Yates v Integrity Industrial Pty Ltd - [2020] WADC 127

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   YATES -v- INTEGRITY INDUSTRIAL PTY LTD [2020] WADC 127
CORAM:   PRIOR DCJ
HEARD:   20 JULY 2020
DELIVERED          :   17 SEPTEMBER 2020
FILE NO/S:   CIV 1605 of 2016
BETWEEN:   SAMANTHA AMY YATES
Plaintiff
AND
INTEGRITY INDUSTRIAL PTY LTD
Defendant

Catchwords:

Practice - Inactive cases list - Case dismissed pursuant to r 44G District Court Rules 2005 (WA) - Application to set aside dismissal - Consideration of s 440D and s 500(2) Corporations Act 2001 (Cth) - Exceptional circumstances

Legislation:

Acts Interpretion Act 101 (Cth), s 15AA
Corporations Act 2001 (Cth), s 435A, s 440D, s 500(2)
District Court Rules 2005 (WA), r 37, r 38, r 44, r 44A, r 44D, r 44F, r 44G

Result:

Appeal dismissed

Representation:

Counsel:

Plaintiff	:	Mr J N D'Angelo
Defendant	:	Mr J Campbell

Solicitors:

Plaintiff	:	Earnshaw & Associates
Defendant	:	DLA Piper Australia - Perth

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

Aquila Resources Ltd v Pasminco Ltd (Administrators Appointed) [2002] WASC 53; (2002) 168 FLR 85
ATS v FS Kotai Pty Ltd, CJ Broun Pty Ltd, Elizabeth Berkley Wysocki and Carol Elizabeth McGrath t/as Glen Forrest Medical Centre [2020] WADC 115
Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (Administrator Appointed) (No 3) [2011] FCA 348
Brian Rochford Ltd (Administrator Appointed) v Textile Clothing and Footwear Union of NSW (1998) 47 NSWLR 47
Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194
Crane v The State of Western Australia [2017] WASCA 31
Foxcroft v Ink Group Pty Ltd (1994) 15 ACSR 203
Gibbs v Royalblue Securities Pty Ltd [2017] WADC 80
Guy v Hampson [2019] WADC 19
Hazart Pty Ltd v Rademaker (1993) 11 WAR 26
Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 268
Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254
Mohammadi v Bethune [2018] WASCA 98
Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17
Rodgers v Radly [2000] VSC 570
Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd (No 2) [2017] WASCA 142
Stewart v Hames [2019] WASCA 127
Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317
Taouk v Assure (NSW) Pty Ltd [2019] NSWCA 224
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
Yates v Integrity Industrial Pty Ltd [2018] WADC 86

PRIOR DCJ:

This is an appeal brought by Samantha Amy Yates (the plaintiff), against the decision of a registrar of the District Court dismissing her application to have her case against Integrity Industrial Pty Ltd (the defendant), which had been dismissed by operation of r 44G(1) of the District Court Rules 2005 (WA) (DCR) be set aside pursuant to r 44G(5).

Background

The plaintiff commenced proceedings against the defendant by writ of summons on 10 May 2016. The nature of the plaintiff's claim against the defendant is for damages for personal injury arising from an incident on 12 December 2014 at Ballajura.
A statement of claim was filed by the plaintiff on 13 July 2016 and a defence was lodged by the defendant on 28 July 2016.
Upon filing of the defence, the entry for trial milestone was set before 25 November 2016 and a case management timetable was sent to the parties confirming this date. The matter was not entered for trial by that date, and the date for entry was subsequently extended by a consent order dated 6 December 2016 to 28 February 2017.
By letter dated 20 December 2016 the defendant's solicitor advised the plaintiff's solicitor that the defendant had been in voluntary administration since 21 September 2016 and referred the plaintiff's solicitor to s 500(2) of the Corporations Act 2001 (Cth) (the Act).[1]
[1] Annexure CJF3 to affidavit of Christian John Foyle sworn 4 October 2017.
Section 500(2) of the Act states the following:
(2)After the passing of the resolution for voluntary winding up, no action or other civil proceeding is to be proceeded with or commenced against the company by leave of the Court and subject to such terms as the Court imposes.
On 27 January 2017 the plaintiff's solicitor wrote to the defendant's administrator advising him of the plaintiff's claim in this court and referred him to s 440D of the Act. The plaintiff's solicitor sought the administrator's advice as to whether he would consent to the plaintiff continuing her action against the defendant.[2]
[2] Affidavit of Christian John Foyle sworn 4 October 2017, annexure CJF5.
Section 440D of the Act states the following:
Stay of proceedings
(1)During the administration of a company, a proceeding in a court against the company or in relation to any of its property cannot be begun or proceeded with, except:
(a)with the administrator's written consent; or
(b)with the leave of the Court and in accordance with such terms (if any) as the Court imposes.

(2)Subsection (1) does not apply to:
(a)a criminal proceeding; or

(b)a prescribed proceeding.

The plaintiff's action is not the type of proceeding referred to in s 440D(2) of the Act.
On 23 February 2017 the plaintiff's solicitor wrote to the defendant seeking a response to his request of 27 January 2017.[3]
[3] Affidavit of Christian John Foyle sworn 4 October 2017, annexure CJF6.
The defendant's administrator did not respond to the letters referred to in [7] and [10] above.
No consent has ever been given by the defendant's administrator to the plaintiff continuing her action against the defendant.
On 2 March 2017 a default notice was issued to the parties by the court, advising the plaintiff had not entered the action for trial as required and unless the plaintiff entered the action for trial on or before 17 March 2017 the action would become inactive.
On 20 March 2017 due to the failure to enter the case for trial within the time specified on the default notice, a notice by the court was issued to the parties that the case had been placed on the inactive cases list pursuant to DCR r 44D(1)(a).
Between March 2017 and June 2017 the plaintiff's solicitor attempted to settle the plaintiff's claim by negotiations with the defendant's solicitor.[4] These settlement negotiations were unsuccessful.
[4] Affidavit of Christian John Foyle sworn 4 October 2017.
In August 2017 the plaintiff's solicitors prepared an application to the Supreme Court for leave to proceed with the plaintiff's claim pursuant to s 440D of the Act.[5] That application was not in the correct form and the plaintiff's solicitors never proceeded with the application to hearing in the Supreme Court.
[5] Affidavit of Christian John Foyle sworn 23 January 2018 and annexures CJF1 and CJF2.
At the time of hearing of this appeal, no application had been made by the plaintiff to the Supreme Court for leave to proceed with the action against the defendant.
DCR r 44G provides that:
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.
(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.
As a consequence of the action being on the inactive cases list for a continuous period of six months, on 20 September 2017 the action was deemed dismissed for want of prosecution pursuant to DCR r 44G(1) and a notice was sent by the court to the parties on 22 September 2017 advising that the case was dismissed (the dismissal).

The proceeding the subject of the appeal

A chamber summons to set aside the dismissal pursuant to DCR r 44G(5) was filed by the plaintiff on 26 September 2017. In support of the summons, a former solicitor for the plaintiff swore affidavits on 4 October 2017, 22 January 2018 and 23 January 2018 (the application).
The application was heard by Registrar Kingsley on 23 January 2018. On 24 July 2018 the registrar dismissed the plaintiff's application and published reasons (the decision).[6]
[6] Yates v Integrity Industrial Pty Ltd [2018] WADC 86.
On 3 August 2018 the plaintiff filed a notice of change of her legal representation.
On 8 August 2018 the plaintiff filed a notice of appeal from the decision. The notice seeks orders that the dismissal be set aside and the proceedings be removed from the inactive cases list. The plaintiff relies upon the evidence that was before the registrar at the hearing on 23 January 2018.

General principles as to appeals from registrars

A party who is dissatisfied with a decision of a registrar may appeal to a judge.[7]
[7] DCR r 15(1).
The appeal is by way of a new hearing of the matter that was before the registrar.[8] This requires the appellate body to exercise its powers whether or not there was an error at the first instance.[9] The plaintiff is not required to establish an appealable error was made by the registrar.[10] The appeal court considers the matter afresh without regard to any previous decision.[11] The judge hearing the appeal is therefore to treat the application as if it was before the court for the first time.
[8] DCR 4 15(6) and Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ).
[9] Coal and Allied Operations Pty Ltd v The Full Bench of the Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194 [14].
[10] Stewart v Hames [2019] WASCA 127 [8] (Murphy & Mitchell JAA).
[11] Guy v Hampson [2019] WADC 19 [14] (Bowden DCJ).

The issues in the appeal

There are three issues for me to determine in this appeal:
1.Does s 440D and/or s 500(2) of the Act preclude the court from exercising its powers under the court's case management rules?
2.Does s 440D and/or s 500(2) of the Act automatically freeze all litigation and therefore no further steps can be taken in these proceedings by the parties?
3.Are there exceptional circumstances pursuant to DCR r 44G(5) to warrant the exercise of the court's discretion to set aside the dismissal of the case?

