Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA

Citation : SOVEREIGN GRANGE PTY LTD -v- AV TRUCK SERVICES PTY LTD [No 2] [2016] WADC 73

Practice and procedure - Appeal against refusal of application to set aside the dismissal of action for want of prosecution - Inactive cases list - Whether exceptional circumstances

Practice and procedure - Application to adduce additional evidence in the appeal

District Court Rules 2005 (WA), r 44G

Australian Electrical Union v Hamersley Iron Pty Ltd (1998) 19 WAR 145

Dodds v Kennedy [2011] WASCA 32

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Harvey v Attorney General (Qld) [2011] QCA 256; (2011) 220 A Crim R 186

House v The King [1936] HCA 40; (1936) 55 CLR 499

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Lourey v Legal Profession Complaints Committee [2012] WASCA 112

Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513

Macedonian Orthodox Community Church v His Eminence Petar [2008] HCA 42; (2008) 237 CLR 66

Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605

Monteleone v The Owners Of The Old Shop Factory [2007] WASCA 79

R v Independent Broad-based Anti-corruption Commissioner [2015] VSCA 271; (2015) 255 A Crim R 99

R v Skinner [2016] SASCFC 106; (2016) 126 SASR 120

Reid v South West Regional College of TAFE [2015] WASCA 231

Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116

San v Rumble (No 2) [2007] NSWCA 259; (2007) 48 MVR 492

Sangora Holdings Pty Ltd v Hodder [2003] WASCA 108

Saunders v Public Trustee [2015] WASCA 203

Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd (No 2) [2016] WADC 73

Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531

Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290

1 The appellant commenced proceedings in the District Court of Western Australia on 22 December 2010. The action claimed damages following a fire in a prime mover which the appellant had purchased from the respondent. The appellant unreasonably delayed in the prosecution of its case in the District Court. Following a 12 month period of inactivity, the primary action was placed on the Inactive Cases List on 26 November 2014. After a further 6 months of inactivity, the case was deemed to be dismissed for want of prosecution by operation of r 44G(1) of the District Court Rules 2005 (WA) (Rules).

2 The appellant appeals to this court against the refusal of its application to set aside the dismissal of its action in the District Court. Rule 44G(5) of the Rules empowered the District Court to set aside the dismissal of the case in exceptional circumstances and on such terms as it thought fit. The appellant alleges that the primary judge erred in law in failing to find that there were exceptional circumstances such as to warrant setting aside the dismissal of its action.

3 The appellant requires an extension of time in which to appeal, because it failed to serve the respondent with the Notice of Appeal until about 2½ months after the primary judge's decision.

4 For the following reasons, the appeal must be dismissed on its merits. The appellant has also failed to establish that an extension of time in which to appeal should be granted.

5 On or about 30 July 2008, the appellant purchased a 2007 model Western Star prime mover from the respondent.[1] The appellant claimed that, on 3 August 2008, the engine of the prime mover caught fire as one of the appellant's employees was driving it along Great Northern Highway, approximately 50km north of Fitzroy Crossing. The appellant claimed that the fire spread from the engine bay, engulfed the vehicle and then set fire to two dollies and two out of three trailers which were being towed by the prime mover.[2] It was alleged that the fire originated from a mechanical failure within the engine of the vehicle and was caused by a defect therein.[3]

6 On 22 December 2010, the appellant commenced an action against the respondent in the District Court. In the action, the appellant claimed damages of $493,103.81, plus interest and costs. Damages were claimed in respect of an alleged breach of an implied term in the contract for sale of the prime mover. The implied term was that the vehicle would be fit for the purpose for which it was purchased, and for the conditions for use for which it was intended, and would be of merchantable quality. The primary judge noted that it was common ground that the appellant's solicitor was instructed by an insurance company on behalf of the appellant.[4]

7 The action was not progressed with any expedition. On 9 November 2011, the respondent issued a third party notice against Western Star Trucks Australia Pty Ltd, which had supplied the prime mover to the respondent.

8 On 26 August 2012, the case was placed on the Inactive Cases List for the first time. On this occasion, the case was placed on the Inactive Cases List due to the appellant's failure to enter the action for trial. The action was removed from the Inactive Cases List when the action was entered for trial on 19 February 2013 (about a week before it would otherwise have been deemed to have been dismissed).

9 Eventually, a pre-trial conference was held before the Principal Registrar on 21 June 2013. The matter did not settle, and the Principal Registrar made programming orders for formal discovery and the exchange of expert reports. The Principal Registrar ordered that the 'matter be listed for a Pre-trial Conference/Mediation Conference not before 1 September 2013', and that a 'Listing Conference be scheduled on or about 5 September 2013'. The appellant did not arrange for the matter to be relisted after this time.

10 After a period of further delay, the parties held an informal mediation conference on 12 November 2014. The matter did not settle, and the third party indicated that it sought to obtain expert evidence before continuing to take part in discussions.

11 The action was again placed on the Inactive Cases List on 26 November 2014, due to no document having been filed for 12 months. Notice of placement of the action on the Inactive Cases List was provided to the appellant's solicitor, Mr Brent Hedges, on 1 December 2014.

12 By email sent on 1 December 2014, Mr Hedges proposed to reconvene informal discussions on 11 December 2014. The third party's solicitor responded on the same day, indicating that this was too soon as he had encountered delay in obtaining expert evidence. He proposed a further meeting in Perth in late January or early February 2015 if Mr Hedges (who is based in Sydney) was travelling to Perth in that period. Otherwise, the third party's solicitor suggested that a teleconference might be arranged.

