ZAPPALA -v- EAST METROPOLITAN HEALTH SERVICE [2026] WADC 48

[2026] WADC 48 [2026] WADC 48 (MJW) Page 1 JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA IN CIVIL LOCATION : PERTH CITATION : ZAPPALA -v- EAST METROPOLITAN HEALTH SERVICE [2026] WADC 48 CORAM : JEYAMOHAN DCJ HEARD : 9 JUNE 2026 DELIVERED : Ex tempore PUBLISHED : 15 JUNE 2026 FILE NO/S : CIV 2410 of 2023 BETWEEN : MICHELI SEBASTIANO SALVATORE ZAPPALA Plaintiff AND EAST METROPOLITAN HEALTH SERVICE Defendant Catchwords: Appeal from registrar's decision - Appeal to remove case from the Inactive Cases List - Application to set aside dismissal for want of prosecution - Whether exceptional circumstances warrant setting aside dismissal - Practitioner oversight - Lack of familiarity with jurisdiction - Turns on own facts Legislation: District Court Rules 2005 (WA), r 38, r 44, r 44D, r 44E, r 44F, r 44G -- 1 of 29 -- [2026] WADC 48 [2026] WADC 48 (MJW) Page 2 Rules of the Supreme Court 1971 (WA) O 2 r 1 Result: Appeal dismissed Representation: Counsel: Plaintiff : Ms B E Rogers Defendant : Ms D M Templeman Solicitors: Plaintiff : Monaco Solicitors Defendant : Gilchrist Connell Case(s) referred to in decision(s): Carter v South Metropolitan Health Service [2025] WADC 74 Guillaume v City of Stirling [2020] WADC 41 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26 HIJ (a pseudonym) v The State of Western Australia [2025] WADC 39 KLM (a pseudonym) v Foley [2025] WADC 83 Rowe v Stoltze [2013] WASCA 92 Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142 Stewart v Hames [2019] WASCA 127 -- 2 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 3 JEYAMOHAN DCJ: [This decision was delivered extemporaneously on 9 June 2026 and edited from the transcript.] Introduction 1 The plaintiff commenced proceedings against the defendant by writ of summons and statement of claim filed 22 May 2023 (Writ and SoC). 2 By amended writ of summons and statement of claim filed 1 June 2023 (Amended Writ and SoC), the plaintiff alleges personal injury following an alleged delay in diagnosis and treatment of his mitral valve infective endocarditis during presentations to the Emergency Department of Royal Perth Hospital said to have occurred on or about 2 January 2021. It is alleged, as a result of the delay the plaintiff suffered septic cerebral infarctions and resultant neurological injury to the left arm and claims damages for those injuries and their sequelae. 3 The defendant entered an appearance on 15 June 2023. 4 Between the period 1 August 2023 to 6 October 2023 a number of procedural steps were undertaken by the parties. 5 The plaintiff submits that on or about 1 January 2024, the limitation period expired.1 6 On 7 October 2024, the principal registrar issued a notice pursuant to r 44D(1)(a) of the District Court Rules 2005 (WA) (DCR) placing the case on the Inactive Cases List as no document had been filed in the case for the preceding 12 months (Inactive Notice). The last document filed being the plaintiff's list of discoverable documents filed 6 October 2023. 7 There is no suggestion that the Monaco Solicitors, the solicitors on record for the plaintiff, did not receive the Inactive Notice. 8 On 13 March 2025, some five months after having received the Inactive Notice, the plaintiff filed a Chamber Summons seeking removal of the matter from the Inactive Cases List. This application was listed for hearing on 15 May 2025. 1 Plaintiff's Outline of Submissions dated 19 May 2026; page 4, par 16. -- 3 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 4 9 By email dated 2 April 2025, the plaintiff's solicitors wrote to the defendant's solicitors attaching a minute of proposed consent orders in the following terms: 1. The Chamber Summons hearing listed for 15 May 2025 be vacated. 2. This action be removed from the Inactive Cases List. 3. The Entry for Trial Date to be extended until 30 June 2025 to allow the plaintiff to finalise their Particulars of Damages. 4. The Defendant to pay the plaintiff's costs of and associated with this summons. 10 On 7 April 2025, the principal registrar issued a notice that the case had been dismissed on that date pursuant to r 44G of the DCR as the case had been on the Inactive Cases List for six continuous months (Dismissal). 11 On 8 April 2025, the plaintiff wrote to the court seeking the Dismissal to be set aside. 12 By Chamber Summons filed on 14 May 2025, the plaintiff brought an application to set aside the decision to dismiss the proceedings and to remove the case from the Inactive Cases List (Set Aside Application). 13 On 15 October 2025, following the hearing of the Set Aside Application before the learned deputy registrar, the application was dismissed (Decision). 14 By notice of appeal dated 24 October 2025, the plaintiff, appeals against the Decision. The defendant is the respondent in the appeal. 15 The appeal proceeded to substantive hearing before this court on 9 June 2026 and was a hearing de novo. Both parties relied on written and oral submissions and affidavit evidence in support. 16 For the reasons which follow, the appeal should be dismissed and the application to set aside the Dismissal of the case is dismissed. -- 4 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 5 Procedural background 17 By Writ and SoC, the plaintiff commenced District Court action no CIV 2410 of 2023 against East Metropolitan Health Service for breach by its medical and nursing staff in managing and providing the plaintiff's medical and nursing care at Royal Perth Hospital on or about 2 January 2021. 18 By Amended Writ and SoC, the plaintiff alleges personal injury following an alleged delay in diagnosis and treatment of his mitral valve infective endocarditis during presentations to the emergency department of Royal Perth Hospital said to have occurred on or about 2 January 2021. It is alleged, as a result of the delay the plaintiff suffered septic cerebral infarctions and resultant neurological injury to the left arm and claims damages for those injuries and their sequelae. 19 On 15 June 2023, the defendant filed a memorandum of appearance. 20 Between 6 July 2023 and 1 August 2023, the defendant requested, and the plaintiff provided, answers to further and better particulars of the Amended Statement of Claim. 21 On 6 October 2023, the plaintiff filed its list of documents which included medical reports and documents related to the plaintiff's claim for damages. 22 On 7 October 2024, the principal registrar issued the Inactive Notice. The case was placed on the Inactive Cases List from the date of that notice pursuant to r 44D(1)(a) of the DCR. 23 By Chamber Summons filed on 13 March 2025, the plaintiff filed an application to remove the case from the Inactive Cases List. The application was supported by the affidavit of Sachine Amarasinghe affirmed 13 March 2025 (First Amarasinghe Affidavit). This application was listed for hearing on 15 May 2025. 