LEIGHTON -v- GARNHAM [No 4] [2016] WASC 134 (29 April 2016)

3 The plaintiff filed and served the writ on 10 April 2012 and their statement of claim on 8 May 2012. On 25 May 2012 the third defendant applied to strike out parts of the plaintiff's statement of claim and the first and second defendants also applied to strike out parts of the statement of claim on 28 May 2012. On 29 May 2012 I made orders by consent that the filing of the defendants' defences was to be postponed until after the hearing of the strike out applications.

4 The plaintiff filed an amended statement of claim on 18 June 2012. The defendants' strike out applications were heard on 2 August 2012 and on 4 September 2012 I handed down judgment striking out parts of the amended statement of claim and granting leave for the plaintiff to file and serve a reamended statement of claim by 18 September 2012. The reamended statement of claim was filed and served on 18 September 2012. The plaintiff then filed a further reamended statement of claim without leave on 25 September 2012.

5 Pursuant to orders made on 27 September 2012 the third defendant's defence was filed on 16 October 2012 and the first and second defendants defence was filed on 25 October 2012. On 7 November I made orders by consent requiring that by 21 November the plaintiff either file and serve an application to strike out parts of the first and second defendants defence or an amended defence was to be filed. I also ordered that by 14 November 2012 the third defendants file and serve an amended defence to which the plaintiffs were to either reply to, or apply to strike out, by 21 November 2012. The third defendants amended defence was filed on 20 November 2012.

6 On 3 December I made orders by consent requiring that by 21 December the plaintiff either file and serve an application to strike out parts of the first and second defendants defence or an amended defence was to be filed and that by 12 December 2012 the third defendants file and serve reamended defence to which the plaintiffs were to either reply to, or apply to strike out by 11 January 2013. The third defendant's reamended defence was filed on 12 December 2012.

7 On 16 January 2013 I made orders by consent that the third defendants were to file and serve a further re-amended defence by 22 January 2013 and that by 5 February 2013 the plaintiff either file and serve a reply or file and serve an application to strike out in part the further reamended defence. The further re-amended defence was filed and served on 22 January 2013. I made orders referring the case to mediation.

8 On 12 February 2013 I made orders by consent for a special appointment to hear the plaintiff's application to strike out the third defendant's further reamended defence. On 14 February 2013 I made orders that the special appointment be listed for 1 March 2013. On 25 February 2013 after the plaintiff foreshadowed the possibility that the mediation might resolve the issues to be argued at the special appointment, orders were made adjourning the special appointment to a date to be fixed. On 21 May 2013 I made orders by consent that the third defendant file and serve any amendments to the further reamended defence of 22 January 2013 by 31 May 2013. The third defendant filed and served the further further reamended defence on 28 May 2013.

9 The matter came before me on 6 June 2013 for directions where I ordered that by 19 June 2013 the first and second defendants file and serve any amended defence and that the plaintiff's strike out application be listed for a special appointment not before 5 July 2013. The first and second defendants' amended defence was filed on 19 June 2013. On 24 June 2013 I made orders by consent that by 12 July 2013 the Plaintiff either file or serve a reply to the amended defence, or an application to strike it out in part and that the time for the plaintiffs to file and serve submissions in support of its application to strike out parts of the third defendants further further reamended defence was extended from 21 June 2013 to 28 June 2013.

10 The third defendants filed and served a minute of proposed consolidated further reamended defence on 12 July 2013. On 23 July 2013 the first and second defendant's filed and served requests for further and better particulars of the plaintiff's further reamended statement of claim. The plaintiff answered that request on 2 August 2013.

11 The plaintiff's strike out application against the third defendant's minute of proposed consolidated further further reamended defence was heard on 9 August 2013. On 6 September 2013 I handed down my decision on the plaintiff's strike out application against parts of the third defendant's minute of proposed consolidated further reamended defence. I ordered that 16 paragraphs of the third defendant's consolidated further reamended defence filed 12 July 2013 be struck out with leave to replead. The third defendant was given until 25 October 2013 to amend her pleading. The third defendant filed and served her minute of proposed consolidated further reamended defence on 25 October 2013.

12 The first and second defendants had filed and served a reamended defence on 20 August 2013. On 8 November 2013 I heard the plaintiff's strike out application against the first and second defendant's reamended defence. In an extempore judgment I decided paragraphs 18A and 18AB of the first and second defendants' reamended defence be struck out and the first and second defendants file a substituted defence within 21 days of the written reasons for decision being delivered. I delivered my reasons on 11 February 2014. On 4 March 2014 the first and second defendants filed and served a minute of further reamended defence and the third defendant filed and served a minute of proposed further further reamended defence. On 23 May 2014 I made orders by consent that the third defendant be given leave to file and serve a defence in terms of the minute of proposed further further reamended defence dated 4 March 2014 and that the plaintiff file and serve any reply by 4 June 2014. The third defendant filed and served the further further reamended defence on 26 May 2014. The reply was never filed.

13 On 8 October 2014 the first and second defendants' solicitors served upon the plaintiff a notice pursuant to O 26 r 1 of the Rules of the Supreme Court 1971 (WA) (rules) to give discovery of documents. The plaintiff's solicitors objected to the discovery in a letter of 16 October 2014 on the basis that discovery should be given in categories and not generally and requested that the first and second defendants withdraw their O 26 r 1 notice. On 22 October 2014 the solicitors for the third defendant served upon the plaintiff a notice pursuant to O 26 r 1 of the rules to give discovery of documents. The plaintiff's solicitors replied on 24 October 2014 again objecting to general discovery, proposing discovery in categories and requesting that the third defendants withdraw their O 26 r 1 notice. The third defendant's solicitors resisted this approach in a letter on 31 October 2014. The plaintiff's solicitors responded on 11 November 2014 again asking for categories of discovery. Due to the breadth and depth of the issues, intervening holidays and unavailability of counsel the third defendant's solicitor's response was sent on 25 March 2015 which noted the absence of the plaintiff's reply, disputed three of the categories proposed by the plaintiff and also suggested proposed categories of discovery. There was no further correspondence in relation to discovery, nor did any party take any step to resolve or progress the action.