13 Mr Hedges responded by email sent on 1 December 2014, copied to the respondent's solicitors, indicating that he had nothing in Perth in later January or early February, but that this might change. Mr Hedges said that:

Obviously I will let you know but one way or the other we should try to keep this moving.

[M]y local agent has sent me an email today advising that the matter has been placed in the inactive list so we will obviously need to take steps to have that rectified but in doing so will keep the focus on the discussions.

14 On 11 December 2014, Mr Hedges wrote to the solicitors for the respondent and third party asking if they would consent 'to the matter being restored to the active list'. The letter also stated that 'if consent orders are not filed then there are other steps which we need to take to restore the matter to the list'. Mr Hedges did not receive a reply to this correspondence.

15 After 11 December 2014, the appellant did not take any steps to undertake informal settlement discussions, formally progress the action in the District Court or have the action removed from the Inactive Cases List. The only step taken in the action was the filing of a notice of change of address for service, which appears to concern the change of office address of Mr Hedges' Perth agent.

16 On 29 May 2015, the Principal Registrar caused the parties to be given notice that the action was taken to have been dismissed on 26 May 2015.

17 Rule 37(1) of the Rules requires a plaintiff to enter a case for trial within 120 days after the date on which a defence is filed. Under r 39, when a case is entered for trial, the relevant registry must give each party notice of the date, time and place of the pre-trial conference. Rule 40(1) requires that, unless otherwise ordered, the parties or their representatives must attend the pre-trial conference. By r 40(3):

At a pre-trial conference the parties must, in good faith, attempt to settle the case or, failing settlement, to resolve as many of the issues between them as possible and to identify the issues to be tried.

18 Under s 40(5), if a matter does not settle, the presiding officer must either order the parties to attend a listing conference or list the case for trial. Rule 43 provides for a listing conference to be held before a registrar, who may list the matter for trial.

19 Subdivision 6 of pt 4 div 3 of the Rules makes provision in relation to inactive cases. Relevantly, r 44A provides:

If no document is filed in a case for 12 months by any party to the case, the case is taken to be inactive unless the Court orders otherwise.

20 Rule 44D(1) requires the Principal Registrar to put the case on the Inactive Cases List when it is taken to be inactive under r 44A of the Rules. The Principal Registrar is also required to give all parties notice that the case is on the Inactive Cases List and of the effect of r 44E and 44G. Rule 44D(2) requires a practitioner for a party who receives such a notice to in turn notify the party of those matters.

21 Rule 44E limits the documents which can be filed in a case on the Inactive Cases List. Those are relevantly an entry for trial, a consent order finalising the case, a summons for an order that the case be taken off the Inactive Cases List, a summons for an order dismissing the case for want of prosecution or a related document.

22 Under r 44F, a case is taken off the Inactive Cases List on the filing of an entry for trial or a consent order finalising the case. A party may also apply to have the case taken off the Inactive Cases List. The court may grant that application if satisfied the case will be conducted in a timely way or for any other good reason. The court's order may include any conditions necessary to ensure the case is conducted in a timely way.

23 Rule 44G provides:

(1) A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution.

(2) If a case is dismissed under subrule (1), the Principal Registrar must give all parties to the case written notice of the fact.

(3) If under subrule (2) a practitioner for a party is notified, the practitioner must, as soon as practicable, send a copy of the notice to the party.

(4) If a case is dismissed under subrule (1), any party to it may apply to the Court for, and the Court may make, any order needed as a consequence of the dismissal.

(5) The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1).

(6) For the purposes of subrule (5) it does not matter that the case was dismissed before the commencement of that subrule.

24 On 15 July 2015, the appellant applied to set aside the dismissal of its case under r 44G(4) of the Rules. After the application was dismissed by the Principal Registrar,[5] the appellant appealed, seeking a de novo review by a judge. That appeal from the Principal Registrar's decision was heard by the primary judge on 6 April 2016, and was dismissed on 20 May 2016.

25 The primary judge dismissed the appeal on the basis that there were no circumstances that amounted to exceptional circumstances for the purposes of r 44G(5) of the Rules.[6]

26 The primary judge identified a number of general principles which she applied in exercising her discretion under r 44G(5) of the Rules:

1. For circumstances to be 'exceptional' under r 44G(5) they must be out of the ordinary, unusual, special or uncommon. They do not need to be unique or unprecedented or very rare however they will not be exceptional if they are regularly, or routinely, or normally encountered.[7]
2. The fact that the Inactive Cases List was introduced to further case management must be borne in mind. The wider interest of other litigants wanting to have cases heard and the public interest in the proper and efficient use of scarce public resources of the court must be taken into account.[8]
3. The exceptional circumstances must be causally related to the dismissal of the action and it must be established that the circumstances which have led to the dismissal of the action are exceptional.[9]
4. There is no particular circumstance that can be defined as exceptional. 'Exceptional circumstances' may relate to a single exceptional matter or to a combination of exceptional facts or a combination of ordinary facts that when taken together in combination may reasonably be regarded as amounting to exceptional circumstances. Each case must be determined on its own facts.[10]
5. Rule 44G(5) is not remedial. It should be interpreted as giving the court a broad power to relieve against injustice.[11]
6. Inattention or inadvertence by a solicitor may in some cases be considered an exceptional circumstance. However, r 44G(5) must be considered in the context of case management. Consistent with the principles of case management in r 38 and r 44A of the Rules, the onus is on the party (not the party's solicitors) to enter the action for trial and to file documents. For this reason case management directions and interlocutory orders are made against the party not against the party's lawyer.[12]
7. Mere inadvertence or inattention by a solicitor would ordinarily not constitute an exceptional circumstance that would absolve a plaintiff from any personal responsibility to pursue the action.[13]
8. Factors to be considered in the exercise of the discretion include:[14]

(a) whether there has been any delay in bringing the application to set aside the dismissal and the reason for that delay;

(b) the merits of the plaintiff's case (there being no point in reinstating a case that has no merit);

(c) the prejudice to the plaintiff if the dismissal of the action is not set aside (including the expiry of any relevant limitation period); and

(c) the prejudice to the defendant if the dismissal of the action is set aside.

