procedural. The plaintiff's application dated 26 June 2009 was stood over generally with liberty to any party to restore it to the list on seven days' notice; the plaintiff was ordered to pay the defendants'...
Key principles
A proceeding is taken to be struck out under r 75(2) if a party does not take a step in the proceeding within one year after the last step; the Registrar's notification is...
Under r 76 as it stood before amendment, the Court may reinstate a proceeding only if it is in the interests of justice to do so; the applicant bears the onus of persuading the...
Where the Court Procedures Rules were subsequently amended to provide an automatic reinstatement mechanism (r 76(2A)–(2B)), a pending application for reinstatement may be...
If amendments provide a simpler or prospective means of reinstatement within a fixed window, a court may avoid deciding retrospective operation of the amendment by...
Issues before the court
Was the proceeding taken to be struck out/dismissed under Court Procedures Rules r 75(2)?
Should the Court exercise its discretion under r 76 to reinstate the struck out proceeding?
Plain English Summary
Hay sued the club and its contracted security company after an assault in 2003. Because the parties did not take steps for long periods, the Court Procedures Rules deemed the proceeding struck out. The plaintiff twice applied to reinstate. While the second application was pending, the Court Procedures Rules were amended to provide an automatic reinstatement if a party files a document within one year of dismissal. Rather than determine the contested reinstatement application under the old rule (where the plaintiff's prospects looked weak), Master Harper stood the application over so the plaintiff could rely on the new, simpler reinstatement route; the plaintiff was ordered to pay the defendants' costs to date.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,982 words · generated 15/09/2026
What happened
This is an application about procedure, not the merits of the underlying negligence claim. The core sequence is:
Do the amendments to rr 75 and 76 (Court Procedures Amendment Rules 2009 (No 3)) operate retrospectively and thereby validate the earlier filed...
Is the Registrar required to give notice when a proceeding is taken to be struck out/dismissed under r 75?
Cited legislation
4 cited instruments linked from this judgment.
25 April 2003: the incident giving rise to the claim occurred (statement of claim).
12 July 2004: proceedings commenced by the plaintiff (originating process filed) (Reasons [2]–[4]).
Nov 2005: amended originating application and statement of claim filed; second defendant later appears and files a defence (Reasons [4]).
1 July 2006: the Court Procedures Rules 2006 (CPR) come into effect, including rr 75 and 76 (Reasons [5]).
3 May 2008: because no party had taken a step for over one year, the Registrar sent notices (dated 6 May 2008) advising that the proceeding was taken to be struck out under r 75(2) (Reasons [7]).
13 May 2008 and 26 May 2008: plaintiff sought reinstatement under r 76; a Registrar order (by consent) was made on 26 May 2008 (Reasons [9], [12]).
After that order, there was again no step for one year, so on 27 May 2009 the proceeding was again taken to be struck out (Reasons [23]).
26 June 2009: plaintiff filed a further application to reinstate supported by affidavit material explaining delay (economic-loss quantification, insurer collapse, settlement conference arrangements, etc.) (Reasons [24]–[28]).
After the hearing concluded but before judgment, the CPR were amended by Court Procedures Amendment Rules 2009 (No 3), operative 1 January 2010. The amendments replaced the word 'struck out' with 'dismissed' where appropriate and added r 76(2A)–(2B), which provides that a proceeding dismissed under r 75(2) is reinstated if a party files a document within 1 year, with service on active parties within 3 days (Reasons [29]).
Master Harper declined to decide the retrospective operation of the amendments and stood the application over generally with liberty to any party to restore it, and ordered the plaintiff to pay the defendants' costs of the application to date (Orders and Reasons [31]).
The practical outcome: the plaintiff was given the opportunity to use the new r 76(2A) mechanism to reinstate by filing a document within the one-year window; the contested reinstatement application under the old test was not decided on the merits.
Why the court decided this way
There are several connected reasons in the judgment.
Registrar's interpretation of r 75(2) was correct
The Court accepted the Registrar had correctly concluded the proceeding was taken to be struck out on 3 May 2008 and again on 27 May 2009 because no step was taken by any party within the relevant one-year period (Reasons [7], [23]).
