Question: civil procedure 1 western australia question stephen jenson stephen...
Civil Procedure 1 - Western Australia Question
Stephen Jenson (‘Stephen’) was injured at work on 6 February 2016 when a large sheet of glass dropped onto his foot. The injuries were significant, and he underwent a number of operations. He resolved his workers compensation claim but was unable to return to his former employment. He then took advice from you (you work at Cowan & Edith Lawyers) and, on instructions, proceedings were instituted against his former employer in the District Court seeking damages.
On 20 January 2018, you issued a Writ of Summons on his behalf. You held off arranging for service of the Writ until a further medical report was obtained. Following service in the middle of the year, the defendant’s lawyers entered an appearance was on 28 July 2018. You served a Statement of Claim shortly thereafter, and the defendant requested particulars. in respect of some of the allegations. The particulars were provided within the time limit, and the defendant’s lawyers, filed and served a defence on 5 October 2018.
You had commenced negotiations with the employer’s insurers and lawyers after issue of the Writ. These negotiations continued following receipt of the defence. You and the defendant’s lawyer agreed that there were some prospects for settlement, so consent orders were filed extending the Entry for Trial milestone, pursuant to the District Court Rules 2005 (‘DCR’) to 30 March 2019.
(a) Which rule(s) and Practice Directions provide for Entry for Trial? (b) Which rule(s) and Practice Directions allow variations to a time-frame to be made by filing consent orders? (c) By what date must the consent order have been filed?
In March 2019 and again in July 2019 the plaintiff underwent further medical treatments. You were in contact with his treating physician and awaiting a further report. Because you were also in discussions with the defendant’s lawyers, you felt confident that either the claim would settle
or if it did not, the defendant’s lawyers would consent to another extension. You therefore held off entering the case for trial.
The Court sent a Form 2 Notice to both parties’ lawyers on 16 April 2019 stating that if the plaintiff did not enter the action for trial on or before Monday 7 May 2019, it would become inactive.
(d) Which rule(s) and/or Practice Directions authorizes the dispatch of a Form 2 Notice. What does the Notice contain? (e) By reference to the relevant rule(s) and Practice Directions, as the practitioner managing the file, what were your duties and obligations at that time? (f) Which sections of the District Court Act of Western Australia 1969, rule(s) and practice directions/circulars to practitioners provide for the Inactive Cases List?
Despite your best efforts, a settlement could not be negotiated, and so in mid-November 2019 you attempted to Enter the case for Trial. It was at that stage that you were advised that the proceeding had been dismissed on 12 November 2019.
You intend to bring an application pursuant to rule 44G(4) DCR and have prepared a chamber summons seeking appropriate orders.
(g) Explain, by reference to the relevant rule(s) why the case has been dismissed? (h) What steps, if any, can be taken? (i) What factors are likely to impact a judicial officer’s exercise of discretion?