The Owners of SP13443, 129 - 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue, Maylands (Survey Strata Plan 44698)
[2015] WADC 133
•11 NOVEMBER 2015
THE OWNERS OF SP13443, 129 - 133 EIGHTH AVENUE, MAYLANDS -v- THE OWNERS OF 135 EIGHTH AVENUE MAYLANDS (SURVEY STRATA PLAN 44698) [2015] WADC 133
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WADC 133 | |
| Case No: | CIV:1718/2013 | 11 SEPTEMBER 2015 | |
| Coram: | DAVIS DCJ | 11/11/15 | |
| PERTH | |||
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Dismissal of the action pursuant to r 44G(1) set aside | ||
| PDF Version |
| Parties: | THE OWNERS OF SP13443, 129 - 133 EIGHTH AVENUE, MAYLANDS THE OWNERS OF 135 EIGHTH AVENUE MAYLANDS (SURVEY STRATA PLAN 44698) JAMIE MALCOLM ROBERTSON ANDREW PETER FISZER |
Catchwords: | Practice and procedure Inactive cases list Case dismissed pursuant r 44G District Court Rules 2005 Application to set aside the dismissal of the case Rule 44G(5) 'Exceptional circumstances' Relevant principles |
Legislation: | District Court Rules 2005 (WA) r 44G |
Case References: | Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27 Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565 Carlin v Mladenovic [2002] SASC 90 Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20 Elwood v Goodman [2014] WADC 143 FAI General Insurance v Southern Cross Expiration NL (1988) 165 CLR 268 Griffiths v The Queen (1989) 167 CLR 372 MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 Musolino v Osmond [1996] SADC 3526 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Kelly (Edward) [2000] QB 198 R v Steggall [2005] VSCA 278 Ritson v Leighton [2015] NSWCA 62 Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 Ryan v Becker (SC (SA), Burley M Jud No S3491, 29 June 1992, unreported, BC9200352) Wheelan v McMahon (1995) 181 LSJS 273 Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
THE OWNERS OF 135 EIGHTH AVENUE MAYLANDS (SURVEY STRATA PLAN 44698)
First Respondent
JAMIE MALCOLM ROBERTSON
ANDREW PETER FISZER
Second Respondents
Catchwords:
Practice and procedure - Inactive cases list - Case dismissed pursuant r 44G District Court Rules 2005 - Application to set aside the dismissal of the case - Rule 44G(5) - 'Exceptional circumstances' - Relevant principles
Legislation:
District Court Rules 2005 (WA) r 44G
Result:
Appeal allowed
Dismissal of the action pursuant to r 44G(1) set aside
Representation:
Counsel:
Appellant : Mr M D Howard SC
First Respondent : Mr S R Sirett
Second Respondents : Mr S R Sirett
Solicitors:
Appellant : Lynn & Brown Lawyers
First Respondent : HWL Ebsworth Lawyers
Second Respondents : HWL Ebsworth Lawyers
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27
Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565
Carlin v Mladenovic [2002] SASC 90
Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20
Elwood v Goodman [2014] WADC 143
FAI General Insurance v Southern Cross Expiration NL (1988) 165 CLR 268
Griffiths v The Queen (1989) 167 CLR 372
MTQ Holdings Pty Ltd v Lynch [2007] WASC 49
Musolino v Osmond [1996] SADC 3526
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Kelly (Edward) [2000] QB 198
R v Steggall [2005] VSCA 278
Ritson v Leighton [2015] NSWCA 62
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Ryan v Becker (Unreported, SASC, Judgment No S3491, BC9200352, 29 June 1992)
Wheelan v McMahon (1995) 181 LSJS 273
Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290
1 DAVIS DCJ: This appeal concerns the dismissal of this case, which was on the court's Inactive Cases List, pursuant to the District Court Rules 2005 (DCR) r 44G(1), and the principles which apply to an application brought pursuant to r 44G(5) to set aside the dismissal.