24 On 7 April 2025, the principal registrar issued a notice that the case had been dismissed pursuant to r 44G of the DCR as the case had been on the Inactive Cases List for six continuous months. -- 5 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 6 25 By email dated 8 April 2025, the plaintiff's solicitors wrote to the court referring to the Dismissal and seeking a reversal of the Dismissal. The reason stated being: We note that a chamber summons seeking to remove this matter from the inactive list was filed on 13 March 2025 and is due to be heard 15 May 2025. In these circumstances, we request that the notice dismissing these proceedings be reversed. 26 By letter dated 28 April 2025, a registrar of the court wrote to the plaintiff's solicitors relevantly setting out the following: 1. The action stands as dismissed by operation of r 44G of the DCR. 2. There is no scope for the action to be removed from the Inactive Cases List under r 44F of the DCR. 3. The plaintiff is referred to r 44G(5) of the DCR (which will require an application demonstrating exceptional circumstances). 27 By Chamber Summons filed on 14 May 2025, the plaintiff brought the Set Aside Application to set aside the decision to dismiss the proceedings and to remove the case from the Inactive Cases List. 28 By order of the learned deputy registrar made 15 October 2025 following the hearing of the application, the Set Aside Application was dismissed with the plaintiff ordered to pay the costs of the defendant of the application and of the action (Decision). 29 By notice of appeal dated 24 October 2025, the plaintiff appeals against the Decision. The notice of appeal contains a single ground, namely 'Dismissal of application to set aside the dismissal of a claim for want of prosecution pursuant to rule 44G of the District Court Rules 2005 (WA)'. 30 The appeal proceeded to substantive hearing before this court on 9 June 2026 and was a hearing de novo. Both parties relied on written and oral submissions and affidavit evidence in support. 31 Both parties were represented by counsel at the hearing of the appeal. -- 6 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 7 The evidence of the plaintiff 32 The plaintiff relies on the following affidavits in support: 1. The First Amarasinghe Affidavit. 2. A further affidavit sworn by Ms Amarasinghe on 13 May 2025 (the Second Amarasinghe Affidavit). 3. An affidavit sworn by Monaco Solicitors firm managing partner, Mr Leon Monaco, on 9 September 2025 (Monaco Affidavit). 4. A further affidavit sworn by Ms Amarasinghe on 17 March 2026 (the Third Amarasinghe Affidavit). 5. An affidavit sworn by the plaintiff, Mr Micheli Sebastiano Salvatore Zappala on 18 March 2026 (the Zappala Affidavit). 6. A further affidavit sworn by Ms Amarasinghe on 9 June 2026 (the Fourth Amarasinghe Affidavit). 33 Ms Sachini Amarasinghe in the First Amarasinghe Affidavit relevantly deposes to the following: 1. She is a solicitor in the employ of the firm Monaco Solicitors and has the care and conduct of this action as the solicitor for the plaintiff.2 2. Following a memorandum of appearance being filed on behalf of the defendant on 15 June 2023, that several procedural steps were taken in the proceedings, the last of which being the filing of a list of documents on behalf of the plaintiff on 6 October 2023.3 3. That in or around November 2023 there were steps taken in respect of the expert evidence the plaintiff sought to rely on, being that of Associate Professor Raftos.4 4. On or about 28 February 2024, she caused a letter to be sent to the defendant's solicitors requesting that they file a defence as they were in default.5 2 First Amarasinghe Affidavit, par 1. 3 First Amarasinghe Affidavit, pars 3 - 5. 4 First Amarasinghe Affidavit, pars 6 - 7. -- 7 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 8 5. Between 6 July 2024 and 1 August 2024, the parties engaged in further procedural matters relating to a request for, and answers to, Further and Better Particulars of the statement of claim.6 6. On 7 October 2024, this matter was moved onto the Inactive Cases List as no document had been filed for the preceding 12 months.7 7. On or about 3 December 2024, she caused a letter responding to the Request for Further & and Better Particulars to be sent to the Defendant's Solicitors.8 34 Ms Amarasinghe in the Second Amarasinghe Affidavit deposes to the following additional matters of relevance: 1. On 13 March 2025, she caused to be filed with this court, a Chamber Summons and supporting affidavit seeking to remove these proceedings from the Inactive Cases List.9 2. That this matter was moved to the 'inactive list' on 7 October 2024 due to the defendant's repeated failures to comply with O 20 r 4 of the Rules of the Supreme Court 1971 (WA) (RSC) to file a defence.10 3. She had repeatedly taken steps to address this delay with the defendant's solicitors and to otherwise respond to their evidentiary queries regarding this matter in order to progress this claim.11 35 Ms Amarasinghe in the Third Amarasinghe Affidavit deposes to the following additional matters of relevance: 1. At all relevant times she was the solicitor with day-to-day conduct of this matter on behalf of the plaintiff.12 2. On 7 October 2024, she received a notification from this court that this matter had been placed in the inactive 'matters' list.13 5 First Amarasinghe Affidavit, par 8. 6 First Amarasinghe Affidavit, pars 9 - 10. 7 First Amarasinghe Affidavit, par 11. 8 First Amarasinghe Affidavit, par 12. 9 Second Amarasinghe Affidavit, par 15. 10 Second Amarasinghe Affidavit, par 16. 11 Second Amarasinghe Affidavit, par 17. 12 Third Amarasinghe Affidavit, par 1. -- 8 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 9 3. To the best of her recollection, she did not advise the plaintiff at the time that the matter had been placed on the Inactive Cases List.14 4. That at the time, she believed that she was required to file an application to remove the matter from the 'inactive matters' list within six months of that date, ie by 7 April 2025; and that in doing so, the dismissal of the action would be stayed pending the outcome of that application.15 5. She formed this view on the basis of her litigation experience in other jurisdictions.16 6. She considered further evidence had to be obtained to have the matter removed from the Inactive Cases List in order to enable progression of the matter, ie for defendant to file defence.17 7. She understood that one of the criteria for removing the matter from the Inactive Cases List was to demonstrate that it would be progressed once re-activated.18 8. On or about 13 March 2025, she caused to be filed with this court, a Chamber Summons and supporting affidavit seeking to have these proceedings removed from the inactive list. That summons was listed to be heard on 15 May 2025.19 9. At the time, to the best of her recollection, she did not advise the plaintiff that such a summons had been filed.20 10. Given her belief that the action would be stayed pending the outcome of the application, she did not take any steps to reschedule the summons to be heard earlier.21 11. She did not advise the plaintiff that the proceeding would be dismissed if the application to remove the matter from the 'inactive matters' list was not heard before the deemed Dismissal date.22 13 Third Amarasinghe Affidavit, par 5. 