206 North Terrace Pty Ltd, Thomson and Williams v The State of South Australia - [2011] SADC 146

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
206 NORTH TERRACE PTY LTD, THOMSON AND WILLIAMS v THE STATE OF SOUTH AUSTRALIA
[2011] SADC 146
Judgment of His Honour Judge Griffin
16 September 2011
PROCEDURE
Appeal against decision of Master reinstating plaintiffs' action.
Original action initiated in 2000 - as result of non-compliance with orders, Master dismissed action in 2004.
Application to reinstate action in 2009 - delay due to severe poor health of second plaintiff - Master exercised discretion and reinstated action - Appeal by defendant alleging errors in exercise of discretion.
Held: No error by Master in exercise of discretion - principles correctly identified and applied - Appeal dismissed save for variation to Orders - Order 1.4 of Master's Orders deleted.
District Court Civil Rules 2006 r.84.12, referred to.
House v The King (1936) 55 CLR 499, applied.
Beverage Bottlers (SA) Ltd (in liq) and Anor v Abode Enterprises [2009] SASC 272; B Q and H M Doe Pty Ltd v NAB [1999] SASC 124; Ulowski v Miller [1968] SASR 277; Aon Risk Services v ANU (2009) 239 CLR 175; Hutchison v Myer Stores (1995-1996) 184 LSJS 398, 405; Cavanagh-Lang v O'Callaghan [2000] SASC 187; Copping v ANZ McCaughan (1997) 67 SASR 525, 567; Commissioner of Police v Channel 7 Adelaide Pty Ltd [2008] SASC 164, considered.

206 NORTH TERRACE PTY LTD, THOMSON AND WILLIAMS v THE STATE OF SOUTH AUSTRALIA
[2011] SADC 146
Introduction

This is an appeal from a decision of a Master on 18 August 2010 reinstating the plaintiffs’ action. The plaintiffs’ civil proceedings claimed damages in relation to a property sale in 1995. The proceedings were initiated in 2000. As a result of non-compliance with orders, the Master dismissed the action on 6 December 2004.
Approximately four and half years later on 9 June 2009 the plaintiffs filed an application to set aside the default judgment and reinstate the proceedings. The Master received evidence and submissions in support of the application to reinstate the proceedings and in opposition to the application.
The Master delivered reasons for his decision dated 12 August 2010. The reasons are comprehensive, thorough and well reasoned. In my view, they amply support the exercise of his discretion in granting the application to reinstate the proceedings. With one exception pertaining to Order 1.4, I find that the Master did not fall into any error. In respect of Order 1.4 I have found that it is either ambiguous, or unworkable in its present form. I will return to this aspect of the appeal in more detail.
District Court Rules and Power to Reinstate Action
The plaintiffs’ action was initiated under the District Court Rules 1992. Pursuant to District Court Civil Rules 2006 Rule 8(1)(a), the old rules apply because it is “a primary action commenced before the commencement date”.[1]
[1] The commencement date for the new Rules pursuant to Rule 2 is 4 September 2006.
The District Court possesses a wide discretionary power to reinstate proceedings which have been dismissed for want of prosecution. The power is conferred by District Court Rule 84.12. The primary or guiding principle in the determination of whether or not to exercise the discretion to reinstate proceedings is whether the justice of the case requires that result.[2]
[2] Hutchison v Myer Stores (1995-1996) 184 LSJS 398, 405, Cavanagh-Lang v O’Callaghan [2000] SASC 187, [48] and Copping v ANZ McCaughan (1997) 67 SASR 525, 567.
The Appeal
This appeal is brought pursuant to s.43(2) of the District Court Act. The appeal is by way of re-hearing on the documents considered at the first instance. The court does have power to receive further evidence on the appeal and if it does so, it is to consider the issues in the light of all of the material before it at the time of the appeal.[3] As I have stated, the decision to reinstate involved the exercise of a discretion by the Master. In order to succeed on this appeal the defendant must satisfy the court that some error was made in the exercise of the discretion. The test in an appeal such as this was described in House v The King (1936) 55 CLR 499 at 504 per Dixon, Evattt and McTiernan JJ in these terms:
“The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
[3] Commissioner of Police v Channel 7 Adelaide Pty Ltd [2008] SASC 164.
