Can a matter which has been dismissed for want of prosecution be revived?
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 months.
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 [2012] WADC 58
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 2012.
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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