Reinstatement under pre-amendment r 76 requires the Court to be satisfied it is in the interests of justice
The pre-amendment rule states: “The court may reinstate the proceeding if it is in the interests of justice to reinstate the proceeding” (Reasons [10]). The Court must exercise a discretion informed by delay, explanation, prejudice and the overall justice of reinstating.
The plaintiff's evidentiary material was weak on the old standard
Master Harper observed that earlier affidavits would have been insufficient to explain delay (Reasons [9]), and on the facts the plaintiff's prospects of success under the old rule were likely poor (Reasons [33]). The defendants asserted actual prejudice.
The Rules were amended to create an automatic, time-limited reinstatement route
The amendments added r 76(2A)–(2B), which provides for reinstatement if any party files a document within one year of the dismissal and serves that document on active parties within three days (Reasons [29]). This materially changed the practical path to reinstatement.
Practicality and avoidance of deciding retrospective operation
Rather than decide whether the amendment operated retrospectively (which would have disposed of the application one way or the other), the Court considered it “in practical terms unnecessary” to decide that question because the plaintiff could file a document before 27 May 2010 to reinstate under the new rule (Reasons [30]–[31]).
Costs consequences
Because the plaintiff sought an indulgence by a path required under the old rule, and the plaintiff's prospects were weak, Master Harper ordered the plaintiff to pay the defendants' costs of the application to date (Orders; Reasons [33]).
In short: the combination of the existing onus under pre-amendment r 76, the plaintiff's limited explanatory material and the subsequent amendment introducing a new reinstatement mechanism led the Court to avoid a full merits ruling and to stand the matter over, while penalising the plaintiff in costs.
Before and after state of the law
Before the amendment (CPR as at 1 July 2006)
r 75(2) operated to take proceedings to be struck out where no step was taken in the proceeding within one year after the last step.
r 76 permitted reinstatement if the Court was satisfied it was in the interests of justice; a discretionary, merits-based inquiry.
After the amendment (Court Procedures Amendment Rules 2009 (No 3), effective 1 January 2010)
The terminology changed (replacing 'struck out' with 'dismissed' where relevant).
r 76(2A)–(2B) provided a simple, self-executing route: a proceeding dismissed under r 75(2) is reinstated if a party files a document within one year of the dismissal and serves it on active parties within three days.
This change reduces the need for contested reinstatement proceedings in many cases, because a party can unilaterally revive the proceeding within the one-year window simply by filing and promptly serving a document.
The amendment raises retrospective-operation questions when a dismissal occurred before the amendment came into force; the judgment resolves that the Court declined to rule on retrospectivity where the applicant could rely on the new rule prospectively before the one-year window closed (Reasons [29]–[31]).
Practical consequence: where the dismissal date is within one year of the amendment, parties can, by filing a document, reinstate without demonstrating “interests of justice” under the old test. This materially lowers the procedural threshold and shifts the contest to issues of prejudice and merits at later stages.
Key passages with plain-English translation
“It appears to me that the Registrar interpreted the subrule correctly and that the action was indeed taken to have been struck out in relation to each of the parties on 3 May 2008.” (Reasons [7])
Plain English: The Registrar properly applied r 75(2); the case was treated as struck out on that date because nobody took a step for more than a year.
“There is no requirement for the Registrar to notify the parties ... the giving of notice is strictly unnecessary.” (Reasons [8])
Plain English: The law does not force the Registrar to tell the parties; the notices sent in this case were helpful but not legally necessary.
“The court may reinstate the proceeding if it is in the interests of justice to reinstate the proceeding.” (Reasons [10])
Plain English: Under the old rule, reinstatement was discretionary; the applicant had to persuade the court it was fair to bring the case back.
Quotation of r 76(2A)–(2B) (Reasons [29])
Plain English: The new rule says a case dismissed for inactivity is automatically reinstated if any party files any document within a year of the dismissal and serves that document promptly.
“It seems to me in practical terms unnecessary to make a decision about the issue of retrospective operation of the amendments.” (Reasons [30])
Plain English: The judge refused to decide whether the new rules operate retroactively because the plaintiff could simply use the new rule before the one-year deadline; so there was no need to decide the difficult legal question.