2 Rule 44G(5) provides:
(5) The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).
3 This case was dismissed pursuant to r 44G(1) on 30 November 2014. On 12 December 2014 an application was brought on behalf of the appellant (plaintiff) pursuant to r 44G(5). That application was heard and dismissed by Deputy Registrar Harman on 14 April 2015.
4 The appeal from the deputy registrar's decision was brought on 24 April 2015 and heard by me. Pursuant to DCR r 15(6), an appeal from a registrar is a new hearing. The application brought by the appellant is to be decided afresh or de novo, and it is not necessary for the appellant to demonstrate any error of law or principle in the decision of the deputy registrar.
5 For the reasons which follow, I consider that the appeal from the deputy registrar's decision should be allowed, because I am satisfied that 'exceptional circumstances' as provided for in r 44G(5) exist in this case, and that the dismissal of the case should be set aside.
Background facts
6 The following facts are taken from the affidavit of the appellant's solicitor sworn in support of the r 44G(5) application, and other facts either admitted or not disputed.
7 On 30 May 2013 the appellant filed a writ with an indorsement of claim seeking damages from the respondents arising from the failure, in June 2007, of a retaining wall on the boundary of its land and land owned by each of the respondents. The appellant claimed that the respondents' breaches of duty of care owed by them to the appellant had caused or contributed to the failure of the retaining wall.
8 The writ was not served until almost a year later, on 29 May 2014, after the solicitors acting for all the respondents accepted service of the writ, in the following circumstances.
9 Negotiations for settlement had been taking place between the solicitors for each of the appellant and the respondents. At the time when the respondents' solicitors agreed to accept service of the writ, on 28 May 2014, they requested that the appellant agree that the respondents should not be required to enter an appearance while the parties continued their settlement negotiations. This was in order that the parties not be put to the additional costs of the court process while they were negotiating.
10 After obtaining instructions, the appellant's solicitors wrote by letter dated 29 May 2014 agreeing to such a concession (referred to as the appearance concession), subject to the right to withdraw the concession on 10 days' written notice. This letter of 29 May 2015 was hand delivered with the writ, service of which the respondents' solicitors formally accepted on that day.
11 The next day, 30 May 2014, the action was placed on the District Court's Inactive Cases List pursuant to DCR r 44G.
12 On 4 June 2014 the appellant's solicitors received a notice from the court, issued on 30 May 2014, advising that the case had been placed on the Inactive Cases List. The solicitor with the conduct of the matter inadvertently failed to follow his usual practice of making a diary entry to ensure that the deadline of 30 November 2014, the date by which the case would need to be removed from the Inactive Cases List, would not be missed.
13 The notice from the court was copied to all parties, and there is no issue that it was received by the respondents (a matter conceded by counsel for the respondents during the appeal hearing ts 22).
14 On 3 July 2014, the appellant's solicitors wrote a letter to the respondents' solicitors advising that unless a settlement offer was received by 9 July 2014, the appearance concession would be withdrawn.
15 By an email on 25 July 2014 the solicitors for the respondents attached a settlement offer and sought an extension of time within which to file an appearance, which was agreed to. No appearance was therefore filed while negotiations between the parties continued.
16 On 28 August 2014 the appellant's and the respondents' solicitors met with representatives of the appellant, a builder and an engineer to discuss certain practicalities of the repair of the retaining wall. At the meeting a program of work and costs provisions for the repair of the retaining wall were proposed to be incorporated into a settlement framework, subject to the confirmation of instructions by the respondents' insurers. Also at this meeting at the respondents' solicitor's request, the appellant's solicitors granted a further extension to the appearance concession.
17 In October 2014, the appellant's solicitors were advised by the respondents' solicitors that the builder had withdrawn from the proposed repairs and consequently the respondents' insurers were seeking quotes from potential alternative builders.
