The District Court of Western Australia recently held in
Strzelecki Holdings Pty Ltd v Wiebel  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.
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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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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