Wilson v Saleam - [2019] WADC 127

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

LOCATION:   PERTH
CITATION:   WILSON -v- SALEAM [2019] WADC 127
CORAM:   DEPUTY REGISTRAR HEWITT
HEARD:   21 AUGUST 2019
DELIVERED          :   28 AUGUST 2019
FILE NO/S:   CIV 39 of 2018
BETWEEN:   ANDREW WILSON
Plaintiff
AND
JAMES SALEAM
Defendant

Catchwords:

Practice and procedure - Application to reverse dismissal of action under r 44G of the District Court Rules 2005 (WA)

Legislation:

District Court Rules 2005 (WA), r 44G

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	In person
Defendant	:	In person

Solicitors:

Plaintiff	:	Not applicable
Defendant	:	Not applicable

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

Rowe v Stoltze [2013] WASCA 92
Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94
Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142
Spark v Rogers [No 3] [2017] WADC 4
The Owners of One Brighton Strata Plan 519488 v Pindan Constructions Pty Ltd [2018] WADC 77
The Owners of SP13443, 129 - 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133

DEPUTY REGISTRAR HEWITT:

On 3 September 2018 this action was placed on the inactive cases list and it remained on the inactive cases list until dismissed pursuant to the provisions of the District Court Rules 2005 (WA) (DCR) r 44G. That dismissal prompted the plaintiff to bring an application to set aside the dismissal which was filed on 7 June 2018 and which is before me for determination.
I shall commence by briefly outlining the conduct of the action to the present time. A writ was issued with an endorsement of claim on 18 January 2018 and a memorandum of appearance was filed to that writ on 5 February 2018. On 23 February 2018 the defendant applied for security for costs. A statement of claim was filed on 9 March 2018 and on 13 March 2018 the application for security for costs came before the court. There was no appearance by either of the parties and the matter was struck from the list on that day.
Thereafter, the application was relisted before a registrar in general chambers on 17 April 2018 and on that day was adjourned to a special appointment on 30 May 2018. On 18 April 2018 the defendant filed a defence to the action and that step initiated a case management timetable which required the action to be entered for trial before 16 August 2018. The matter came before the court again on 30 May 2018 and was adjourned sine die.
An amended statement of claim was lodged on 17 June 2018 and an application to administer interrogatories was lodged by the plaintiff on 18 June 2018.
In the meantime, at the request of the plaintiff, the security for costs application was relisted for hearing on 1 August 2018. On that day the application was again adjourned sine die and the registrar hearing the matter noted 'it is proposed that action be transferred to Supreme Court and thereafter to New South Wales or Federal Court'.
As I have already noted the matter became inactive on 17 August 2018 and it therefore became impossible for the defendant to pursue the security for costs application, and the court record indicates complete inactivity by both the plaintiff and the defendant until the matter was dismissed pursuant to DCR r 44G.
Reference has been made in the submissions filed to the cases of Ruby v Doric Constructions (Australia) Pty Ltd [2013] WASCA 94 and Rowe v Stoltze [2013] WASCA 92. Each of those cases was an appeal against Commissioner Gething sitting in the District Court of Western Australia and they identified certain procedural difficulties within the DCR which have been corrected and which are no longer relevant to the determination of the present application. The rules having been amended to accommodate the outcome of the decisions.
As presently constituted DCR r 44G is in the following terms:
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.
(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).
(6)For the purposes of subrule (5) it does not matter that the case was dismissed before the commencement of that subrule.
[Rule 44G inserted: Gazette 17 Jun 2011 p. 2161‑2; amended: Gazette 31 Dec 2013 p. 6552‑3.]
[45. Deleted: Gazette 17 Jun 2011 p. 2162.]
The critical subrule is r 44G(5) which empowers the court in exceptional circumstances and on such terms as it thinks just to set aside the dismissal of a case under r 44G(1). That is the provision upon which the applicant must rely to succeed in this application.
In the case of Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142 the Court of Appeal referred to statements of general principle articulated by District Court Judge Wager whose decision was under appeal and noted that the parties did not take issue with the general principles so enunciated. It appears to me clear from the decision that the Court of Appeal likewise considered those principles to be applicable. The principles which were set out are as follows:
Statement of general principles
26The primary judge identified a number of general principles which she applied in exercising her discretion under r 44G(5) of the Rules:
1.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.
2. The fact that the Inactive Cases List was introduced to further case management must be borne in mind.  The wider interest of other litigants wanting to have cases heard and the public interest in the proper and efficient use of scarce public resources of the court must be taken into account.
3. The exceptional circumstances must be causally related to the dismissal of the action and it must be established that the circumstances which have led to the dismissal of the action are exceptional.
4. There is no particular circumstance that can be defined as exceptional.  'Exceptional circumstances' may relate to a single exceptional matter or to a combination of exceptional facts or a combination of ordinary facts that when taken together in combination may reasonably be regarded as amounting to exceptional circumstances.  Each case must be determined on its own facts.
5.Rule 44G(5) is not remedial.  It should be interpreted as giving the court a broad power to relieve against injustice.
6. Inattention or inadvertence by a solicitor may in some cases be considered an exceptional circumstance. However, r 44G(5) must be considered in the context of case management. Consistent with the principles of case management in r 38 and r 44A of the Rules, the onus is on the party (not the party's solicitors) to enter the action for trial and to file documents. For this reason case management directions and interlocutory orders are made against the party not against the party's lawyer.
7. Mere inadvertence or inattention by a solicitor would ordinarily not constitute an exceptional circumstance that would absolve a plaintiff from any personal responsibility to pursue the action.
8. Factors to be considered in the exercise of the discretion include:
(a) whether there has been any delay in bringing the application to set aside the dismissal and the reason for that delay;
(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
(c) the prejudice to the defendant if the dismissal of the action is set aside.
Of particular importance are pars 4 and 5 which deal with what might be regarded as exceptional circumstances and, additionally notes that the relevant rule should be interpreted as giving the court a broad power to relieve against injustice.
There are a number of instances where judges and registrars of the District Court have been called upon to interpret DCR r 44(G) and to make findings as to what are exceptional circumstances within the meaning of that rule.
In the case of Spark v Rogers [No 3] [2017] WADC 4 his Honour Judge Parry found that the fact that the plaintiff's solicitor was suffering from psychiatric or psychological problems at the time of failure to prosecute the proceeding was relevant and, he found that matter to be of sufficient importance to set aside the judgment which had been entered.
Likewise in the case of The Owners of SP13443, 129 - 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133 her Honour Judge Davis held that an agreement between the parties that the respondent not be required to file an appearance and the existence of negotiations between the parties to attempt to settle the case was a sufficient example to justify setting aside the dismissal.
In the case of The Owners of One Brighton Strata Plan 519488 v Pindan Constructions Pty Ltd [2018] WADC 77 his Honour Judge Bowden held that the preoccupation of the plaintiff's solicitor with what might be regarded as a parallel set of proceedings in the State Administrative Tribunal leading to a failure to progress the action was a sufficient instance of exceptional circumstances to set aside the dismissal.
It emerges clearly to my mind that there is no hard and fast rule about what is an exceptional circumstance and each matter must be considered on its own merits, bearing in mind that the rule should be interpreted as giving the court a broad power to relieve against injustice.
With those matters in mind, I now turn to the material which has been placed before me and by the plaintiff. The first thing to note is that the plaintiff is self‑represented. At one stage the defendant was represented by a firm of lawyers but he now is also self-represented. The case is one of defamation and the allegations contained in the statement of claim are said to contain implications of a very serious nature.
It is clear that the defendant's application for security for costs imposed a significant impediment to the rapid progress of this action. Indeed, that application was never resolved. The plaintiff has deposed to the fact that he did request the matter be put for trial and he did so by an email to the District Court which was sent on 22 August 2018 at 10.35 pm. It was accompanied by an entry for trial document which was dated and completed. Mr Wilson deposes that he received a reply back from the District Court on the following day at 12.05 pm asking for the attachment to be sent as a different file format as the original was not viewable and he responded and followed up with a telephone call enquiring if the document sent was viewable. There is no record on the electronic file maintained by the court of this exchange.
If the evidence of the plaintiff is correct I have a position where a plaintiff has attempted to enter a matter for trial but has not succeeded, for reasons which I do not fully understand, which generated in the plaintiff a belief that the matter was proceeding and was simply awaiting the foreshadowed application by the defendant to have the matter removed to the State of New South Wales for hearing. That in itself is a cumbersome process requiring firstly, a transfer to the Supreme Court of Western Australia and thereafter to an appropriate court in New South Wales. Prime facie I would regard that set of circumstances as being appropriately described as exceptional.
I therefore turn to the material which has been filed by the defendant to see if it is appropriate to set aside the judgment in exercise of the broad power to relieve against injustice.
It is argued by the defendant that there is a complete absence on the District Court file of any material which supports the plaintiff's version of events concerning his entry for trial and, in particular, the fact that no invoice was generated requiring a fee to be paid which should have been a matter well known to the plaintiff, since he had made an application to reduce fees when filing the writ and would have been aware of the fact that these were payable. It also seems odd that the plaintiff, although able to identify the day and the time that these emails took place has not chosen to exhibit copies of these critical documents to his affidavit and, instead has exhibited various other materials which are said to be defamatory of him for which the defendant was responsible. It is also surprising that having (apparently) entered the matter for trial the plaintiff was unconcerned that nothing happened as a result of the entry and the matter was to all intents and purposes moribund.
The defendant also notes that it seems remarkable that the plaintiff having entered the matter for trial should have imagined that some process which would lead to the matter being transferred to New South Wales was underway but of which he was completely uninformed.
A perusal of the materials on the court file indicates that Mr Wilson was in residence at Unit 22, 5‑10 Pacific Highway, Killara New South Wales, 2071 at the date this application was lodged, whereas the notice of default, an inactive notice and case dismiss notices were all sent to the Perth address. It is notable, however, that notification of the hearing on 1 August 2018 was given by letter addressed to the plaintiff at the Perth address and the plaintiff attended that hearing.
A notice of default was delivered only shortly after that attendance and likewise the inactive notice was sent to the same address. It seems to me that is a reasonable inference to draw that at the relevant time the plaintiff was a resident in Western Australia and receiving correspondence but that at some later stage he moved to New South Wales. Also I consider that the failure of the plaintiff to update his service information is suggestive of disinterest or neglect.
I now turn to decide whether or not the materials which have been presented to me satisfy me that this is a case where I should intervene and set aside the default judgment.
One of the principal pillars upon which the plaintiff has built this application is the email exchange between himself and the court and his attempt to file an entry for trial document. Although the plaintiff is able to give very precise details of when these emails were sent they are not exhibited to his affidavit and they are in my opinion critical documents which should have been exhibited to the affidavit. The absence of these documents undermines the credibility of the evidence which is advanced to the extent that I am not satisfied that the failure to progress this matter was due to anything more than oversight or neglect and accordingly, I am of the view that the application should be dismissed which is the order I propose to make.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
KT
Court Person
28 AUGUST 2019