18 On 18 November 2014, the appellant's solicitors were informed by the respondents' solicitors that quotes had been obtained and they expected to convey a fresh settlement offer within one week.
19 On 30 November 2014 pursuant to DCR r 44G the case was dismissed and, as required by the Rules, notice was sent by the court to the parties advising that the case had been so dismissed.
20 That notice was received by the appellant's solicitors on 5 December 2014. On the same day as the receipt of the notice, the appellant's solicitors wrote by email to the respondents' solicitors advising that an application for the dismissal to be set aside would be made, and asking if the respondents would give their consent to the application. At the time of the filing of the application no answer to that email had been received.
21 The respondents opposed the application at the hearing before the deputy registrar, and at the hearing of this appeal.
The statutory regime relating to the Inactive Cases List
22 The rules relating to the Inactive Cases List appear in pt IV subdivision 3 of the DCR which relates to case management of cases commenced by writ.
23 A case is deemed to be inactive if no document is filed for 12 months by any party to the case: r 44A.
24 When a case is taken to be inactive under r 44A the principal registrar must put the case on the Inactive Cases List and give all the parties to the case written notice that the case has been put on that list and the effect of r 44E and r 44G: r 44D.
25 The consequences of being on the Inactive Cases List include that only certain documents can be filed in a case. The documents which can be filed include a memorandum of appearance, and a summons for an order to remove the case from the Inactive Cases List: r 44E and r 44F.
26 On an application to remove the case from the Inactive Cases List the court may order that the case be taken off the Inactive Cases List if it is 'satisfied the case will be conducted in a timely way or for any other good reason': r 44F(3).
27 Once a case has been on the Inactive Cases List for six continuous months it is taken to have been dismissed for want of prosecution: r 44G(1). If a case is so dismissed the principal registrar must give all parties to the case written notice of the fact.
28 This statutory scheme was considered by the Court of Appeal in Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116. The Court of Appeal considered in that case, among other things, whether r 44G(1) was ultra vires and held that it was not. The Court of Appeal also rejected an argument that pt IV subdivision 3 of the DCR 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. The Court of Appeal (Newnes and Murphy JJA) noted as follows [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 and 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.
29 Rule 44G(5) was added to this statutory regime on 31 December 2013.
The parties' submissions on the 'exceptional circumstances' in this case
30 The appellant's counsel submitted that exceptional circumstances existed for the following reasons:
1. there was an express agreement between the parties that the respondents would not be required to enter appearances;
2. that agreement led directly to the case being deemed inactive under r 44A;
3. the agreement as to no appearances was reached for the purpose of facilitating the negotiations between the parties;
4. the negotiations were ongoing and had not stalled;
5. the respondents knew of the case being on the Inactive Cases List and may be presumed to have known of the deadline before the case was dismissed;
6. the appellant's solicitor was not generally inattentive or acting without regard to the court's processes, rather one error was made in failing to document the dismissal date;
7. the dismissal has severe consequences for the appellant because of the limitation period. Unless the dismissal is set aside the appellant cannot recommence the proceedings against the respondents because the limitation period has now expired;
8. the respondents stand to 'reap an undeserved windfall' if the case remains dismissed and would suffer no prejudice if the dismissal was set aside;
9. through no fault of its own the appellant would be put in a significantly worse position and be left to make a claim against its solicitors with uncertain remedies if the dismissal stands; and
10. overall an unnecessary injustice would result if the dismissal is not set aside.
31 The respondents' counsel submitted that the deputy registrar's decision was correct and the circumstances were not exceptional because:
1. the underlying cause of the dismissal of the action was an omission by the appellant's solicitor to diarise the deadline. A mistake by a solicitor is not an exceptional circumstance;
2. the fact that the parties were engaged in settlement negotiations for an extended period was not an exceptional circumstance; and
3. whether or not the respondents will suffer any prejudice if the dismissal is not set aside is not a relevant consideration.
