The District Court of Western Australia recently held in Strzelecki Holdings Pty Ltd v Wiebel [2013] WADC 27 (Strzelecki) that the plaintiff may file an entry for trial even when the case is on the court's inactive list. The court also held that once an entry for trial is filed, the matter is deemed to be taken off the inactive case list, even if the entry is later countermanded (revoked).
In Strzelecki, the plaintiff submitted an entry for trial on the last permissible day, failing which the matter would have been dismissed for want of prosecution. The defendant argued that doing so was not permissible as the District Court Rules, namely rule 38, do not allow a plaintiff to enter a matter for trial once the case is on the inactive list.
The argument was dismissed, the court holding that rule 44E expressly permits the plaintiff to file an entry for trial when the case is on the inactive list (Rule 44E specifies which documents may be filed once a case is on the inactive list and includes a Form 1 Entry for Trial).
The second critical issue in Strzelecki was the effect on a case on the inactive list where an entry for trial was filed but later countermanded by court order. The defendant argued that the court order revoking entry for trial had the effect of voiding the initial entry for trial; therefore the case would be deemed to have remained on the inactive list and in this case would have been dismissed for want of prosecution.
The court did not agree with the argument and held that once an entry for trial is filed, the case is taken off the inactive list. An order countermanding entry for trial only takes effect from the date it was made and therefore does not have a retrospective effect and does not mean that the entry for trial is treated as never having been made.
The decision appears to allow a plaintiff who has a case on the inactive list and who may still not be ready for trial to enter the matter for trial, safe in the knowledge that, even if later countermanded by the court, the case will avoid dismissal from the inactive list for want of prosecution.
The decision clearly has the potential to encourage plaintiffs to enter such matters for trial even when they are clearly not ready. Whether there is scope to argue potential abuse of process remains to be seen.
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