The parties agree that the learned Master had the power to make the reinstatement order. They also agree about the nature of this appeal and the legal test to be applied consistent with the factors identified in House v The King.[4]
[4] (1936) 55 CLR 499 at 504..
Background history of proceedings
The Master set out in his Reasons for Decision a history of the initial proceedings and of the dismissal proceedings in 2004.[5] The Master summarised a number of delays in the proceedings and the events leading up to the dismissal of the action in December 2004. He noted that by June 2004 the plaintiffs were no longer represented by independent solicitors and counsel, save for the fact that the second plaintiff Ms Thomson was purporting to act for each of the plaintiffs. She was a legal practitioner and the conduct of the proceedings had fallen on her shoulders on behalf of each of the plaintiffs.
[5] Reasons for Decision of Master Rice [4] – [14].
In recounting and summarising the essential features of the original proceedings, the Master was in a unique position. He was the Master throughout the history of those proceedings. He was therefore closely acquainted with the conduct of those proceedings and the parties appearing before him on a regular basis.
The plaintiffs’ application to set aside the judgment was filed on 9 June 2009 and was supported by affidavit evidence. Quite obviously it was essential for the plaintiffs to explain the reason for the long delay between the dismissal of the action and the application for reinstatement. A critical part of that explanation was the evidence relating to the severe mental illness suffered by the second plaintiff Ms Thomson over a period of at least four years between 2004 and early 2009. A report from Dr Czechowicz confirmed that the second plaintiff was suffering from Depression including suicidal tendencies which were present in September 2004 when he started his consultations with her. He consulted with her on thirty five occasions over the next four years. In a three month period from July to October 2005 she was an inpatient at a private hospital. Upon her discharge from hospital Dr Czechowicz noted that there was partial improvement in her condition. She was however, still significantly disabled through a combination of the brain injury sustained in the earlier accident and the compounding effects of her depression. The medical opinion was that although she had made some improvement, by early 2009 she was still incapable of doing legal work although Dr Czechowicz considered that she could be guided to return to legal work in a limited way. The Master also noted from her appearances before him from late 2009 that she was beginning to function at a much higher level than had previously been the case.[6]
[6] Reasons for Decision [46].
The Master accepted from all of the evidence presented that the second plaintiff was seriously ill and was incapable of conducting the litigation during most, if not all, of the period of delay. In my view there was clearly sufficient material before the learned Master to justify his conclusion. There was no error on his part in reaching the decision he reached about her mental health and capacity.
During much of the same period the first plaintiff, 206 North Terrace Pty Ltd, was deregistered. It was deregistered in June 2005 and then reinstated in 2008.[7] The third plaintiff, Mr Williams, is the second plaintiff’s husband. The Master concluded that during the period of the delay, the third plaintiff did not actively engage in the litigation either in his own right or on behalf of either of the other plaintiffs. Instead, he devoted his attention to the personal wellbeing of his wife, the second plaintiff. In my view, the Master correctly concluded from all of the material before him that the second plaintiff was the driving force in the litigation. Whilst it is theoretically true that the first and third plaintiffs could have pursued their own legal interests before the dismissal of the action and, following the dismissal during the period of delay, the reality was that when the second plaintiff was seriously ill they could not drive the proceedings forward. In my view, this is the effect of the findings made by the Master and represents an entirely realistic and practical conclusion.
[7] Reasons for Decision [33].