14 Third Amarasinghe Affidavit, par 6. 15 Third Amarasinghe Affidavit, par 7. 16 Third Amarasinghe Affidavit, par 8. 17 Third Amarasinghe Affidavit, par 9. 18 Third Amarasinghe Affidavit, par 10. 19 Third Amarasinghe Affidavit, par 11. 20 Third Amarasinghe Affidavit, par 12. 21 Third Amarasinghe Affidavit, par 13. 22 Third Amarasinghe Affidavit, par 14. -- 9 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 10 12. On or about 7 April 2025, she received a notification from this court that these proceedings had been dismissed.23 13. In or about late December 2024, she discovered that she was pregnant and suffered from consistent daily bouts of illness including nausea and fatigue for the first 16 weeks of her pregnancy.24 14. That her condition in turn affected her productivity at work and she delayed the completion of some necessary tasks including the filing of the Chamber Summons to remove this matter from the 'inactive matters' list.25 15. That her employer was not aware of her pregnancy or related condition until in or about March 2025.26 16. That during the period 13 March 2025 to 7 April 2025, she recalls having several medical appointments in respect of her condition at the time. In addition, she was on leave between 21 to 26 March 2025. This impacted her capacity to request an expedited hearing of the application.27 17. That in or about December 2024, a senior solicitor who was reporting to her at the time and responsible for approximately 80 medical negligence files, resigned from her position.28 18. From about January 2025 and to the best of her recollection, she took over carriage of approximately 40 additional medical negligence files which that solicitor had previously been responsible for. This was in addition to her existing file load of over 100 medical negligence matters, which she began the process of reviewing as she was the only solicitor with an unrestricted practising certificate, working on Western Australian medical negligence matters at the time.29 23 Third Amarasinghe Affidavit, par 15. 24 Third Amarasinghe Affidavit, pars 16 - 17. 25 Third Amarasinghe Affidavit, par 18. 26 Third Amarasinghe Affidavit, par 19. 27 Third Amarasinghe Affidavit, par 20. 28 Third Amarasinghe Affidavit, par 21. 29 Third Amarasinghe Affidavit, pars 21 - 23. -- 10 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 11 19. As a consequence of that addition to her existing practice, she was delayed in the filing of the application to remove this matter from the 'inactive matters' list.30 20 That having been advised by counsel then briefed on the matter that the matter had dismissed, that she was advised to file a Chamber Summons and supporting affidavit to set aside the Dismissal, a draft of which she sent to counsel on 15 April 2025.31 21. Having not received a reply to that correspondence, on 12 May 2025, she sent a follow up email to counsel asking that she settle the Chamber Summons and supporting affidavit seeking to set aside the Dismissal, following which the application to set aside the Dismissal was filed with the court on 14 May 2025.32 36 Ms Amarasinghe in the Fourth Amarasinghe Affidavit deposes to the following additional matters: 1. That between 5 March 2024 and 26 August 2024 she was taking steps to review evidence and prepare a letter of instruction to an infectious diseases expert.33 2. That following receipt of the notice from the court dated 7 October 2024 that the case had become inactive, it was her intention to have the matter removed from the Inactive Cases List by filing a Chamber Summons and affidavit with the court, explaining the reasons why the matter became inactive and seeking to have the matter removed from the list.34 3. That her omission to take steps between 7 October 2024 and December 2024 to apply for the action to be removed from the Inactive Cases List was caused by her already significant medical negligence practice at the time and the time taken by her to review the evidence, give advice and receive instructions to serve the report.35 30 Third Amarasinghe Affidavit, par 24. 31 Third Amarasinghe Affidavit, pars 25 - 26. 32 Third Amarasinghe Affidavit, pars 27 - 28. 33 Fourth Amarasinghe Affidavit, par 4. 34 Fourth Amarasinghe Affidavit, par 5. 35 Fourth Amarasinghe Affidavit, par 6. -- 11 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 12 4. That the omission to notify the plaintiff that the action was on the Inactive Cases List was nothing more than an oversight.36 5. That she always had the intention to file a Chamber Summons to remove the matter from the Inactive Cases List but did not find an opportunity to do so during the busy December 2024 period.37 6. That she was diagnosed with a medical condition related to her pregnancy. Whilst that condition did not carry any symptoms, it did significantly affect her mental state throughout 2025 which in turn affected her capacity to deal with the notification from the court that this matter had become inactive, in a timely fashion.38 37 Mr Monaco in his affidavit sworn 9 September 2025 relevantly deposes to the following: 1. He is the managing partner of Monaco Solicitors.39 2. Until early August 2025, Ms Amarasinghe had the conduct of this matter at which time she went on maternity leave. Ms Amarasinghe is a solicitor in his employ.40 3. That he worked closely with Ms Amarasinghe on a day-to-day basis prior to taking maternity leave. Her office is next to his and over the years they had developed a cordial professional relationship, however she maintained autonomy over the files she managed.41 4. He understands that this matter was placed on the Inactive Cases List on 7 October 2024. 5. Upon reviewing this matter, he cannot locate any communication notifying the plaintiff that his matter had been placed on the Inactive Case List. This has since been rectified by Susan Newman who took over conduct of this matter from Ms Amarasinghe on the commencement of her maternity leave.42 36 Fourth Amarasinghe Affidavit, par 7. 37 Fourth Amarasinghe Affidavit, par 8. 38 Fourth Amarasinghe Affidavit, par 10. 39 Monaco Affidavit, par 1. 40 Monaco Affidavit, par 2. 41 Monaco Affidavit, par 4. 