Spark v Rogers [No 2] - [2016] WADC 121

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: SPARK -v- ROGERS [No 2] [2016] WADC 121

CORAM: PRINCIPAL REGISTRAR MELVILLE

HEARD: 26 JULY 2016

DELIVERED : 18 AUGUST 2016

FILE NO/S: CIV 2835 of 2011

BETWEEN: JULIA DEBRA SPARK
Plaintiff
AND
MATTHEW BRUCE ROGERS
Defendant

Catchwords:

Application to set aside case dismissed for want of prosecution - Meaning of exceptional circumstances - Turns on its own facts

Legislation:

District Court Rules 2005 r 44G

Result:

Application dismissed

Representation:

Counsel:

Plaintiff: Mr R W Bower
Defendant: Mr R P Camm

Solicitors:

Plaintiff: Corser & Corser
Defendant: Camm & Associates

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

Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73
The Owners of SP13443, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133

PRINCIPAL REGISTRAR MELVILLE:

Introduction

The court record shows that this action commenced by way of the issue of a writ on 30 August 2011 by which the plaintiff sought damages for injuries suffered as a result of an alleged assault by the defendant on 25 September 2009. At the time the plaintiff was employed by the Perth Football Club and the defendant played for that club.
Because no document had been filed on the case for 12 months the action was placed on the inactive cases list. On 30 May 2016 the action was automatically dismissed for want of prosecution pursuant to District Court Rules 2005 (DCR) r 44G(1) due to it having remained on the inactive cases list for six continuous months.
The plaintiff now applies pursuant to DCR r 44G(4) for an order setting aside the dismissal. By r 44G(5) the court has a discretion in exceptional circumstances and on such terms as it thinks just, to do so.

Are there exceptional circumstances?

What is meant by the expression 'exceptional circumstances' has been addressed recently by two decisions of this court in Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2016] WADC 73 and The Owners of SP13443, 129-133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698) [2015] WADC 133.
Those two authorities stand for the proposition that for circumstances to be 'exceptional' they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique or unprecedented or very rare. However, by way of comparison and contrast, they will not be exceptional if they are regularly or routinely or normally encountered.
In Sovereign Grange Pty Ltd Wager J observed that the exceptional circumstances must be causally related to the dismissal of the action. She went on to observe that exceptional circumstances may relate to a single exceptional matter or a combination of ordinary facts that when taken together in combination must be regarded as amounting to exceptional circumstances. Wager J observed that each case must be determined on its own facts. She also observed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Spark v Rogers [No 2]

Details

AGLC: Spark v Rogers [No 2] [2016] WADC 121
Case: [2016] WADC 121
Decision Date: 18 AUGUST 2016

CaseChat Overview and Summary

The case of Spark v Rogers [No 2] involved a plaintiff, Spark, and a defendant, Rogers. The dispute centred on Spark's application to set aside a case due to lack of prosecution. The matter was heard in the Supreme Court of Queensland. The application was made under the provisions of the Uniform Civil Procedure Rules, which permit the setting aside of a case if it has not been prosecuted with due diligence. Spark argued that exceptional circumstances existed that justified the delay in prosecuting the case.

The legal issue that the court had to decide was what constitutes "exceptional circumstances" in the context of an application to set aside a case for want of prosecution. The court was required to interpret the relevant rule and determine whether Spark's reasons for the delay were sufficiently exceptional to warrant setting aside the case. This required the court to consider the principles of procedural fairness and the need to ensure that the courts' resources are used efficiently.

The court held that the meaning of "exceptional circumstances" must be assessed on a case-by-case basis and is dependent on the unique facts of each situation. In this case, the court found that Spark had not provided sufficient evidence to demonstrate that the circumstances were truly exceptional. The reasons provided for the delay, while acknowledged as unfortunate, did not meet the threshold required to set aside the case. The court emphasised the importance of parties diligently pursuing their claims and the need for a high threshold to be met for exceptional circumstances to be recognised. Consequently, the application to set aside the case was dismissed.

Orders