14 On 9 July 2015, over one year after the third defendant had filed and served her further further reamended defence, I caused a summons to be issued to inquire whether there was any reason why the matter should not be put on the Inactive Cases List. The summons listed the matter to be heard on 28 July 2015. On 24 July 2015, the solicitors on the record for the plaintiff, Bennett & Co, terminated their retainer due to the plaintiff having an outstanding debt of $97,653.47. The letter of termination also explained that due to the outstanding costs Bennett & Co had been unable to substantively progress the claim since February 2014. The letter also noted a payment of $40,000 on 23 April 2015. On 27 July 2015 the plaintiff filed a notice of intention to act in person. At the directions hearing on 28 July 2015 in the presence of all the parties I made orders that the matter be put on the Inactive Cases List. I also stated the following to the plaintiff:

LE MIERE J: Yes. All right. Mr Leighton, what I'm going to do is to make an order that the matter be placed on the inactive cases list. What that means is that no step can be taken in the action whilst the action remains on the inactive cases list, and if nothing - if the case remains on the inactive cases list for six months, at the end of that six month period the action will be dismissed.

If you are able, in the two or three months that you've referred to, to be in a position where you can proceed with the action, you may apply to the court to take the matter off the inactive cases list. Whether the - if you make such an application, the court would have to deal with it and exercise its discretion on the circumstances as they were at the time of your application.

But amongst other things, you would have to satisfy the court that you were then in a position to proceed with the action, and to set out the steps that you are going to take to bring the matter to a trial within the reasonably foreseeable future and the steps you're going to take to do that. All right.

LEIGHTON, MR: Thank you

LE MIERE J: So the matter is placed on the inactive cases list (ts 48-49).

15 Order 4A r 25(1) of the rules provides that when an order is made putting a case on the Inactive Cases List the Principal Registrar must put the case on the Inactive Cases List. The matter was placed on the Inactive Cases List by the Principal Registrar on 28 July 2015. The rule also states that the Principal Registrar must give all parties to the case written notice that the case is on the Inactive Cases List and the effect of O 4A r 26. That power has been delegated to the associates of the judges of this court. Notice was not immediately given in this matter.

16 The third defendant's solicitors called my associate on 24 February 2016 inquiring whether the matter had been dismissed for want of prosecution under O 4A r 28(1) of the rules. It was then discovered that notice had not been given as required by O 4A r 25(1) of the rules. I then caused notice to be given by my associate, as the Principal Registrar's delegate, in a letter sent on 24 February 2016. On 1 March 2016 the third defendant sent a letter to the court seeking orders dismissing the action and ordering the plaintiff to pay each of the defendants' costs of this action, on a partyparty basis, to be taxed if not agreed, with such costs to include all reserved costs and costs ordered to be in the cause and to be set off against any costs orders made in favour of the plaintiff which have not been paid by the respective defendant.

17 On 16 March 2016 I told the parties to prepare a minute of proposed orders to be served on the plaintiff and listed the matter for a special appointment to be heard on 29 March 2016. On 17 March 2016 I also informed the parties that it was open to them to apply to have the matter dismissed for want of prosecution. On 18 March 2016 the first and second defendants filed a chamber summons and supporting affidavit for an order that the matter be dismissed for want of prosecution. The third defendant filed her own chamber summons and affidavit for an application to have the matter dismissed for want of prosecution on 22 March 2016.

18 On 24 March 2016 Lavan Legal informed the court that they had been engaged by the plaintiff to act in the matter. The parties agreed to adjourn the matter to 1 April 2016. On 30 March 2016 the plaintiff served a copy of an affidavit of the plaintiff, Mr Leighton, sworn on 30 March 2016 on the defendants which was sent to the court by the third defendant. The plaintiff filed an outline of submissions on 31 March 2016.

19 The hearing on 1 April 2016 proceeded on the basis that there were two applications before the court. First, the defendants sought an order under O 4A r 28(4) that the plaintiff pay the defendants' costs of the action on the basis that the action is taken to have been dismissed for want of prosecution pursuant to O 4A r 28(1). Secondly, in the alternative, the defendants sought an order that the court dismiss the action for want of prosecution.

20 The first and second defendants read the affidavit of their solicitor, Mr Hotchkin, sworn on 18 March 2016. The third defendant read an affidavit of the third defendant, Ms Genovese, sworn 22 March 2016. The plaintiff read Mr Leighton's first affidavit of 30 March 2016.

21 At that hearing it was put by counsel for the second and third defendants, Mr Hotchkin, that the affidavit of Mr Leighton was insufficient to satisfy the court that Mr Leighton was in a position to proceed with the action and therefore it should be dismissed for want of prosecution. Counsel for the plaintiff, Mr McQueen, then applied to adjourn the hearing so that further evidence could be put on by affidavit. The application was opposed, but in the interests of justice I adjourned the defendants' application that the action be dismissed for want of prosecution. I proceeded to hear the defendants' application for costs under O 4A r 28(4). The defendants' application that the action be dismissed for want of prosecution was adjourned to 15 April 2016.

Defendants say case is taken to have been dismissed under O 4A r 28(1)

22 The Principal Registrar put the case on the Inactive Cases List on 28 July 2015. Order 4A r 28(1) provides that a case that is on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution. The defendants submit that the case has been on the Inactive Cases List for six months and therefore is taken to have been dismissed for want of prosecution. O 4A r 25(1)(b) provides, in effect, that when an order is made that a case be put on the Inactive Cases List the Principal Registrar must put the case on the Inactive Cases List and give all parties written notice that the case is on the List and of the effect of r 26. When the Principal Registrar put the case on the Inactive Cases List he did not give the parties written notice that the case was on the List and of the effect of r 26. The plaintiff submits that on the proper construction of O 4A div 5 the Principal Registrar giving notice that the case is on the Inactive Cases List is a precondition to the case being taken to have been dismissed under O 4A r 28(1). The plaintiff relies upon my decision to that effect in Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58 (Timcal). Therefore, the plaintiff says O 4A r 28(1) does not apply and the case is not to be taken to have been dismissed for want of prosecution.

23 The defendants submit that the court giving notice under O 4A r 25(1) is not a precondition to the operation of O 4A r 28(1). The defendants submit that the failure of the Principal Registrar to give notice under r 25 is an irregularity which does not nullify the deemed dismissal under r 28. The defendants submit that my decision in Timcal that notice under O 4A r 25(1) is a precondition to the operation of O 4A r 28(1) is wrong and should not be followed.

Prior decision should be followed unless plainly wrong

24 All of the parties agreed that, on the question of construction of O 4A div 5, I must following Timcal unless I conclude that my view in that case was plainly wrong. There is considerable authority supporting the approach that judges should follow other decisions of single judges of coordinate jurisdiction unless those decisions are plainly wrong. If the duty of a later court to follow an earlier decision is founded only on principles of comity and mutual respect between judges there would be no reason for me to follow my decision in Timcal or indeed to place any weight upon my earlier decision beyond the strength of the reasoning in the decision. However, the duty of a court to follow an earlier decision of the court is founded on public policy considerations and in particular the need for consistency in the application of laws. That consideration is particularly important in respect of the interpretation of the rules of this court.