First issue

This issue is whether a company in administration can have an action against it dismissed for want of prosecution by reason of the Court's case management rules. In particular, does s 440D of the Act act as a stay against the case being placed in the inactive cases list and DCR r 44G(1) applying?
In Foxcroft v Ink Group Pty Ltd[12] at 204 Young J in considering the provisions of pt 5.3A of the Act said the following:
The provisions of Pt 5.3A, as exemplified in sections such as 437C, 437F, 440C and 440D, provide that there should be a complete freeze of proceedings against the company during the administration so that the administrator could have time to assess the situation, and the company's creditors could have an opportunity to work out the net position and adopt an attitude under s 439C which would be in their common interest. To allow one creditor or potential creditor to proceed would not only take the administrator's attention from what he needs to do under the division in a relatively short period of time, but would also involve costs in running the legal action on behalf of the administrator, as well as perhaps giving the claimant some advantage over the other creditors or potential creditors.
[12] Foxcroft v Ink Group Pty Ltd (1994) 15 ACSR 203.
The general purpose of s 440D of the Act is summarised in this statement of Young J.[13]
[13] See also s 435A Corporations Act 2001 (Cth) which refers to the object of pt 5.3A of the Act and Brian Rochford Ltd (Administrator Appointed) v Textile Clothing and Footwear Union of NSW (1998) 47 NSWLR 47 (Austin J) [55] - [61].
His Honour's view that provisions such as s 440D of the Act act as a complete freeze on proceeding against a company during administration is supported in Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (Administrator Appointed) (No 3),[14] [10] (North J).
[14] Australian Competition and Consumer Commission v Advanced Medical Institute Pty Ltd (Administrator Appointed) (No 3) [2011] FCA 348.
In ATS v FS Kotai Pty Ltd, CJ Broun Pty Ltd, Elizabeth Berkley Wysocki and Carol Elizabeth McGrath t/as Glen Forrest Medical Centre,[15] Principal Registrar Melville summarised the purpose of DCR r 44G as part of the case management rules as follows:
[15] ATS v FS Kotai Pty Ltd, CJ Broun Pty Ltd, Elizabeth Berkley Wysocki and Carol Elizabeth McGrath t/as Glen Forrest Medical Centre [2020] WADC 115.
11Rule 44G finds itself in pt 4 div 3 of the DCR, which part deals with case management. The purpose of these procedural rules is to have a case progress through the interlocutory stages to trial in accordance with the overarching objective to resolve disputes in a timely, efficient, just and economical way.
12The High Court in Aon Risk Services Australia Limited v Australian National University observed:
In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
13The Western Australian Court of Appeal in Rowe v Stolze has said:
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 in 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.
14To facilitate these objectives both the Rules of the Supreme Court 1971 (WA) and the DCR provide that certain steps are to be completed by a certain time. In the case of the DCR it is provided that a case must be entered for trial within 120 days after the date on which a defence is filed. That time can be extended by order of the court where the circumstances warrant it.
15Rule 38 of the DCR provides that if the plaintiff does not enter the case for trial in accordance with r 37 the registry must send a notice of default (form 2) to the plaintiff. The form 2 advises that unless the plaintiff enters the action for trial on or before the date stated, the action will become inactive.
16Rule 44D of the DCR provides that when a case becomes inactive 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 is on the Inactive Cases List and the effect of r 44E and r 44G.
17Once a case has been placed on the Inactive Cases List and remains there for six months it is dismissed for want of prosecution. This happens automatically and by operation of the law. It reflects a view that a plaintiff, having been given notice of being in default of the entry for trial milestone and having done nothing, then having been given notice that the case has been placed on the Inactive Cases List and would be dismissed if remained on the Inactive Cases List for six months and having done nothing, has manifested a lack of interest or will to prosecute.
...
47Rule 44G is a case management provision found in the case management part of the DCR and exists as the inevitable consequence of failing to apply for an order and obtaining an order that a case be removed from the Inactive Cases List under r 44F.
(footnotes omitted)
The dismissal of the case was a direct result of the provisions of DCR r 44G(1) and not as a result of an application by either party. A procedural outcome of DCR r 44G(1) was that as the case was on the inactive cases list for six continuous months, it was taken to have been dismissed for want of prosecution.
In Rowe v Stoltz[16] the Court of Appeal held that, by operation of r 44G(1), any case on the inactive cases list for six continuous months is deemed to be dismissed, regardless of why the time lapsed:[17]
Rule 44G(1) does not operate because a party has failed to do an act, within a stipulated time or otherwise. Whether or not a party has failed to comply with an order of the court or the rules is irrelevant. An action is taken to have been dismissed under r 44G(1) if it has been on the Inactive Cases List for six continuous months, regardless of how that has come about. No question can arise of an extension of time under O 3 r 5 'to do any act' under r 44G(1). Similarly, nor can there arise any question of an extension of time 'to do any act' under r 44A. That rule does not operate because a party has failed to do an act required by an order or the rules; it operates simply because no document has been filed in the action for 12 months, regardless of how that has come about.
[16] Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116.
[17] Rowe v Stoltze [25] (Newnes JA).
In my view, the dismissal of the case pursuant to DCR r 44G(1) is not inconsistent with the purpose of pt 5.3A of the Act as set out in [28] above. The dismissal of the action would ensure costs will not be expended by the administrator in the action and the administrator's attention would not be diverted.
The procedural outcome of DCR r 44G(1) does not fall within the meaning 'of proceeded with' in s 440D(1) or s 500(2) of the Act.
The words 'proceeded with' should be given their ordinary meaning in s 440D(1) or s 500(2) of the Act. The words should be construed consistently with the language and purpose of the Act.[18] 'Proceeded with' means to move forward or continue.[19] 'Proceeding' may be described as 'some step taken towards judgment or relief sought in the action'.[20]
[18] Mohammadi v Bethune [2018] WASCA 98 [31] - [36].
[19] Plaintiff's submissions dated 3 August 2020, par 4.
[20] Crane v The State of Western Australia [2017] WASCA 31 [22] - [27].
The automatic dismissal of an action pursuant to DCR r 44G(1) is not moving forward or continuing an action. It is not a step in the proceedings which advances the case or action towards judgment. The placing of a case on the inactive cases list pursuant to the rules described in [31] is not a step in the proceedings which advances the case or action towards judgment.
Accordingly, s 440D(1) or s 500(2) of the Act does not preclude the operation of DCR r 44G(1).