32 Arising from submissions made by each of the parties on this appeal there is a matter of construction of r 44G(5) relating to the meaning of 'exceptional circumstances' and what circumstances should be considered when determining whether there are 'exceptional circumstances'. Should all of the circumstances of the case including matters such as the merits, the prejudice to each party and whether there will be an overall injustice (which is the appellant's position), be taken into account? Or are the circumstances to be considered limited to those surrounding the dismissal of the case which the court must be satisfied are 'exceptional' (which is in essence, the respondents' position)?
The construction of 'exceptional circumstances' in r 44G(5)
33 The starting point in interpreting the words of any statute is to look at the ordinary and grammatical meaning of the words of the provision, having regard to their context and legislative purpose: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69] – [70]; Australian Education Union v Department of Education and Children's Services (2012) 285 ALR 27 [26] (French CJ, Hayne, Kiefel and Bell JJ).
34 The word 'exceptional' is relevantly defined in Shorter Oxford English Dictionary as 'of the nature of or forming an exception; unusual, out of the ordinary; special'.
35 Counsel for the appellant submitted that 'the content of 'exceptional circumstances' within the meaning of r 44G(5) depends on the ordinary meaning of those words in the context of the regime created by the relevant rules. Cases which consider the words 'exceptional circumstances' in another statutory context will provide little, if any assistance' (written submissions par 28). I certainly agree about the need to apply the rules of statutory construction, but I do not agree that other cases from other jurisdictions cannot be examined.
36 In the only decision in this jurisdiction which has considered r 44G(5), Elwood v Goodman [2014] WADC 143 [66], Deputy Registrar Kubacz followed Musolino v Osmond [1996] SADC 3526 to hold that a circumstance is exceptional if it is unusual or atypical. Musolino v Osmond was a case which considered the South Australian Inactive Cases regime and a reinstatement application for an action dismissed under the relevant South AustralianCourt Rules. The relevant rule, r 10.06(6) provided that:
Where an action has been dismissed by the operation of clause (5) hereof the Court may reinstate the action in special or exceptional circumstances.
37 In Burlock v Wellington Street Investments Pty Ltd [2009] VSC 565, Forrest J considered s 109(5) of the Magistrates Court Act 1989 (Vic) which provides that the Supreme Court may grant leave to proceed with an appeal instituted out of time if the Supreme Court is, inter alia, 'of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances'. Forrest J, following the Victorian Court of Appeal in R v Steggall [2005] VSCA 278 [12] stated [27]:
Although 'exceptional' is defined as meaning 'unusual, special, out of the ordinary course' in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to 'rarely occur' and 'perhaps be outside reasonable anticipation or expectation'.
38 In other cases which have considered rules of civil procedure requiring 'exceptional circumstances' to be established, the following statement of Lord Bingham of Cornhill CJ in R v Kelly (Edward) [2000] QB 198, 208 has been applied:
We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of Art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.
39 The cases in which R v Kelly (Edward) has been applied include the following:
(a) in considering the meaning of 'exceptional circumstances' in the context of the grant of leave to admit into evidence an expert report which has not been served, pursuant to the Uniform Civil Procedure Rules (UCPR), r 31.28: see for example Yacoub v Pilkington (Aust) Ltd [2007] NSWCA 290 [66];
(b) in considering whether 'exceptional circumstances'justify an order for security for costs pursuant to UCPR r 59.11: see for exampleRitson v Leighton [2015] NSWCA 62; and
(c) in deciding whether a costs order is precluded by 'exceptional circumstances'pursuant to s 52 of theLegal Profession Act 2004 (Cth): see for example Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20 [33].
40 Having regard to the ordinary meaning of the word 'exceptional', all of the authorities and the principles of statutory construction, I consider that for circumstances to be 'exceptional' under r 44G(5) they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique, or unprecedented, or very rare, however they will not be exceptional if they are regularly, or routinely, or normally encountered.