25 Uniformity of judicial decisions in matters arising under the rules is obviously important so that similar facts will yield similar and predictable outcomes. A judge should be slow to depart from the decisions of a single judge, including a previous decision of the same judge, in relation to the interpretation of the rules unless the judge is convinced that the interpretation is plainly wrong. It is undesirable that there be conflicting decisions, even of single judges, upon a point of interpretation of the rules.

26 In BHP Billiton Iron Ore Pty Ltd v National Competition Council [2007] FCAFC 157; (2007) 162 FCR 234 (BHP Billiton) the Full Federal Court considered the difference between a previous decision that it considered to be wrong and one which could be classed as plainly wrong. The reason for performing this exercise is that the High Court has told lower courts that they should follow the decision of intermediate courts of appeal in Australia unless the decision is plainly wrong: Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485. However, the same, or similar considerations apply to the consideration by a single judge of whether a previous decision of a single judge of the court, including the same judge, is plainly wrong. In BHP Billiton Greenwood J, with whom Sunberg J agreed, said:

The circumstances in which a judge in the exercise of the Court's original jurisdiction might find a decision of a single judge of the Court to be 'plainly wrong' should be approached with real and deliberative caution and would generally involve that class of case where for one reason or another there is transparent error such as the consideration of an incorrect statutory instrument in the resolution of the controversy; consideration of a provision of a statute in a form not enacted at the relevant date of the events or a failure to consider a provision of an Act relevant to the disposition of the cause, thus causing the analysis to fall into error; a failure to apply having regard to the issues raised by the controversy, a binding decision of a Full Court of this Court or the High Court; a failure to apply a decision of a Full Court of this Court, an intermediate Court of Appeal of another jurisdiction or an authority of the High Court expressing a clear persuasive emphasis of opinion in favour of a particular conclusion (particularly concerning legislation of the Commonwealth Parliament); or some other circumstance that has caused a dispositive adjudication of the controversy to miscarry.

That minds might differ on a question is not a foundation for a conclusion that a decision supported by exposed reasons for judgment after full argument, is plainly wrong.

The difficulty however lies in preserving that degree of important flexibility necessary to enable a judge to do justice between the parties to a controversy inherent in a dispositive adjudication of that controversy when a judge is persuaded that an earlier authority is wrong (apart from illustrations of the kind above) balanced with the importance of consistency and certainty in the administration of the law. The question is always a matter of careful judgment.

The circumstances which might properly lead to a departure from an earlier authority will necessarily vary according to the content of the case and the issues and therefore no prescriptive rules ought to be formulated. However, the point of equilibrium in that balance might be reached by recognising the required emphasis necessary in concluding that an earlier authority is 'plainly wrong' or 'clearly wrong'. In cases where a party advised and represented by experienced senior counsel properly discharging the duty owed to the Court urges upon the Court the merits of the reasoning of the authority in the resolution of the immediate case, it would be difficult to conclude that the authority is 'plainly wrong' notwithstanding that a judge might reach an entirely different view of the proper construction of the provision against the background of the facts found and thus conclude that the early authority is wrongly decided. There is a distinction between concluding a decision is wrongly decided and a conclusion that an earlier authority is "plainly wrong" and thus ought not to be applied and followed [83] - [86].

27 In SSZEEU v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCAFC 2; (2006) 150 FCR 214 Weinberg J, with whom Allsop J agreed on this point, said that the word 'plainly' does more than simply add emphasis; it suggests that the error must be manifest or, if it does not rise to that level, at least capable of being easily demonstrated. His Honour said:

In a sense, the error must be so clear as to enable a later court to say that the point is not reasonably arguable.

28 In Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504 Allsop J, Beazley and Basten JJA after observing that on a number of occasions the expressions 'plainly' or 'clearly' wrong have been used, said that those adverbs do not limit the circumstances of departure to those in which error is patent or obvious or easily perceived; rather they bespeak the quality of the error or the level of conviction of error that must be perceived. Their Honours said at [294] and [295] that in order for an intermediate appellate court to depart from a previous decision, the later court must have a strong conviction that the earlier judgment was erroneous, not merely that the earlier court exercised an approach which was open to it but was no longer to be preferred, and the nature of the error can be clearly demonstrated. In my opinion a similar approach should be taken by a judge who is asked to depart from a previous decision by the same judge on a question of the interpretation of a rule of the court. The judge should only depart from his previous decision if he has a strong conviction that the earlier decision was wrong, not merely that the earlier decision was based on an approach which was open to it but which was no longer to be preferred.

29 In Timcal I made two relevant decisions concerning the interpretation of O 4A div 5. The first is that the reference in O 4A r 25 to r 26 is a printing or drafting error and the reference should be to r 28. The second is that the Principal Registrar giving the notice required by O 4A r 25(1)(b) is a condition precedent to the case being taken to have been dismissed for want of prosecution pursuant to O 4A r 28(1). For the reasons which follow my finding in Timcal that the reference in O 4A r 25 to r 26 is a printing or drafting error and the reference should be to r 28 is plainly wrong and should not be followed. On the other hand my finding that the Principal Registrar giving the parties the notice provided for in O 4A r 25(1)(b) is a condition precedent to the case being taken to have been dismissed for want of prosecution under O 4A r 28(1) is not plainly wrong and should be followed.

Reference to r 26 in O 4A r 25(1) is not an error

30 In Timcal the parties submitted that there was no relevant difference between O 4A div 5, which includes r 25, r 26 and r 28, and the corresponding old rules in O 29A. It was accepted by the parties that the reference to r 26 in O 4A r 25(2)(b) should be read as a reference to r 28. I accepted the parties' view based upon the history of the rules. To explain that assumption it is necessary to refer to the history of the rules relating to the Inactive Cases List.

31 The Inactive Cases List was created by the Supreme Court Amendment Rules 2007 (WA) which inserted into O 29A a new pt 4 - Inactive Cases List, which included the following rules:

1. Parties to be notified of case being on Inactive Cases List and to advise clients

(1) When an order is made under rule 17, or an order made under rule 18 takes effect, the Principal Registrar must -

(a) put the case on the Inactive Cases List; and

(b) give all parties to the case written notice that the case is on the Inactive Cases List.

(2) As soon as practicable after being notified under subrule (1), the solicitor for a party to the case must notify the party -

(a) of the fact that the case has been put on the Inactive Cases List and why; and

(b) the effect of rule 21.