Grounds of Appeal
For the sake of completeness I will set out the defendant’s grounds of appeal:
1(a)The Master failed to apply the principles in Watson v Anderson regarding reinstatement and instead relied upon case law regarding dismissal for want of prosecution;
1(b)The Master failed to give sufficient weight to case flow management principles, particularly the importance of the finality of litigation;
1(c)The Master erred in exercising his discretion to allow the application when there was no or insufficient evidence of sufficient change in circumstances from what existed at the time the matter was dismissed;
1(d)The Master erred in finding that the delay of all three plaintiffs was attributable to the second plaintiff’s psychiatric illness;
1(e)The Master erred in finding on insufficient evidence that the second defendant was suffering a psychiatric condition at the time of the proceedings were dismissed and in the period immediately prior to the dismissal;
1(f)The Master failed to give sufficient weight to the positions of the first and third plaintiffs who were not suffering any disability;
1(g)The Master failed to give adequate weight to evidence of other reasons for the plaintiffs’ delay in applying to set aside the decision to dismiss the proceedings;
1(h)The Master erred in relying upon unsworn statements made from the bar table by the plaintiffs which were neither the subject of, nor supported by, sworn evidence;
1(i)The Master failed to give sufficient weight to potential prejudice to the defendant;
1(j)The Master failed to give sufficient weight to the defendant’s submissions concerning the oral evidence which will be required at trial;
1(k)The Master erred in finding that the matters in issue in the proceedings would be proved primarily by documentary evidence and erred in concluding that the State agreed with this proposition; and
1(l)The Master failed adequately or at all to consider whether the second defendant was under a legal disability or had adequate capacity to run the litigation.
2(a)The Master erred in delegating to a medical practitioner the decision whether the second plaintiff suffers a legal disability which is a decision which this Honourable Court must make based on admissible evidence; and
2(b)imposing the condition which requires the plaintiffs to conduct this litigation under the direction of a solicitor or barrister subject to further review as that condition:
i.is insufficiently precise;
ii.interferes with the usual solicitor/client relationship and is
inherently unworkable;
iii.could not be supervised by this Honourable Court; and
iv.would not be susceptible to enforcement by this Honourable
Court.
The defendant’s grounds of appeal allege errors of fact and law by the Master in allowing the plaintiffs’ reinstatement application. The nature of the errors asserted in the Notice of Appeal can be summarised as follows:
·errors relating to legal principles and the application of those principles – Grounds 1(a), 1(b) and 1(c),
·errors in determining that the delay in making the reinstatement application had been adequately explained – Grounds 1(d) to 1(h) inclusive;
·errors in relation to the issue of prejudice caused by reinstatement – Grounds 1(i) to 1(l) inclusive; and
·errors in relation to the nature and form of the Master’s Orders – Grounds 2(a) and 2(b).
The defendant’s counsel relied upon his written Outline. In oral argument he directed attention to the general grounds of complaint rather than proceeding ground by ground. Many of the grounds are overlapping or closely related to others. It was an entirely sensible way to present the appellate argument and I will respectfully adopt the same approach in deciding the relevant issues raised on this appeal.
The defendant asserted that the crucial findings of the Master leading to his decision to reinstate the action are those contained at [193] - [195] of his Reasons. A number of the defendant’s complaints on this appeal are focused on these findings. I will set out the relevant passage:
In my view, it is appropriate to review the order under Rule 84.12. In considering the whole of the evidence, in particular the lack of prejudice to the defendant and the significant prejudice to the plaintiffs, the protection for the defendant on costs and a requirement that a solicitor oversees the prosecution of the action, then in my view it is appropriate to set aside the order dismissing the action for non-compliance with orders and for want of prosecution.
I accept the second plaintiff’s medical evidence that she was suffering severely from depression from early 2004 to at least the end of 2006 and perhaps 2008. Even when her condition improved, she was not in a position to work and to advance this action.
There are many similarities in this case with the Ulowski and Beverage Bottlers cases. Each case is dependent on its merits. In reality, it is difficult for a defendant, even in caseflow management situations, to obtain an order that an action be dismissed for want of prosecution, even where there might have been many years of delay. In my view, the plaintiffs have adequately explained the reason for the events in December 2004 to 2009. It is appropriate to set aside the dismissal order, on conditions.
The defendant relates those passages to what the Master stated at [185] namely:
The prejudice to the plaintiffs has been completely enveloping and extreme. Over this period the second plaintiff has lost the opportunity to pursue the personal injury action in Queensland. She lost her practising certificate.