What fact patterns trigger this precedent
This judgment is directly on point in circumstances where:
A proceeding has been taken to be struck out/dismissed under the CPR for inactivity (r 75(2));
An application to reinstate under the pre-amendment r 76 is brought, and the applicant has provided limited/weak explanation for delay, while defendants assert prejudice;
The Court Procedures Rules are amended while the reinstatement application is pending to introduce a time-limited automatic reinstatement mechanism (r 76(2A)–(2B));
A pragmatic choice exists between deciding the reinstatement under the old discretionary test or allowing the parties to proceed under the new automatic route.
When all of these elements appear, the reasoning in Hay v Belconnen supports standing the application over to permit use of the new process, rather than deciding the older discretionary application, particularly if doing so avoids a complex retrospective-rules issue and if ordering costs against the applicant is appropriate given the applicant's conduct and prospects.
How later courts have treated it
The judgment itself refers to Equuscorp Pty Ltd v Lah [2009] ACTSC 113 as a recent exposition of the principles governing reinstatement under r 76 (Reasons [33]). Master Harper indicates that Equuscorp's principles would likely have led him to refuse reinstatement on the pre-amendment test in Hay. Hay therefore sits alongside Equuscorp as part of a developing line of ACT decisions on reinstatement prior to the 2009 amendments.
Practically, Hay illustrates how courts may handle pending reinstatement applications when procedural rules change: prefer pragmatic solutions (stand over, allow invocation of new automatic reinstatement) and avoid deciding retrospective application of amendments unless necessary. Later courts facing similar procedural amendments would be likely to follow Hay's practical approach when a party can invoke the new rule within the statutory window.
(As this deep dive is constrained to the judgment supplied, I do not catalogue subsequent appellate treatment beyond the materials in the judgment.)
Still-open questions
Hay leaves a number of legal questions unresolved and practical points to consider:
Retrospectivity of the 2009 amendments
Master Harper expressly avoided deciding whether the amendments operate retrospectively to validate documents filed between dismissal and the amendment's commencement. That legal question remains open in this judgment (Reasons [30]).
The scope of “a document” under r 76(2A)
The new rule reinstates a proceeding if “a party files a document.” Hay does not analyse what kinds of documents suffice (a minimal filing, a notice of intention to proceed, an affidavit, etc.). Practical actors will want authoritative guidance on the minimum required filing to trigger reinstatement and whether the filing must be substantive (the judgment notes a notice of intention to proceed would be enough under r 75(3) as a step, Reasons [7], [30]).
Interaction between automatic reinstatement and prejudice
The amended rule creates a procedural reinstatement but does not address whether defendants can later seek dismissal for prejudice caused by the intervening delay. Hay suggests a party could reinstate under the new rule but later face substantive arguments about prejudice; the timing and appropriate remedies for genuine prejudice remain to be worked out in subsequent litigation.
Costs consequences when parties use the new automatic route
Hay ordered costs against the plaintiff for the contested application brought under the old regime. It is an open question how costs should be treated where a party simply files a document to reinstate under r 76(2A) and the case then proceeds. Hay indicates that costs consequences flow from conduct; courts will weigh fairness and blame in future cases.
Registrar practice and fairness
Although the Registrar need not notify parties, Hay emphasises that notice is helpful. The absence of a notification requirement could produce unfair surprises; future courts or rule-makers may consider whether formal notification procedures are desirable for fairness.
These open issues are practical and legal. Practitioners dealing with dismissals for inactivity should take care to: monitor dates (the one-year clock), consider filing a minimal document within the statutory window to preserve rights, preserve evidence to address later prejudice arguments, and obtain timely legal advice if an amendment to court rules alters reinstatement mechanics.
This is general legal information, not legal advice. I can make mistakes. Before you act on or rely on this analysis, get a qualified Australian lawyer to check it.
Judgment (34 paragraphs)
[1]
1. The plaintiff's application in proceeding dated 26 June 2009 be stood over generally with liberty to any party to restore it to the list on seven days notice.
[2]
2. The defendants' costs of the application to date be paid by the plaintiff.
[3]
This is an application to reinstate a proceeding which is taken to have been struck out by the operation of r 75(2) of the Court Procedures Rules 2006. When the application was filed, r 75 was in the following terms:
When proceeding struck out
[4]
(1) A proceeding is taken to be struck out in relation to a defendant if -
[5]
(a) at the end of 1 year after the day the originating process is
[6]
issued, an affidavit of service of the process on the defendant
[7]
(b) at the end of 1 year after the day the originating process is
[8]
(i) a notice of intention to respond or defence has not been
[9]
(ii) judgment has not been entered in relation to the
[10]
(iii) the proceeding has not otherwise been disposed of in
[11]
(2) Also, a proceeding is taken to be struck out in relation to a party if
[12]
the party does not take a step in the proceeding before the end of
[13]
1 year after the day the last step was taken in the proceeding.
