On 12 September 2013, the High Court, sitting in Perth, heard the application for special leave to appeal in the case of Rowe v Stoltze.
In April of this year, the Court of Appeal in Perth had dismissed an appeal against the decision at first instance refusing to reinstate the action. The Court of Appeal found that the action was properly dismissed under Rule 44G of the District Court Rules and that no valid basis was established for setting aside the dismissal.
Before the High Court, Colvin SC for the appellant submitted that the Rule in question was essentially procedural and that a dismissal should be subject to some degree of supervision by a judicial officer. He submitted that there was potential for injustice and that this application of the Rule deprived a party of a hearing on its merits.
Counsel for the respondent argued that the Rules themselves provided reasonable safeguards and ample opportunity for the adverse outcome to be avoided by litigants.
The High Court refused to grant special leave. This decision should remove any doubt about the consequences of the dismissal of an action in circumstances similar to those in the case. The risk of the dismissal of an action under these provisions therefore remains a matter of critical importance to a party whose action may fall onto the inactive cases list.
Parties should also be aware that changes to the District Court Rules introduced, amongst other things, to remove uncertainty resulting from the decision in Ruby v Doric Constructions, mean that irreversible dismissal of an action can now arise in circumstances in which Ruby had allowed some scope for reinstatement.
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