41 As to the context and legislative purpose of r 44G(5) it has been submitted on behalf of the appellant, and I accept, that the introduction of this rule showed that it was expected there would be circumstances which would justify an exception being made to the ordinary regime. In this appeal there are issues, however, as to what circumstances should be considered before the dismissal of a case will be set aside.
42 Both in Elwood v Goodman [66] and Musolino v Osmond [3] the judicial officers proceeded on the basis that the circumstances must be 'causally related' to the default in question.
43 Counsel for the appellant submitted that all of the circumstances of the case including matters such as the merits, the prejudice to each party (including the expiry of the limitation period) and whether there will be an overall injustice must be looked at to determine whether the circumstances are 'exceptional'. These submissions were made relying in particular on two matters.
44 First, it was submitted that r 44G(5) is 'remedial' and should be interpreted accordingly as giving the court a broad power to relieve against injustice, referring to FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 268 (283 - 284).
45 Secondly, it was submitted that case management rules are to be applied for the 'paramount purpose' of the just resolution of the proceedings, referring to Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 [98]. However, both the High Court in Aon and also the Court of Appeal in Rowe v Stoltze [51] and [71] considered that the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court must also be taken into account. As stated in Rowe v Stoltze [51]:
…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].
46 In my view the ordinary and grammatical meaning of the words of r 44G(5), having regard to their context and legislative purpose, evince an intention that the bar or threshold is higher than in other situations where the court is exercising a discretion under a general provision to extend time, as was the case in FAI (and see the discussion of this in Rowe v Stoltz [24] - [25]). The requirement for exceptional circumstances in r 44G(5) removes it from any construction to the effect that 'the court may on such terms as it thinks just' set aside the dismissal of the case.
47 The requirement for there to be 'exceptional circumstances' is intended to limit the operation of the court's discretion. The discretion should only be exercised – as expressed in the rule, the court 'may' set aside the dismissal of the case - in exceptional circumstances. In other words, exceptional circumstances are a jurisdictional threshold which must be satisfied before the discretion to set aside the dismissal can be exercised.
48 Further, I consider that the exceptional circumstances must be causally related to the dismissal of the action. It is not sufficient that the applicant plaintiff establishes that there are exceptional circumstances generally in relation to the subject matter of the action itself, or that the plaintiff may be deprived of the opportunity of pursuing any action because of the expiry of the limitation period. What must be established is that the circumstances which led to the dismissal of the action are exceptional.
49 There would be no exceptional circumstances in a case where, as described in Rowe v Stoltze [71], the plaintiff has manifested a lack of interest or will to prosecute the action, and it has simply lain dormant, hanging over the head of the defendant and clogging up the administration of the court.
50 As stated by Lunn J in Musolino v Osmond, which dealt with a similar rule or situation to r 44G(5):
A special or exceptional circumstance must be something which is unusual or atypical, but a summons becoming stale after the three year limitation period has expired is by no means uncommon….In other similar contexts it has been held that the special or exceptional circumstance must be causally related to the delay or default in question: McPhee v Blyth (1992) 166 LSJS 236 at 204; Ercegovic v SGIC (above). An inability to sue again is not so causally related … .
51 In summary, I construe r 44G(5) to raise a threshold question of whether there are exceptional circumstances causally related to the dismissal of the action pursuant to r 44G(1), before the court's discretion to set aside the dismissal can be exercised.
52 The burden lies on the applicant plaintiff to establish the exceptional circumstances.
53 'Exceptional circumstances' may relate to a single exceptional matter, or may relate to a combination of exceptional factors, or a combination of ordinary factors. It may be that each individual factor or circumstance is unexceptional, but when taken together in combination they may reasonably be regarded as amounting to exceptional circumstances: Griffiths v The Queen (1989) 167 CLR 372, 379 (Brennan and Dawson JJ).