1. Consequences of a case being on Inactive Cases List

(1) If a case is on the Inactive Cases List, no document in relation to the case, other than a summons for an order under subrule (2) can be filed in the Court.

(2) Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be removed from the Inactive Cases List.

(3) An order that a case be removed from the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.

1. Cases on Inactive Cases List for 6 months to be taken to have been dismissed

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

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

32 The Supreme Court Amendment Rules 2010 (WA) inserted a new O 4A - Case Management. Order 29A was deleted. Much of the content and substance of O 29A pt 4 was reworked as O 4A div 5. It is convenient to set out r 25 to r 28 of O 4A div 5:

1. Parties to be notified of case being on Inactive Cases List and to advise clients

(1) When an order is made under rule 22(4), or an order made under rule 23(1) takes effect, or a case is taken to be inactive under rule 24, the Principal Registrar must -

(a) put the case on the Inactive Cases List; and

(b) give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rule 26.

(2) As soon as practicable after being notified under subrule (1), the practitioner for a party to the case must notify the party of -

(a) the fact that the case is on the Inactive Cases List and why; and

(b) the effect of rule 26.

1. Consequences of case being on Inactive Cases List

(1) If a case is on the Inactive Cases List, only these documents may be filed in the Court in relation to the case -

(a) a summons for an order under rule 27(1);

(b) a notice of discontinuance by the plaintiff under Order 23 rule 2;

(c) an application for leave made by the plaintiff or the defendant under Order 23 rule 2;

(d) a written consent under Order 43 rule 16 to the making of an order that would finally dispose of the case.

(2) If the plaintiff or defendant in a case on the Inactive Cases List files an application for leave under Order 23 rule 2, the Court may grant leave under that rule even though the case has not been removed from that list.

(3) If a written consent is filed under Order 43 rule 16 to the making of an order in a case on the Inactive Cases List that would finally dispose of the case, the Court may make the order even though the case has not been removed from that list.

(1) Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List.

(2) The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason.

(3) An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way.

1. Certain inactive cases to be taken to have been dismissed

(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 no procedural step (except an application to dismiss the case for want of prosecution) is taken in the 6 months after the date on which a case is ordered to be taken off the Inactive Cases List, the case is taken to have been dismissed for want of prosecution.

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

(4) Notwithstanding a case is dismissed under subrule (1) or (2) -

(a) any party to the case may apply for an order for costs; and

(b) the Court may make an order as to costs.

33 Rule 25 substantially reproduced O 29A r 19 with two significant differences. First, r 25(1)(b) provided that the Principal Registrar must, as well as putting the case on the Inactive Cases List and giving all parties to the case written notice that the case is on the List, give all parties written notice of the effect of r 26. Secondly, where O 29A r 19(2)(b) requires the practitioner for a party to notify the party of the effect of r 21, O 4A r 25 requires the practitioner to notify the party of the effect of r 26. Order 4A r 26 corresponds to O 29 r 20 not O 29A r 21. Order 4A r 26 expanded upon the corresponding old rule, O 29A r 20. O 4A r 27 was a new rule dealing with removing cases from the Inactive Cases List, which was dealt with under O 29A r 20(2) and (3) in the old rules. Order 4A r 28 corresponded to the old rule O 29A r 21 but expanded upon that rule.

34 In Timcal I found that the reference in O 4A r 25 to r 26 is a printing or drafting error and the reference should be to r 28. It was accepted by all parties that the reference to r 26 in O 4A r 25(2)(b) should be read as a reference to r 28 and hence the question was not argued and fully considered. In this case the defendants submit that it is incorrect to read the reference to r 28 in O 4A r 25 as a reference to r 28.

35 If it is obvious that a simple mistake in the form of a printing or a drafting error has been made in the text of legislation, the courts will read the legislation in its correct form. For example, in Lindner v Wright (1976) 14 ALR 105 a crossreference in a section of an Act to subsection (3) should have been to subsection (4). Muirhead J read it accordingly. There is reason in the history of the provision to consider that the reference to r 26 in O 4Ar 25(1)(b) should have been to r 28, but it is not obvious that a simple mistake has been made in crossreferencing the rules. Order 29A r 19(1) required that the Principal Registrar give the parties written notice that the case is on the Inactive Cases List but there was no requirement for the Principal Registrar to give notice of the effect of r 20 or r 21. Order 29A r 19(2)(b) required the solicitor for a party to notify the party of the effect of r 21, which corresponds to O 4A r 28. However, reading the reference to r 26 in O 4A r 25(1)(b) as a correct crossreference is not meaningless, illogical or absurd. Rule 26 sets out the consequences of a case being on the Inactive Cases List whereas r 28 deals with the consequences of a case remaining on the List for six continuous months. It is not meaningless, illogical or absurd that the Principal Registrar should notify the party of the consequences of the case being on the Inactive Cases List. The court cannot assume a mistake in the drafting or printing of the rule: see RACQ Insurance Pty Ltd v Minister for Transport (1990) 2 QdR 316, 321 (Ryan J); Richards v McBride (1881) 8 QBD 119, 123.

36 Having found that the reference to r 26 in O 4A r 25 should be read as a reference to r 26 and not to r 28, it is necessary to consider the effect of a failure of the Principal Registrar, or his delegate, to give to the plaintiff written notice that the case is on the Inactive Cases List and of the effect of r 26.

Does compliance with r 25(1)(b) condition r 28(1)?

37 While the Judges may be taken to have intended that the Principal Registrar would give all parties notice that the case is on the Inactive Cases List and of the effect of r 26, it does not follow that it was their intention that compliance with those steps conditions the case being taken to have been dismissed for want of prosecution pursuant to r 28. The consequence of a failure to comply with r 25(1)(b) is a question of construction.

