The District Court of WA Inactive List – principles to be applied in determining whether to remove from the inactive list or allow an action to “die a natural death”


NADER -v- MILLWOOD HOLDINGS PTY LTD [2014] WADC 33 – District Court of WA – DEPUTY REGISTRAR HEWITT

This case involved an application to remove a case from the inactive list and involved consideration of the Workers’ Compensation and Rehabilitation Act 1981 and the issue of delay, which was only partially explained, and consideration of the prospect of favourable determination if and when the matter was finally heard and determined.

The action fell into the inactive list on 23 April 2013 on the basis that no document had been filed in the case for the preceding 12 months. The plaintiff’s lawyers brought and application to remove it from the inactive list.

The action was originally commenced by writ on 8 October 2010 with a vague endorsement in the following terms: “The plaintiff’s claim is against the defendant for payment of damages and losses for personal injuries arising out of an injury suffered by the plaintiff in the course of his employment on 11 April 2005, the injury having occurred at the defendant’s premises at Froomes Road, Pemberton in the state of Western Australia.”

There was doubt as to the basis of the claim or the cause of action and the learned Deputy Registrar noted “It could be for instance negligence, occupier’s liability or a number of other possibilities. In any event the writ was not served and no document was filed in the case for 12 months and the matter went inactive on 8 October 2011. That prompted the plaintiff to bring an application filed 9 December 2011 seeking to extend the validity of the writ to 30 June 2012.”

When that application was heard it was removed from the inactive list and the validity of the writ was extended to 27 April 2012, however, once again no documents were filed or steps taken in the action for 12 months and the action again became inactive on 26 April 2013. The plaintiff’s lawyers then filed the present application on 23 October 2013 once again seeking to remove the matter from the inactive list.

The Learned Deputy Registrar commented on the constraints on the awarding of common law damages in actions contained in section 93A, and related sections, of the Workers’ Compensation and Rehabilitation Act 1981 and noted that damages “could only be awarded if the degree of disability was determined, according to the method set out within the act, to be not less than 30% or determined to be between 15% and 30% and the worker had elected in the prescribed manner to retain the right to seek damages and the election was registered in accordance with the regulations.” He also commented – “Nonetheless I would not be critical if the plaintiff chose not to proceed with an action until a necessary determination was within reach.

There have however been other delays which in my view are not excusable and the present application has not been proceeded with expeditiously. I am also critical of the fact that in the absence of agreement from the defendants (which has not been forthcoming), it is necessary to make application to WorkCover for an assessment and determination. At the date of hearing no such application had been made although I was told from the bar table one is contemplated and would be lodged shortly”.

The Learned Deputy Registrar then turned to the medical evidence and noted the plaintiff already had a pre-existing significant spinal injury in an earlier accident and had CT scans of the lumbar spine revealing a disc injury at the level of L4/5 and an MRI taken at about that time.

He also considered the defendant’s opposition to the application due to a witness which it considered material could not be located.

The learned Deputy Registrar then stated “I find it highly unlikely that the determination (degree of disability) will be in his favour. In the event that a determination of less than 30% is obtained, it will not be possible for the plaintiff to make an election and become entitled to an award of damages were this action to be successfully concluded. In the circumstances my view is that the delays in this action, extreme as they are, the potential prejudice to the defendant because of the delay, the fact that there will be further delays if this action is to continue, the fact that the prospect of the plaintiff obtaining a successful determination look remote, all in all conspire to my view that it would not be appropriate to remove this matter from the inactive list and it should be left to die a natural death according to the District Court Rules 2005.”

Although this decision turns on its own facts it demonstrates that once in the inactive list the relative strengths and weaknesses of a plaintiff’s case will be examined by the Court, and if as in this case, the action is weak it will be, as Deputy Registrar Hewitt said – “…be left to die a natural death according to the District Court Rules 2005.”

If you would like a copy of this case, or to discuss it, please do not hesitate to contact Ash Crisp or the Insurance Teamon acrisp@kottgunn.com.au or on (08) 93213755.

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