District Court Rules 2005 (WA), r 44F

1. The plaintiff, South Pacific Union Group Pty Ltd, failed to enter this matter for trial. The action was duly placed on the inactive cases list.
2. This action was being case managed in parallel with CIV 385/2025. CIV 385/2025 remained active.
3. Both actions involve many of the same people or various corporate entities they are involved in or associated with. Both actions include matters of trespass. The parties are represented by the same solicitors in each action.
4. Prior to being placed on the inactive cases list this action had been listed for directions at the same time as the hearing of a summary judgment application in CIV 385/2025. That application was dismissed at hearing.
5. Prior to that directions hearing, South Pacific filed a chamber summons application to remove this matter from the inactive cases list. The first return date for that application was not listed to occur until January 2026.
6. Despite being on the inactive cases list and given this action was already listed for directions, South Pacific's application to remove this action from the inactive cases list was called on. The matter was expedited and programmed to be determined on the papers. The parties consented to this occurring.
7. A timetable for submissions and affidavits was ordered.
8. The time for that has now passed. Nothing has been received from either party.
9. All that is available to me is the court record and original affidavit of Mr Kaung Win (South Pacific's solicitor) that accompanied South Pacific's application to have the matter removed from the inactive cases list.
10. In the circumstances South Pacific's application to remove the matter from the inactive cases list is dismissed.

1. The principles regarding applications for removal of a case from the inactive cases list are well understood and encapsulated in the commentary to the District Court Rules 2005 (WA).[1] It is not necessary to set out the authorities themselves, only to restate the applicable principles.
2. Rule 44F(3) provides that the court may order a case to 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. The rules relating to inactive cases are not intended to be punitive but are a case management tool.
4. An application for removal from the inactive cases list should not be regarded as mechanical. The applicant should produce evidence to explain how the case came to be on the inactive cases list, and why it should not be expected that, if it is removed from the list, it would return to the list. The application should produce evidence about the state of the action and how it is proposed that it will be progressed through to a trial. Some evidence should be advanced to show that the party is committed to advancing proceedings.
5. A relevant factor is the delay in the action as whole, and the explanation for that delay. A relevant factor is the complexity of the case and difficulties which the plaintiff is having in obtaining evidence.
6. The rules ought not to be used in a way which would prevent resolution of sensible and reasonable disputes between parties; nor should the rules permit parties who seek to invoke the jurisdiction of the court for the determination of their disputes to be shut out unnecessarily or unreasonably.
7. Mr Win's affidavit explains that consent orders seeking to extend the entry for trial milestone were circulated but not returned in time and so the action was placed on the inactive cases list.
8. However, this does not explain what was occurring in the action or being done to progress this matter.
9. It is apparent that the parties have been able to confer as directions hearings have twice been vacated and adjourned by consent. A further directions hearing was adjourned with appearances in chambers.
10. However, none of these adjournments are explained.
11. There is no evidence of what the next steps in this action are or how this matter is to be meaningfully progressed.
12. In argument on the summary judgment application dismissed in CIV 385/2025 it was submitted that there are a range of matters that the parties (and others) are involved in and that these are presently sitting on the periphery of the two matters presently before the court. It was further submitted that all matters may benefit from being programmed together.
13. However, that rises no higher than the level of submission. None of this is explained by way of further affidavit.
14. I accept that the delay in the action overall has not been inordinate. However, it is unexplained. At its highest it might be inferred that this has been done to achieve economy having his action case managed alongside CIV 385/2025.
15. However, the allusion to other matters that may impact on the progress of this matter, in my view, begs some explanation. None is forthcoming. I accept that it may be that there are constraints on what can be disclosed in regard to such other matters. However, if the failure to progress this action is related to the progress (or lack thereof) of other matters then some explanation or evidence needs to be given about this.
16. I accept that this action is litigation that ought to be capable of ventilation and resolution in the usual way.
17. However, in the absence of any evidence as to why matters have previously been adjourned and how South Pacific intends to progress this action the discretion resident in r 44F(3) should be exercised cautiously. To grant the application in such circumstances is to mechanically exercise the discretion resident in r 44F.
18. It is clear that such discretion is not to be exercised mechanically.
19. Accordingly, in my view, the application ought be dismissed.
20. As the application was not opposed and the fact that neither party engaged with the orders programming the application I do not consider it necessary to hear further from the parties as to the issue of costs. An order that there be no order for costs is appropriate.

1. South Pacific's application to remove the action form the inactive cases list is dismissed.
2. There be no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia.

[1] Lexis Nexis, Civil Procedure of Western Australia, District Court Rules (online at 8/12/2025) '44F Removing cases from Inactive Cases list', [16,227F.5].