[14]
(3) For subrule (2), the filing in the court of a notice of intention to
[15]
proceed in relation to a proceeding is taken to be a step in the
[16]
(4) A proceeding is taken to be struck out under subrule (1) or (2) on
[17]
the day after the day the relevant 1-year period mentioned in the
[18]
The present action was commenced on 12 July 2004 against the first defendant. The plaintiff claimed damages in negligence for personal injury, principally fractures to the left forearm. The plaintiff asserts in the statement of claim that on 25 April 2003 he was at the first defendant's club with friends. Earlier in the evening he and his friends were approached by a group of aggressive men. At about 9.00 pm, club security staff directed the group of men to leave the premises. About half an hour later the plaintiff and his companions left the club. They saw the other group outside. Fearing attack, they tried to get back into the club but were refused entry by bouncers at the door. They were then attacked by the other group and the plaintiff was injured. The plaintiff claims that his injuries were caused as a result of a breach of a duty of care owed to him by the club.
The limitation period applicable to the action brought by the plaintiff under the Limitation Act 1985 was three years. The action was commenced well within that period.
In a defence filed in September 2004, the first defendant said that the security staff working at the club at the time were employees of another company, now the second defendant, and were not servants or agents of the first defendant. In the circumstances the first defendant denied that it was vicariously liable for the acts or omissions of the security staff.
The plaintiff sought and was granted leave to join the second defendant. An amended originating application and statement of claim was filed in November 2005. In January 2006 an appearance was entered on behalf of the second defendant, followed by a defence in May 2006. The second defendant admitted in the defence that it was engaged by the first defendant to provide personnel to undertake certain duties but generally denied everything else. At the same time, the second defendant filed a notice claiming indemnity or contribution from the first defendant.
In April 2007 the first defendant filed a notice claiming contribution or indemnity from the second defendant. The latter filed a defence to that claim the following month.
[19]
(1) A person whose proceeding has been struck out under rule 75 may
[20]
(2) The court may reinstate the proceeding if it is in the interests of
[21]
(3) For any time limit (including a limitation period), a proceeding that
[22]
is reinstated is taken to have started on the day the originating
[23]
process for the proceeding was filed in the court and is taken never
[24]
The application came before the Registrar on 26 May 2008. A solicitor appeared for the plaintiff and, I assume, mentioned the matter for the other parties. The Registrar made the order by consent.
In making such an order, the Court must be satisfied that it is in the interests of justice to reinstate the proceeding. It should not be assumed that the Court will necessarily exercise its discretion to do so simply because all parties consent to it.
Somewhat extraordinarily, no step was taken by any party during the next twelve months. On 27 May 2009, the proceeding was taken to have been struck out again. On 2 June 2009, the Registrar sent a further notice to that effect to each of the parties.
On 26 June 2009, the plaintiff's solicitors filed a further application for reinstatement, supported by an affidavit by Mr Gabbedy. He deposed that there had been activity in the matter between the solicitors. A settlement conference had been arranged, initially for 20 April and subsequently for 4 May 2009, but for various reasons the conference had not taken place. Mr Gabbedy further deposed as follows:
[25]
One of the difficulties experienced in progressing this matter has been quantification of the plaintiff's economic loss. The plaintiff is self-employed and has been involved in several partnerships. Full details and tax returns have been sought but not all have been provided to date.
[26]
Mr Gabbedy annexed to his affidavit a letter from the then solicitors for the second defendant dated 22 May 2009. The solicitors informed Mr Gabbedy that they had been acting for the second defendant on instructions from an insurance company, Trans Pacific Insurance Corporation. On 23 April 2009, the insurance company had been placed in provisional liquidation by Barrett J in the Supreme Court of New South Wales. The provisional liquidator had formed the view that the insurance company was insolvent and that its liabilities exceeded its assets. In the circumstances the second defendant was not in a position to participate in a settlement conference. The solicitors said that it was unclear whether they would continue to act for the second defendant.