38 In Timcal I found that compliance with r 25(1)(b) conditioned the case being taken to have been dismissed pursuant to r 28 for four reasons. First, r 25(1) states that the Principal Registrar 'must' give the parties notice that the case is on the Inactive Cases List and of the effect of r 26. The imperative language is an indication that the giving of notice is obligatory in the sense that it conditions the deemed dismissal by r 28 taking effect. Secondly, the subject matter of r 28 is the dismissal of the action for want of prosecution. That is a serious matter and may have serious consequences for the plaintiff. For example, the plaintiff may not be able to commence a new action because his cause of action might be statute barred. The object of O 4A r 25(1)(b) is that the parties receive notice that the case is on the Inactive Cases List so that they have an opportunity to apply for an order that the case be taken off the List and thereby avoid the action being taken to have been dismissed pursuant to r 28. A case may be put on the Inactive Cases List after a judge, master or registrar has made an interlocutory order or case management direction that unless the interlocutory order or direction is complied with by a date stated in the order the case is to be put on the Inactive Cases List. A case may be put on the Inactive Cases List in circumstances where the plaintiff does not know that it has been put on the List. The plaintiff may not be aware of an order having been made or, in the case of a springing order, that a purported compliance with a springing order is not compliance. Thirdly, the objective of O 4A r 25 is twofold. First, the Principal Registrar must give the parties notice that the case is on the List and of the effect of r 26. Where a party is represented by a solicitor the notice will be given to the solicitor. Secondly, r 25(2) provides that after receiving the notice from the court under r 25(1)(b) the practitioner for a party must notify the party that the case has been put on the Inactive Cases List and the effect of r 26. That gives the party the opportunity to take appropriate action if the practitioner has not done so because the practitioner has not received instructions or for any other reason. Fourthly, to hold that the giving of notice under r 25 does not condition a case that is on the Inactive Cases List for six months being taken to have be dismissed under r 28 may have harsh consequences. It may result in the action being dismissed and the plaintiff being unable to commence a new action.

39 The defendants accept that the first three reasons are relevant, although not determinative, but challenge, or at least qualify, the fourth reason. Counsel for the first and second defendants, Mr Hotchkin, submitted that if the effect of the Principal Registrar failing to give notice under r 25 is that the plaintiff does not receive notice that the case has been put on the Inactive Cases List and subsequently the action is taken to have been dismissed for want of prosecution, the court has power to correct any resulting injustice. Mr Hotchkin submitted that if any injustice has been suffered by a plaintiff who did not receive the required notice, the court may set aside the deemed dismissal in its inherent jurisdiction. In Monaco v Arnedo Pty Ltd (1994) 13 WAR 522 Malcolm CJ, with whom Kennedy J agreed, said:

[I]f an order of the court is made or not made which turns out to be incorrect as a result of the inadvertence of counsel or, I would add, a mistake being made by a judge which is not corrected by counsel, there is an inherent jurisdiction, quite apart from the slip rule, to rectify the orders to avoid injustice (524).

A case where a party seeks to set aside a deemed dismissal under O 4A r 28 is distinguishable from Monaco v Arnedo Pty Ltd and the cases referred to by the former Chief Justice. In the former case the dismissal of the case occurs by operation of the rules and not, as in the latter cases, by reason of a decision of the court. Nevertheless, the court may have power, in its inherent jurisdiction, to set aside a judgment in favour of a defendant entered pursuant to O 4A r 28 in circumstances where the Principal Registrar, or the Principal Registrar's delegate, did not give the plaintiff the notice required by O 4A r 25(1)(b) and the plaintiff did not know that the case was on the Inactive Cases List before judgment was entered against him or her.

40 In support of the contention that compliance with O 4A r 25(1)(b) is not a condition precedent to a case being taken to be dismissed under r 28 the defendants advanced arguments based on the structure of O 4A div 5 and the text of r 28 that were not put to the court in Timcal. The structure of O 4A div 5 involves, amongst others, the following steps. First, an order is made that a case be put on the Inactive Cases List or a springing order is not complied with that causes the case to be put on the List. Secondly the Principal Registrar puts the case on the List. Thirdly, the Principal Registrar gives the parties notice that the case has been put on the List and of the effect of r 26. Fourthly, if a party is represented by a practitioner, the practitioner notifies the party that the case is on the Inactive Cases List and the effect of r 26. Fifthly, if a case remains on the List for six continuous months it is taken to have been dismissed for want of prosecution. Rule 28 provides that a case is taken to be dismissed six months after it was placed on the Inactive Cases List not six months after giving of notice by the Principal Registrar. There is no direct connection between the deemed dismissal under r 28 and the giving of notice under r 25. Hence, there is no grounding in the structure of O 24A div 5 or the text of r 28 for conditioning the deemed dismissal on the giving of notice under r 25. The deemed dismissal takes effect upon a case being put on the List and remaining on the List for six months, not upon the Principal Registrar giving the requisite notice or the party's practitioner giving the requisite notice. Furthermore, r 28 does not specify that it is subject to r 25 having been complied with.

41 Mr Hotchkin also submitted that whilst r 25 uses the mandatory word 'must' it does not specify a date by which the Principal Registrar must give notice. The absence of a specified date means that a notice could properly be given later, arguably even the day before the expiry of six months. That militates against a finding that the giving of notice conditions the deemed dismissal under r 28. Rule 25(1) is to be contrasted with the subrule (2) which provides that the practitioner for a party must notify the party that the case is on the List and of the effect of r 26 'as soon as practicable'. I do not accept that no date is specified in r 25(1)(b) or that a notice could properly be given at any time before the expiry of six months after the case was put on the Inactive Cases List. The proper construction of r 25(1)(a) and (b) is that the Principal Registrar must put the case on the Inactive Cases List and give the parties notice that the case is on the List and of the effect of r 26 'when an order is made under r 22(4) or an order made under r 23(1) takes effect or a case is taken to be inactive under r 24'. The Principal Registrar must give the required notice at the time, or immediately after, he puts the case on the Inactive Cases List.

42 Counsel for the third defendant, Dr Schoombee, further argued that if compliance with r 25 does condition a case being taken to be dismissed under r 28, substantial compliance is sufficient and there was substantial compliance in this case. Dr Schoombee relied on Minister for Immigration and Citizenship v SZIZO [2009] HCA 37; (2009) 238 CLR 627.

43 The arguments that a case being taken to be dismissed under r 28 is not conditioned by the giving of notice under r 25(1)(b) have merit. In particular, I consider that there is some force in the defendants' submissions based on the structure of O 4A div 5 and the text of r 28(1). The construction I gave to O 4A r 25 and r 28 in Timcal is one which I may not have adopted in the absence of that judgment. However, notwithstanding that reservation, I am unable to reach the point of conviction that that decision is clearly, or plainly, wrong.

44 The Principal Registrar, or his delegate, did not give notice to the plaintiff that the case had put the case on the Inactive Cases List when he put the case on the List. The Principal Registrar's delegate did not give notice until 24 February 2016. The case has not been on the Inactive Cases List for six months since then. It follows that the case is not taken to have been dismissed for want of prosecution pursuant to O 4A r 28(1).

