|Please note: This article is intended to be brief information only and should not be relied or acted upon as legal advice. You should always seek legal advice tailored to your own individual circumstances. Please also note that this article is current as at the date of publication and the law may have subsequently changed since.|
In Western Australia, each of the Supreme Court, District Court and Magistrates Court has an “Inactive Cases List” to deal with inactive cases. The objective of the rules dealing with the Inactive Cases List in each court is to help ensure that civil proceedings are conducted, and cases are resolved, in a timely manner.
When does a case become inactive?
In the Magistrates Court and the Supreme Court, a civil case is ordinarily taken to be inactive where there has been no procedural step taken by one of the parties for a period of 12 months: see rule 95B(1) of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCR); Order 4A Rule 24 of the Rules of the Supreme Court 1971 (WA) (SCR). In the District Court, if no document is filed in a case for 12 months by any party to the case, the case is taken to be inactive unless the Court orders otherwise: rule 44A of the District Court Rules 2005 (WA) (DCR).
The respective Courts may also make orders that a case is taken to be inactive in certain circumstances.
The parties will ordinarily be notified upon a case becoming inactive and being placed on the Inactive Cases List. It is important that any address for service is kept current for this purpose.
In the event that you are a plaintiff or claimant and your case is placed on the Inactive Cases List, you must ordinarily act promptly to preserve your rights.
What is the effect of a case becoming inactive?
Once a case is entered on the Inactive Cases List, only certain limited documents are allowed to be filed in respect of the case: see rule 95D MCR; rule 44E DCR; Order 4A rule 26 SCR.
An application for an order to remove the case from the inactive cases list is one of the limited kinds of documents allowed to be filed. A written consent order cannot ordinarily be filed to remove the case from the Inactive Cases List by consent.
A case that is an inactive case on the Inactive Cases List for 6 continuous months is taken to be dismissed: rule 95F(1) MCR; rule 44G(1) DCR; Order 4A rule 28(1) SCR. The relevant rules in the District Court and Supreme Court makes it clear that such a case is taken to be dismissed for want of prosecution.
Avoiding inactivity: settlement of cases pending fulfilment of certain conditions
Where a case is settled but is not finally resolved by discontinuance or judgment (usually pending instalment terms or the satisfaction of terms under a Tomlin Order), parties should consider whether orders are required to stay any case management and prevent the case from being taken to be inactive until further order of the Court.
A “Tomlin Order” is a type of consent order ordinarily used to stay court proceedings for a period of time whilst certain settlement terms (which are usually set out in a schedule to the order) are to be performed (such as payment of a settlement sum through instalments over an extended period of time).
Avoiding inactivity: insolvency and bankruptcy
In light of the decision in Yates v Integrity Industrial Pty Ltd  WADC 127, parties should be mindful of the potential for the Inactive Cases List provisions to still operate despite any statutory stay of the proceedings upon the insolvency or bankruptcy of one of the parties to the case.
What is the effect of a case being dismissed for inactivity?
The dismissal of an action under the Inactive Cases List provisions may be detrimental to a plaintiff or claimant, in so far as they may be precluded from:
- having their existing case heard and determined; and
- bringing any fresh action due to the fresh action either constituting an abuse of process or the elapsing of a limitation period providing a complete defence to any fresh action.
There will often also be adverse costs consequences arising from the dismissal, such as being required to pay the legal costs of other parties in respect of the case.
In considering the effect of a dismissal under the Inactive Case List provisions in the District Court, the Western Australian Court of Appeal made the following observations in the case of Rowe v Stoltze  WASCA 92 at  (per Newnes JA):
… As the commissioner observed, the dismissal of an action under r 44G(1) does not bar a fresh action for the same relief: see Hughes v Gales (1995) 14 WAR 434, 438. No question of res judicata or issue estoppel arises as there has been no determination on the merits. Nor will the fact that the action was dismissed under r 44G(1) necessarily mean that any fresh action will constitute an abuse of process; that will depend upon the particular circumstances: see Brocx v Hughes  WASCA 57; (2010) 41 WAR 84. The operation of any relevant limitation period may, of course, affect whether fresh proceedings can be brought, but that comes about by virtue of the Limitation Act 2005 (WA), not the operation of pt 4, subdiv 3(6) of the District Court Rules. It is unnecessary to consider whether in the present case a fresh action would be out of time under the Limitation Act.
Whilst it is not explicit that a dismissal of a case under the Inactive Cases List provisions in the Magistrates Court is taken to be a dismissal “for want of prosecution”, it appears that the observations in Rowe v Stoltze would equally apply in the Magistrates Court where there is no determination of the case on its merits.
Removing cases from the Inactive Cases List
An application to remove a case from the Inactive Cases List must ordinarily be accompanied by a supporting affidavit setting out, among other things, adequate evidence that the plaintiff will progress the case in a timely manner. The plaintiff’s evidence should ordinarily demonstrate how the matter came to be on the list and how the plaintiff will ensure the matter will not again become inactive.
It is important that any application to remove the case from the Inactive Cases List is made and heard before the case is taken to have been dismissed by operation of the relevant rules of court. This may mean an urgent application needs to be made if the case has been on the Inactive Cases List for close to six months.
It is also important to be aware that, even if a Court orders the removal of a case from the Inactive Cases List, there are other rules which may result in the case being automatically dismissed if no procedural step is taken in the 6 months after the Court orders removal from the list.
Setting aside an inactive case dismissal
For cases in the District Court and Magistrates Court, the Court may set aside a dismissal under the Inactive Cases List provisions in “exceptional circumstances”: see rule 44G(5) DCR; rule 95F(4) MCR.
An application to set aside the dismissal of a case may be necessary where any limitation period has expired or there is a risk that a fresh action may be construed as an abuse of process.
If you require advice or assistance, please do not hesitate to contact us.