Fairclough v Stewart-Rattray & Gawler Health Service - [2012] SADC 3

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
FAIRCLOUGH v STEWART-RATTRAY & GAWLER HEALTH SERVICE
[2012] SADC 3
Judgment of His Honour Judge Millsteed
10 January 2012
PROCEDURE
Appeal against refusal by Master to reinstate plaintiff's action pursuant to Rule 123 of District Court Rules - where the Master erred in finding that there were no special reasons to enliven discretion to reinstate action - plaintiff had obtained extensions of time within which to serve summons - due to non-service plaintiff's action administratively dismissed for want of prosecution pursuant to Rule 123(4) - non-service due to plaintiff's unstable medical condition - dismissal due to plaintiff's solicitor's failure to respond to warning notices sent by Court under Rule 123 - non-service and dismissal due to no fault on the part of the plaintiff - held that in the circumstances there were special reasons enlivening the discretion to reinstate the plaintiff's action - appeal allowed - action reinstated.
Musolino v Ormond (1996) 189 LSJS 332; Ulowski v Miller [1968] SASR 278; Williams v FS Evans & Sons (1998) 52 SASR 237; Baskerville v Martin [1967] SASR 156; Lawrence v Baskerville [1968] SASR 86 (FC); Barwick v Crichton (1983) 36 SASR 152; Acre Development Pty Ltd v NCSC (1987) 46 SASR 261; Semple v Doyle (1988) 48 SASR 357; Kenny v The State of SA (1987) 46 SASR 268; Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14; Sparrow v Berringer Blass Wines Estate Pty Ltd (Action No. 389/08) dated 18 March 2011; House v The King (1936) 55 CLR 499; Mullett v Gabriel (1989) 52 SASR 330; Re Wolcott v Davis (1984) 4 FCR 124; Salter v Rex & Co v Ghosh (1984) 4 FCR 124; Victa Limited v Johnson (1975) 10 SASR 496; Mavra v Logan (1980) 24 SASR 567; Mahon v Frankipile (Australia) Pty Ltd (1984) 157 LSJS 52; Blagojevic v Bridgestone (1987) 138 LSJS 358; Brown v Hynd (1994) 189 LSJS 157; Minister for Immigration Citizenship v Manaf (2009) 111 ALD 437; Comcare v A'Hearn (1993) 45 FCR 441; Smith v Grant (2006) 67 NSWLR 735; Doyle v Gillespie (2005) 53 ACSR 442; Tolcher v Gordon (2005) 53 ACSR 442; King v Golden Plains Fodder Australia Pty Ltd (Action No. 116 of 2003); Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, considered.

FAIRCLOUGH v STEWART-RATTRAY & GAWLER HEALTH SERVICE
[2012] SADC 3
Introduction

The plaintiff, Jacqueline Ruth Fairclough, instituted an action in the District Court against the first defendant, Dr Simon Stewart-Rattray, and the second defendant, the Gawler Health Service, claiming damages in contract and tort for alleged breaches of duty and care in respect of medical advice and treatment.
The plaintiff obtained extensions of time within which to serve the proceedings on the defendants. Due to non service of the proceedings the plaintiff’s action was administratively dismissed for want of prosecution pursuant to Rule 123(4) of the District Court Civil Rules 2006 (“the Rules”).The plaintiff applied to a Master for her action to be reinstated under Rule 123(6). The plaintiff now appeals against the Master’s refusal of the application.
The Rules
Rule 39(1)(a) provides that an originating process for a primary or third party action must be served on the defendant within six months after it is filed in the Court. The Court may from time to time, in the exercise of its discretion, extend time for service for a period of up to six months (Rule 39(2)).
Rule 123 provides:
(1)     An action becomes liable to be entered on the list of inactive cases if 3 months after the end of the time allowed for serving the originating process–
(a)     no application for extending the time for serving originating process has been made, or such an application has been made but has been refused; and
(b)     no defendant has filed an address for service; and
(c)     the plaintiff has not applied for judgment in default of the filing of a defence.
(2)An action ceases to be liable to be entered on the list of inactive cases (and if already entered on that list is to be removed from the list) if-
(a)     a defence is filed; or
(b)     the plaintiff obtains a judgment in default of defence; or
(c)     the Court orders that the action is not to be entered, or to remain, on the list of inactive cases.
(3)Before entering an action on the list of inactive cases, the Registrar must send notice to the plaintiff’s address for service notifying the plaintiff that the action is to be entered on the list one month after the date of the notice if it then remains liable to be entered on the list.
(4)If an action remains on the list of inactive cases two months after being entered on the list, the action is automatically dismissed for want of prosecution.
(5)     The dismissal takes effect at 4pm on the last day of the period.
(6)Despite the dismissal of an action under this rule, the Court may, for special    reasons, reinstate the action.
(my emphasis)
The Court only has power to reinstate an action under Rule 123 (6) for “special reasons”. A plaintiff carries the onus of establishing the existence of “special reasons” as a condition precedent to the Court determining whether or not to reinstate the action in the exercise of its discretion.[1] The discretion to reinstate an action, once enlivened by the existence of special reasons, is unfettered by any absolute or inflexible rules.[2] The question for the court is whether it is just in the circumstances to reinstate the action.[3]
[1]    see Musolino v Ormond (1996) 189 LSJS 332.
[2]    Ulowski v Miller [1968] SASR 278 at 280.
[3]    Williams v FS Evans & Sons (1988) 52 SASR 237 at 238-239.
The Rules do not define the words “special reasons”. However, their meaning has been considered by the courts in other contexts. Several general principles can be extracted from the case law: first, factors which may constitute special reasons cannot be exhaustively determined all that can be said at large is that special is the antithesis of general; second, nothing which is a common or usual factor in the ordinary typical case can constitute a special reason; and third, there must be something extraordinary, unusual or atypical.[4] It is clear that special reasons may exist in a particular case as a result of the existence of a single factor or a combination of factors though, in the latter case, none of them in isolation would be sufficient.[5]
[4] Baskerville v Martin [1967] SASR 156 at 160 Lawrence v Baskerville [1968] SASR 86 (FC) at 88; Barwick v Crichton (1983) 36 SASR 142 at 144; Acre Development Pty Ltd v NCSC (1987) 46 SASR 261.
[5] Baskerville v Martin [1967] SASR 156 at 161; Semple v Doyle (1988) 48 SASR 357 at 360.
Factual background
Dr Stewart-Rattray is a gynaecologist. On 15 March 2005 he performed a total abdominal hysterectomy on the plaintiff at the Gawler Hospital (the second defendant’s premises). Following the operation the plaintiff experienced complications including ureteric obstruction, right hydronephrosis, scarring and cortical damage to the tissue of the right kidney, recurrent urinary tract infections and abdominal pain.