42 Monaco Affidavit, par 6. -- 12 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 13 6. That he was informed towards the end of 2024 or early 2025 by Ms Amarasinghe of her pregnancy and of matters related to her pregnancy.43 That Ms Amarasinghe appeared to be worried, even distressed about the situation.44 7. That he was aware that from the beginning of 2025 until the end of April 2025 that Ms Amarasinghe had multiple medical appointments for the purpose of monitoring and managing her medical condition related to her pregnancy.45 8. That on 2 April 2025 Ms Amarasinghe caused an email to be sent to the defendant seeking their consent to the proposed orders in relation to the application.46 9. That he has now become aware that in the event an application is listed beyond which the matter would remain on the Inactive Cases List, correspondence to the court seeking an abridgement of time for hearing of the application is required and that he has since circulated notice of the same to the remainder of the solicitors in his employ.47 10. That on his review of the file, on 6 December 2024 and 19 January 2025, the plaintiff sought updates as to the status of this matter.48 11. That on his review of the file, the Dismissal dated 7 April 2025 was not forwarded to the plaintiff.49 38 The plaintiff in his affidavit sworn 18 March 2026 relevantly deposes to the following: 1. In or about June 2022 he instructed Monaco Solicitors to act on his behalf in relation to a medical negligence claim against East Metropolitan Health Service regarding treatment provided to him at Royal Perth Hospital.50 43 Monaco Affidavit, par 7. 44 Monaco Affidavit, par 9. 45 Monaco Affidavit, par 11. 46 Monaco Affidavit, par 14, Annexure 'LM1'. 47 Monaco Affidavit, par 16. 48 Monaco Affidavit, par 20. 49 Monaco Affidavit, par 17. 50 Zappala Affidavit, par 3. -- 13 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 14 2. That he does not recall many updates in relation to his claim once it was commenced in the District Court on 22 May 2023.51 3. That he recalls being informed on or about August 2023 that his solicitors had sent a letter to the defendant's solicitors asking when they intended to file a defence.52 4. That on or about November 2023, he recalls being informed by his solicitors that the defendant's solicitors had contacted them with a list of concerns they wanted clarified.53 5. That on or about 6 December 2024 he received an email from his solicitors noting that they were still waiting for a defence to be filed by the defendant.54 6. That he does not recall any significant updates provided to him by his solicitors between October 2024 and September 2025.55 7. That on 3 September 2025, he received a letter from his solicitors Ms Susan Newman informing him that his case had been placed on the Inactive Cases List on October 2024 and was dismissed in April 2025.56 8. That prior to receiving Ms Newman's letter dated 3 September 2025 he was not aware of his matter being placed on the Inactive Cases List. That he was also not advised of the ramifications of his case being moved to that list and did not know that his matter could be dismissed in this way, nor that it was in any risk of Dismissal.57 Case management principles 39 The case management principles in pt 4 div 3 of the DCR includes the following relevant rules: 44A. Cases inactive for 12 months deemed inactive If no document is filed in a case for 12 months by any party to the case, the case is taken to be inactive unless the Court orders otherwise. … 51 Zappala Affidavit, par 5. 52 Zappala Affidavit, par 6. 53 Zappala Affidavit, par 7. 54 Zappala Affidavit, par 8. 55 Zappala Affidavit, par 9. 56 Zappala Affidavit, par 10, Annexure 'MZ-4'. 57 Zappala Affidavit, par 11. -- 14 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 15 44D. Parties to be notified of case being on Inactive Cases List and to advise clients (1) When a case is taken to be inactive under rule 44 or 44A, or an order is made under rule 44B(4), or an order made under rule 44C(1) takes effect, the Principal Registrar must - (a) put the case on the Inactive Cases List; and (b) give all parties to the case written notice that the case is on the Inactive Cases List and of the effect of rules 44E and 44G. (2) If under subrule (1) a practitioner for a party is notified, the practitioner must, as soon as practicable, notify the party of - (a) the fact that the case is on the Inactive Cases List and why; and (b) the effect of rules 44E and 44G. … 44F. Removing cases from Inactive Cases List (1) If a Form 1 (Entry for trial), or a consent order finalising the case, is filed in a case on the Inactive Cases List, the case is taken to have been taken off the list. (2) Any party to a case on the Inactive Cases List may apply to the Court for an order that the case be taken off the Inactive Cases List. (3) The Court may order a case be taken off the Inactive Cases List if satisfied the case will be conducted in a timely way or for any other good reason. (4) An order that a case be taken off the Inactive Cases List may include any conditions necessary to ensure the case is conducted in a timely way. 44G. Certain inactive cases taken to have been dismissed (1) A case that is on the Inactive Cases List for 6 continuous months is taken to have been dismissed for want of prosecution. -- 15 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 16 (2) If a case is dismissed under subrule (1), the Principal Registrar must give all parties to the case written notice of the fact. (3) If under subrule (2) a practitioner for a party is notified, the practitioner must, as soon as practicable, send a copy of the notice to the party. (4) If a case is dismissed under subrule (1), any party to it may apply to the Court for, and the Court may make, any order needed as a consequence of the dismissal. (5) The Court may, in exceptional circumstances and on such terms as it thinks just, set aside the dismissal of a case under subrule (1). (6) For the purposes of subrule (5) it does not matter that the case was dismissed before the commencement of that subrule. Appeal jurisdiction – Registrar appeals 40 A party who is dissatisfied with a decision of a registrar may appeal to a judge.58 The appeal is to be by way of a new hearing of the matter that was before the registrar.59 The appeal is a hearing de novo.60 The judge hearing the appeal is to treat the application as if it was before the court for the first time, save that the party appealing has the right as well as the obligation to open the appeal.61 The appellant is not required to demonstrate error to succeed on the appeal.62 41 I am therefore to treat the Set Aside Application which led to the making of the orders the subject of the appeal as though it had not been previously determined. It is not necessary for the plaintiff to establish an appealable error on the part of the registrar. The issue on the appeal 42 The sole issue that arises for determination is whether exceptional circumstances exist justifying the setting aside of the Dismissal of the case pursuant to r 44G(5) of the DCR. 58 DCR r 15(1). 