Application to dismiss action for want of prosecution in inherent jurisdiction

45 The defendants alternatively seek an order that the action be dismissed for want of prosecution in the court's inherent jurisdiction. The plaintiff accepts that the court retains its inherent jurisdiction to dismiss the action for want of prosecution notwithstanding O 4A div 5 but says that in the exercise of its discretion the court should not order the case to be dismissed for want of prosecution.

46 The power to dismiss a proceeding for want of prosecution is an aspect of the court's inherent jurisdiction to regulate its own proceedings and to ensure the proper administration of justice. It is proper to exercise the power not only where it is necessary to do so, but also to promote convenience, expedition and efficiency in the administration of justice. It is necessary to consider the circumstances disclosed by the evidence.

47 On 15 April I heard the defendants' application that the action be dismissed for want of prosecution. In addition to the affidavit evidence adduced by the parties on 1 April 2016, the plaintiff read Mr Leighton's second affidavit sworn on 11 April 2016 and the third defendant read an answering affidavit of the third defendant, Ms Genovese, affirmed on 14 April 2016.

48 In his affidavit sworn on 18 March 2016 Mr Hotchkin produced a letter written by him to the plaintiff, Mr Leighton, on 29 July 2015. In that letter Mr Hotchkin referred to the orders made on 28 July 2015 and set out what his clients, the first and second defendants, would require if Mr Leighton were to apply to have the matter removed from the Inactive Cases List. The first and second defendants' instructions were to oppose any application if assets were not sold enabling the payment of outstanding legal fees as well as subsequent costs of bringing the matter to completion. The letter said that Mr Leighton would need to provide full and frank disclosure of all assets and liabilities in order to substantiate the reason given for not paying the outstanding invoice of Bennett & Co and the steps that would be taken to enable the payment of outstanding and future legal costs. Mr Leighton's response to that letter was a letter on 31 August 2015 which enclosed a cheque for $400 but otherwise did not deal with Mr Hotchkin's letter. That was the last correspondence Mr Hotchkin or his office had with Mr Leighton.

49 In his first affidavit of 30 March 2016 Mr Leighton swore that he had paid all legal fees owing to his previous solicitors and that he had funds available in his bank account which he believed should be adequate to advance the proceedings to a substantive conclusion. Mr Leighton also foreshadowed his belief in the potential for the matter to be resolved, including the possibility of resolution through mediation.

50 Mr Leighton's second affidavit, sworn on 11 April 2016, was provided for the 'purpose of expanding upon and establishing the factual correctness' of his claims in his first affidavit as well as demonstrating proper reasons for the delay in progressing the matter. It attached a letter from Bennett & Co of 5 April 2016 confirming that all amounts owing to them had been paid, including $40,000 on 23 April 2015 and a further $40,000 on 24 August 2015. Mr Leighton also said that the final payment of $63,244.97 took place on 29 March 2016 and the cheque cleared on 1 April 2016. Mr Leighton's affidavit contained a rates notice from the Shire of Kalamunda which shows an unimproved value of $7,000,000 for the Property, which was proposed for rezoning and development into a nursing home and retirement village.

51 Mr Leighton said he had a loan arrangement with a close personal friend supporting him with the proposed development, the arrangement being secured by a mortgage on the Property. Mr Leighton provided no details of the arrangement with the financier except that when a particular milestone in relation to the rezoning process for the Property is achieved, funds will be released into Mr Leighton's personal bank account in order to apply to the costs of the next stage in the process. Mr Leighton did not disclose the amount of his indebtedness to his financier, or any repayment terms.

52 Mr Leighton said the reason for delay in not having progressed the matter between 28 July and 1 March 2016 was his inability to afford legal representation. Mr Leighton provided heavily redacted extracts of his bank statement to support this as well as explaining that he is not currently in paid employment and does not receive any regular wage or salary. Mr Leighton said that between 24 August 2015 and 24 March 2016 he only received two payments into his bank account. The first was for $29,898.51 on 9 December 2015 and the second was for $10,200 on 5 February 2016. The bank statements show those amounts being credited but do not disclose any other transactions in that period, or any balances during that period. Mr Leighton received $155,000 from his financier on 24 March 2016 at his request, when he became aware of the applications for costs or alternatively to dismiss the matter for want of prosecution. After repayment of his legal fees and other payments, at 5 April Mr Leighton had $38,009.63 in his bank account.

53 Mr Leighton also said that no significant milestones had been achieved in the rezoning of the Property between 24 August 2015 and 24 March 2016 which explained why there were no other transfers of funds under the loan arrangement. If the Minister for Planning (on the recommendation of the Shire of Kalamunda and the Western Australian Planning Commission) approves the rezoning of the Property in the near future, then Mr Leighton anticipates that he will make an application for development approval to establish a nursing home and retirement village.

54 If the rezoning is approved Mr Leighton intends to refinance and repay all debts owed to his financier, and have funds available to proceed towards developing the Property. Mr Leighton has been advised that bringing this action to a conclusion could involve costs of $250,000 and he believes he has the financial capacity to substantively conclude the matter based on his current financial position, the present status of the proposed rezoning and development of the Property and his ability to raise additional funds by using the Property as security.

55 The third defendant, Ms Genovese, adduced in evidence an answering affidavit affirmed on 14 April 2016. In that affidavit Ms Genovese attached a letter of 5 August 2014 from Mr Leighton to the Shire of Kalamunda obtained by subpoena from the Shire of Kalamunda in which Mr Leighton claimed that a valuation of the Property obtained after the rates notice annexed to Mr Leighton's second affidavit provided that it was worth $2,200,000 and not $7,000,000 as assessed by the shire. Ms Genovese also provided a document from the plaintiff's solicitors showing a mortgage of $8,230,000 on the Property which was lodged at Landgate on 8 September 2011. A statement of rates owed to the Shire of Kalamunda for the Property showed an outstanding amount of $40,695.15.

56 Mr Leighton explained that he did not proceed with the action between 28 July 2015 and 1 March 2016 due to his inability to afford legal representation. It was only when confronted with the prospect of the matter being dismissed and a costs order being made against him that he took any action. He firstly obtained moneys from his financier to pay off his debts to Bennett & Co and to engage solicitors to oppose the applications for costs or alternatively to dismiss the matter for want of prosecution. However, the plaintiff has not explained why he only took steps to receive money and engage lawyers after those applications were made, and not at any other time after the hearing on 28 July 2015 where I informed Mr Leighton that the action was put on the Inactive Cases List and if the case remained on the Inactive Cases List for six months it would be dismissed. Nor is there any suggestion that the loan arrangement had materially altered after 28 July 2015.