Sometime prior to April 2006 the plaintiff sought legal advice and engaged the services of Mr Hugh Rischbieth of Johnston Withers. On 20 March 2007, or shortly thereafter, Mr Rischbieth obtained an expert report on liability from Dr. A. Korda, a gynaecologist and urologist.[6] The report was critical of both defendants.
[6] Report of Dr Korda dated 20 March 2007 - “Exhibit A” attached to the affidavit of Mr Rischbieth sworn on 17 January 2011 (FDN13).
On 21 June 2007 Mr Rischbieth wrote to each defendant. He asserted negligence on the part of each defendant and enclosed a copy of Dr Korda’s report.
Mr Rischbieth was subsequently informed, by letter dated 10 July 2007 that Mr Ralph Bonig of Fountain Bonig was acting for Gawler Health Service and, by letter dated 16 July 2007, that Ms Margaret Byrnes of Wallmans Lawyers was acting for Dr Stewart-Rattray.
On 18 October 2007 Mr Bonig wrote to Mr Rischbieth enquiring whether the plaintiff was obtaining any other expert reports either on quantum or liability. Mr Rischbieth advised, by letter dated 26 October 2007, that he was “awaiting stabilisation of [the plaintiff’s] renal and abdominal conditions before engaging quantum reports”.
On 14 March 2008, one day before the expiration of the limitation period of 3 years,[7] the plaintiff filed a summons and statement of claim[8] claiming damages for the alleged failure by Dr Stewart-Rattray to warn the plaintiff of material risks associated with the performance of a total abdominal hysterectomy, to provide proper advice as to treatment options for the plaintiff, and to visualise the ureter during the operation, and for the alleged failure by both defendants to properly manage and treat the plaintiff’s symptoms following the operation.
[7] s36(1) Limitation of Actions Act 1936 (SA).
[8] Summons and Statement of Claim (FDN 1).
The summons contained the following endorsement in accordance with Rule 33:
The plaintiff has not complied with Rule 33(6) of the Supreme Court Rules 2006 as medical reports and information necessary to enable the plaintiff to give written notice of an offer to settle the plaintiff’s claim are not yet fully to hand and are unlikely to be within a time to enable the plaintiff to comply with Rule 33(6). The plaintiff is obliged to issue these proceedings because of an impending time limit. The plaintiff undertakes to give written notice of an offer to settle the plaintiff’s claim to the insurer immediately upon receipt of the said reports to afford the insurer an early opportunity to informally resolve the claim, such that the insurer will suffer no prejudice.[9]
[9] Rule 33 provides:
(1)This rule applies to a primary action based on a monetary claim, other than-
(a) an action in which urgent relief is sought; or
(b) an action brought in circumstances where the plaintiff-
(i) reasonably believes there is a risk that the defendant will take action to remove assets from the jurisdiction; and
(ii)intends to seek an injunction to prevent the defendant from removing assets from the jurisdiction; or
(c) an action excluded from the application of this rule by direction of the Court.
(2) A plaintiff must, at least 90 days before commencing an action to which this rule applies, give the defendant written notice containing or accompanied by-
(a) an offer to settle the plaintiff’s claim on a basis set out in the notice; and
(b) sufficient details of the claim, and sufficient supporting material, to enable the defendant to assess the reasonableness of the plaintiff’s offer of settlement and to make an informed response to that offer; and
(c) if the plaintiff is in possession of expert reports relevant to the claim – copies of the expert reports.
(3) If the plaintiff believes the defendant to be insured against the relevant liability by an insurer whose identity is known to the plaintiff, the plaintiff must send a copy of the notice and the accompanying materials to the insurer.
(4)The defendant must, within 60 days after receiving the notice, respond in writing to the notice by-
(a) accepting the plaintiff’s offer of settlement; or
(b) making a counter-offer; or
(c) stating that liability is denied and the grounds on which it is denied.
(5) If the defendant is in possession of expert reports relevant to the claim, the defendant’s response must be accompanied by copies of the expert reports.
(6)When an action to which this rule applies is commenced-
(a) the originating process must include an endorsement stating whether the plaintiff has complied with the requirements of this rule and, if not, why not; and
(b) the plaintiff’s notice to the defendant and the defendant’s response (if any) to the notice must be filed in the Court in a suppressed file.
(7)In awarding costs of the action, the Court may take into account-
(a) whether the parties have complied with their obligations under this rule; and
(b) the terms of any offer or counter-offer, or of any response to an offer or counter-offer, made under this rule and the extent to which it was reasonable or unreasonable in the circumstances.
(8)A plaintiff may commence a primary action in anticipation of obtaining an exclusionary order under subrule (1)(c).
(9) If an action is commenced under subrule (8) but the court decides against making an exclusionary order, the Court may stay the action until the plaintiff complies with the requirements of this rule.
By letter dated 3 April 2008 Mr Bonig enquired of Mr Rischbieth whether the plaintiff’s condition was stable and whether he was able to progress the matter any further. Mr Rischbieth replied by letter on 8 April 2008 and advised that the proceedings against the defendants had been issued to protect the plaintiff’s position and that he would not be asking for further reports until the plaintiff’s condition had stabilised.
On 11 September 2008 the plaintiff’s solicitors filed an e-application seeking an order that time for service of the summons be extended for a period of 6 months pursuant to Rule 39(2).[10] The application was supported by an affidavit of Mr Rischbieth[11] wherein he stated that he had received an expert report but was seeking a further report on liability before arranging for a medical assessment of the plaintiff’s injuries. A Master granted the application and made an order extending time for service of the summons for a period of six months to 14 March 2009.
[10] E-application of 11 September 2008 (FDN 3).
[11] Affidavit sworn on 11 September 2008 (FDN 2).
On 22 March 2009 the Registrar sent to Johnston Withers a notice of intention to enter the plaintiff’s action on the list of inactive cases unless appropriate action was taken within one month of the date of the notice.
On 24 April 2009 the Registrar sent to Johnston Withers a notice advising that the plaintiff’s action had been entered on the list of inactive cases and would be dismissed for want of prosecution if the plaintiff failed to take appropriate action within two months of the date of the notice.
On 2 June 2009 the plaintiff filed an e-application seeking orders that the matter be removed from the list of inactive cases and that time for service of the Summons be extended for a further period of six months on the ground that the plaintiff was seeking further expert reports.[12] The application was supported by an affidavit of Mr Rischbieth, sworn on 2 June 2009, wherein he stated:
3.During 2008, on behalf of the plaintiff, a further opinion as to liability was sought from Professor Grover. No report or confirmation of her willingness was received from Professor Grover and on 19 September 2008 caused a letter to be sent enquiring whether within the next seven days Professor Grover would be able to assist in the provision of a report.
