Inactive Cases

In 2018, the Supreme Court of Western Australia (“Supreme Court”) delivered two decisions concerning the Magistrates Court of Western Australia (“Magistrates Court”) civil procedure rules regarding case management, specifically, the Inactive Cases List.

The decisions prompted a review of the Magistrates Court case management rules, and in April 2019, amendments were made to Part 16A of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) and Part 10A of the Magistrates Court (Minor Case Proceedings) Rules 2005 (WA).

The information below sets out the relevant matters that may apply if you have had or currently have a civil claim before the Magistrates Court.

The Inactive Cases List was created by operation of the following:

Part 16A of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (“MCCPR”) and

Part 10A of the Magistrates Court (Minor Case Proceedings) Rules 2005 (WA) (“MCMCPR”).

The Supreme Court considered the operation of Part 16A of the MCCPR in:

Hemmett v Market Direct Group Pty Ltd [2018] WASC 214, (“Hemmett No.1”) and

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

The decisions in Hemmett No. 1 and Hemmett No. 2 (together “the Hemmett Decisions”) are the result of an appeal to the Supreme Court for a review of the decision by the Principal Registrar of the Magistrates Court ("Principal Registrar") to place the original Magistrates Court matter on the inactive cases list.

In the Hemmett Decisions, the Supreme Court held:

  1. The Principal Registrar had acted in jurisdictional error in placing the matter on the inactive cases list for the following reasons:
    1. The Principal Registrar did not maintain a separate list of cases which were deemed to be “inactive”
    2. The Principal Registrar did not maintain a list of cases which were deemed to be dismissed, pursuant to the operation of rules 95A and 95B(4) of the MCCPR
    3. The case management step of placing a matter on the inactive cases list is an important one, as it is only when the matter is placed on the list that the consequences of rule 95D of the former MCCPR arise, and a party becomes exposed to the potential consequences of rule 95F of the former MCCPR and
  2. Given that the Principal Registrar did not keep a separate list of cases, the matter was not placed on the Inactive Cases List, and was not dismissed.

In the repealed Part 16A of the MCCPR and Part 10A of the MCMCPR, the rules mirror one another. As such, the Hemmett Decision is applicable to all civil cases, regardless of whether they were commenced under the former MCCPR or the former MCMCPR.

The practical effect of the Hemmett Decisions for the Magistrates Court is that any cases dismissed on the basis that the matter had been placed on the Inactive Cases List, and dismissed pursuant to rule 95F and 45F of the former rules, are still “active” cases in the Magistrates Court.

The Magistrates Court has reviewed any matters that were placed on the inactive cases list, and/or dismissed by the Principal Registrar under rule 95F and 45F of the former rules.

Part 16A of the MCCPR and 10A of the MCMCPR were amended as at 5 April, 2019. Further, the Magistrates Court has made arrangements to notify all parties whose matters had previously been deemed to have been placed on the inactive cases list by sending to them:

  • a Notice explaining the Hemmett Decisions and the subsequent impact on their case; and
  • where applicable, a further Notice setting out that the case is an Inactive Case (under the Part 16A of the amended MCCPR or 10A of the amended MCMCPR).

The Magistrates Court cannot provide any legal advice in relation to the impact that the Hemmett Decisions may have on your case.

Any party that has received a notice from the Magistrates Court advising that their matter was affected by the Hemmett Decisions is encouraged to seek independent legal advice.

Where a case is deemed to be an inactive case (that being a case where no procedural step has been taken by the parties for twelve months):

  • only certain documents may be lodged in the Magistrates Court
  • where a case is an inactive case for six continuous months, the case is taken to be dismissed
  • where a party has not taken any procedural step within a six month period after a Court has ordered that case is no longer taken to be inactive, the case is taken to be dismissed
  • a party to the case may apply for an order for costs and the Court may make an order for costs, where a case has been dismissed pursuant to rules 95F(1) or 95F(2) of the amended MCCPR or rules 45F(1) or 45F(2) of the amended MCMCPR.

Where your case is an inactive case, the following documents are the only documents that may be lodged with the Magistrates Court.

An application (Form 23 – Application and Form 2 – General Form of Affidavit to the Magistrates Court seeking leave to remove the case from the inactive cases list, pursuant to rule 95E of the MCCPR and 45E of the MCMCPR.

A notice of discontinuance (Form 57 – Notice of Discontinuance) pursuant to rule 29 of the MCCPR or rule 76 of the MCMCPR or

A memorandum of consent (Form 49 – Memorandum of Consent) under rule 53 of the MCCPR or rule 33 of the MCMCPR seeking an order or judgment that would finally dispose of the case.


Last updated: 17-Jul-2019

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