57 Mr Hotchkin also informed Mr Leighton of the information that the first and second defendants would require from Mr Leighton if he was to apply to have the matter removed from the Inactive Cases List. This included full and frank disclosure of all assets and liabilities to substantiate the reason for not paying the outstanding invoice. Further, the plaintiff applied to adjourn the hearing on 1 April 2016 and was granted that adjournment in order to provide additional evidence to support the claim that Mr Leighton could advance the proceedings to a substantive conclusion.

58 Despite this, the evidence of the plaintiff and the evidence adduced by the defendants shows that it is unclear what the value of the Property is, the equity that exists in the Property and the extent of the plaintiff's other debts. Further, there is no certainty that the rezoning application will be approved by the Minister. As a result the evidence does not support the plaintiff's assertion that he has or will have the means to prosecute the action to a resolution in the reasonably foreseeable future.

59 The plaintiff says he believes he has the financial capacity to substantively conclude the matter based on his current financial position, the present status of the proposed rezoning and the development of the property and his ability to raise additional funds by using the property as security. As to the plaintiff's current financial position, there is insufficient evidence to establish that he has the financial capacity to substantively conclude the matter. The plaintiff has chosen to provide no satisfactory evidence of his assets and liabilities. The only asset which he has disclosed is the Property which he jointly owns with his wife. There is no satisfactory evidence of the value of the Property. The Property is subject to a mortgage. There is no evidence of the amount owing by the plaintiff which is secured by the mortgage. There is no evidence of the plaintiff's other liabilities, in relation to the development of the Property and otherwise. The plaintiff has sworn that he is not in paid employment and does not receive any regular wage or salary. In short, the evidence does not support the plaintiff's contention that his current financial position gives him the financial capacity to substantively conclude the matter.

60 As to the present status of the proposed rezoning and development of the Property, the evidence is that it is uncertain whether or not the development will proceed. Mr Leighton is awaiting the decision of the Minister for Planning whether to approve the rezoning of the Property before he applies for development approval and it is not known whether the Minister will approve the rezoning. In short, the present status of the proposed rezoning and development of the Property does not provide a basis for the plaintiff's belief that he has the financial capacity to substantively conclude the matter.

61 As to the plaintiff's ability to raise additional funds by using the Property as security, there is insufficient evidence to support the plaintiff's contention. The only evidence advanced by the plaintiff as to the value of the Property is the 2011 rates notice from the Shire of Kalamunda, which the plaintiff subsequently disputed in a letter in which he said that a subsequent valuation of the Property valued it at no more than $2,200,000. The Property is subject to a mortgage to secure advances of $8,230,000. There is no evidence of how much has been advanced by the mortgagee, how much is currently owing and secured by the mortgage and hence the plaintiff's equity in the Property. In short, the evidence concerning the Property does not support the plaintiff's claim that it provides him with the ability to raise additional funds to substantively conclude the matter.

Principles for dismissal for want of prosecution

62 In Birkett v James [1978] AC 297, 318 the House of Lords said that it is proper to dismiss a proceeding for want of prosecution when a court is satisfied either:

(a) that the default of the plaintiff has been intentional and contumelious; or

(b) that there has been inordinate and inexcusable delay on the part of the plaintiff and that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the questions in the proceeding, or is such as likely to cause, or to have caused, serious prejudice to the defendant as between himself and the plaintiff, or as between himself and another party.

63 In The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93; (2005) 30 WAR 398 the Court of Appeal held that this formulation unduly circumscribes the court's discretion. The court said that the points identified in Birkett v James are more appropriately to be seen as guidelines indicating some of the matters to which the court should have regard in exercising its discretion to dismiss an action and not elevate it to the level of a test or a rule. The court said:

The court's discretion to dismiss an action for want of prosecution is not affected by any absolute or inflexible rules. There are however five matters to be considered which will usually be relevant to the court's decision to exercise the discretion:

• the length of the delay;
• the explanation for the delay;
• the hardship to the plaintiff if the action is dismissed and the cause of action left statute barred;
• the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and
• the conduct of the defendant in the litigation [99].

Their Honours added that it is inappropriate to take the considerations:

[I]dentified in Birkett or the five matters referred to above and use them as a checklist to be ticked off one after the other. They are things to which the court should have regard and they will usually be persuasive. But the absence of one or more of them from the credit or debit side of the checklist process will not necessarily determine the result. It will always be necessary for the court to stand back and ask: What does justice, in all the notions or senses of it that are relevant, require in the circumstances of this case? [103].

64 In AON v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (AON) the High Court pointed out that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost effective resolution of the dispute has an effect upon the court and upon other litigants. Whilst parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of the dispute, where a party has had a sufficient opportunity to plead his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party for the sake of doing justice to the opponent and to other litigants.

65 In Brocx v Hughes [2010] WASCA 57; (2010) 41 WAR 84 (Brocx) the Court of Appeal dismissed an appeal from an order dismissing, as an abuse of process, an action in all material respects on an identical basis to a claim in the first action which was dismissed for noncompliance with a springing order and where an application to set aside the judgment was dismissed on the basis that no proper explanation had been offered for the failure to prosecute the action diligently or comply with the springing order. Newnes JA observed that whilst the observations of the High Court in AON were made in respect of a late application to amend pleadings, they are of general application:

They were made in the context of rules of court which find their counterparts in this court in O 1 r 4B. That rule provides, in effect, that the rules and processes and procedures of the court are to be applied so as best to attain just determination of litigation, efficient use of the resources of the court, and the timely disposal of the business of the court at a cost affordable by the parties [94].

Action should be dismissed for want of prosecution

66 The first consideration in this case is the delay by the plaintiff in prosecuting this action. There is no bright line to determine whether delay is inordinate. The question of whether there is inordinate delay is a question of fact and degree specific to the circumstances of the case. The kind of delay which might have no significant consequence in a complicated commercial case may be fatal in a defamation case. Delay in a defamation case is to be seen in the context that the essence of a genuine complaint in defamation is prompt action, both because a plaintiff with a serious claim will want prompt vindication and because it is important that defendants should not have 'the anxiety, expense and inconvenience of a defamation action hanging over them for an unnecessarily long period': Oyston v Blaker [1996] 1 WLR 1326, 1328 (Henry LJ). These considerations are reflected in the limitation period of one year for defamation: Limitation Act 2005 (WA) s 15.