The defendant points to these passages in the Master’s decision and asserts that he has fallen into error. In relation to the issue of prejudice to the defendant, it says that the Master has incorrectly concluded that there is no prejudice to the defendant. It argues that the Master was incorrect to conclude that the case can be tried primarily upon the documentary evidence. Further, it argues that the Master failed to have adequate regard to the potential latent prejudice described by Kourakis J in Beverage Bottlers (SA) Ltd (in liq) and Anor v Abode Enterprises Pty Ltd [2009] SASC 272.
The defendant also contended that in evaluating the degree of prejudice to the plaintiffs if they were not permitted to reinstitute the action, the Master has either taken into account irrelevant matters, or made findings without a sufficient factual basis, or a combination of the two. The defendant in particular identified the Master’s findings about the plaintiff’s psychiatric condition as an example of an inadequate factual basis to support the finding. It also pointed to the dismissal of the second plaintiff’s personal injury action in Queensland and loss of her practising certificate as irrelevant considerations which the Master wrongly took into account. I will address these arguments in more detail.
The defendant accepted the proposition that the issue of prejudice to the parties is a relevant consideration but it says it is not decisive of the application for reinstatement. It argues that the Master placed too much emphasis upon the prejudice to the plaintiffs and too little on the prejudice to the defendants if the action were reinstated.
In the course of the reinstatement application, the Master reviewed the history of the proceedings leading to the dismissal in July 2004. There was no challenge to the correctness of his decision to dismiss. The defendant maintained that one of the significant factors relevant to the decision to reinstate, is whether there has been an adequate explanation by the plaintiffs for their original defaults. It argues that on the material before the Master the plaintiffs had not adequately explained their tardiness and default in their conduct of the proceedings up to July 2004.
I have examined the Master’s Reasons and the materials before him. The relevant legal principles as distilled from the leading authorities were fully canvassed. The Master specifically referred in his Reasons to the decisions in Beverage Bottlers[8], B Q and H M Doe Pty Ltd v NAB , Ulowski v Miller[10] and Cavanagh-Lang v O’Callaghan.[11]In addition the Master had regard to the principles of caseflow management and the necessity that a party act expeditiously. The Master specifically directed himself in terms of the modern authority Aon Risk Services v ANU.[12]
[8] [2009] SASC 272 at [234].
[10] [1968] SASR 277.
[11] [2000] SASC 187.
[12] (2009) 239 CLR 175, per French CJ at [5].
Based on the relevant authorities, it was common ground between the parties on this appeal that the following factors are to be considered in an application for reinstatement. They include:
1the reasons for the plaintiffs’ defaults;
2any delay by the plaintiffs in bringing the application to reinstate the action and the reasons for it;
3whether there is a genuine intention to prosecute the action; and
4the substantive merits of the claim;
5possible prejudice to the defendant;
6the costs thrown away, the delayed proceedings and the effect of delay on the judicial system; and
7the desirability of the finality of litigation.
This appeal does not challenge any of the established principles nor does it seek to invoke new principles or new interpretations to the existing ones. Instead, this matter turns upon its own facts and how the Master applied the relevant principles to those facts.

The Master accepted that the plaintiffs’ claim had merit. The defendant did not contend otherwise although it did purport to make a submission to the effect that it had a very strong, if not, invincible defence. The fact that the claim has merit was a relevant matter for the Master to take into account on the reinstatement application. It is trite to say that the reinstatement application and, indeed, this appeal, were not the occasions to attempt to decide the ultimate merits of the claim or the defence.
In relation to the issue of prejudice to the defendant, I do not accept that the Master either overlooked or failed to give appropriate weight to the actual and potential prejudice to the defendant caused by the delay. The Master was aware from all the submissions before him that the litigation involved allegations of a misrepresentation in relation the sale of land. The fact that witnesses will be required to give evidence about transactions and alleged misrepresentations now many years in the past, is a factor about which the Master was fully aware. He was entitled to take the view that he took, namely that in the main the case is documentary. To the extent that some key witnesses will still have to give evidence about matters now long in the past, that factor was taken into account by the Master when he exercised his discretion to reinstate the action. I do not understand his findings about prejudice to say that there is no prejudice to the defendant caused by the delay but rather, the actual and potential prejudice that does exist is not sufficient to mean that the action should not be reinstated.
In relation to the plaintiffs’ reasons for the original default, the Master identified in his Reasons the nature of the original defaults leading to the dismissal of the action in 2004. During the reinstatement application the plaintiffs, principally the second plaintiff, put evidence before the court about her deteriorating mental health during the period leading up to the dismissal. Her serious mental health problems continued for years after that event. Although she is markedly better now, she still has underlying health problems. While it may be correct to say that the Master has not identified in his findings specific explanations which he finds acceptable for specific aspects of the default in 2004, his findings are far more comprehensive and conclusive than that. The Master has been satisfied by the evidence that the second plaintiff’s health had deteriorated to such a low level that she was unable to function adequately in relation to the conduct of the proceedings. As a result she was unable to respond to and deal with the demands of the litigation leading up to the dismissal. In my view, it would be completely artificial for the Master to go through the exercise of trying to identify a precise cause for each aspect of the default. In this case the reason for the default was quite obvious and he accepted it as a complete explanation for the default, as he was entitled to do. The Master did not fall into any error in the way in which he approached this matter.
A further ground of appeal is that even if the Master was satisfied that the second plaintiff’s delay could be adequately explained, the same could not be said for 206 North Terrace Pty Ltd or Mr Williams. The specific criticism levelled at the Master focused on his conclusions at [179] :
In summary there is a claim by three plaintiffs who are suing for damages for misrepresentation who, after participating in the action, albeit slowly, were moving the matter towards a final directions hearing. Accepting that the second plaintiff was the driving force of the action, the first and third plaintiffs were saddled with the same problem, they could not prosecute the claim any faster than that of Ms Thomson.
The defendant takes issue with the Master’s conclusion and also points to the fact that Mr Williams wrote some letters during the period of the delay in relation to the cost orders.[13] The plaintiff company was deregistered between 2005 and 2008, a fact which was addressed by the second plaintiff in her affidavit. The Master referred to this evidence in his reasons and impliedly accepted that the company had become deregistered because the second plaintiff was unable to properly attend to its affairs. The period of deregistration accounts for a significant proportion of the period of the delay. In my view, there is a sound basis upon which the Master was able to conclude that the plaintiff corporation was at the mercy of the second plaintiff’s ability to progress the action. She was and is the controlling mind of the company, particularly for the purposes of this action. The Master was justified in reaching his conclusion about the company and he did not fall into any error in doing so.
[13] AB66, AB82, AB231.
The third plaintiff Mr Williams did write a number of letters during the period of the delay. While it is possible to articulate a list of things that the third plaintiff could or should have done during the period of the delay to progress the action on behalf of himself and the company, the Master accepted that there was an adequate explanation for him not having done so. That explanation rested upon the obvious fact that the second plaintiff (who was both a lawyer and an accountant), was the driving force of the litigation. She was also his wife. When she fell into a state of severe ill health he did not step forward to drive the litigation onwards. The medical evidence supports the inference that her illness also placed pressure upon the marital relationship. How could it not? In my view the Master was entitled to reach the conclusion he reached that the problems for the second defendant infected the ability of the first and third defendants to seek reinstatement. In my view, the Master was entitled to take a practical common sense approach to the evidence he had before him. He was aware of the theoretical capacity for each of the other plaintiffs to seek reinstatement but he accepted that the practical result of the second plaintiff’s ill health was that the other two plaintiffs could do little or nothing without her.
I reject the assertion that the Master acted upon unsworn statements of the third defendant made from the bar table during the application.[14] The third plaintiff Mr Williams was present during the application and was asked questions by the Master. However, there is nothing to indicate that the Master acted upon any of Mr Williams’ statements to the detriment of the defendant.
[14] See Ground of Appeal 1(h) and AB 396-400.
A further ground of complaint is that the Master fell into error when considering the prejudice to the second plaintiff if the action were not reinstated. In support of this ground the defendant complains that the Master incorrectly took into account as part of that prejudice the fact that she lost the opportunity to pursue her personal injury litigation in Queensland and also lost her practising certificate here in South Australia during the same period. The defendant argues that the only relevant prejudice to the second plaintiff is the loss of her ability to pursue this action.
