On 12 September 2013, the High Court, sitting in Perth, heard
the application for special leave to appeal in the case of Rowe
In April of this year, the Court of Appeal in Perth had
dismissed an appeal against the decision at first instance refusing
to reinstate the action. The Court of Appeal found that the action
was properly dismissed under Rule 44G of the District Court Rules
and that no valid basis was established for setting aside the
Before the High Court, Colvin SC for the appellant submitted
that the Rule in question was essentially procedural and that a
dismissal should be subject to some degree of supervision by a
judicial officer. He submitted that there was potential for
injustice and that this application of the Rule deprived a party of
a hearing on its merits.
Counsel for the respondent argued that the Rules themselves
provided reasonable safeguards and ample opportunity for the
adverse outcome to be avoided by litigants.
The High Court refused to grant special leave. This decision
should remove any doubt about the consequences of the dismissal of
an action in circumstances similar to those in the case. The risk
of the dismissal of an action under these provisions therefore
remains a matter of critical importance to a party whose action may
fall onto the inactive cases list.
Parties should also be aware that changes to the District Court
Rules introduced, amongst other things, to remove uncertainty
resulting from the decision in Ruby v Doric Constructions,
mean that irreversible dismissal of an action can now arise in
circumstances in which Ruby had allowed some scope for
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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