On 27 July, a notice of change of solicitor was filed on behalf of the second defendant. The solicitor with the conduct of the matter at that firm swore an affidavit on 22 September saying that the firm had been instructed by a director of the second defendant, which was now without insurance. He deposed that the insurer, now in provisional liquidation, had until then dealt with the claim on behalf of the second defendant itself, and that the latter had had no direct involvement.
An affidavit was affirmed on the same date by the general manager of the first defendant, Mr Burrows. He had been general manager of the club since 1998. He had not been at the club at the time of the incident and thought he had probably heard about it three days after the event. He annexed to his affidavit an incident report form on the second defendant's stationery, completed by one Mick Walsh and naming Colin Mead as a witness. The incident had occurred at 9.30 pm on 25 April 2003 outside the club. Mr Walsh's handwritten report was as follows:
[27]
I asked some guys to leave the club because they were intoxicated. There was two groups. I said to one group you leave now. They said no, not until they leave so I said okay, you both can go now. They went outside and one guy pushed another. He fell. Then the guy went over and stomped on his head. He was unconscious. There was about ten guys onto three. I said to Colin come and help me. He just ignored me, stood inside, so I tried to stop the fight because it was all-in brawl. We called ambulance. The guy came around after a while. Ambulance took him away. Another guy got a broken arm. The police came and they said is everything okay? I said not really. I said I think we should close. Police said it's your call. I said it's all for the best so they spoke to DM and they decided to close for the best. I spoke to Ricky Dolliver. He said Mick it's ashamed we only had one guard tonight.
[28]
Mr Burrows deposes that Mr Walsh was an employee of the second defendant. Mr Dolliver was a senior duty manager employed by the club at the time. He worked for the first defendant from 2001 to 2005. He was not rostered on duty at the time of the incident, the duty manager on the night being one Tony Collins. Mr Collins had worked for the club for about six months during 2003. Mr Burrows has not seen him since then and had no contact details for him. He has no independent recollection of whether he ever discussed the incident with Mr Collins or Mr Dolliver although he thinks that he probably would have done so. He has no recollection of seeing any other incident report, or speaking to police about the incident.
He says that the club kept incident reports, completed by the duty manager. He cannot recall having seen such a report about the incident in question, and says that any such report would have been destroyed after five years.
He says that there were eight employees on duty at the club on the night of the incident. None are still employed by the club, six of the eight having left the club's employment by August 2004 (when the club was served with the originating process). The other two employees had left in 2006 or 2007.
The solicitor for the second defendant in his affidavit says that Mr Walsh left the second defendant's employment in about 2005 and that the second defendant has no information about his present whereabouts or contact details.
Mr Gabbedy put on a further affidavit on 19 October, annexing a letter his firm had written to the first defendant on 5 February 2004, giving notice of intention to make a claim for damages on behalf of the plaintiff. The letter gave a brief description of the incident and mentioned that the firm was instructed that it had been the third incident on the same day at the club requiring police attendance and that, following the incident, the club had been closed by an attending sergeant. Mr Gabbedy also summarised in the affidavit information about the plaintiff's present condition, given to him by the plaintiff's wife.
On 15 October 2009, the liquidator of Trans Pacific Insurance Corporation reported at length to the creditors of the company. He expressed the preliminary view, which he described as speculative, that creditors could expect an eventual dividend within a range of 19 to 33 cents in the dollar. I infer that the liquidator will not be playing a part in the litigation, or making any contribution from funds available to him towards the second defendant's costs.
[29]
(2A) A proceeding that has been dismissed under r 75(2) is reinstated if, before the end of 1 year after the day the proceeding is dismissed, a party to the proceeding files a document in the proceeding.
[30]
(2B) The party filing the document must serve a copy of the document on each other active party to the proceeding not later than 3 days after the day the document is filed.
[31]
For the purpose of r 76, the date of dismissal of the present action is 27 May 2009. If the plaintiff had done nothing since that date, it would remain open to the plaintiff to reinstate the action by filing a document before 27 May 2010. This application would have become unnecessary.