Second issue

The question which arises in resolving this issue is whether the application by the plaintiff pursuant to DCR r 44G(5) is 'a proceeding in a court against the company' and therefore stayed pursuant to s 440D(1) of the Act.

The authorities indicate 'a proceeding in a court' should be given a wide definition. It includes the following proceedings:
(a)an application for pre-action discovery in an action;[21]
(b)a counterclaim in an action;[22]
(c)an application for relief from unfair dismissal in the Industrial Relations Commission;[23]
(d)an oppression proceeding brought against the company;[24] and
(e)applications and appeals to the Court of Appeal.[25]
[21] Aquila Resources Ltd v Pasminco Ltd (Administrators Appointed) [2002] WASC 53; (2002) 168 FLR 85 [4] - [5].
[22] Mead Corporation v Carbonless Papers (Australia) Pty Ltd [2002] WASC 268 [84] - [85].
[23] Brian Rochford Ltd (Administrator Appointed) v Textile Clothing and Footwear Union of NSW (57).
[24] Rodgers v Radly [2000] VSC 570 [20] - [21].
[25] Taouk v Assure (NSW) Pty Ltd [2019] NSWCA 224 [4] in relation to s 471B and s 500(2) of the Act where the Court of Appeal of NSW found that s 440D is sufficiently similar.
The expression 'a proceeding in a court against the company' should be interpreted in the context which it is used.[26] I have referred to the purpose or intent of s 440D in [28] and above. The section protects an administrator from proceedings against the company unless consent has been given by the administrator or leave has been obtained from the Supreme Court.
[26] Section 15AA of the Acts Interpretation Act 1901 (Cth).
The application by the plaintiff pursuant to DCR r 44G(5) is an interlocutory proceeding in relation to her action against the defendant in this court. It is an incidental proceeding or a step in the action. If the plaintiff's application pursuant to DCR r 44G(5) was granted it would advance the action for the plaintiff.
I am satisfied that the provisions of s 440D of the Act act as a complete freeze on all proceedings brought by either party in the plaintiff's action. In those circumstances, and in the absence of written consent from the administrator or leave from the Supreme Court, the application by the plaintiff pursuant to DCR r 44G(5) cannot be heard by this court or any appeal from a registrar's decision in relation to such an application.

