Two Court of Appeal decisions, both delivered on 9 April 2013 cover most of the ground arising in relation to the contentious aspects of the dismissal of cases under Rule 44G of the District Court Rules.
Ruby v Doric Constructions [2013] WASC 94
Court of Appeal delivered 9 April 2013 - Dismissal of inactive cases under Rule 44
In the long-awaited decision on the appeal by Rodney Ruby against the District Court decision confirming the dismissal of his damages claim under Rule 44 of the Rules of the Supreme Court, the Court of Appeal has made an important decision on the operation of the case management rules. In the principal judgment, Newnes JA, with whom Justices Pullin and Murphy agreed, analysed the case management framework and process.
The decision focused on the seventh ground of appeal which, surprisingly, was added only during argument on the appeal and was not one of the grounds on which the appeal was originally based.
That ground of appeal relied on the fact that no entry for trial date had ever been established in any timetable relating to the action.
The basis upon which the court had issued a notice that the case had been placed on the inactive cases list (and subsequently that it had been dismissed) was the date for entry for trial in the "standard timetable". This is a timetable circulated by the court after the filing of a defence but it does not amount to an order specifying the dates by which certain actions are to be taken. Rather, it amounts to a timetable that should be followed but is subject to specific orders that a case management registrar may make.
The simple argument was that as no order relating to the obligation of the plaintiff to enter the case for trial had ever been made, there was in fact no timetable applicable to the action and hence the case could not have become inactive.
As the administrative determination that the plaintiff's case had become inactive was in error, the dismissal was invalid and the appeal was allowed.
In its reasons, the Court of Appeal chose not to consider the other grounds of appeal in detail and rejected the respondents' notices of contention seeking to support the decision of the Principal Registrar on other grounds.
Rowe v Stoltze [2013] WASC 92
Virtually the same situation as arose in Ruby had arisen in Rowe v Stoltze, in which proceedings had been taken by the next friend of Joshua Tangey against a medical practitioner seeking damages for negligence.
A writ issued on 3 September 2010 was not served until 1 August 2011, but on 6 September 2011 the District Court issued a notice pursuant to Rule 44D of the District Court Rules stating that the action had been placed on the Inactive Cases List. On 6 March 2012, as the action had been on that list for six months, it was administratively dismissed for want of prosecution and notice was served to that effect.
An application to the Court to have the action reinstated was dismissed and the plaintiff appealed to the Supreme Court.
The plaintiff's grounds of appeal in brief, were as follows:
- The failure to comply should be regarded as an irregularity and so the dismissal should be set aside;
- Time for compliance could be extended under Order 3 Rule 5 of the Rules of the Supreme Court;
- There had been no final judgement dismissing the case so the dismissal should be set aside;
- Rule 44G(1) was insufficiently clear to justify a dismissal;
- The Rule was beyond the rule making power of the District Court.
All of the grounds of appeal were analysed by Newnes JA and dismissed. In closing remarks, His Honour stated that "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".
The plaintiff's was dismissed because the Court of Appeal accepted the basis upon which the action had been designated inactive by reference to Rule 44A, which provided that cases in which no document had been filed by a party for 12 months were to be considered inactive.
In Ruby, the action had been deemed inactive based on the so called "standard timetable", issued by the Court when any defence was filed. The Court of Appeal in that case held that not to be a valid basis for a case being considered inactive.
Both decisions are highly relevant to the current administration and conduct of actions in the District Court.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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