Yates v Integrity Industrial Pty Ltd - [2018] WADC 86

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   YATES -v- INTEGRITY INDUSTRIAL PTY LTD [2018] WADC 86
CORAM:   REGISTRAR KINGSLEY
HEARD:   23 JANUARY 2018
DELIVERED          :   24 JULY 2018
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 s 44G District Court Rules 2005 (WA) - Application to set aside dismissal - Consideration of s 440D and s 500 Corporations Act 2001 (Cth) - Exceptional circumstances

Legislation:

Nil

Result:

Application dismissed

Representation:

Counsel:

Plaintiff	:	Mr N Morrissey
Defendant	:	Mr J Campbell

Solicitors:

Plaintiff	:	Foyle Legal
Defendant	:	DLA Piper Australia - Perth

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

Aquila Resources Ltd v Pasminco Ltd (Administrators Appointed) [2002] WASC 53
Arogen v Leighton [2013] NSWSC 1099
Australian Competition and Consumer Commission (ACCC) v Advanced Medical Institute Pty Ltd (Administrator Appointed) (No 3) [2011] FCA 348
Brian Rochford Ltd (Administrator Appointed) v Textile Clothing & Footwear Union of New South Wales (1998) 30 ACSR 38
Foxcroft v Ink Group Pty Ltd (1994) 15 ACSR 203
Gibbs v Royal Blue Securities Pty Ltd [2017] WADC 80
Lopez v Star World Enterprises Pty Ltd [1997] FCA 454
Re Oliver Brown Pty Ltd [2012] NSWSC 957
Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [No 2] [2017] WASCA 142
The Owners of SP13443, 129-133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue (Survey Strata Plan 44698) (Maylands) [2015] WADC 133
Thompson v Mulgoa Irrigation Co Ltd (1893) 4 BC (NSW) 33

REGISTRAR KINGSLEY:

The plaintiff issued her writ in May 2016 and an appearance was entered in May 2016. The plaintiff filed a statement of claim dated 13 July 2016.
On 2 March 2017 a default notice was issued, advising the plaintiff had not entered the action for trial as required. Due to a failure to enter the action for trial a notice that the case was now on the Inactive Cases List was sent on 20 March 2017. As a consequence of the action being on the Inactive Cases List for a continuous period of six months, on 19 September 2017 the action was deemed dismissed for want of prosecution (r 44G(1) District Court Rules 2005 (DCR)). A chamber summons to set aside the dismissal was filed by the plaintiff on 26 September 2017.
Rule 44G(5) DCR provides that a court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case from the Inactive Cases List.

The law

In The Owners of SP13443, 129-133 Eighth Avenue Maylands v The Owners of 135 Eighth Avenue (Survey Strata Plan 44698) (Maylands) [2015] WADC 133 her Honour Judge Davis considered, having regard to the ordinary meaning of 'exceptional' that for the circumstances to exceptional under r 44G(5) DCR they must be out of the ordinary, unusual, special or uncommon. Her Honour Judge Davis noted that the circumstances do not need…

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.

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Details

Case: [2018] WADC 86
Decision Date: 24 JULY 2018

CaseChat Overview and Summary

The applicant, Yates, sought to set aside the dismissal of an action against Integrity Industrial Pty Ltd due to its inactivity on the inactive cases list. The dispute centred on the interpretation and application of section 44G of the District Court Rules 2005 (WA) and the exceptional circumstances required to set aside such a dismissal under section 440D and section 500 of the Corporations Act 2001 (Cth). The court had to determine whether the applicant's reasons for the delay in pursuing the case and the respondent's conduct constituted exceptional circumstances warranting the setting aside of the dismissal.

The court examined the legislative framework governing inactive cases and the criteria for setting aside a dismissal under the relevant sections of the Corporations Act. It considered the applicant's submissions regarding the respondent's delay in filing necessary documents and the impact of this on the applicant's ability to prepare and proceed with the case. Additionally, the court assessed the respondent's conduct and whether it had contributed to the inactivity of the case. The key issue was whether the applicant had demonstrated exceptional circumstances as required by the legislation to justify setting aside the dismissal.

In reaching its decision, the court found that the applicant had not provided sufficient evidence to demonstrate exceptional circumstances. While there was some delay by the respondent in providing documents, the applicant had not shown how this directly impacted their ability to pursue the case or how the delay was beyond their control. The court also noted that the applicant had not acted promptly in seeking to remedy the situation once the delay was apparent. As a result, the court concluded that the applicant had not met the threshold for setting aside the dismissal under the relevant sections of the Corporations Act.

Consequently, the court dismissed the application to set aside the dismissal of the action. The court emphasised the importance of parties taking reasonable steps to ensure their cases progress in a timely manner and the need for applicants to demonstrate exceptional circumstances to justify setting aside a dismissal under the relevant legislation. No further orders were made by the court.

Orders