4.[I] have undertaken further enquiries in respect to the provision of an expert gynaecological opinion and received confirmation that on Friday 15 May 2009 that an interstate gynaecologist would be prepared to provide an opinion in respect of this matter.
5.The plaintiff does not wish to incur and obtain reports as to impairments arising from [the operation] until a further report has been obtained as to liability.
[12] FDN 5.
A Master granted the application and extended time for service of the summons to 2 December 2009.[13]
[13] Order of 2 June 2009 (FDN 6).
On 7 September 2009 or shortly thereafter, Mr Rischbieth obtained an expert report on liability from Professor R.J. Pepperell, obstetrician and gynaecologist (“the Pepperell report”).[14] The report was critical of the first defendant but did not advance the plaintiff’s case against the second defendant. Mr Rischbieth sent a copy of the Pepperell report to the first defendant’s solicitors on 17 September 2009 but did not serve the report on the second defendant or the second defendant’s solicitors.
[14] Report of Prof. Pepperell dated 7 September 2009 - “Exhibit B” attached to the affidavit of Mr Rischbieth sworn on 17 January 2011 (FDN 13).
On 1 October 2009 Ms Byrnes wrote to Mr Rischbieth challenging the opinions expressed in the Pepperell report as to the adequacy of the preoperative advice given to the plaintiff by Dr Stewart-Rattray. The letter indicated that liability was denied.
On 5 December 2009 the Registrar sent to Johnston Withers a notice of intention to enter the action on the list of inactive cases unless appropriate action was taken within one month of the date of the notice.
On 6 January 2010 the Court sent a notice to Johnston Withers advising that the action had been entered on the list of inactive cases and would be dismissed for want of prosecution if no action was taken within two months of the date of the notice.
On 4 March 2010 the plaintiff filed an e-application under Rule 123(2) for the removal of her action from the list of inactive cases and for leave to amend the Statement of Claim (“SOC”).[15] Mr Rischbieth filed an affidavit in support of the application contending that it was necessary to amend the SOC in order to further particularise the alleged negligent pre-operative advice (as identified in the Pepperell report) which the plaintiff had received from Dr Stewart-Rattray. Although the affidavit did not explain why the summons had not been served in the interim, the application was granted by Master Rice on 5 March 2010. He made an order extending the summons for a period of six months from 2 December 2009 to 2 June 2010.[16]
[15] E-application of 4 March 2010 (FDN ).
[16] Order of 5 March 2010 (FDN 9).
On 11 March 2010 the plaintiff filed the Amended Statement of Claim (ASOC).[17] The ASOC had not been served on the defendants at the time of the hearing of the application for the plaintiff’s action to be reinstated.
[17] ASOC (FDN10).
On 12 May 2010 Mr Rischbieth conferred with the plaintiff and concluded that it was premature to formulate her claim because of impending medical investigations.[18]
[18] Affidavit of Mr Rischbieth sworn on 21 February 2011 (FDN 15-[6]).
On 4 June 2010 the Registrar sent to Johnston Withers a notice of intention to enter the plaintiff’s action on the list of inactive cases if appropriate action was not taken within one month of the date of the notice. The plaintiff’s solicitor did not respond to the notice.
On 18 June 2010 the plaintiff underwent a CT Urogram performed by Benson Radiology which revealed marked scarring of the right kidney and thickening of the ureter.[19]
[19] Affidavit of Mr Rischbieth sworn on 6 December 2010 (FDN 11-[3] - report from Benson Radiology annexure “Exhibit A”).
On 9 July 2010 the Registrar sent to Johnston Withers a notice advising that the plaintiff’s action had been entered on the list of inactive cases and would be dismissed for want of prosecution if appropriate action was not taken within two months of the date of the notice. The plaintiff’s solicitor failed to take any action.
On 29 July 2010 the plaintiff underwent a Nuclear Medicine Renal Scan. Following the scan the plaintiff was advised by her treating urologist Dr K Pese that due to recurrent symptoms of urinary tract infection, renal hypertension and abdominal pain that it was likely she would need to have a stent inserted in her right ureter.[20]
[20] Affidavit of Mr Rischbieth sworn on 6 December 2010 FDN 11 [4]-[8].

On 10 September 2010 the Registrar sent to Johnston Withers a notice advising that the plaintiff’s action had been dismissed for want of prosecution (Rule 123(4)).
On 22 September 2010 the plaintiff was reviewed by Dr Pese. The plaintiff was advised that he would insert a stent in an attempt to remove a blockage of the right ureter. The procedure was scheduled to take place at the Daw Park Repatriation Hospital on 13 December 2010.[21]
[21] Affidavit of Mr Rischbieth sworn on 6 December 2010 FDN 11 [4]-[8]; Affidavit of Mr Rischbieth sworn on 21 February 2011 FDN 15 [7].
On 7 December 2010 Mr Rischbieth filed an application for the plaintiff’s action to be reinstated pursuant to Rule 123(6).[22] The application was supported by an affidavit from Mr Rischbieth sworn on 6 December 2010.[23] In the affidavit Mr Rischbieth explained the medical procedures the plaintiff had undertaken in the course of 2010 and the proposal to insert a stent. He further deposed that the plaintiff understood from her consultation with Dr Pese that insertion of the stent might free blockage of her ureter and reduce her renal hypertension.[24] However, it was likely that she would require operative stent replacement every three months.[25]
[22] FDN 12.
[23] FDN 11.
[24] FDN 11 at [8] and [10].
[25] FDN 11 at [10].
Mr Rischbieth asserted that the defendants would not be prejudiced if the plaintiff’s action were reinstated and contended that the “nature of the plaintiff’s condition is such that the action would at all times have needed to be suspended whilst treatment continues and medical reports obtained following such treatment”.[26] He further suggested that opposition to the application was pointless because if it was refused the plaintiff would, nevertheless, be entitled to institute fresh proceedings pursuant to s48 of the Limitations of Actions Act by reason of each of the following matters constituting a new “material fact”: (1) the CT Urogram performed on 18 June 2010; (2) the renal scan performed on 29 July 2010; (3) the advice the plaintiff received from Dr Pese as to the need for a stent to be inserted in her right ureter; (4) the insertion of the stent and (5) any subsequent stent procedures required by the plaintiff.[27]
[26] FDN 11 at [11].
[27] FDN 11 at [15].
On 17 January 2011 Mr Rischbieth filed a second affidavit, sworn on the same day.[28] He explained that during the operation on 13 December 2010 Dr Pese was unable to insert the stent due to the presence of ureteric scar tissue. He also stated that Dr Pese had reviewed the plaintiff on 14 January 2011 and arranged for her to undergo an Intravenous Pyelogram (IVP) and intended to see her on 21 January 2011.[29] Mr Rischbieth further deposed:
7Treatment and diagnosis of the Plaintiff’s condition arising from the total abdominal hysterectomy performed on 15 March 2005 has not been completed. The plaintiff’s condition has not stabilised such as would enable the Plaintiff’s solicitors to formulate a settlement offer as against the First and Second Defendants.