54 If it is established that there are exceptional circumstances causally related to the dismissal of the action, this will then enliven the discretion of the court to set aside that dismissal. That discretion should be exercised having regard to the interests of justice after considering factors such as:
(a) whether there has been any delay in bringing the r 44G(5) application to set aside the dismissal and the reason for that delay: see Elwood v Goodman [59] – [64];
(b) the merits of the plaintiff's case (there being no point in reinstating a case that has no merit);
(c) the prejudice to the plaintiff if the dismissal of the action is not set aside (including the expiry of any relevant limitation period); and
(d) the prejudice to the defendant if the dismissal of the action is set aside.
Are there 'exceptional circumstances' which enliven the discretion in this case?
55 It follows from my construction of r 44G(5) that when I am looking at whether there are exceptional circumstances in this case, my consideration of that issue must be confined to those circumstances which are causally related to the dismissal of the action.
56 The first six factors raised in the submissions of the appellant are in my view so causally related. These are:
1. there was an express agreement between the parties that the respondents would not be required to enter appearances (this is the appearance concession, as I have referred to it);
2. that agreement led directly to the case being deemed inactive under r 44A;
3. the agreement as to no appearances was reached for the purpose of facilitating the negotiations between the parties;
4. the negotiations were ongoing and had not stalled;
5. the respondents knew of the case being on the Inactive Cases List and maybe presumed to have known of the deadline before the case was dismissed; and
6. the appellant's solicitor was not inattentive or acting without regard to the court's processes, rather the error was made in failing to document the dismissal date.
57 If I am satisfied that these constitute exceptional circumstances, the remaining factors in the appellant's submissions should be taken into account in the exercise of my discretion as to whether to set aside the dismissal.
58 The fact that settlement negotiations had been ongoing, while no documents had been filed in the action, is not on its own an exceptional circumstance. I agree with Deputy Registrar Kubacz's assessment of this in Elwood v Goodman [69]:
Further, there is nothing unusual or atypical and causally related to the default in question in the plaintiff's solicitor's conduct of settlement negotiations and determining the nature and basis of this case which relates to the default. These are issues which solicitors deal with on a daily basis in the litigation process whilst being mindful of court procedural requirements. To simply ignore court procedure whilst negotiations and the like are taking place, is not acceptable.
59 As to whether the fact that the appellant's solicitor failed to document or diarise the dismissal date is an exceptional circumstance on its own, the authorities differ. In South Australian authorities dealing with Supreme Court Rule r 95.11 (which provides for the automatic dismissal of an appeal if it is not set down for hearing within a specified time and 'special circumstances' to be established before the court may grant an extension for the setting down of an appeal after that time has expired), it has been held that the default of an appellant's solicitors to set down an appeal through pressure of work or inactivity is not in itself a sufficient circumstance: Ryan v Becker (Unreported, SASC, Judgment No S3491, BC9200352, 29 June 1992) (Burley J); Wheelan v McMahon (1995) 181 LSJS 273 (Lander J). On the other hand in Carlin v Mladenovic [2002] SASC 90 [26] (Full Court) the blamelessness of the appellants and the default of the appellants' solicitors were held to be relevant factors to be considered when deciding whether 'special circumstances' existed. In reconsidering that issue on appeal, Gray J, (with whom Prior and Nyland JJ agreed) at [27] took into account that the delay in setting down the appeal was not intentional or contumelious and in the particular circumstances of that case the fault lay solely with the appellants' solicitor 'in circumstances with which the litigant should not be saddled'.
60 Whether, for the purposes of r 44G(5), the consequences of a dismissal of a case in the Inactive Cases Lists should be visited upon the applicant plaintiff when the fault lies wholly with the plaintiff's solicitors will depend upon the particular circumstances. While a plaintiff may reasonably leave compliance with procedural rules wholly in the hands of its solicitors, this does not mean that the plaintiff is necessarily excused from the consequences of its solicitor's failure to comply with the requirements imposed by the Rules: see MTQ Holdings Pty Ltd v Lynch [2007] WASC 49 [51] - [53] and the discussion of this in relation to default in compliance with a springing order.Thus the fact the fault was solely that of the solicitors may not necessarily be sufficient to constitute 'exceptional circumstances' for the purpose of r 44G(5).
