Can a matter which has been dismissed for want of prosecution
The Court of Appeal will shortly consider an appeal against a
recent decision of Commissioner Gething in the District Court at
Perth, in which he upheld the dismissal of the plaintiff's
claim which had been on the inactive cases list for over 6
Since 1 July 2011, if no document is filed in a District Court
action for 12 months, the case is deemed inactive and placed on the
Inactive Cases List. Rule 44 of the District Court Rules
2005 (WA) (DCR) provides that once a case has been on that
list for 6 continuous months, it is automatically taken to
have been dismissed for want of prosecution.
Ruby v Doric Group Holdings Pty Ltd  WADC
Ruby's action for damages for personal injury was placed on
the District Court Inactive Case List on 10 July 2011. The matter
was subsequently dismissed for want of prosecution on 12 January
For the first time, the Court was asked to revive a case which
had been dismissed pursuant to Rule 44G in the application that was
brought before the Commissioner. Importantly, the application
raised the issue of whether the Court in fact had the power to
revive such a case.
The Court first considered whether the power existed under Rule
44G (4) of the DCR which allows it to make any order needed as a
consequence of dismissal. Secondly, the Court considered whether
the time for complying with a self executing or springing order
could be extended pursuant to O3 R5 of the Rules of the Supreme
Court 1971 (WA).
The Commissioner ruled against the plaintiff on both counts and
came to the view that there is no power to set aside a matter which
has been dismissed for want of prosecution pursuant to Rule 44G.
The implications of the case are significant, particularly to the
plaintiff's solicitors. We will report on the Court of
Appeal's decision in due course.
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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