Third issue - setting aside the dismissal

Had I not come to my conclusions on the first and second issues, I would then have been required to exercise my discretion in relation to the plaintiff's application pursuant to DCR r 44G(5).
In Sovereign Grange[27] the Court of Appeal referred to some general principles to be applied in exercising the discretion as to whether there were exceptional circumstances under DCR r 44G(5). These principles were identified by the primary judge which were not challenged on appeal.
[27] Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd (No 2) [2017] WASCA 142 [26].
The general principles that had been applied by the primary court were:[28]
[28] Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd (No 2) [26].
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 exception 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 property 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 are 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.¹
5.Rule 44G(5) is not remedial. It should be interpreted as giving the court a broad power to relieve against injustice.²
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 a 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 defendant if the dismissal of the action is set aside.
(footnotes omitted)
The list of principles or considerations relevant to the exercise of the discretion referred to in Sovereign Grange v AV Truck Services Pty Ltd (No 2) are not exhaustive.[29]
[29] Gibbs v Royalblue Securities Pty Ltd [2017] WADC 80 [3] - [9]; The Owners of One Brighton Strata Plan 519488 v Pindan Constructions Pty Ltd [2018] WADC 77 [31] - [35]; The Owners of SP13443, 129 ‑ 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [2015] WADC 133 [33] - [54].
No one particular circumstance can be defined as exceptional. A combination of considerations or a single consideration may amount to exceptional circumstances.[30]
[30] Gibbs v Royalblue Securities [5].
The decision pursuant to DCR r 44G(5) is not a two stage process, it poses a single question: whether exceptional circumstances warrant setting aside the dismissal.[31]
[31] Sovereign Grange Pty Ltd [76].
Each case must be determined on its own facts and relevant circumstances. The discretion is broad and unconfined.
The plaintiff was placed on notice that the defendant was in voluntary administration by the defendant's solicitor's letter on 20 December 2016. The plaintiff was also referred to relevant provisions of the Act.
By the notice issued by the court on 20 March 2017 the plaintiff was put on notice of the case being placed on the inactive cases list. No application was made by the plaintiff pursuant to DCR r 44F to remove the case from the inactive cases list.
The three affidavits sworn in support of the application by the plaintiff pursuant to DCR r 44G(5) refer primarily to what had been done by the plaintiff to comply with s 440D of the Act and some attempted settlement negotiations. The plaintiff has never received consent of the administrator or filed the application for leave from the Supreme Court in proper form.
Between 20 March 2017 and 20 September 2017 nothing was done of significance by the plaintiff to remove the case from the inactive cases list.
I do not consider the fact the defendant company was in voluntary administration was out of the ordinary, unusual, special or uncommon.[32]
[32] The Owners of SP13443, 129 - 133 Eighth Avenue, Maylands v The Owners of 135 Eighth Avenue Maylands (Survey Strata Plan 44698) [40].
The evidence in support of the plaintiff's application contained in the solicitor's three affidavits merely suggests there was some inexperience, inattention and inadvertence by the plaintiff's former solicitor.[33]
[33] Gibbs v Royalblue Securities Pty Ltd [8].
In my view, the material contained in the plaintiff's three affidavits does not constitute exceptional circumstances.
The material relied upon in support of the plaintiff's application does not indicate significant progress in the case and suggests to me there has been a lack of commitment to prosecute the case in a timely manner.
I accept that the dismissal of the case will significantly prejudice the plaintiff as the limitation period has expired and she will be unable to litigate her claim. I do not accept this circumstance on its own constitutes exceptional circumstances.
The plaintiff's claim is for nervous shock type injuries and resulting damages which she asserts the defendant is vicariously responsible for as the labour hire employer who directed and controlled an unskilled labour hire employee. The claim is that on 12 December 2014 the unskilled labour hire employee in his operation of a ride-on mower collided with a residential housing fence in Ballajura. It is alleged the collision was caused by the negligence of the employee. As a result of the collision two dogs were released from the yard on the other side of the residential housing fence. The two dogs attacked and killed the plaintiff's dog in her presence.[34]
[34] Writ of summons, indorsement of claim.
It is arguable that in this situation the defendant did not owe a duty of care to the plaintiff. Even if it did, applying the test for foreseeability of psychiatric injury in Tame v The State of New South Wales [2002] HCA 35; (2002) 211 CLR 317 and Modbury Triangle Shopping Centre Pty Ltd v Anzil [2000] HCA 61; (2000) 205 CLR 254, I do not consider the plaintiff's claim to have merit.[35]
[35] Osborne Park Commercial Pty Ltd v Miloradovic [2019] WASCA 17.
Had it been necessary for me to decide the plaintiff's application brought pursuant to DCR r 44(G) I would have dismissed the plaintiff's application to set aside the dismissal of the case, as exceptional circumstance have not been demonstrated.

Conclusion

For these reasons I would make the following orders:
1.The plaintiff's appeal be dismissed; and
2.The plaintiff pay the defendant's costs of this appeal and of the application, to be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.
RR
Associate to Judge Prior
17 SEPTEMBER 2020