There is an issue as to whether the amendments to r 76 operate retrospectively. If they do, then it follows that the application was reinstated when the plaintiff's solicitors filed their application on 26 June 2009. If not, it is necessary for the solicitors for the plaintiff to file another document after 1 January 2010 to achieve reinstatement. A notice of intention to proceed would be enough to achieve this outcome - see r 75(3). It seems to me in practical terms unnecessary to make a decision about the issue of retrospective operation of the amendments. Whilst such a decision is strictly necessary to determine the present application on the material and the submissions before me, it is in practical terms unnecessary because the plaintiff can and presumably will file a notice of intention to proceed or some other document well before 27 May 2010, with the effect of reinstating the action regardless of my decision.
In the unlikely event that the plaintiff takes no further steps prior to 27 May 2010, but subsequently instructs his solicitors to seek reinstatement, it should remain open to the plaintiff to pursue this application and for that purpose I propose to stand it over generally with liberty to restore. It need scarcely be said that by then the plaintiff's task will have become an extremely difficult one.
The plaintiff approached the Court seeking an indulgence, by a path which was required as the rules then stood. His prospects of success could not have been described as strong. The defendants were clearly entitled to oppose the application as vigorously as they did. The plaintiff should pay the costs of both defendants of the application to date.
[32]
I certify that the preceding thirty-one (31) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.
[33]
Solicitors for the first defendant: Meyer Vandenberg
[34]
Solicitors for the second defendant: Slater & Gordon
Parties
Applicant/Plaintiff:
Hay
Respondent/Defendant:
Belconnen Magpies Sports Club and WS Gregory & Associates Pty Limited [2010] ACTSC 1
Legislation Cited (4)
Procedures Rules 2006
Court Procedures Amendment Rules 2009
Procedures Rules 2006
Court Procedures Amendment Rules 2009
AI Analysis
Outcomeprocedural
Disposition:
The plaintiff's application dated 26 June 2009 was stood over generally with liberty to any party to restore it to the list on seven days' notice; the plaintiff was ordered to pay the defendants' costs of the application to date (Order, Reasons [31] and final Orders).
No further documents were filed by any of the parties until, on 6 May 2008, the Registrar sent a notice to each of them. The notice stated that pursuant to r 75(2), the proceeding was taken to have been struck out on 3 May 2008. At that time, the last document filed on behalf of the plaintiff remained the amended originating application and statement of claim, filed on 22 November 2005. Steps had been taken by other parties at intervals since then. It appears to me that the Registrar interpreted the subrule correctly and that the action was indeed taken to have been struck out in relation to each of the parties on 3 May 2008. It is clear that if a notice of intention to proceed had been filed by any party on or before 2 May 2008, the action would not have been taken to be struck out under the rule. Time would have started to run again from the date of the filing of such a notice.
It should be noted that there is no requirement for the Registrar to notify the parties that an action is taken to have been struck out. The practice adopted by the Registrar in doing so is a helpful one, but the giving of notice is strictly unnecessary.
On 13 May 2008 the plaintiff's solicitors made an application under r 76 for an order that the proceeding be reinstated. The application was supported by an affidavit by Mr Gabbedy, the solicitor having the conduct of the matter. The affidavit was very brief and would not have been adequate, in my view, as an explanation for the delay in prosecuting the action if the application had fallen for determination on its merits.
At the time r 76 provided as follows:
Reinstating struck out proceeding
After directions in relation to the filing of affidavits, the application came before me for hearing on 23 October. Counsel for the plaintiff submitted that the interests of justice favoured the reinstatement of the action. Counsel for each of the defendants submitted that there was evidence of actual prejudice to their clients if the action was permitted to proceed.
The principles applicable to an application for reinstatement under r 76, as it then stood, were expounded by Buchanan J in Equuscorp Pty Ltd v Lah[2009] ACTSC 113 (7 September 2009, unreported). Buchanan J, on the facts of that matter, ordered, subject to undertakings given by the plaintiff, that the action be reinstated. Without going into the issues in detail, it seems to me that the application of the principles, as they emerge from his Honour's reasons, would almost certainly have obliged me to refuse the plaintiff's application for reinstatement in the present case.
However, after the conclusion of the hearing of the application but before I arrived at a decision, the Court Procedures Rules were amended: Court Procedures Amendment Rules 2009 (No 3). Rr 75 and 76 were amended by substituting the word "dismissed" for the words "struck out" wherever appearing, and by adding two subrules to r 76. The amendments came into operation on 1 January 2010. The subrules provide: