Inactive Cases and Procedural Steps in Civil Proceedings

1. Introduction to Inactive Cases List

In the Supreme Court of Western Australia, the efficient management of the Court's caseload is facilitated by provisions governing inactive cases. Order 4A r 24 of the Rules of the Supreme Court 1971 (WA) establishes a mechanism whereby cases with no recent activity can be deemed inactive. Understanding what constitutes activity in a proceeding, in the form of procedural steps, is essential for practitioners to ensure their matters are not inadvertently placed on the Inactive Cases List.

2. Legislative Framework

Order 4A r 24 deems a case to be inactive where no party has taken a procedural step for 12 months. However, this rule also provides the case manager with discretion to order otherwise (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [54]). Once a case is deemed inactive under Order 4A r 21, it may be placed on the Inactive Cases List.

The provisions governing inactive cases operate alongside other procedural rules, including Order 3 r 7, which requires a party who has not taken a step in a proceeding for one year to give notice of intention to proceed before taking any step in the proceedings.

3. Procedural Steps - General Principles

The determination of what constitutes a "procedural step" is fundamental to the operation of both Order 3 r 7 and Order 4A r 24. In Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176, Smith AUJ comprehensively examined the relevant principles, drawing extensively from the Court of Appeal's decision in Crane v The State of Western Australia [2017] WASCA 31.

The Court of Appeal in Crane established that a procedural step has several defining characteristics:

  1. It must have "the characteristic of carrying the cause or action forward" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], citing Citicorp).

  2. It must be "something in the nature of a formal step in the prosecution of an action" as distinguished from "acts done in the recesses of a solicitor's office" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55]).

  3. It is "some step in the action required by the rules of procedure, but not necessarily carried out in accordance with those rules, to carry the action forward to a final judgment" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], citing Argo Pty Ltd v Attorney-General (Tas) (No 3) [2004] TASSC 51; (2004) 13 Tas R 69).

  4. It is characterized as "activity recognized by the Rules as an activity which positively advances the cause and its conduct towards ultimate judgment" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], citing Burns v Korff [1982] 8 QL 201, 208).

In general terms, a procedural step is "something in the nature of a formal step which a party is required or permitted by the rules of court, or an order of the court, to take for the purpose of advancing the case towards final judgment" (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55]).

4. Actions that Constitute a Procedural Step

The courts have established that certain actions will constitute a procedural step for the purposes of Order 3 r 7 and Order 4A r 24. These include:

  1. Filing and service of a pleading or an amended pleading (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [58], referring to Crane v The State of Western Australia [2017] WASCA 31 at [28]-[29]).

  2. Filing a minute of proposed orders, which can be construed as constituting an application to the court for the orders sought, as it is a formal step in the proceeding for the purpose of advancing the case (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [56]).

  3. The provision of copies of discovered documents (as distinguished from mere inspection of such documents) (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], citing Wright v Ansett Transport Industries Limited [1990] 1 Qd R 297).

It is important to note that the filing and service of an amended pleading will constitute a procedural step in a case even if another aspect of the case is subject to a stay order, provided the amended pleading does not relate to the stayed aspect of the case (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [61]).

5. Actions that Do Not Constitute a Procedural Step

The courts have also established many actions that will not constitute a procedural step for the purposes of Order 3 r 7 and Order 4A r 24. In Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55], Smith AUJ, citing Crane v The State of Western Australia [2017] WASCA 31, provided an extensive list:

  1. A letter requesting delivery of a statement of claim (Ives & Barker v Willans [1894] 2 Ch 478, 483-484).

  2. An agreement to extend the time for delivering a defence, although an application to the court for such an extension would be a step (Brighton Marine Palace and Pier Ltd v Woodhouse [1893] 2 Ch 486, 488-489).

  3. Making an application to set aside judgment (ANZ Banking Group Ltd).

  4. The filing of affidavits in opposition to an application for the appointment of a receiver, in an action for the dissolution of a partnership (Zalinoff v Hammond [1898] 2 Ch 92).

  5. A letter calling for compliance with an order for delivery of an affidavit of documents (Mundy).

  6. The inspection of copies of discovered documents in the solicitor's office (Citicorp).

  7. Delivery of a draft list of documents and unexecuted affidavit, accompanied by a letter confirming the provisional or interim basis of those documents (Raabe v Brisbane North Regional Health Authority [2000] QSC 257).

  8. Interviewing a potential witness (Smiley v Watson [2001] QCA 269; [2002] 1 Qd R 560).

  9. An order for the transfer of an action from one court to another (IH Dempster Nominees Pty Ltd v Chemgoods Pty Ltd [1993] 2 Qd R 377, 378).

  10. Notice of a change of solicitors (Kaats v Caelers).

  11. Notice of intention to proceed (Kaats v Caelers).

  12. The taking out by a plaintiff of money paid into court, and payment into court for a cross-claim (Spincer v Watts (1889) LR 23 QBD 350).

In addition, the Court in Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [55] clarified that work "done in the recesses of a solicitor's office, such as inspecting documents, preparing an affidavit of discovery or preparing proofs of witnesses, which, although necessary to bring the action to trial, cannot be fairly described as a 'proceeding' in the cause" does not constitute a procedural step.

6. Distinguishing Features of a Procedural Step

From the cases, several distinguishing features emerge that separate actions that constitute procedural steps from those that do not:

  1. Formality: A procedural step involves a formal step in the prosecution of an action, typically involving filing or service of a document with the court or other parties.

  2. Advancement: The action must positively advance the cause towards judgment.

  3. Recognition by Rules: The activity should be one recognized by the Rules as an activity that advances the proceedings.

  4. Public Nature: Actions that are done privately in a solicitor's office without being communicated to the court or other parties generally do not constitute procedural steps.

7. Example from Vantage Holdings Group Pty Ltd v Donnelly [No 5]

The facts of Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 provide a useful illustration of the application of these principles. The case involved a complex corporate dispute with multiple plaintiffs and defendants. In November 2019, the Supreme Court made a stay order affecting the claims by the third plaintiff (Australian Reliance) against the fifth and sixth defendants (collectively "the Auditors"). The stay was to take effect if security was not provided by a certain date. Security was not provided on time, and the stay came into effect in April 2021. However, security was eventually furnished in February 2022, but the parties disagreed about whether this automatically lifted the stay. The matter went dormant for some time, and in April 2023, the Auditors sought to have the matter placed on the Inactive Cases List on the basis that no procedural step had been taken for more than 12 months. The court found that while the filing of a notice of intention to proceed did not constitute a procedural step, the previous filing of a minute of proposed orders in March 2022 could be construed as a procedural step, although by April 2023, 12 months had passed since that step. Ultimately, the court ordered that the case would not be taken as inactive, provided the plaintiffs filed an amended statement of claim by a certain date, which they subsequently did.

8. Importance of Taking Timely Procedural Steps

The decision in Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 highlights the importance of taking timely procedural steps in litigation. At paragraph [56], Smith AUJ noted that filing a minute of proposed orders could constitute a procedural step, but because 12 months had elapsed since that step, Order 4A r 24 was invoked. If a matter is placed on the Inactive Cases List and not removed, it may ultimately be dismissed.

Moreover, as noted at paragraph [120], even if a stay is discharged, parties who do not take prompt steps to progress proceedings may face applications to dismiss the action for want of prosecution. Smith AUJ specifically warned: "Australian Reliance (together with the other plaintiffs should be on notice) that if they do not take prompt steps to progress these proceedings to trial, that they will likely face an application to dismiss the action on grounds of want of prosecution which may be successful."

9. Practical Considerations

Practitioners should be mindful of several practical considerations to avoid having their matters placed on the Inactive Cases List:

  1. Diarize Critical Dates: Ensure that relevant dates for taking procedural steps are diarized, particularly the one-year anniversary of the last procedural step.

  2. Filing Formal Documents: Where a matter has been dormant, consider filing formal documents that will constitute procedural steps, such as amended pleadings or applications.

  3. Conferral and Correspondence: Be aware that mere correspondence between parties or conferral will generally not constitute procedural steps.

  4. Notice of Intention to Proceed: While filing a notice of intention to proceed under Order 3 r 7 does not itself constitute a procedural step, it may demonstrate to the court an intention to progress the matter actively, which could be relevant to the exercise of the case manager's discretion under Order 4A r 24.

  5. Disputed Stays: Where there is a dispute about whether a stay order applies or has been lifted, seek clarification from the court promptly rather than allowing the dispute to continue unresolved (Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 at [68]).

10. Conclusion

Understanding what constitutes a procedural step is essential for effective litigation management. The principles established in Vantage Holdings Group Pty Ltd v Donnelly [No 5] [2025] WASC 176 and the cases it cites provide valuable guidance for practitioners seeking to ensure their matters remain active. By taking timely and appropriate procedural steps, practitioners can avoid the risk of having their matters placed on the Inactive Cases List and potentially dismissed.