61 In this case it is not necessary for me to make a decision as to whether the appellant's solicitor's mistake in not documenting or diarising the dismissal date would constitute an exceptional circumstance on its own, because I have to consider this particular factor along with all of the other factors.
62 Taking into account all of the factors which I have set out in [56], I am satisfied that the appellant has established that there are exceptional circumstances. In particular given the background facts which I have set out, the agreed appearance concession is a particularly important factor.
63 Counsel for the respondents submitted that the appellant's solicitors could have revisited the appearance concession and there was plenty of time to do something about it. They could have required the respondents to enter an appearance, giving the required 10 days' notice. They could have negotiated a 'standstill agreement' in relation to the limitation period; in other words obtained the respondents' agreement that no limitation point would be taken (although that suggested option carries little weight with me as it necessarily means that the appellant's solicitors would willingly ignore the rules of the court and allow the case to be dismissed). They could have brought the relevant application under r 44F to have the action removed from the Inactive Cases List. These suggested steps must, however, be looked at in the context of the circumstances which existed during the time the case was on the Inactive Cases List.
64 The respondents' initial request for the appearance concession was an attempt to save costs by avoiding case management. The respondents soon afterwards became aware that the action had been placed on the Inactive Cases List. It is true that it was up to the appellant and its solicitors to bring a timely application to have the action removed from the Inactive Cases List, and the respondents and their solicitors were not under any obligation to ensure that the appellant brought that application. It is also true, as counsel for the respondents submitted to me, that the respondents did not make any promise or inducement, for example, by promising to file an appearance before the deadline of 30 November 2014. However, knowing that the matter was on the Inactive Cases List, and the consequences of that, the respondents twice requested an extension of the appearance concession.
65 The first request was after the appellant's solicitors' letter of 3 July 2014, advising that unless a settlement offer was received by 9 July 2014, the appearance concession would be withdrawn. The second request was at the meeting on 28 August 2014. The requests were made by the respondents in a situation where they would benefit if no appearance was filed.
66 This is not a case where it can be said that the appellant had manifested a lack of interest or will to prosecute the action. There is nothing to suggest that the action would not have been prosecuted had the respondents not specifically requested the appearance concession and the further extensions of it.
67 This coupled with subsequent negotiations for settlement (which in my view were well advanced) explains how the situation developed in which no appearance was filed while the case was on the Inactive Cases List and then, due to the inattention or mistake of the appellant's solicitors, the action ultimately came to be dismissed.
68 While it may be argued that each individual factor or circumstance is unexceptional, and that the appellant's solicitors could have acted differently, when I take all of the circumstances together in combination, I am satisfied that there are exceptional circumstances which enliven my discretion to set aside the dismissal of the action. The combination of circumstances take this out of the ordinary. The circumstances are unusual, special or uncommon. I do not consider that these circumstances are regularly, routinely, or normally encountered.
69 In the exercise of my discretion I am satisfied that I should set aside the dismissal and reinstate the action in the interests of justice given that:
(a) there was minimal delay in bringing the r 44G(5) application to set aside the dismissal;
(b) the appellant's case does appear to have merit;
(c) there will be prejudice to the appellant if the dismissal is not set aside; and
(d) there will, technically, be prejudice to the defendant if the dismissal is set aside. However, I accept the submissions of the appellant that in light of the respondents' requests not to have to file an appearance and the negotiations for settlement, the respondents will stand to secure a 'windfall'.
70 I will accordingly allow the appeal and set aside the dismissal of the action. I will hear from the parties as to the exact orders which should be made and what order as to costs should be made.
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