Inactive Cases in the Magistrates Court of WA – A Frenzy of Inactivity

If you are a business or firm that regularly deals with the Magistrates Court of Western Australia, you may have recently been inundated with notices from the Magistrates Court indicating that cases which you thought had been dismissed long ago, are in fact still live. How did this happen and what do you need to do about it?

Inactive Cases List

In December 2014 the Magistrates Court introduced new rules to clear out dormant legal actions in the Court. Part 16A was inserted into the Magistrates Court (Civil Proceedings) Rules 2005 (“MC Rules”), which provided that a legal action would be deemed “inactive” if nothing happened in it for 12 months, whereupon it would be put on an Inactive Cases List. If an action remained on the Inactive Cases List for 6 months, it was taken to be dismissed.

Since 2015 many thousands of Magistrates Court actions have been concluded in this way. Or so everyone thought.

Hemmett v Market Direct Group Pty Ltd (No 2) [2018] WASC 310

In 2018, Kott Gunning was involved in a series of Supreme Court applications about Part 16A of the MC Rules[1]. The original argument was about whether filing a document after 19 months of inactivity could effectively “re-activate” a matter, or whether it had already been dismissed.

However, whilst the Supreme Court proceedings were ongoing, the parties received evidence from the Department of the Attorney General, to the effect that Magistrates Court matters that were deemed inactive were not automatically placed on an Inactive Cases List. In fact, the Magistrates Court did not keep a separate list of inactive matters. In other words:

  • an “Inactive Cases List” did not actually exist in the Magistrates Court, despite being required by the MC Rules;
  • therefore, no Magistrates Court matters have ever been placed on an “Inactive Cases List”;
  • therefore, since Part 16A of the MC Rules came into force in December 2014, no matters have actually been dismissed from the Magistrates Court due to inactivity.
What happens next?

The Magistrates Court appears to have “re-activated” any cases that were previously thought to have been dismissed for inactivity. It has sent out notices to all parties for each relevant case, explaining the consequences of Hemmett v Market Direct Group Pty Ltd (No 2), and informing the parties whether that case is now inactive or not. Hundreds of thousands of such notices have been sent out.

The MC Rules have also now been amended which has resulted in the “Inactive Cases List” being abolished in the Magistrates Court. Part 16A of the MC Rules are now much simpler, as there is no longer a requirement for a Magistrates Court staff member to actually transfer an inactive case onto a list. Matters are now capable of being dismissed simply if they are inactive for 6 months.

What should I do if I receive a notice from the Magistrates Court?

If you have recently received a notice from the Magistrates Court about this issue, it is likely that you are involved in a case that is now considered inactive, but has not been dismissed as you might previously have thought.

If neither party takes a further step in the matter, it will be dismissed 6 months from the date on the notice.

If either party wishes to “re-activate” its case, you may apply to the Court under r 95E of the MC Rules. However, to be successful you will have to explain the delay that resulted in the matter becoming inactive, and satisfy the Court that the matter will from now on be conducted in a timely and efficient manner. Whether the Court is satisfied that any matter should be “re-activated” will depend on the circumstances of each case.

If you are affected by the recent changes to the MC Rules, or if you have received a notice from the Magistrates Court about your case being inactive and you wish to seek legal advice, don’t hesitate to contact us at Kott Gunning Lawyers.

[1] The author, Conor Breheny, Senior Associate at Kott Gunning, acted as counsel for the defendant in both Hemmett v Market Direct Group Pty Ltd matters in the Supreme Court

The information published in this paper is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.