59 DCR r 15(6). 60 Hazart Pty Ltd v Rademaker (1993) 11 WAR 26, 28 (Malcolm CJ) (Hazart). 61 Stewart v Hames [2019] WASCA 127 [8]. 62 Hazart [28]. -- 16 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 17 Are there exceptional circumstances that warrant an exercise of the court's discretion pursuant to r 44G(5) of the District Court Rules 2005 (WA) to set aside the Dismissal of the action and, if so, on what terms? The plaintiff's position 43 The plaintiff's position can be summarised as follows: 1. Rule 44G(5) of the DCR permits the court, 'in exceptional circumstances and on such terms as it thinks just, set aside the Dismissal of a case under r 44G(1). 2. The principles applicable to the determination of the plaintiff's application are those set out by the Court of Appeal (WA) in Sovereign Grange [No 2].63 3. The reference to 'exceptional circumstances' regulates the manner in which the discretion is to be exercised. It is not to be interpreted as a two-step process whereby the existence of exceptional circumstances is a condition precedent to the existence of a discretion.64 4. That what occurred in this action was exceptional as it was not a case of 'mere inadvertence or inattention' by a solicitor that has caused the matter to be dismissed but rather goes substantially further to a failure to review and implement the relevant civil procedures specific to this jurisdiction. Relevantly, counsel for the plaintiff submits: (a) The procedural failures by the plaintiff's solicitor in this matter are certainly not routine, common or in the ordinary course of litigation in this state. (b) That there is an important distinction to be made between the plaintiff himself and his solicitors. In instructing solicitors and, in turn, giving instructions to brief counsel, the plaintiff himself had a reasonable expectation that his matter was being progressed competently and was crucially unaware of the circumstances unfolding between October 2024 to April 2025. 63 Sovereign Grange Pty Ltd v A V Truck Services Pty Ltd [No 2] [2017] WASCA 142 [26] (Sovereign Grange [No 2]); Guillaume v City of Stirling [2020] WADC 41 [70]. 64 KLM (a pseudonym) v Foley [2025] WADC 83 [59] citing Sovereign Grange [No 2] [75] - [76]. -- 17 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 18 (c) It is through no failure or inattention of the plaintiff himself that his claim against the defendant has come to be dismissed for want of prosecution. (d) That the plaintiff's solicitor was apparently unaware that, if no documents were filed in the proceeding in a 12-month period, the matter would be placed on the Inactive Cases List, pursuant to r 44G of the DCR. (e) That the plaintiff's solicitors were unaware, and failed to make themselves aware, of the requirement to notify the plaintiff that the matter had been placed on the Inactive Cases List 'as soon as practicable' pursuant to r 44D(2) of the DCR. (f) That the plaintiff's solicitors assumed incorrectly, that simply filing the application to remove the matter from the Inactive Cases List would 'stay' the pending Dismissal, until the application was heard. While there can be no submission made that this was anything other than an incorrect assumption, the body of case law on the point, does indicate it is not the first time this assumption has been incorrectly relied upon. (g) The plaintiff's solicitors were unaware, arising from the third error, that they were required to expedite the hearing of the application to ensure the matter was not dismissed prior to hearing of the application. (h) Finally, that due to her pregnancy, leave and associated medical appointments, the plaintiff's solicitor was functioning well below full capacity and did not file the Chamber Summons to remove the matter from the Inactive Cases List until 13 March 2025. 44 The plaintiff submits that regard must be had to the material facts relevant to the matter being placed on the Inactive Cases List and being in a position to satisfy the criteria for removal from that list. That is, that it is relevant for the court to consider what documents were due for filing within the 12-month period where no documents had been filed. -- 18 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 19 45 Here, the plaintiff submits that the plaintiff had filed and served his pleadings as well his list of discoverable documents and that procedurally, the next step was filing of the defendant's defence, albeit some 70 weeks overdue as of 7 October 2024. The plaintiff submits that there had been no orders made by the court to permit the defendant not to file its defence in accordance with the DCR. There had been no applications made by the defendant to strike out or apply for other remedies available to it should it consider the plaintiff's claim is improperly brought. The plaintiff submits that notwithstanding requests for filing of a defence by the plaintiff, as well as correspondence which indicated that the defendant had ample understanding of the case it had to meet, the defendant had failed to comply with its obligations under O 20 r 4 of the RSC. 46 Whilst it is submitted that while there is no question that the plaintiff bears the onus to prosecute his own case, to criticise a plaintiff to say that he too bears the onus of bringing an application to force the defendant's compliance with the procedural rules leaves the defendant in position of in essence, having no obligations whatsoever to the administration of justice, which in and of itself creates an injustice to the plaintiff. 47 Counsel for the plaintiff submitted that there were multiple compounding errors, including the failure to appreciate that a case placed on the Inactive Cases List if no document was filed for 12 months, the failure to notify the plaintiff, failure to properly appreciate the effect of the rules, mistakenly assuming the Chamber Summons would stay or prevent, failing to seek expedition and failing to seek advice from counsel if unsure. When viewed cumulatively, these matters go beyond a single missed deadline. They show a broader failure to understand and implement the procedural rules applicable to inactive cases in this jurisdiction. 