absence of a party: RSC O 14 r 12 and O 16 r 4. This supports the conclusion that there is no power to set aside a dismissal of a case pursuant to DCR r 44G.
The view that there is no power to set aside the dismissal of a case pursuant to DCR r 44G is consistent with the general principles in RSC O 1 r 4A and r 4B. In establishing the regime in DCR r 43A to r 44G, the District Court Judges (and the Supreme Court Justices in the case of the equivalent regime) have adopted a particular balance between giving a plaintiff a fair and just opportunity to have his or her claim determined on the merits, and the principles of timeliness and efficiency. To paraphrase RSC O 1 r 4A, the regime in DCR r 43A to r 44G has as its goal the elimination of any lapse of time from the date of initiation of proceedings to their final determination beyond that reasonably required for interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties and the preparation of the case for trial.
I am thus of the view that there is no power to set aside the dismissal of a case pursuant to DCR r 44G, either by operation of RSC O 3 r 5 or otherwise.

Discretion to set aside

In the event that I am wrong about the existence of a power to set aside the dismissal of a case pursuant to DCR r 44G, it is appropriate that I express my views of whether I would have allowed an application to extend the time within which the present case was to be entered for trial.
The plaintiff filed three affidavits in support of the applications by two lawyers employed by his solicitors: Jennifer Craig, sworn 19 January 2012 and Lian Michael Hall sworn 24 February and 4 April 2012. The chronology revealed by these affidavits is as follows:
(a)for some reason not explained, the plaintiff filed two writs in relation to an injury which occurred on 18 June 2008, the present action and CIV 1622 of 2010;
(b)the writ in CIV 1622 of 2010 has never served;
(c)upon being notified by the Court that the present case (CIV 3670 of 2010) had been placed on the inactive cases list, the plaintiff's lawyers filed a chamber summons seeking orders removing it from the inactive cases list and extending the entry for trial milestone;
(d)the chamber summons was filed in action CIV 1622 of 2010 and was filed on 19 July 2011;
(e)on 11 August 2011, sitting as Principal Registrar, I made orders in terms of the chamber summons removing CIV 1622 of 2010 from the inactive cases list and extending the entry for trial milestone to 30 August 2011; and
(f)through out the remainder of 2011 the plaintiff's lawyers were obtaining information to finalise the schedule of damages in the action and progress it towards an informal settlement conference.
Ms Craig in her affidavit concedes that it 'was a clerical and administrative oversight and error that the incorrect file number was attached to the chamber summons filed on or about 19 July 2011' (par 12). She goes on to say that the plaintiff will be prejudiced if the case is not revived as the limitation period on his cause of action has expired.
In the context of an application to extend the time for compliance with a springing order, there are five factors which the court will normally have regard to in exercising the discretion in RSC O 3 r 5:
(a)the circumstances in which the springing order came to be made;
(b)the reason for non‑compliance with the springing order;
(c)the prejudice to the defaulting party if the time is not extended;
(d)the prejudice to the other party if the time is extended; and
(e)to an extent, the merits of the case:
See generally: Rapid Metal Developments [5]; MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [38] ‑ [57]. If the power in RSC O 3 r 5 extends to the present case, these factors are apposite.
The circumstances in which the case was dismissed was a failure to enter the action for trial, followed by failure to obtain orders removing the action from the inactive cases list. Counsel for the third party made the point in submissions that, even had the orders obtained in CIV 1662 of 2010 been obtained in the correct case, the plaintiff would still have been in breach as he did not meet even the extended entry for trial milestone.
The reason for non‑compliance with the springing order was an oversight or error by the plaintiff's lawyers. In exercising the discretion in this case, I am conscious that 'the object of courts is to decide the rights of the parties, and not to punish them for mistakes they make in the conduct of their cases': Cropper v Smith (1884) 26 Ch D 700, at 710 ‑ 711.
The prejudice to the defaulting party, the plaintiff, if the time is not extended is that his action comes to an end, he will probably have a costs liability to at least the defendant and he will be unable to commence a new action as his claim is statute barred. There is a limited prospect he could revive CIV 1622 of 2010, though from the submissions before me, it is apparent that an attempt to do so is likely to be met by an abuse of process argument.
The prejudice to the defendant and the third party if the time is extended is that they would have been deprived of an opportunity for a summary end to the action in their favour. The action would proceed on its merits, as it would have done had no error been made in the chamber summons and the action removed from the inactive cases list. Neither the defendant nor the third party drew my attention to any specific prejudice they would suffer if the case was revived.
As to the merits of the case, counsel for the third party (who opposed the application) did not make any submission that the merits of the case were such as to count against an extension of time.
On balance, I am of the view that if the power in RSC O 3 r 5 could be used to revive a case dismissed pursuant to DCR r 44G, then the circumstances of the present application would have been an appropriate case in which to do so. There was a clear error by the plaintiff's solicitors, in the context of continuing efforts to complete preparation of the claim prior to holding an informal conference which had been arranged. The plaintiff should not be visited with the consequences of an oversight by his solicitors. The appropriate order would have been an order extending the time within which the plaintiff could enter the action for trial. This would remove the jurisdictional basis for the dismissal of the action pursuant to DCR r 44G(1).

Summary

For the reasons I have set out above, RSC O 3 r 5 may not be used to revive a case dismissed pursuant to DCR r 44G. There being no other power to revive the case, it stands dismissed for want of prosecution. The application fails. I will hear from the parties as to costs. I will also hear from the parties as to any consequential orders pursuant to DCR r 44G(4).