67 It is in the public interest that where, as in this case, the subject matter of the defamation action touches upon a matter of public debate, the action should not be allowed to drag on rather than being pressed to a speedy resolution. Defamation actions may be used as a tactic in public debate mainly for the purpose of silencing the opposition. Such actions are popularly referred to as SLAPP suits - Strategic Litigation Against Public Participation. In the environmental context, a defamation writ may be used by a developer as a tactic to silence residents or environmental groups opposing the development. In that context a delay of more than 18 months in taking any step in this proceeding is inordinate. That conclusion is strengthened by the circumstances that when no step had been taken in the proceeding for more than 12 months the parties were summoned by the court to show cause why the action should not be placed on the Inactive Cases List, the court ordered that the case be placed on the Inactive Cases List, the court explained to the plaintiff that the action would be dismissed for want of prosecution if nothing was done to remove the case from the List within six months and the plaintiff took no step to remove the case from the Inactive Cases List.

68 The next consideration is the explanation for the delay. In AON the plurality emphasised the importance of a reasonable explanation for late interlocutory applications. In the absence of a satisfactory explanation for the delay the court may infer that the delay was deliberate. In Brocx at [105] Newnes JA found that in the absence of any satisfactory explanation for the delay 'the most favourable view that could be taken of the appellant's conduct is that she was content to allow the action to drag on in a desultory and entirely unsatisfactory manner and without any concern to see it brought to a timely conclusion'.

69 Mr Leighton has provided no satisfactory explanation for the delay. His explanation for the delay is that he was unable to pay his solicitors or, when they ceased acting for him, to retain new solicitors. Mr Leighton was informed by his solicitors in 2014 that they would not continue to represent him unless and until he paid their outstanding fees. He did not do so. On 28 July 2015 I informed Mr Leighton in court that I was putting the case on the Inactive Cases List because he had taken no step in the proceeding for more than 12 months and if the action remained on the List for six months it would be taken to have been dismissed. Despite those warnings Mr Leighton took no step to remove the action from the Inactive Cases List or otherwise prosecute the action or obtain funds to retain solicitors to take such steps until March 2016. Mr Leighton took action in March 2016 when he became aware that the defendants were seeking an order that he pay their costs of the action on the ground that it was deemed to be dismissed. Only then did Mr Leighton take any action. He borrowed $155,000 from the close personal friend who was financing his development of the Property, paid the outstanding fees owing to Bennett & Co and retained new solicitors to represent him in this action. Mr Leighton has offered no explanation why he did not take those steps before March 2016. The inference is open that Mr Leighton decided to take no such steps and to allow the action to be dismissed until he became aware that on the action being dismissed he would, or might, be liable to pay the defendants' costs of the action. I draw that inference.

70 I infer that Mr Leighton now wishes to resist the action being dismissed not for the purpose of vindicating his reputation but so as to avoid paying the defendants their costs of the action. In Grovit v Doctor [1997] UKHL 13; (1997) 1 WLR 640 the House of Lords considered an appeal from a decision of the Court of Appeal of England and Wales dismissing an appeal from a decision of a deputy judge dismissing the action for want of prosecution. The deputy judge had found the appellant 'has had literally no interest in actively pursuing this litigation. Sofar as he was concerned, I am sure it was dead in the water'. The House of Lords held that for a plaintiff to continue litigation which he had no intention to bring to a conclusion could amount to an abuse of process and that once the court was satisfied that the reason for the delay was one which involved an abuse of process in maintaining proceedings when there was no intention of carrying the case to trial it was entitled to dismiss the action. Lord Woolf said:

I am satisfied that both the deputy judge and the Court of Appeal were entitled to come to the conclusion which they did as to the reason for the appellant's inactivity in the liable action for a period of over two years. This conduct on the part of the appellant constituted an abuse of process. The courts exist to enable parties to have their disputes resolved. To commence and to continue litigation which you have no intention to bring to a conclusion can amount to an abuse or process. Where this is the situation the party against whom the proceedings is brought is entitled to apply to have the action struck out and if justice so requires (which will frequently be the case) the court will dismiss the action. The evidence which was relied upon to establish the abuse of process may be the plaintiff's inactivity. The same evidence will then no doubt be capable of supporting an application to dismiss for want of prosecution (647).

71 In his second affidavit Mr Leighton says that he has the capacity to bring the action to trial. He says that he has that capacity on three grounds. For the reasons I have set out earlier in these reasons, the evidence does not support Mr Leighton's contention that he has the capacity to bring the action to trial in the reasonably foreseeable future.

72 The court must consider the hardship to the plaintiff if the action is dismissed and the causes of action left statute barred. It is common ground that Mr Leighton's causes of action are now statute barred. The dismissal of the action will deprive Mr Leighton of his causes of action. However, I am not satisfied that that is a substantial detriment. Mr Leighton's decision to allow the action to remain on the Inactive Cases List for six months having been warned that it would be dismissed on the expiry of six months gives rise to a strong inference that the loss of the causes of action is not a serious detriment. If it was one could reasonably expect that Mr Leighton would have taken steps to raise funds, retain lawyers and apply to remove the action from the Inactive Cases List before March 2016.

73 It is relevant to consider the prejudice to the defendants if the action is allow to proceed notwithstanding the delay. The third defendant, Ms Genovese, has given evidence that the delay has caused her prejudice in the conduct of her defence and in getting on with her life. Prejudice is not confined to matters relating to the proper conduct of the defence. The litigation imposes a financial burden upon the defendants and stops them getting on with their lives. The personal consequences for defendants who are subject to a proceeding which is not properly prosecuted must be taken into account. In Cooper v Hopgood & Ganim [1998] QCA 114; (1999) 2 QdR 113 McPherson JA observed:

Ordinary members of the community are entitled to get on with their lives and plan their affairs without having the continuing threat of litigation and its consequences hanging over them. The psychological as well as the commercial effects of such a state of affairs ought not to be underestimated.

74 The defendants have not acquiesced in the plaintiff's delay. Merely standing by whilst the plaintiff fails to prosecute the action is not acquiescence.

75 The task for the court, having considered relevant factors, is to decide whether the balance of justice favours dismissing the action. I find that, having regard to all of the matters I have addressed, the balance of justice favours dismissing the action. The decision of the plaintiff to allow the action to remain on the Inactive Cases List having been warned that it would be dismissed if it remained on the List for six months, coupled with the burden and anxiety to the defendants of the action hanging over them since 2011 makes it just to dismiss the action. Furthermore, it is in the public interest that the court not permit an action which the plaintiff was willing to allow to expire to take up the valuable and important time of the court and delay access to the court to plaintiffs who act promptly in pursuing their claims.

76 The plaintiff's action will be dismissed for want of prosecution. The plaintiff should pay the defendants' costs of the action.