The Master identified the prejudice to the plaintiffs at [183] in the following terms:
The prejudice to the plaintiffs if they cannot reinstate the action by setting aside the dismissal order is that the plaintiffs are burdened with the defendant’s costs which are substantial, her own legal costs to former solicitors which are unpaid and she has not been advanced in finding a solution to the problems she experiences with the building.
In my view the Master has identified relevant areas of prejudice to the plaintiffs in relation to the application for reinstatement.
After referring to the absence of any special or particular prejudice to the defendant other than the fact of the delay itself, the Master then said at [185]:
The prejudice to the plaintiffs has been completely enveloping and extreme. Over this period the second plaintiff has lost the opportunity to pursue the personal injury action in Queensland. She has lost her practising certificate.
The Master expressly referred to the principles enunciated by the High Court in Aon Risk Services v ANU[15] and then observed at [187]:
The court will take into account the second plaintiff’s condition. It will look at the effect of the delay. In the case at bar, in my view, the defendant is adequately compensated for the delay by providing for its costs thrown away.
[15] (2009) 239 CLR 175 at [5, 24, 92, 94].
At [188] – [189] the Master concluded his views as follows:
I have a discretion. A party in good health could not expect such leniency, if the facts were similar to this case. Extreme circumstances require a more lenient approach especially as the defendant is not unduly prejudiced by allowing the action to be revived.
In my view, the Court should set aside the dismissal order, but on terms that protect the defendant.
On a proper reading of these conclusions and placing them in the appropriate context, the Master was not treating the plaintiff’s loss of the personal injury action and the loss of her practising certificate as matters of prejudice weighing in favour of the application. Rather, they were collateral pieces of evidence illustrating how profound her illness had been during this period. They also reflected her personal circumstances. In a real sense those observations indicated that her incapacity permeated every aspect of her life and she could not be regarded as a person who simply ignored her responsibilities towards this litigation whilst actively pursuing other ventures.
In my view, the Master correctly identified and analysed the relevant evidence in relation to prejudice affecting the plaintiffs.
Before turning to ground 2(a) and 2(b) of the Notice of Appeal, I will briefly identify the plaintiffs’ submission in respect of grounds 1(a) to 1(l).
The Plaintiffs’ Submissions
In this appeal the plaintiffs were represented by counsel, Mr Barry Jenner, who was instructed by solicitors Stewart-Rattray Lawyers. I was informed and I accept, that they are retained in the matter and will represent the plaintiffs if this matter proceeds to trial. Mr Jenner filed an Outline of Argument in which he addressed each of the individual grounds of appeal and the plaintiffs’ responses to those grounds.
In response to the defendant’s criticisms that the Master had failed to have proper regard to caseflow management principles and the imperative that proceedings be conducted expeditiously, Mr Jenner emphasised that the Master specifically referred to those principles and to the relevant case law.[16] Further, Mr Jenner emphasised the fact that the Master was in a unique position to assess the application for reinstatement and importantly, the present condition of the second plaintiff. He has had direct involvement in the interlocutory steps of the litigation, the dismissal, and then the reinstatement application.
[16] See Reasons [186].
Mr Jenner emphasised that there was no demonstrable error in terms of the applicable legal principles or the application of those principles to the facts of this case. The Master did not take into account irrelevant considerations nor did he fail to take into account relevant considerations. He was sensitive to the competing principles and was justified in deciding to exercise his discretion.
Conclusions on Grounds 1(a) to 1(l)
For the foregoing reasons I am satisfied that the Master acted upon the correct legal principles and did not fall into error in the application of those principles. Accordingly grounds 1(a), 1(b) and 1(c) are dismissed.
Further, in relation to the issue of delay I reject the assertions that the Master either failed to give sufficient weight to relevant matters, took into account irrelevant considerations, or gave excessive weight to relevant matters in reaching the decision to exercise his discretion. Accordingly, appeal grounds 1(d) to 1(h) inclusive are dismissed.
On the issue of prejudice I reject the assertions that the Master failed to give sufficient weight to matters of prejudice to the defendant, failed to take into account relevant matters, or took into account irrelevant matters when weighing up the prejudice to the plaintiffs and the defendant. Accordingly grounds 1(i) to 1(l) inclusive are dismissed.
Grounds 2(a) and 2(b) re Orders made by the Master
Grounds 2(a) and 2(b) in the Notice of Appeal refer to the orders made by the Master. When the Master reinstated the action he made the following orders:
1.On the plaintiffs’ application (FDN 60) I make an order setting aside my order of 6 December 2004, wherein the action was dismissed for non-compliance with orders and want of prosecution and subject to compliance with the following conditions:
1.1    That the plaintiffs provide security to the defendant in respect of costs of the action on terms to be agreed at the next directions hearing;
1.2    That the second plaintiff obtain a report from Dr Czechowicz within 28 days, that the second plaintiff is now able to deal with the stresses associated with this litigation and that she is not a person under a legal disability;
1.3    That the plaintiffs pay the defendant’s costs thrown away to date as a result of FDN 60;
1.4    That the plaintiffs be permitted to prosecute this action under the direction of a barrister and/or solicitor, subject to further review.
1.5    Plaintiffs to pay the defendant’s costs of FDN 60.
Ground 2(a)
Ground 2(a) asserts that the Master fell into error by making order 1.2. The complaint is that the Master delegated to a medical practitioner a legal decision, namely whether the plaintiff suffers a legal disability. This ground was not pressed strenuously in argument but it was not expressly abandoned. It can be dealt with briefly. There is no merit to the claim that the Master erroneously delegated a legal decision to a medical practitioner. The terms of the order called for a report from the second plaintiff’s treating doctor to bring the court up to date in relation to her current medical condition. Properly understood, it only ever purported to seek an opinion from the doctor not a legal conclusion.
Conclusion on Ground 2(a)
In my view this ground has not been established and accordingly it will be dismissed.
Ground 2(b)
The defendant has asserted that Order 1.4 is either invalid or unenforceable. It contends that the Master erred in making this order. The Master made the order in an endeavour to provide some form of protection to the defendant that the proceedings would be prosecuted by the plaintiffs with legal assistance. It must be borne in mind that at the time of the application Ms Thomson was much improved, but the medical evidence indicated that she would not be capable of conducting the litigation herself. She had conducted the reinstatement application on behalf of the plaintiffs but she was most unlikely to be able to conduct the trial. Hence, the Master had good reason to seek some form of safeguard. However, since that time the plaintiffs have engaged solicitors and very experienced counsel in Mr Jenner. Mr Jenner indicated during the appeal that he has accepted the brief and will conduct the trial.
Although I understand and completely agree with the Master’s intention, the precise meaning of Order 1.4 is difficult to identify. I do not know what is intended by the condition that he plaintiffs “be permitted to prosecute this action under the direction of a barrister and/or solicitor, subject to further review.” I my view, the order is too vague to serve any useful purpose.
In any event, the plaintiffs’ engagement of solicitors and experienced counsel since this application, have ameliorated the need for such a condition. All of the plaintiffs are now fully aware that if the health of the second plaintiff deteriorates, the others will have to prosecute the action. If her health was severe, steps would need to be taken for the appointment of a litigation guardian. These matters will be at the forefront of the minds of the solicitors and counsel representing the plaintiffs. They are already plainly on notice that any unjustified default or delay from this point onwards will not be tolerated.
Conclusion on Ground 2(b)
In my view, condition 1.4 should be removed. It does not offer any real protection to the defendant’s interests nor is it necessary for their interests to be protected in that way. The responsibility for prosecuting the action diligently from this point on, lies with the plaintiffs. They are fully aware of the likely consequences of not doing so.
Orders
In relation to each of the grounds numbered 1(a) to 1(l) consecutively, and 2(a), I dismiss each ground.
In relation to ground 2(b) regarding the Master’s Order 1.4, I allow this ground for the reasons I have identified. Having considered the matter afresh I delete Order 1.4 and I decline to replace it with any alternative order.
The substantive appeal is dismissed. To the limited extent necessary, I allow the appeal in respect of Order 1.4 and substitute an order deleting Order 1.4 from the Master’s Orders.
I will hear the parties as to costs of the appeal.

[9] [1999] SASC 124.