27 The parties in the appeal to this court did not take any issue with this statement of general principles.[15]

28 The primary judge referred to the procedural history of the action in the District Court. [16]

29 The primary judge noted the following evidence of Mr Hedges:[17]

Mr Hedges' evidence is that through inattention he failed to diarise the date of dismissal. His evidence is that he moved offices and his office closed between 23 December 2014 and 5 January 2015. On 18 and 19 January 2015 and 11 to 13 February 2015 he attended mine sites in relation to complex matters. He gives no explanation as to what occurred in the 13 days between 5 January 2015 and 18 January 2015 and in the three weeks between 20 January and 11 February 2015. Mr Hedges' father passed away on 19 May 2015. There is no explanation as to what occurred between 11 February 2015 and 19 May 2015, a period of over three months.

30 The primary judge also noted that there was no evidence from the appellant (as opposed to its solicitor) in relation to the delay.[18]

31 The primary judge rejected a submission by the appellant that it was actively involved in the process of attempting to informally settle the matter over the 18 month period that the case was on the Inactive Cases List prior to dismissal.[19] The primary judge said:

Once the informal meeting scheduled for 11 December 2014 was vacated special counsel for the third party suggested a January or February date. Special counsel for the third party indicated a degree of flexibility in relation to accommodating Mr Hedges' schedule, however, Mr Hedges did not take up any offer for an informal meeting in January or February, nor did he suggest a teleconference date. Mr Hedges did not make any arrangements with the other parties to further settlement after 11 December 2014 at all. Even after Mr Hedges was aware of the status of the case on the inactive cases list he failed to be proactive. He did not progress the matter either formally or informally [35].

32 The primary judge noted the appellant's submission that, had the meeting on 12 September 2014 been listed in the court as a pre-trial conference, then the case would not have been placed on the Inactive Cases List until 12 November 2015. The appellant submitted that it was likely that a settlement would have occurred in the interim. However, the primary judge noted that there was no evidence that a settlement would have occurred in 2015 or that the parties would have met for further discussions focussed on settlement even if a formal pre-trial conference had been listed. The primary judge observed that the advantage of a formal pre-trial conference is that, consistent with case management principles, the court would have been in a position to drive the progress of the case. Her Honour said that, because the appellant did not list the matter, the court was not in a position to provide any judicial case management.[20]

33 The primary judge found that the third party's failure to obtain expert evidence should have indicated to the appellant that settlement discussions had stalled.[21]

34 The primary judge rejected a submission that the delay was due to the respondent's and third party's failure to confer, and the third party's failure to obtain expert evidence in compliance with the court's directions. The primary judge noted that, although all parties are required to comply with their obligations to the court, the appellant as plaintiff has the responsibility of ensuring that matters proceed in a timely way. Her Honour noted that the event giving rise to the case occurred 6½ years before the case was dismissed and the writ was filed 4½ years before the date of dismissal. The primary judge said that this delay, taking into account that the parties were put on notice for a period of 18 months, was consistent with the parties having more than a reasonable opportunity to have the matter judged. She said that the appellant should have brought the matter back to the court at some time in the 18 month period given that the case relied on expert evidence.[22]

35 The primary judge noted that this was not a case where there was an agreement or consent in any form either before or after the dismissal. The respondent and the third party did not reply to the appellant's correspondence dated 11 February 2015 that sought their consent generally. The parties did not consent to offering their support to the appellant in the r 44G(5) application. The primary judge observed that the appellant knew by the lack of response that it did not have the consent of the other parties yet the appellant failed to list an application before the court.[23]

36 The primary judge rejected the appellant's submission that it should not be prejudiced by Mr Hedges omitting to diarise the date of dismissal. The primary judge noted that there was no evidence that the appellant was not advised that the matter was on the Inactive Cases List. Further, there was no evidence of any commitment by the appellant to ensure that the case either settled or went to trial in a timely fashion.[24] The primary judge observed:

Even after the case was dismissed the appellant took over one month to bring the r 44G(5) application to set aside the dismissal. The only reason submitted for that delay is that the appellant sought the consent of the other parties in relation to the application. However, the parties had never indicated that they would consent to support the appellant to set aside the dismissal. In fact the parties had not communicated for 6 months. There was no reason why the application could not have been made sooner [46].

37 The primary judge noted that, while there was limited evidence in relation to the merits of the appellant's case, it was not disputed that the case may well have had merit had it proceeded.[25] Her Honour accepted that the appellant was prejudiced by the dismissal, as the relevant limitation period had expired.[26] She also accepted that the respondent and third party would have suffered a degree of prejudice from the dismissal of the action being set aside, although that was only one factor to be considered.[27]

38 The primary judge concluded that the circumstances of the dismissal indicated only that the appellant and its solicitors were inattentive. In her Honour's view, there were no circumstances that amount to exceptional circumstances in this case. The appeal from the Principal Registrar's decision was therefore dismissed.[28]

39 The appellant appeals to this court from the primary judge's decision on the following ground:

The Judge erred in law in finding that there were no circumstances that amounted to exceptional circumstances such as to warrant setting aside the dismissal of the action under Rule 44G (1) pursuant to Rule 44G (5).

PARTICULARS

(i) The Judge erred in law in placing undue weight on the failure of the Appellant to take action to remove the action from the inactive cases list when such failure was equally applicable to the conduct of the Respondent and Third Party.

(ii) The Judge erred in law in failing to give any/or adequate consideration to the windfall received by the Respondent and Third Party as a result of the dismissal of the action by reason of the operation of Rule 44G(1).

(iii) The Judge erred in law in failing to give any/or adequate weight to the Third Party's failure to obtain expert evidence and/or to notify the Appellant that it did not intend to adduce expert evidence as being causative of the failure to have the action removed from the inactive causes list.

(iv) The Judge's failure to find exceptional circumstances pursuant to Rule 44G (5) was wrong in that it unjustly rewarded the Third Party's failure to progress the action towards settlement and/or trial.

Application to adduce additional evidence in the appeal

40 At the commencement of his oral address, counsel for the appellant made an application to adduce additional evidence in the appeal. The evidence was in the form of a further 4-paragraph affidavit of Mr Hedges affirmed the previous day, 17 July 2017. The affidavit deposed that Mr Hedges was acting on instructions of an underwriting agency which issued an insurance policy to the appellant as agent for an insurer described as 'Allianz'. The affidavit indicates that, when the matter was placed in the Inactive Cases List, Mr Hedges did not advise 'the defendant' or the underwriting agency. Although the cover sheet to the affidavit indicates that it is filed in support of the application for extension of time in which to appeal, it became apparent during counsel's oral submissions that it was intended to be read as additional evidence in the appeal. The stated purpose of the appellant in seeking to adduce this additional evidence was to fill the 'evidential gap' identified by the primary judge when she said:[29]

There is no evidence that the appellant was not advised that the matter was on the inactive cases list [45].

41 The respondent objected to the admission of this affidavit for the purposes of determining the merits of the appeal. The court received the affidavit on the provisional basis that it would rule on whether to receive the affidavit in the course of determining the appeal.[30]

42 This court undoubtedly has power to admit additional evidence in the appeal. The general principles by reference to which the court exercises its discretion were recently considered by this court in Saunders v Public Trustee.[31]

43 In Saunders, reference was made to the importance of considering the strong public interest in the finality of litigation in deciding whether to admit additional evidence in an appeal against a final decision made after trial. The appellant submitted that this principle applies with less force as there was no trial in the present case.[32]

44 We accept that the consideration of finality applies with less force in the case of an appeal from an interlocutory decision. However, finality remains a relevant consideration.

45 That was the approach taken by the Full Court in Australian Electrical Union v Hamersley Iron Pty Ltd,[33] under the former provisions of O 63 r 10(1) of the Rules of the Supreme Court 1971 (WA). That rule required 'special grounds' and 'special leave' only in the case of 'appeals from a judgment after trial or the hearing of any cause or matter on the merits'. The Full Court considered an application to adduce additional evidence in an appeal from a refusal to dismiss an action for want of prosecution or stay it as an abuse of process. The requirement for 'special grounds' and 'special leave' was held not to apply in such an appeal. In considering the exercise of the court's general discretion to admit additional evidence in an interlocutory appeal, Malcolm CJ, with whom Kennedy and Owen JJ agreed, observed:

There may be room for greater general flexibility in the case of appeals from interlocutory applications, but I consider that, in general, the desirability of finality applies to orders made on such applications as well as to a final judgment. However, much will depend upon the significance of the orders made or sought to be made on the application. The approach to be adopted in each case will depend on the circumstances (160).

46 Sangora Holdings Pty Ltd v Hodder[34] was another appeal against orders dealing with an application to dismiss an action for want of prosecution, in which additional evidence was sought to be adduced. Hasluck J, with whom other members of the Full Court agreed, applied Hamersley and expressed the view that, in such an appeal:

the question of whether the additional evidence could have been brought forward by the exercise of reasonable diligence continues to be a factor to be considered [47].

47 In our view, these observations remain relevant under the Court of Appeal Rules. Generally speaking, there is a greater degree of flexibility when considering whether to receive additional evidence in appeals from interlocutory decisions. However, it remains relevant to consider questions of finality and whether the evidence was available to the parties in the primary proceedings when this court exercises its general discretion to admit additional evidence in an appeal.

48 The court should not exercise its discretion to admit Mr Hedges' 4-paragraph affidavit as additional evidence in the present appeal, having regard to the following matters.

49 First, the additional evidence does not relate to the ground of appeal, which asserts an error of law by the primary judge in finding that there were no exceptional circumstances such as to warrant setting aside the dismissal of the action. Plainly, the appellant cannot establish such an error of law by reference to evidentiary material that was not before the primary judge.

50 Secondly, even if the grounds were different it could not reasonably be contended that the absence of the additional evidence before the primary judge gave rise to a miscarriage of justice. The additional evidence is clearly not fresh evidence and was at all times in the possession of the appellant. There is no legitimate reason why the appellant could not have adduced the evidence when it made its application and appeal in the District Court. No explanation is offered for the appellant's failure to do so. While the evidence would have been relevant to the exercise of the primary judge's discretion, it does not establish that the discretion must be exercised in the appellant's favour. The absence before the primary judge of evidence that was then in the possession of the appellant does not give rise to any miscarriage of justice in these circumstances.

51 Thirdly, the affidavit does not in its terms address the question of whether the appellant was informed of the case being placed on the Inactive Cases List. The affidavit states that Mr Hedges did not inform 'the defendant' (ie the respondent in this appeal) of the action being placed on the Inactive Cases List. It may be surmised that the reference to the 'defendant' was in error, and Mr Hedges intended to refer to the appellant not being informed. However, that is not what the affidavit says.

52 Fourthly, the affidavit was provided to the respondent, and the application to use it was made, at a very late stage of the appeal. If the appellant wanted to rely on additional evidence in the appeal then it should have filed the affidavit and an application to adduce it in the appeal well prior to the hearing. As it was, the affidavit was affirmed only the day before the hearing of the appeal and was provided to the court, with an undertaking to file it, only at the hearing on an oral application to adduce the additional evidence. The response of the respondent's counsel indicates that the purpose of the tender of the affidavit was not effectively communicated to the respondent before it was provided to the court.[35] No explanation was given for the lateness of the provision of this material. The Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) provide for the substance of the parties' evidence and submissions to be set out in writing promptly after the appeal is commenced. In the present case there is no good reason to allow the appellant's belated attempt to introduce this new material.

53 In all these circumstances, the oral application to adduce additional evidence in the appeal should be refused.

54 There is potentially a further troubling aspect to Mr Hedges' affidavit which should be noted. The affidavit indicated that Allianz's underwriting agent was informed of the circumstances only after the application for reinstatement of the action was dismissed. The application was first dismissed by the Principal Registrar on 5 November 2015, so the affidavit indicates that the agent was not advised prior to that time. This part of the affidavit rather suggests that Mr Hedges did not receive instructions from any client prior to making the application to set aside the dismissal of the action. It also tends to suggest that Mr Hedges did not advise any client of the dismissal of the action for over 5 months after the fact. It also indicates that Mr Hedges failed to comply with his obligation under r 44D(2) of the Rules. Any such conduct would be a serious dereliction of Mr Hedges' duty to his client and to the court.

55 As explained in more detail below, the primary judge's decision was of a discretionary nature. Particulars (i) - (iii) of the ground of appeal allege, in substance, the giving of undue weight, a failure to give adequate consideration, or a failure to give adequate weight, to particular factors. A complaint of giving inadequate or too much weight to a relevant consideration does not give rise to an appellable error unless it really amounts to a failure to exercise the discretion actually entrusted to the court.[36] Subject to any statutory mandate that particular weight be given to one factor, the question of what weight should be given to relevant factors, or the balance to be struck between them, is for the person on whom the discretion is conferred, unless a conclusion of error of law or Wednesbury unreasonableness can be drawn.[37] Thus, insofar as particulars (i) - (iii) allege the giving of undue or inadequate weight, they do not identify error which would justify appellate intervention. Nevertheless, the detail of what the appellant raises is addressed below.

Particular (i): action to remove case from the Inactive Cases List

56 Although expressed as complaining of an error of law, particular (i) complains of the primary judge giving 'undue weight' to the appellant's failure to take any steps to remove the case from the Inactive Cases List before it was taken to be dismissed for want of prosecution.

57 This was plainly a matter to which the primary judge was entitled to have regard.

58 The fact was that neither the appellant nor its solicitor took any formal steps to remove the case from the Inactive Cases List. This was after the appellant's solicitor was advised, on 1 December 2014, that the case had been placed on the Inactive Cases List and of the consequences of that event. There was no evidence before the primary judge that Mr Hedges failed to comply with his obligation to inform the appellant of those matters. The appellant and its solicitor did nothing after 1 December 2014, beyond sending the request for consent to which no response was given, until the action was taken to be dismissed on 26 May 2015. There was no explanation as to why the appellant took no steps in the almost 6 month period after 1 December 2014. Various personal matters to which Mr Hedges refers are capable of explaining only a small proportion of that period of inactivity. The response of the appellant and its solicitors to the court's notice informed an assessment of whether the circumstances were exceptional, so as to justify setting aside the dismissal of the case.

59 The primary judge's reasons do not indicate that she treated the appellant's lack of action in response to the court's notice as more than one of the factors which she was required to consider. There is nothing to indicate that the primary judge treated the absence of action as a controlling factor which itself necessarily justified or demanded refusal of the application.

60 It is true that the respondent or third party could also have applied to remove the case from the Inactive Cases List and did not do so. However, there was little or no incentive for those parties to make such an application in proceedings in which damages were claimed against them. This was the appellant's case and it was the appellant's primary responsibility to take steps available to it (such as making an application to the court or requesting the matter be relisted) to see that the action did not stagnate. This was particularly so after the appellant's solicitor received notice that the action had been placed on the Inactive Cases List for the second time.

61 We do note one error in the primary judge's reasons. At various points the primary judge referred to the case as having been on the Inactive Cases List for 18 months prior to its dismissal, and to the parties being on notice for that period.[38] While there was an 18-month period of inactivity prior to the deemed dismissal of the action, the case was only placed on the Inactive Cases List on this second occasion 6 months prior to its dismissal. However, this error does not appear to be material to the exercise of the primary judge's discretion, and was not relied upon by the appellant as constituting appellable error.

Particulars (ii) and (iv): inadequate consideration of windfall

62 There is no merit in the allegation that the primary judge failed to give any consideration to the 'windfall' received by the respondent and third party as a result of the dismissal of the action. The primary judge accepted that the appellant's case may well have had merit had it proceeded, and that the appellant would be prejudiced by the expiry of the limitation period. That is, the primary judge expressly recognised that the effect of her order was to deprive the appellant of its claim, which was not shown to be without merit, against the respondent.

63 There is no basis for contending that the primary judge made an error of law by reference to the weight she gave to that relevant consideration. The appellant may have been deprived of a legitimate claim. But that was the result of its persistent failure to take up the reasonable opportunity given to it to prosecute that claim, even in the face of the warning constituted by the court's notice that its case had been placed on the Inactive Cases List. As this court noted in Rowe v Stoltze,[39] in a passage quoted by the primary judge:[40]

In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period. (citations omitted)

64 In the present case any loss of rights which the appellant had against the respondent was a product of the appellant's own failure to advance its own case. The loss of those rights is not properly characterised as unjustly rewarding the third party's failure to progress the action towards settlement or trial.

65 Provisions made by the Rules in relation to inactive cases do not exist to dispose only of cases which are hopeless as well as inactive. The fact that the dismissal of an action means that a plaintiff may be deprived of a reasonably arguable claim is a relevant, but not controlling, consideration when the court exercises its discretion under r 44G(5) of the Rules. The Rules do not demand that the court set aside a dismissal of an action which may have merit where the plaintiff has been given, but failed to take advantage of, a reasonable opportunity to prosecute the claim.

Particular (iii): third party's failure to obtain expert evidence

66 Particular (iii) alleges that the primary judge failed to give any or any adequate weight to the third party's failure to obtain expert evidence as a cause of delay in the proceedings.

67 The orders of the court did not require the third party to obtain expert evidence. Rather, they required the third party to file and serve a report of any expert witness, the substance of which the third party intended to rely at trial, by 21 August 2013. The fact that no report was filed meant that the third party would require leave to rely on any expert evidence at trial. It did not prevent the appellant from taking steps to progress its case.

68 Further, as the primary judge correctly recognised, the appellant, as plaintiff, had the responsibility of ensuring that matters proceeded in a timely way. Any failure by the third party to comply with the court's orders as to the provision of expert witness reports did not entitle the appellant to allow the action to languish without prejudice to its claim. The grounds of appeal do not challenge the primary judge's conclusion that the third party's failure to obtain expert evidence should have indicated to the appellant that settlement discussions had stalled. We agree with her Honour's conclusion that this was the case at least by February 2015.

69 The appellant's oral argument went beyond the particulars of its grounds of appeal. The appellant made two overarching submissions.

70 First, the appellant submits that it is for this court to make its own assessment as to whether there were exceptional circumstances which justified setting aside the dismissal of the action.[41] That is, the appellant submits that an approach analogous to that taken by an appellate court in reviewing a finding of negligence applies.[42] The appellant submits that this court should allow the appeal on the basis of its own conclusion that exceptional circumstances were established. In inviting that conclusion, the appellant principally relies on:[43]

1. the 'gross injustice' of the appellant being deprived of its case; and
2. its contention that refusal of its application to set aside the dismissal would reward a party whose conduct has significantly contributed to the delay giving rise to the dismissal of the action.

71 The appellant's second overarching submission is advanced against the contingency that this court finds that the principles governing appeals from discretionary decisions are applicable. In that event, the appellant submits that the only conclusion reasonably open to the primary judge, on the facts before her, was that there were exceptional circumstances such as to warrant setting aside the dismissal of the action.[44] In effect, the appellant contends that error of principle can be inferred from the result of the exercise of the primary judge's discretion on the evidence before the primary court.

72 Contrary to the appellant's first overarching submission, the ordinary principles governing appeals from discretionary decisions apply to the determination of this appeal.

73 The principles governing an appeal from a discretionary decision are well established. It is not enough that the appellate court may have exercised the discretion differently if it had been acting at first instance. Rather, as was noted in House v The King:[45]

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

74 The ordinary meaning of the language used in r 44G(5) of the Rules is to confer a discretion on the court. The term 'exceptional' is a relative concept, ordinarily importing a requirement that the circumstances be out of the ordinary course or unusual.[46] Any assessment of whether circumstances are exceptional involves an evaluative judgment on which, in a particular case, minds may reasonably differ. That assessment is to be conducted bearing in mind the rationale of the statutory provisions and the context in which the phrase appears, and depends upon a careful consideration of the facts of the particular case.

75 In the case of r 44G(5), the rationale is to secure the just and efficient determination of proceedings before the court, the efficient use of curial resources and the timely disposal of the court's business.[47] In that context it is not enough that there is something about the circumstances of the case which is unusual or out of the ordinary. For example, it would not be enough to show that the delay and lack of attention by a party was extraordinary. Rather, the nature of the exceptional circumstances must be such as to warrant the exercise of the discretion to set aside the dismissal of the action.

76 In this way, the reference to exceptional circumstances regulates the manner in which the court's discretion under r 44G(5) is to be exercised, rather than establishing a condition precedent to the existence of a discretion. The court does not consider, first, whether the circumstances of the case are exceptional and, secondly, whether a residual discretion to set aside the discretion should be exercised. Rule 44G(5) poses a single question for the court: whether exceptional circumstances warrant setting aside the dismissal. Where the court answers that question in the affirmative, and so has concluded that setting aside the dismissal is warranted, it will do on such terms as the court thinks just.

77 Therefore, a decision under r 44G(5) involves the exercise of a discretion to which the usual principles governing appeals from discretionary decisions apply.

78 For reasons explained above, that the appellant was deprived of a capacity to pursue its claim, and any associated 'windfall' to other parties, did not demand a conclusion that exceptional circumstances warranted setting aside the dismissal. The other circumstances on which the appellant relies essentially involve:

1. the stalling of informal settlement discussions;
2. the failure of the third party to obtain expert evidence in compliance with the court's directions;
3. the failure of the other parties to respond to a request for consent to the action being removed from the Inactive Cases List; and
4. Mr Hedges' failure, after receiving notice that the action had been placed on the Inactive Cases List, to 'diarise' the date at which the action would be taken to be dismissed.

79 There is nothing exceptional about settlement discussions stalling or, regrettably, in a person against whom action is taken failing to comply with programming orders. When that occurs, it is incumbent on the party with carriage of the matter (usually the plaintiff or other party seeking relief) to seek orders from the court to progress the matter. The same can be said of the failure to respond to correspondence.

80 It is unusual that the appellant failed to take any action after receiving notice that the case had been placed on the Inactive Cases List. The action which would be expected is not merely the diarising of the date on which the case would be deemed to be dismissed. The action which would be expected would be for the appellant to immediately take its own steps to have the action removed from the Inactive Cases List. An application by the appellant would have been required even if consent of the other parties were to be forthcoming.

81 The evidence before the District Court did suggest that the conduct of the action by Mr Hedges fell well below that which should be expected of a competent solicitor acting for a party in curial proceedings. However, the appellant ultimately bore the responsibility of taking steps to progress its action. Once its solicitor on the record received notice that the case had been placed on the Inactive Cases List, and of the consequences of that event, then it was incumbent on the appellant to act. That action would involve either instructing Mr Hedges to take appropriate steps or instructing a competent legal representative who was able to do so. There was no evidence before the primary judge indicating that the appellant did not receive the notice. Nor did the evidence before the primary judge deal with instructions the appellant gave to Mr Hedges or whether the appellant received assurances from Mr Hedges that matters were in hand. In the absence of any evidence from the appellant, the primary judge was not required to conclude that responsibility for the default in this case lay solely with the appellant's solicitor.

82 The primary judge's conclusion that there were no relevant exceptional circumstances was clearly open and was not unreasonable or plainly unjust. The primary judge did not make any express error in the exercise of her discretion, and error of principle cannot be inferred from the result of its exercise.

In any event, the primary judge's decision was correct

83 Even if (contrary to the view expressed above) the principles governing appeals from discretionary decisions did not apply, the result in this case would remain the same. Our view, having reviewed the evidence before the primary judge, is that her Honour was correct to conclude that the critical circumstances leading to the dismissal of the primary action concerned the inattentiveness of the appellant. There were no exceptional circumstances which warranted setting aside the dismissal of the primary action.

84 Under r 27 of the Court of Appeal Rules, the appeal was not commenced until a Notice of Appeal was both filed and served on the respondent. Under r 26(2) of the Court of Appeal Rules, the appeal was required to be commenced by 10 June 2016 (21 days after the primary judge's order on 20 May 2016).

85 The original Notice of Appeal was filed on 8 June 2016. However, a copy of the Notice of Appeal was not given to the respondent until it was attached to a letter from Mr Hedges to the respondent's solicitors dated 5 August 2016. The Notice of Appeal was served at the time it was received by the respondent,[48] which may be inferred to be shortly after it was sent to its solicitors. The original Notice of Appeal was not served on the respondent and so the appeal was not commenced until about 2½ months after the primary judge's decision and 2 months after it was filed in this court. The appellant therefore requires an extension of time in which to appeal.

86 On 23 November 2016, Newnes JA referred the appellant's application for an extension of time to appeal to the hearing of the appeal.

87 That the appeal must fail in any event is itself a factor counting against an extension of time, indicating that no substantive injustice will flow to the appellant from a refusal to extend time. Further, the delay in serving the Notice of Appeal was substantial, and has resulted in the respondent having to deal with further proceedings well after it was entitled to expect that the dispute was resolved. Upon the expiry of the time for appealing, the respondent had a vested right to retain the judgment.[49] The delay in providing any copy of the Notice of Appeal to the respondent was unreasonable, particularly in circumstances where the respondent had, by letter dated 30 May 2016, asked to be informed as soon as possible whether the appellant proposed to appeal against the primary judge's orders. There is no good reason provided for the delay. It appears that Mr Hedges intended to serve the Notice of Appeal only after receiving a stamped copy from the Court of Appeal registry (which it is not the court's practice to issue). Even if the assumption that the court would issue a stamped copy was not unreasonable, it was unreasonable for the appellant to take no action in relation to service when a stamped copy was not promptly returned.

88 We note that an amended Notice of Appeal (requesting an extension of time in which to appeal) was filed on 24 August 2016 but not served on the respondent until 7 September 2016.[50]

89 The situation is aggravated by the appellant's failure to serve its Appellant's Case on the respondent. An Appellant's Case was lodged with the Court of Appeal registry on 14 July 2016. It was not accepted for filing until 15 September 2016, when the filing fee was paid (after a cheque which accompanied the Appellant's Case was dishonoured). The Appellant's Case was not served on the respondent until 29 September 2016.[51] Counsel for the appellant invited this court to infer that Mr Hedges believed that the court had served the Appellant's Case on the respondent after it was lodged with the registry. Mr Hedges has not expressly deposed to having held that belief, and counsel for the appellant was unable to point to any foundation for such a belief if it was held.[52] Rule 22 of the Court of Appeal Rules expressly provides that a person who files a document in an appeal must serve it on the other party.

90 It was also unsatisfactory for Mr Hedges to depose to the following facts without having any reasonable foundation for believing those facts to be true and without stating the basis for such a belief:[53]

Subsequently and in accordance with the rules, the appellant's case was filed and that having occurred the court forwarded copies of same to me and the solicitors representing the respondent.

91 At the hearing of the appeal, counsel for the appellant sought to read a further 13-paragraph affidavit of Mr Hedges affirmed on 17 July 2017 in support of the application for an extension of time in which to appeal. There is no explanation as to why the affidavit was not filed and served earlier, and the affidavit does not substantially add to the merits of the application for an extension of time. We would refuse leave to the appellant to rely on that affidavit in these circumstances. We note that, in this affidavit, Mr Hedges did not withdraw, or apologise for, the misleading and unfounded assertion in his affidavit of 19 August 2016 that the court had forwarded a copy of the Appellant's Case to the respondent's solicitors.

92 The appellant's approach to the institution and prosecution of the appeal to this court reflects and compounds its lackadaisical approach to the prosecution of the primary proceedings. The affidavit filed in support of the application for an extension of time was misleading. That is unsatisfactory regardless of whether the cause is carelessness in its preparation or something worse. These factors count against the grant of an extension of time in which to appeal.

93 In all the circumstances, it is in the interests of justice to refuse an extension of time in which to appeal. It has not been shown that requiring compliance with the rules providing for the time and manner in which an appeal to this court must be commenced would work any injustice on the appellant.

94 We also note that the appellant has not joined the third party as a respondent to this appeal. Setting aside the dismissal of the primary action would directly affect the interests of the third party, which would again be exposed to the respondent's claim in the proceedings. The third party should have been joined as a party to this appeal.

95 However, as the appellant's application and appeal will be dismissed, the third party's interests will not be adversely affected by the orders this court makes. The third party's solicitors have also written to the court advising that the third party is aware of the appeal and does not seek to play any active part in the appeal. In these circumstances, it is unnecessary to put the parties to the additional expense and inconvenience which would be associated with joining the third party.

96 Given the above conclusions, it is also unnecessary to consider whether this appeal is from a 'final judgment' for the purposes of s 79 of the District Court of Western Australia Act 1969 (WA), and whether leave to appeal is required under that section.

97 For the above reasons, the following orders should be made in the appeal:

1. The appellant's oral application in an appeal to rely on the 4-paragraph affidavit of Brent Hedges affirmed on 17 July 2017 as evidence in the appeal is dismissed;
2. The appellant's application for an extension of time in which to appeal is dismissed.
3. The appeal is dismissed.

[1] Statement of Claim par 4; Defence par 4.

[2] Statement of Claim par 8 - 11. These allegations were not admitted in Defence par 8.

[3] Statement of Claim par 12. This allegation was denied in Defence par 9.

[4] Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd (No 2) [2016] WADC 73 (Primary decision) [33].

[5] Sovereign Grange Pty Ltd v AV Truck Services Pty Ltd [2015] WADC 130.

[15] Appeal ts 30; Appellant's Submissions par 36 - 40; Respondent's Submissions par 31.

[31] Saunders v Public Trustee [2015] WASCA 203 [84] - [90].

[33] Australian Electrical Union v Hamersley Iron Pty Ltd (1998) 19 WAR 145.

[34] Sangora Holdings Pty Ltd v Hodder [2003] WASCA 108.

[36] Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513, 519; Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Monteleone v The Owners Of The Old Shop Factory [2007] WASCA 79 [36]; Dodds v Kennedy [2011] WASCA 32 [4].

[37] Macedonian Orthodox Community Church v His Eminence Petar [2008] HCA 42; (2008) 237 CLR 66 [138]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [30].

[39] Rowe v Stoltze [2013] WASCA 92; (2013) 45 WAR 116 [51].

[42] Appeal ts 34 - 35; as to which, see Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, 551 - 552.

[43] See par 51 of the Appellant's Submissions and appeal ts 35 - 36.

[45] House v The King [1936] HCA 40; (1936) 55 CLR 499, 505.

[46] See R v Skinner [2016] SASCFC 106; (2016) 126 SASR 120 [91] - [93]; R v Independent Broad-based Anti-corruption Commissioner [2015] VSCA 271; (2015) 255 A Crim R 99 [67] - [70]; Harvey v Attorney General (Qld) [2011] QCA 256; (2011) 220 A Crim R 186 [42]; Yacoub v Pilkington (Australia) Ltd [2007] NSWCA 290 [66]; San v Rumble (No 2) [2007] NSWCA 259; (2007) 48 MVR 492 [58] - [66].

[47] See O 1 r 4A and 4B of the Rules of the Supreme Court, applied by r 6 of the Rules. See also r 24(1) of the Rules.

[48] For the reasons explained in Clack v Murray [2017] WASCA 88 [10] - [12].

[49] Reid v South West Regional College of TAFE [2015] WASCA 231 [45]; Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 [4]; Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, 459.

[50] Affidavit of Byron Winburn-Clarke sworn 24 October 2016, par 21.

[51] Affidavit of Byron Winburn-Clarke sworn 24 October 2016, par 28.

[53] Par 10 of Mr Hedges' affidavit affirmed 19 August 2016 in support of the application for an extension of time in which to appeal.