8As at 10 December 2010 when the Specially Returnable Application was listed…the Plaintiff did not know that at surgery on 13 December 2010, it was not possible to insert a guide wire into the Plaintiff’s ureter to enable insertion of a stent… I am instructed that the Plaintiff’s symptoms of right hydronephrosis, scarring cortical damage of the right kidney, renal hypertension, urinary tract infections, raised temperature and scarring of the ureter continue…
[28] FDN 13.
[29] FDN 13 at [5].
On 21 February 2011 Mr Rischbieth filed a third affidavit sworn on the same day.[30] He deposed that the plaintiff’s condition was still unstable. He said that throughout 2010 it had been his intention to wait until the treatment of the plaintiff had been completed and her condition had stabilised before obtaining reports from Dr Pese or another urologist. He believed that it was not possible to formulate the plaintiff’s claim until those events occurred. He deposed that the action had been instituted because of the three year limitation period and that he had chosen not to serve the proceedings until he was in a position to “formulate and, if necessary, progress the matter through the Court”.[31]
[30] FDN 15.
[31] FDN 15 [8]-[9].
It should be observed that Mr Rischbieth did not explain in his affidavit whether he had intended to obtain reports relating to liability, quantum or both. However, it is reasonable to assume that he had had in mind obtaining reports which at least in part addressed the issue of quantum because the affidavit states that it was his understanding (prior to 13 December 2010) that insertion of the stent might reduce the plaintiff’s ongoing renal hypertension. Plainly such a reduction in hypertension would have a bearing on damages. Furthermore he had indicated in earlier correspondence that he intended to commission reports on quantum when the plaintiff’s condition had stabilised.[32]
[32] See [11] of the Master's reasons.
Mr Rischbieth explained that he failed to respond to the notices sent by the court on 4 June 2010 and 9 July 2010 for the following reasons:
12.On 4 June 2010 the Court issued a Notice of Intention to inactivate the action. This Notice was not brought to my attention. Ordinarily, such a Notice is collected by clerks and GDLP students engaged by Johnston Withers in performing rounds collection on attendance at the District Court. The usual practice is for the clerk on returning to our offices, initially to place a date stamp bearing the date of collection of the document on the document and then provide that documentation to the solicitor responsible for the conduct of the file. This did not occur as there is no record of my perusal of the Notice. Further, the Notice of Intention does not bear a date stamp but it is now held on my file. I cannot say when it was placed on the file.
13.Had I been aware of the Notice, it would have reminded me of the need to make another application similar to those previously made in FDN 3, FDN 5 and FDN 7.
14.On 9 July 2010 the Court issued a Notice of Entry of the matter into the Inactive Cases List. This document would have been collected in the manner described in paragraph 12 above.
15.This Notice was not brought to my attention. It is now on the file. I cannot say when it was placed on the file. The document has not been date stamped to indicate receipt, but a post-it note is affixed to the Notice and it bears the date 13.7.10.
16.Had the Notice come to my attention I would have responded in the manner described in paragraph 13 above.
17.It is apparent the usual procedures in our office for the efficient delivery of Notices from the Court to the relevant file and solicitor have failed.
18.In June or July 2010 Johnston Withers engaged new clerks and GDLP students to perform rounds duties whereas previously a dedicated rounds clerk had been engaged. The introduction of new personnel may have contributed to the failure of the usual system.
19.Prior to July 2010 the Plaintiff remarried. Her surname is now Quarrell. The Accounts Department records at Johnston Withers indicate that on 7 July 2010, it was noted that the Plaintiff’s surname had changed to Quarrell and the file was renamed on all electronic records in the firm. The physical file was also renamed.
20.If the clerk who collected the Notice on 13 July 2010 did a search in the firm for the solicitor who had the conduct of the file “Jacqueline Fairclough”, it would not have been successful. By that date the Plaintiff’s new surname was in the database.
21.I do not know who in the office was responsible for directing the Notice to me. Someone has written my initials on the post-it note and I assume that has led to the Notice being put on the file.
22.Had the Notices dated 4 June 2010 and 9 July 2010 been drawn to my attention, then as is my usual practice I would have filed an E-Application with the District Court with a supporting Affidavit deposing that the Plaintiff was to undergo further treatment and that I did not wish to seek to formulate the Plaintiff’s claim nor arrange service of the Statement of Claim until such time as a urological opinion had been obtained following completion of the Plaintiff’s treatment.
The upshot of Mr Rischbieth’s affidavit is that he was unaware of the notices having been sent by the court on 4 June and 9 July due to breakdowns in office procedures which were probably attributable to the introduction of new staff and the plaintiff’s change of surname. While they may have been contributing factors it is clear that Mr Rischbieth was also at fault. He was aware from the backdated order made by the Master on 4 March 2010 that the summons had been renewed only until 4 June 2010. He should have put in place arrangements to remind himself of the expiry date, at least by putting a note in his diary. Apparently he did not adopt that simple measure.
Furthermore, after time for service of the Summons had expired a further six months elapsed before any action was taken by him. According to Mr Rischbieth’s affidavit the notices sent by the court on 4 June and 9 July were placed on the plaintiff’s file without his knowledge. Apparently, he did not become aware of them until shortly before 7 December 2010 when he filed the application for the plaintiff’s action to be reinstated. Mr Rischbieth knew the procedures under Rule123. It should have occurred to him soon after 4 June, certainly well before he filed the application to reinstate the plaintiff’s action, that he had not filed an application for renewal of the summons and that he had not received from the court a notice of intention to place the matter on the list of inactive cases and that he should make enquiries as to why that was so. Be that as it may what is abundantly clear is that no fault can be attributed to the plaintiff for the dismissal of her action.
The Master’s decision
The application for the plaintiff’s action to be reinstated was opposed by both defendants and came on for argument before Master Rice on 24 February 2011. The Master refused the plaintiff’s application and provided reasons for his decision on 15 April 2011. In those reasons the Master correctly summarised the law in respect of the meaning of the words “special reasons” and set out the history of the proceedings. He then gave the following reasons for dismissing the application:
23I have great sympathy for the plaintiff’s current dilemma. I accept she personally has had no involvement in the delay nor could it be said that she is the cause of any of the relevant delays. The issue is whether the threshold point has been established and if not, whether the discretion should be exercised in favour of the plaintiff.
24I accept the plaintiff has been undergoing further treatment but this had not impacted at all on the issue of liability. No reports have been sought on liability against the second defendant and to the extent that Dr Korda may be relevant, he does not make any criticism of the second defendant.
25The report of Professor Pepperell in September 2009 was never served on the second defendant. I do not know why.[33] It appears to be supportive of the plaintiff’s case on liability against the first defendant. It does not explain why the proceedings were not served by the end of 2009.
[33] The plaintiff’s solicitor’s reasons for not serving the second defendant with the Pepperell report were not canvassed on the hearing of the appeal. However, I infer that it is possible the report was not served because, as earlier observed, it did not add to the plaintiff’s case against the second defendant.
26The first defendant’s solicitors advised the plaintiff’s solicitors on 1 October 2009 that liability would be disputed. It does not appear that there were any further attempts to obtain additional expert evidence against the first defendant.
27It is hard to see how the plaintiff has established “special reasons”. Ongoing treatment is not enough as the plaintiff was trying to obtain expert evidence on liability.
28The plaintiff’s solicitors knew from 1 October 2009 that the first defendant denied liability. The plaintiff’s solicitors did not thereafter seek any further expert evidence after that time.
29The action was not dismissed for a further 11 months. The third order extending time to serve was made in March 2010 and then the second statement of claim was filed (FDN 10).
30No satisfactory explanation is given for these delays. No expert evidence had been obtained at all against the second defendant.
31Even after Dr Korda’s report of March 2007 this issue was not reviewed at all. No satisfactory explanation is given for this position.
32I am not able to find, especially from September 2009 after Dr Pepperell’s report, any reason which is a satisfactory or special reason to reinstate the action against the first defendant or second defendant. Nothing is “extraordinary, unusual or atypical”.
33Alternatively, from the third order which renewed the summons and extended time to serve to June 2010, I cannot find any special reason to reinstate the action. In advertence seems to be the issue.
34Even if I am wrong, the plaintiff’s case against the second defendant has not progressed at all. No evidence has been sought against the second defendant since March 2007. If the claim should be reinstated against the first defendant it is hard to find a reason, let alone special reasons, to reinstate the claim against the second defendant.
35In my view the facts do not establish special reasons in that they are not “extraordinary, unusual or atypical”. In my view, and taking all of the evidence into account, nothing that has happened here is out of the ordinary, save inadvertence. In my view, the provisions of Rule 123(6) have not been satisfied and the discretion has not been enlivened.
36I note I have separately looked at this matter taking account of Rule 3, Rule 10, Rule 116 and Rule 117, which allow a wide discretion to achieve procedural fairness. This discretion is aimed at promoting and achieving efficiency and minimising unnecessary delay or expense, consistent with the paramount claims of justice.
37I note the comments of Chief Justice King in Kenny v The State of SA (1987) 46 SASR 268 regarding the onus on solicitors under the relevant clause in 1986 and 1987. He said at page 271:
“It is hardly necessary to emphasise that the success of these procedures in promoting the expeditious conduct of litigation and containment of costs, depends greatly upon the compliance by the parties and the solicitors with both a letter and spirit of the rules. The Court, having instituted the compulsory procedures, has a heavy responsibility to ensure that they do not operate to increase rather than diminish costs and delay.”
38The Chief Justice went on to explain there were many examples where conscientious compliance with the procedures had to be adopted by legal practitioners to minimise costs and delay and maximise use of Court resources.
39Since that time the Rules have changed but the same sentiments have been echoed, particularly in Aon Risk Services Australia Ltd v Australian National University (2009) 258 ALR 14. In addressing the Rules to the case at bar, I am not of the view that Rules 10 and 117 should be used to override the specific provisions of Rule 123(6).
40I note and have considered the decisions of Master Norman in Sparrow v Berringer Blass Wines Estate Pty Ltd (Action No. 378/08) dated 18 March 2011. On the facts he concluded that the action should be reinstated.
41In the circumstances of the case at bar the application (FDN 12) to reinstate the action is refused.
The Appeal
On 5 May 2011 the plaintiff filed a Notice of Appeal. The hearing of the appeal took place on 8 June 2011. The oral submissions of counsel were supplemented by written submissions filed in advance of the hearing.
Mr Crocker, counsel for the plaintiff, argued that the Master erred in failing to find that a combination of factors constituted “special reasons” enlivening the discretion to reinstate the plaintiff’s action. Those factors were summarised in his written submissions as follows:[34]
[34] Plaintiff’s written submissions FDN 23.
1.Had the plaintiff’s solicitor made a timely application as he had done in FDN 5 and FDN 7, it is likely to have been granted.
2.There was and remains good reason to have the action in the inactive list. The plaintiff’s condition is unstable.
3.The plaintiff personally has engaged in no conduct that can be criticised. The evidence is that she is busy undertaking the necessary investigations and treatment. In no way can it be said that her behaviour reveals an attitude remotely suggesting a lack of desire to prosecute her claim or undertake what is necessary to do so.
4.The non-non delivery of either Notice to Mr Rischbieth by the clerical staff in his firm was unusual and atypical.
5.The introduction of new staff at the firm and the changing of the plaintiff’s surname are both likely to have contributed to the failure of office procedures.
6. The plaintiff has not failed to prosecute her claim.
7.The defendants had previously been informed of the plaintiff’s unstable condition and her inability to progress the claim at the moment.
8.The solicitors for the first defendant are aware of the allegations. They have obtained instructions and denied liability.
Mr Crocker further submitted that in extending time for service of the summons for a period of six months on 4 March 2010 Master Rice erred by backdating the commencement of that period to 2 December 2009. He submitted that the Master should have made an order that the six months run from the date of application which was the order sought by the plaintiff. If such an order had been made time for service of the summons would not have expired until 3 September 2010 and the plaintiff’s action would not have been liable for entry on the list of inactive cases until late December 2010. In other words, the circumstances which gave rise to the present appeal would not have occurred. It should be observed that this argument was not put to the Master on the hearing of the application to reinstate the plaintiff’s action.
The argument must be rejected. The Master was not obliged to make an order in the terms sought by the plaintiff. Furthermore, he had the power to backdate the commencement of the period for service of the summons. Indeed, it is arguable that an extension of time must operate from the end of the period previously allowed for service of the summons. However, I need not stop to determine this point. Also, it seems to me that if the plaintiff’s solicitor had entertained any concern about the terms of the order made by the Master on 4 March 2010, he could have immediately arranged for the matter to be called back on before the Master or for a fresh application to be filed. I think the reality of the matter is that the plaintiff’s solicitor accepted the terms of the order made by the Master. The plaintiff cannot complain now.
Mr Livesey QC, counsel for the first defendant, and Mr Bonig, counsel for the second defendant, argued that it was open to the Master to find that there was nothing unusual or atypical about the factors relied upon by the plaintiff so as to constitute special reasons. In his written submissions Mr Livesey further submitted that for error to be established on an appeal against an exercise of discretion the appellant must, in accordance with the principles expressed in House v The King,[35] demonstrate that the Master acted upon a wrong principle, allowed extraneous matters to guide or affect him, mistaken the acts or failed to take into account some material consideration. The present appeal, however, is not concerned with an exercise of discretion but with whether the Master erred in finding that the discretion in Rule 123 had not been enlivened due to the absence of special reasons.
[35] (1936) 55 CLR 499; see also Mullett v Gabriel (1989) 52 SASR 330.
Consideration

Before I proceed to examine the Master’s reasons it is appropriate to summarise my understanding of them.
The Master was critical of the fact that the plaintiff’s solicitor had not served the defendants with the proceedings before the end of 2009.[36] He found that “especially from September 2009 after Dr Pepperell’s report [had been obtained]” that there were no factors which constituted “special reasons” for reinstating the plaintiff’s action against either defendant.[37] He suggested that the plaintiff’s “ongoing treatment [was] not enough as the plaintiff [had been] trying to obtain expert evidence on liability”[38] and further suggested that after the plaintiff’s solicitor had acquired the Pepperell report, no attempt had been made to obtain additional expert evidence.[39]
[36] Reasons for decision at [25].
[37] Reasons for decision at [32].
[38] Reasons for decision at [27].
[39] Reasons for decision at [28].
The Master accepted that the plaintiff was not personally responsible for “any of the relevant delays”[40] and concluded that “inadvertence seems to be the issue”.[41] Although the Master did not specifically say so, it is reasonable to infer from the totality of his reasons that the inadvertence to which he was referring was Mr Rischbieth’s alleged failure to serve the proceedings on the defendants soon after the Pepperell report had been acquired and his failure to respond to the notices the Court sent on 4 June 2010 and 9 July 2010 which resulted in the dismissal of the plaintiff’s action for want of prosecution.
[40] Reasons for decision at [23].
[41] Reasons for decision at [33], [35].
Dismissal of action for want of prosecution
In my opinion, in determining whether there were special reasons for reinstating the action the Master erred by disregarding, as a relevant consideration, the fact that the plaintiff was not personally responsible for the dismissal of her action.
If Mr Rischbieth had responded to either of the notices sent by the court on 4 June and 9 July and applied for an extension of time in which to serve the summons renewal of the summons, it is likely that the application would have been granted because of the plaintiff’s unstable medical condition. I will elaborate on the relevance of her medical condition in a moment. Even if such an application had failed, the plaintiff’s action would have remained alive because she would have been put on notice that the proceedings had to be served by 10 September 2010 to avoid dismissal of the action for want of prosecution. Obviously in those circumstances the proceedings would have been served on the defendants by her solicitor.
Upon any view of the facts the dismissal of the plaintiff’s action was due to the plaintiff’s solicitor’s failure to respond to the notices sent on 4 June and 9 July. If he had applied for a renewal of the summons the plaintiff’s action would have remained alive regardless of whether or not the application was successful. The plaintiff has an arguable claim against both defendants and has not engaged in any behaviour evincing a lack of desire or unwillingness to prosecute her action. It would, in my opinion, be unfair to effectively hold her vicariously responsible for her solicitor’s default.
The defendants placed reliance upon the decision of Muirhead J in Re Wolcott v Davis.[42]In that case the appellants had failed to file a notice of appeal in time because their solicitor had made an “honest mistake” misapprehending the rules. The appellants applied for an extension of time in which to appeal pursuant to O52, r15 of the Federal Court Rules which empowers the court to grant such an extension for “special reasons.” Muirhead J rejected the application. His Honour said:
I cannot conceive the rules were misunderstood; I doubt if they were considered. It is true, as he said, that the appellants themselves were not at fault and the error was entirely that of their legal representative. That is so, but it is the parties’ solicitors who, on their behalf conduct litigation and who have the obligation of comp-lying with statutory procedures. It could seldom be said that the failure of a solicitor to institute an appeal in time, caused by ignorance or negligence rather than fortuitous circumstances, such as sickness or accident, constituted special reasons.
[42] (1984) 4 FCR 124 at 128.
I do not accept that the default of a plaintiff’s solicitor could seldom amount to special reasons warranting reinstatement of an action. Such an approach is inconsistent with modern practice. As Lord Denning remarked in Salter v Rex & Co v Ghosh: “we never like a litigant to suffer by the mistake of his lawyers”.[43] Whether a court is justified in treating a solicitor’s default, standing alone or in combination with other factors, as distinguishable from the general run of cases so as to amount to special reasons must be determined upon a consideration of the particular facts of the case.
[43] [1971] 2 QB 597 at 601.
The view which I have expressed is consonant with several decisions of the Supreme Court of South Australia. In Victa Limited v Johnson[44] the defendant appealed to the Full Court against a refusal by the Deputy Master to set aside a writ which the plaintiff had failed to serve on the defendant in New South Wales within 12 months as required by the Supreme Court Rules at the time. The Master found that the primary cause for the non service of the writ was the loss of the letter forwarding the writ for service. The plaintiff’s solicitors had sent the letter to their agents in Sydney but it had fallen to the bottom of a sorting machine and was not discovered in time. Bray CJ, with whom the other members of the Court agreed, held that the Deputy Master had properly exercised his discretion in refusing the application to set aside the writ and, in the course of his judgment, observed that mistakes on the part of solicitors have sometimes been held excusable and no bar to renewal.[45]
[44] (1975) 10 SASR 496.
[45] (1975) 10 SASR 496 at 502.
In Mavra v Logan[46] Sangster J granted an application pursuant to s48 of the Limitation of Actions Act for an extension of time to institute an action for damages for personal injuries where the failure to institute proceedings had been the fault of the plaintiff’s solicitor. His Honour canvassed a number of decisions of the Supreme Court of South Australia where lapse of time by the default of the solicitor but not of the client had been excused in the context of breaches of procedural law.[47] Sangster J concluded that there was a general trend for the Court “not to be too reluctant to excuse an innocent party for the default of his solicitor”.[48]
[46] (1980) 24 SASR 567.
[47] (1980) 24 SASR 567 at 573-574.
[48] (1980) 24 SASR 567 at 574-575.
Subsequently, in Mahon v Frankipile (Australia) Pty Ltd[49] the plaintiff successfully appealed to the Full Court against an order by a Master striking out an action in circumstances where there had been a delay of four years in the service of the writ due primarily to neglect and gross delay on the part of the plaintiff’s solicitor. The absence of fault on the part of the plaintiff was treated as a relevant consideration in the exercise of the discretion to renew the writ. Neglect on the part of the plaintiff’s solicitor was also treated by the Full Court as a relevant factor justifying renewal of a writ in Williams v FS Evans & Sons.[50] See also Blagojevic v Bridgestone[51] and Brown v Hynd.[52]
[49] (1984) 157 LSJS 52.
[50] (1988) 52 SASR 237.
[51] (1987) 138 LSJS 358 at 363-364.
[52] (1994) 178 LSJS 157.
The remarks of Muirhead J in Re Wolcott and Davis, upon which the defendants rely, were not followed by the Full Court of the Federal Court in Jess v Scott.[53]In that case the Court held that an error of the applicant’s solicitor, as to the date upon which the judgment sought to be appealed against had been entered, constituted “special reasons” justifying an extension of time in which to appeal under O52, r15. After referring to the views expressed by Muirhead J, the Court canvassed a number of decisions concerned with analogous areas of law where breaches had been excused due to the negligence or incompetence of a party’s solicitor. The Full Court concluded that in accordance with modern practice a failure by a solicitor to take proper steps could amount to special reasons.
[53] (1986) 12 FCR 187.
Similarly, in Minister for Immigration Citizenship v Manaf[54] Sundberg J considered the same rule of court and concluded that incorrect advice given by the appellant’s legal advisers as to the time limit for the filing of the appeal was a factor, in combination with other factors, constituting “special reasons” enlivening the discretion to extend time in which to appeal.
[54] (2009) 111 ALD 437.
Interstate case law is replete with other decisions where an innocent party has been excused for the default of his solicitor. In Comcare v A’Hearn[55] the Full Court of the Federal Court held that “inexcusable delay” which was attributable to the applicant’s solicitors but not to the applicant was a relevant consideration on an application to extend time for a review under the Administrative Appeals Tribunal Act 1975 (Cth). Similarly, in Smith v Grant[56] the New South Wales Court of Appeal upheld the decision of the trial judge to grant the plaintiff leave to commence proceedings for compensation under the Motor Accidents Compensation Act 1999 (NSW) in circumstances where her solicitor had failed to commence proceedings prior to the expiry of the relevant limitation period. Basten JA (with whom the other members of the Court agreed) said:[57]
Accordingly the weight of authority under the Motor Accidents Act in this Court favoured the view that if a claimant could reasonably rely upon the conduct and advice of his or her solicitors, although it was negligent, such reliance could provide satisfactory explanation for delay in commencing proceedings.
[55] (1993) 45 FCR 441.
[56] (2006) 67 NSWLR 735.
[57] (2006) 67 NSWLR 735 at 752.
Other examples are Doyle v Gillespie[58] (extension of limitation period under Limitation Act 1985 (ACT)) and Tolcher v Gordon[59] (application to extend time for commencement of proceedings under Corporations Act 2001 (Cth)).
[58] (2005) 53 ACSR 442.
[59] (2005) 53 ACSR 442.
The authorities that I have canvassed recognise that errors on the part of a solicitor in the context of procedural law may be a sufficient cause for excusing an innocent party. To my mind, there is no reason in principle for excluding such errors from being a relevant consideration in determining whether special reasons exist in the context of Rule 123. The defendants’ contention that default of a solicitor, standing alone or in combination with other factors, can seldom constitute special reasons must be rejected.
As I earlier remarked, whether a court is justified in treating a solicitor’s default, standing alone or in combination with other factors, as distinguishable from the general run of cases so as to amount to special reasons must be determined upon a consideration of the particular facts of the case. In the present case the failure of the plaintiff’s solicitor to respond to the notices sent by the court on 4 June and 9 July were significant. But for those failures the plaintiff would not have been put in the position of having to apply for her action to be reinstated.
In my view the dismissal of the plaintiff’s action due to her solicitor’s default is a factor which by itself constitutes special reasons. If I am wrong in that regard it is at least a factor the Master should have been taken into account in conjunction with other factors, to which I will turn in a moment, in determining whether special reasons existed. As I earlier pointed out, special reasons may exist as a result of the existence a combination of factors though none of them in isolation would be sufficient.[60]
[60] Baskerville v Martin [1967] SASR 156 Bray CJ at 161; Semple v Doyle (1988) 48 SASR 357 at 360.
The plaintiff’s unstable condition
The Master’s reasons indicate that he considered the plaintiff’s unstable condition to be irrelevant because the plaintiff’s solicitor had made no attempt to obtain an expert report on liability after he had acquired the Pepperell report. It was for that reason that he was critical of Mr Rischbieth failing to serve the proceedings before the end of 2009.
The suggestion that Mr Rischbieth had been inadvertent in failing to serve the proceedings by the end of 2009 does not sit comfortably with the order the Master made on 4 March 2010 extending time for service of the Summons for a period of six months as from 5 December 2009. Be that as it may, I think the Master erred in failing to take into account the plaintiff’s ongoing medical problems.
It is true that Mr Rischbieth did not commission further reports during 2010. However, he deposed that it was his “intention during 2010 to wait until the treatment of the plaintiff was complete and her condition stable before obtaining reports from her treating urologist or another urologist”.[61] He believed that until that occurred he was not in a position to properly formulate the plaintiff’s claim.
[61] FDN [8].
For the reasons I earlier expressed, it is reasonable to infer that Mr Rischbieth intended to obtain reports that dealt, at least in part, with the issue of quantum. However, there is no reason to assume that he did not intend to acquire further evidence relating to liability. He made no such suggestion in his affidavits. As I earlier pointed Mr Rischbieth merely said that he wanted to obtain further reports once the plaintiff’s condition had stabilised.
I note that in Mr Rischbieth’s affidavit of 17 January 2010 he deposed that it was his understanding that “treatment and diagnosis of the plaintiff’s conditions [had] not been completed” and that it was his belief that the plaintiff’s claim could not be properly formulated until those events occurred.[62] If the incomplete diagnosis to which Mr Rischbieth was referring related to the initial cause of the plaintiff’s injuries (i.e. liability) and the reports he was intending to obtain related at least in part to that issue, then it is likely that he would have obtained a further extension of time for service of the summons had he made such an application in response to the notices sent by the court on 4 June and 9 July 2010.
[62] FDN 15 [8]-[9].
It is not uncommon for multiple applications for extensions of time for the service of a summons to be granted because a plaintiff’s condition has not stabilised sufficiently to enable the formulation of a claim in accordance with Rule 33.[63] Of course a point may be reached where repeated applications are unfair to the defendant(s) and constitute an abuse of process. However, I do not believe that point had been reached in the present case.
[63] See King v Golden Plains Fodder Australia Pty Ltd Action No 116 of 2003 - decision of Master Bampton (as she then was) delivered 2 October 2009 at [6]; Sparrow v Berringer Blass Wines Estate Pty Ltd Action No. 378 of 2008 – decision of Master Norman delivered 18 March 2011.
Regrettably, on the hearing of the application before the Master and on the hearing of this appeal, no attention was paid to whether Mr Rischbieth was referring in his affidavits to issues pertaining to liability as well as quantum. But even if the plaintiff’s continuing instability was relevant only to quantum it may, nevertheless, have justified a further extension(s) of time to enable Mr Rischbieth to properly formulate a settlement offer.