48 The plaintiff submits that when considered in isolation, none of the above factors may meet the criteria of exceptional circumstances, however, together affecting the same matter they are uncommon and unusual to be afflicted together. Each of the above matters, either directly or indirectly bear a causal connection to the ultimate dismissal of the action. Delay 49 The plaintiff submits that there was no undue delay in bringing the application to set aside the Dismissal given the application was filed some three weeks following the Dismissal of the action. -- 19 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 20 Merit 50 The plaintiff submits that the plaintiff's claim has merit and points to substantial expert evidence in support of his claim for both breach and damages. The plaintiff relies on the plaintiff's list of discoverable documents filed 6 October 2023 and points to the expert reports discovered which the plaintiff submits ought to be inferred is supportive of the plaintiff's cause of action, having been disclosed in the proceeding. The plaintiff submits that on this basis, the court cannot be satisfied that the plaintiff's case is without merit. Further, that the affidavit evidence available provides no indication that the defendant holds any expert evidence in reply as to liability. Prejudice 51 As to prejudice, the plaintiff submits that if the Dismissal is not set aside, the plaintiff is precluded from claiming damages against the defendant for the alleged negligent medical treatment which the plaintiff submits is significant in terms of a claim for damages which as yet has yet to be particularised. This is particularly relevant in circumstances where he is now statute barred, having had three years pass since the date of injury. Counsel for the plaintiff submits that the plaintiff has incurred considerable expense, both in legal costs and disbursements obtaining evidence to support his claim as outlined above. 52 Counsel for the plaintiff submits that in circumstances where the plaintiff had no personal knowledge of the procedural steps that unfolded between October 2024 and April 2025, permitting the Dismissal to stand would place the plaintiff personally in a position of injustice which ought to be relieved by the setting aside of that Dismissal. 53 The plaintiff submits that any prejudice to the defendant would appear to be negligible. That is, save for incurring legal costs in defending the claim the defendant suffers no prejudice should the Dismissal be set aside. 54 The plaintiff relies on Sovereign Grange [No 2]; Rowe v Stoltze65 and KLM v Foley. 65 Rowe v Stoltze [2013] WASCA 92 (Rowe v Stoltze). -- 20 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 21 The defendant's position 55 The defendant submits that at heart, to invoke the power under r 44G of the DCR, the plaintiff must show that there have been exceptional circumstances. The defendant submits that: 1. The circumstances to be examined as to whether or not they are exceptional are those causative of the Dismissal, being circumstances going to the reason the action remained on the Inactive Cases List for six months (here, the period between 7 October 2024 and 7 April 2025). 2. Assessment of whether there are exceptional circumstances involves an evaluative exercise with careful consideration of the facts of the particular case, against the rationale of the rule itself. The rationale is to secure the just and efficient determination of proceedings before the court, the efficient use of curial resources and the timely disposal of the court's business. 56 The defendant submits that the plaintiff's solicitor with conduct, Ms Amarasinghe has not offered any explanation in her affidavit evidence for: 1. What was being done or considered between 5 March 2024 and 26 August 2024 (a period of more than five months)? 2. Why she did not heed the plain content of the notice from the court dated 7 October 2024 that the case had become an inactive case and what the implications of this were? 3. The omission to take any steps between 7 October 2024 and December 2024 to apply for the action to be removed from the Inactive Cases List (she points to her pregnancy symptoms, medical appointments and workload in relation to the period in 2025 up until 13 March 2025). 4. The omission to notify the plaintiff that the action was on the Inactive Cases List. 5. As to why steps were taken to serve expert evidence on or around 3 December 2024 without any steps being taken to remove the action from the Inactive Cases List. -- 21 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 22 57 The defendant points to having clearly and appropriately raised concerns with accuracy of the information provided by the plaintiff's solicitors to experts and proposed that the action not proceed past the defence stage without those concerns being resolved. 58 The defendant relies on the affidavit of Debra Ann Crossley sworn 25 July 2025 (Crossley Affidavit). Attached to the Crossley Affidavit at 'DEC 1' is an email chain of communications sent by the defendant's solicitors to the plaintiff's solicitors. Included in that is an email dated 20 December 2023 in which the following is said: Sachini, further to our discussion on 17 November 2023 and bearing in mind that we are approaching the three-year mark of the relevant events (1 January 2024 and following), could you please confirm for us your intentions in relation to any claims arising from your client's care by other practitioners between his two attendances at Royal Perth Hospital in early 2021? 59 The defendant submits that the Set Aside Application should be dismissed in circumstances where: 1. There was nothing exceptional about the circumstances causing the Dismissal of the action. 2. The reasons why the matter was placed on the Inactive Cases List were not relevant, and if they were relevant, were not exceptional. 3. The fact that plaintiff himself was not made aware and was not at fault did not make the circumstances exceptional. 4. The fact that the solicitor with conduct had some unscheduled time off did not make the circumstances exceptional. The plaintiff's solicitors were expected to have adequate procedures in place to manage such absences. 60 The defendant submits that it is not correct to say that it was the lack of filing of a defence which caused the action to become inactive. Any document (eg an amended response to the defendant's request for particulars) filed in the 12 months leading up to 7 October 2024 could have prevented the inactivity. The defendant submits that the defendant will suffer prejudice as to the events giving rise to the claim happened in 2021. -- 22 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 23 61 In these circumstances, it is submitted that there are no exceptional circumstances demonstrated, such that the application must fail. 62 The defendant relies on HIJ (a pseudonym) v The State of Western Australia66; Rowe v Stoltze; Sovereign Grange as cited in KLM v Foley; and Carter v South Metropolitan Health Service.67 Disposition 63 No issue arises as to the proper Dismissal of the case in the first instance for want of prosecution. No document was filed on the case since the plaintiff filed his list of documents on 6 October 2023. As a result, on 7 October 2024, the principal registrar issued the Inactive Notice and the case was placed on the Inactive Cases List from the date of that notice. 64 There is clear authority that it is irrelevant to the operation of r 44A of the DCR how it came about that no document was filed within the 12-month period. It is enough that no document was filed. 65 On my review of the materials, it is clear that the solicitors on record for the plaintiff were aware that the case had been placed on the Inactive Cases List on 7 October 2024. Ms Amarasinghe in each of the First, Second, Third and Fourth Amarasinghe Affidavits deposes to having received notice from the court of this. 66 In issuing the Inactive Notice on 7 October 2024, the plaintiff was given notice in writing by the principal registrar that the case had been put on the Inactive List and of the effect of r 44E and r 44G of the DCR. This notice being given to the plaintiff's solicitors on record, Monaco Solicitors. There is no requirement for separate notices to be given to the solicitors on record for a party and the party named. Relevantly, the Inactive Notice clearly and expressly provides that: Pursuant to r 44D(2), as soon as practicable after receiving this notice, a practitioner must notify the party they represent of the fact that the case is on the Inactive Cases List and the effect of r 44E. 66 HIJ (a pseudonym) v The State of Western Australia [2025] WADC 39 [70]. 67 Carter v South Metropolitan Health Service [2025] WADC 74. -- 23 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 24 67 The court's notice given under r 44D(1) of the DCR is the warning to the parties that steps must be taken to progress the claim with r 44E setting out the consequences of the case being on the Inactive Cases List.68 68 The Inactive Notice importantly contains an express warning that pursuant to r 44G(1) of the DCR, a case that is on the Inactive Cases List for six continuous months is taken to have been dismissed for want of prosecution. 69 As observed above, pursuant to DCR r 44D(2) it is incumbent on 'a practitioner for a party who is notified' pursuant to DCR r 44D(1) to, as soon as practicable, notify the party of the fact that the case is on the Inactive Cases List and why; and of the effect of DCR r 44E and r 44G. That the term 'must' is used in DCR r 44D(2) makes this express obligation clear. 70 Rule 44G(5) of the DCR provides that the court may, in exceptional circumstances and on such terms as it thinks just, set aside the Dismissal of a case under r 44G(1). 71 The general principles in determining whether there are exceptional circumstances were outlined by the Court of Appeal in Sovereign Grange [No 2].69 They are well established and I do not propose to repeat them here. 72 The reference to 'exceptional circumstances' regulates the manner in which the discretion is to be exercised. It is not to be interpreted as a two-step process whereby the existence of exceptional circumstances is a condition precedent to the existence of a discretion.70 73 The decision in Sovereign Grange [No 2] makes it clear that the r 44G(5) of the DCR poses a single question for the court in the context of an application to set aside a dismissal - whether exceptional circumstances warrant the setting aside of the Dismissal. The burden lies on the plaintiff to establish the exceptional circumstances. 74 I relevantly note as follows. 68 KLM v Foley [54]. 69 Sovereign Grange [No 2] [26]. 70 Sovereign Grange [No 2] [75] - [76]. -- 24 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 25 75 First, that on my review of the materials, on receipt of the Inactive Notice on 7 October 2024, the plaintiff's solicitor was progressing matters related to the case, including matters of expert evidence, whilst awaiting receipt of the defence. No application however was made to remove the matter from the Inactive Cases List until some five months had passed following receipt of the Inactive Notice. A number of reasons for this are advanced and can be summarised as follows: 1. The plaintiff's solicitor operated on the belief that the filing of the Chamber Summons on 13 March 2025 to remove the matter from the Inactive Cases List would have the effect of staying the proceedings pending the outcome of the hearing of that application. A view, Ms Amarasinghe deposes to having formed based on her litigation experience in other jurisdictions. 2. Ms Amarasinghe relevantly deposes in the Fourth Amarasinghe Affidavit that her omission to take steps between 7 October 2024 and December 2024 to apply for the action to be removed from the Inactive Cases List was caused by her already significant medical negligence practice at the time and the time taken by her to review the evidence, give advice and received instructions to serve the report. 3. From in about late December 2024, Ms Amarasinghe deposes to having delayed the completion of some necessary tasks including the filing of the Chamber Summons to remove this matter from the Inactive Cases List. It is during that time that Mr Amarasinghe was also impacted by her personal condition. From about January 2025, this practice increased significantly when she took carriage of approximately 40 additional medical negligence files as she was the only solicitor at Monaco Solicitors with an unrestricted practising certificate, working on Western Australian medical negligence matters at the time. 4. This is despite, Ms Amarasinghe deposing to her pregnancy having significantly affected her mental state throughout 2025 which in turn affected her capacity to deal with the notification from the court that this matter had become inactive, in a timely fashion. -- 25 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 26 76 Monaco Solicitors is a large personal injury law firm first established in Sydney, New South Wales. The firm has a number of practitioners, including senior practitioners, one of which is Ms Amarasinghe. Mr Monaco in his affidavit deposes to having worked closely with Ms Amarasinghe on a day-to-day basis prior to her taking maternity leave and to their offices being next to each other. Mr Monaco deposes to having been informed towards the end of 2024 or early 2025 by Ms Amarasinghe of her pregnancy of matters related to her pregnancy and to her appearing to be to be worried, even distressed about the situation. 77 Mr Monaco further deposes that he was aware from the beginning of 2025 until the end of April 2025 that Ms Amarasinghe had multiple medical appointments for the purpose of monitoring matters related to her pregnancy and during that period, had taken some leave, none of which was planned leave. 78 Nothing is said about matters to do with Ms Amarasinghe's case load, which on her own evidence, increased substantively from January 2025 and which coincided with a period when she felt that her mental state was affected. This also being after a period where from between 7 October 2024 to December 2024 Ms Amarasinghe deposes to her omission to taking steps during that period being caused by her already significant medical negligence practice at the time and the time taken by her to review the evidence, give advice and receive instructions. 79 On a proper consideration of the chronology from receipt of the Inactive Notice on 7 October 2024 up to the Dismissal on 7 April 2025 it is apparent that the plaintiff's solicitors were in fact taking steps to remove the matter from the Inactive Cases List and did engage with the plaintiff prior to the Dismissal. However, the solicitors were operating on incorrect belief that the action would be stayed pending the outcome of the application. As a result, the solicitor did not take any steps to reschedule the summons to a date prior to the Dismissal. 80 Whilst I acknowledge the matters Ms Amarasinghe deposed to in her affidavits, having had regard to all of the materials before me, these matters, when considered as a whole, cannot be characterised as inattention or inadvertence by a solicitor that can be said to constitute an exceptional circumstance. -- 26 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 27 81 Secondly, it can be seen from the evidence and materials before this court that correspondence was sent to the plaintiff during the relevant period. Relevantly, the plaintiff in his affidavit deposes that on or about 6 December 2024 he received an email from his solicitors noting that they were still waiting for a defence to be filed by the defendant. However, the plaintiff was not informed of the Informal Notice until after the Dismissal. 82 Thirdly, a further relevant factor is the merits of the plaintiff's case. As to this, the basis of the claim is limited to the matters set out in the Amended Writ of Summons and the answers to the further and better particulars of claim dated 1 August 2023. As already noted, the plaintiff's claim is for damages for the defendant's alleged delay in diagnosis and treatment of his mitral valve infective endocarditis during presentations to the Emergency Department of Royal Perth Hospital on or about 2 January 2021. The injuries the plaintiff claims to have suffered as a result the delay alleged is septic cerebral infarctions and resultant neurological injury. 83 Whilst any assessment of the strength of the plaintiff's claim is limited to the statement of claim and particulars, it cannot be said that the claim has no merit. However, the claim is broad in that in traverses matters to do with medical treatment and assessment prior to the plaintiff's presentation at Royal Perth Hospital on 2 January 2021 and matters subsequent to that. The matters pleaded are complex and contain a myriad of allegations that will properly need to be the subject of expert evidence in order to meaningfully determine causation. As can be seen from a review of the plaintiff's list of documents filed 6 October 2023, a number of expert reports had already been obtained by the plaintiff. 84 It follows that at this stage, it is difficult to make a proper assessment of the merits of the claim given the documents and information available are essentially limited to the plaintiff's pleaded claim and particulars. Where the list of documents refers to medical documents and liability documents and include expert reports, these documents are not before the court and are not capable of any meaningful assessment as to the strength of the plaintiff's case. Whilst there is no defence filed as yet, what does appear in the evidence before the court is Annexure 'MZ-2' to the plaintiff's affidavit deposed 18 March 2026 attaching correspondence from the defendant's solicitors to the plaintiff's solicitors dated 1 November 2023 which sets out in detail why it is said that the treatment the plaintiff received was appropriate. -- 27 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 28 85 Accepting that there might be some merit to the plaintiff's claim, and that a plaintiff will suffer prejudice if the Dismissal is not set aside, those factors either alone or in combination with any other factors identified by the plaintiff do not amount to exceptional circumstances warranting the setting aside of the Dismissal of the case. 86 Whilst prejudice is asserted by the plaintiff given the plaintiff submits that on or about 1 January 2024, the limitation period expired, the rules do not demand that the court set aside a dismissal of an action which may have merit where the plaintiff has been given, but failed to take advantage of, a reasonable opportunity to prosecute the claim.71 There is no suggestion of the plaintiff disputing the limitation period expired on 1 January 2024 and that this date is also the date the defendant points to as being the relevant date. 87 The consequences to the plaintiff, as clearly set out in the Inactive Notice of the case not being removed from the Inactive Cases List therefore, was significant. 88 The materials and evidence relied on by the plaintiff do not provide any answer to why the 'missed opportunities' or admitted 'oversight' or assumptions based on 'other jurisdictions' could be said to constitute 'exceptional circumstances' within the meaning of r 44G(5) of the DCR. These are obligations that rest with every legal practitioner and is part of the privilege of practice. 89 Further, whilst r 44G(5) of the DCR is not remedial and should be interpreted as giving the court a broad power to relieve against injustice, as outlined by the Court of Appeal in Sovereign Grange [No 2], DCR r 44G(5) must be considered in the context of case management, with the onus remaining on the party. Mere inadvertence or inattention by a solicitor would ordinarily not constitute an exceptional circumstance that would absolve a plaintiff from any personal responsibility to pursue the action. 90 In all of the circumstances, on a careful consideration of the facts of the pleaded case, and having had regard to the well-established principles set out in Sovereign Grange [No 2], the materials and evidence relied on by the plaintiff do not show anything out of the ordinary such that it could be said to constitute 'exceptional circumstances' within the meaning of r 44G(5) of the DCR. 71 Sovereign Grange [No 2] [65]. -- 28 of 29 -- [2026] WADC 48 JEYAMOHAN DCJ [2026] WADC 48 (MJW) Page 29 91 This ground of appeal has not been established Conclusion 92 For the reasons which I have set out above, the plaintiff has failed to prove that exceptional circumstances exist justifying the setting aside of the Dismissal of the case. 93 Consequently, the appeal should be dismissed. Orders 1. The appeal is dismissed. 2. The application to set aside the Dismissal of the case is dismissed. 94 I will hear the parties as to costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the District Court of Western Australia. MO Associate 15 JUNE 2026 -- 29 of 29 --