Mr Livesey argued that unresolved quantum was no bar to the defendants being served with the proceedings because the plaintiff could obtain an interim award as to damages if she successfully prosecuted her claim. That is so and that may have been the prudent course for the plaintiff’s solicitor to have taken. However, it does not follow from the availability of that option that the course embarked upon by Mr Rischbieth was wrong in law. As I have said, the rules permit multiple applications for extensions of time absent abuse of process.
For these reasons I consider that the Master erred in failing to take into account the plaintiff’s continuing unstable condition. But even if the Master was correct in concluding that the proceedings should have been served on the defendants at some stage after the Pepperell report had been acquired, the plaintiff should not be punished for that failure. Non service was not due to supine inactivity, or any other form of unsatisfactory conduct, on her part. Mr Rischbieth had formed the view that it was premature to formulate and serve her claim. It was reasonable for the plaintiff to rely upon her solicitor’s advice and his handling of the matter. In my opinion such reliance provides a satisfactory explanation for the delay of which the Master was critical.[64] The absence of fault on the part of the plaintiff in relation to non service of the summons was a factor that the Master should have taken into account in determining whether there were special reasons.
[64] See Smith v Grant (2006) 67 NSWLR 735 Basten J at 752.
Summary
I respectfully disagree with the Master’s conclusion that there were no special reasons for reinstating the plaintiff’s action. For the reasons I have expressed I believe that the circumstances which resulted in the dismissal of the plaintiff’s action constituted special reasons. But for the failure of her solicitor to respond to the notices sent by the court the plaintiff would not have been put in the position of having to apply for her action to be reinstated.
Even if I am wrong in that regard I find that the following combination of factors amount to special reasons:
·The plaintiff was likely to have been granted an extension of time if her solicitor had responded to either of the notices sent on 4 June 2010 and 9 July 2010 by reason of her unstable condition and its relevance to quantum and possibly liability.
·Even if such an application had failed the plaintiff’s action would have remained alive because she would have been put on notice that the proceedings had to be served by 10 September 2010 to avoid dismissal of the action for want of prosecution. In those circumstances the proceedings would have been served.
·The dismissal of the plaintiff’s action was due to the plaintiff’s solicitor’s failure to respond to the notices sent on 4 June and 9 July. If he had applied for a renewal of the summons the plaintiff’s action would have remained alive regardless of whether or not the application was successful.
·The dismissal of the plaintiff’s action was due to no fault on the part of the plaintiff.
·Even if non service of the proceedings was not justified by reason of the plaintiff’s unstable medical condition the plaintiff was not personally at fault.
·The plaintiff has not engaged in any conduct evincing a lack of desire to properly prosecute her claim.
The discretion
Having found that special reasons exist I consider that it is appropriate to exercise the powers conferred by Rule 286 to determine whether the discretion to enliven the action should be exercised in favour of the plaintiff rather than remit the matter for reconsideration.
As earlier noted the discretion to reinstate an action is not fettered by any absolute or inflexible rules. However, the principles expressed by the Full Court of the Supreme Court (SA) in Ulowski v Miller[65] and Williams v FS Evans & Sons,[66] both of which dealt with analogous rules of court, provide guidance as to the approach to be taken by a court exercising the discretion conferred by Rule 123.
[65] [1968] SASR 278.
[66] (1988) 52 SASR 237.
In Williams v FS Evans & Sons the Court considered the nature of the discretion to renew a writ after the plaintiff’s solicitors had failed to serve them within the time prescribed by the Supreme Court rules. King CJ said:[67]
The question for the court is whether it is just in the circumstances to grant the renewal and that involves a consideration of any detriment which the defendant might suffer due to the dilatory manner of the conduct of the proceedings.
[67] (1988) 52 SASR 237 at 238-239.

White J considered that the circumstances it which it would be just to exercise the discretion against granting a renewal were limited. He said:[68]
If the principles governing the exercise of the discretion to dismiss an action for want of prosecution apply by analogy, as I think they do, to the exercise of the discretion not to renew a writ or summons (which is the equivalent of dismissal where the time limit has expired), the discretion should only be exercised adversely to a plaintiff when the plaintiff’s default has been intentional and contumelious or where there has been inordinate and inexcusable delay on his or his lawyers’ part giving rise to a substantial risk that a fair trial would not be possible or to substantial risk of serious prejudice to the defendant: Birkett v James [1978] AC 297 at 318 F-G, 319 A, 332 F-G, 330 B-C, 336 D-E approving Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229 (CA).
[68] (1988) 52 SASR 237 at 243.
In Ulowski v Miller the Full Court considered the exercise of the court’s discretion under the Supreme Court rules to dismiss an action for want of prosecution by reason of delay following service of a writ. Bray CJ (with whom the other members of the court concurred) stated that “the discretion should be exercised as seems best in the interests of justice” after considering “five paramount matters”.[69] His Honour said:[70]
It must be remembered that we are dealing here with a discretion and in my view it ought not to be fettered by any absolute or inflexible rules. It clearly appears from these cases [decisions dealing with a failure to renew a writ within a year after issue] that five paramount matters to be considered are the length of the delay, the explanation for the delay, the hardship to the plaintiff if the action is dismissed and the cause of action statute-barred, the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay, and the conduct of the defendant in the litigation.
[my insertion]
[69] [1968] SASR 277 at 281.
[70] [1968] SASR 277 at 280.
These five paramount matters may be reformulated for the purposes of Rule 123 as follows: (1) the length of delay (2) the explanation for the delay (3) the hardship to the plaintiff if the action is not reinstated (4) the prejudice to the defendant if the action is reinstated and (5) the conduct of the defendant in the litigation. The fifth factor can be disregarded in the present case for there is no suggestion that either defendant has engaged in conduct relevant to the exercise of the discretion.
As far as I am aware it has not been previously determined what period of delay must be considered in the exercise of the courts discretion under Rule 123. Conflicting views have been expressed, in similar areas of law, as to whether the relevant period of delay is the period between accrual of the cause of action and the institution of proceedings or merely the period after the commencement of proceedings.
In Tolcher v Gordon[71] the New South Wales Court of Appeal considered that delaying the institution of an action until three days before the expiry of the limitation period was not a relevant consideration in the context of an application to set aside the dismissal of an action that occurred due to failure to serve a writ in time. However, in Ulowski v Miller Bray CJ thought it appropriate to consider the lapse of time, not only after the issue of the writ, but also between the accrual of the cause of action and the issue of the writ.[72] Similarly, in Williams v FS Sons King CJ considered that delaying the institution of an action until a short time before the expiry of the limitation period was a relevant consideration in the context of an application to renew a writ which had not been served in time.[73]
[71] (2005) 53 ACSR 442.
[72] [1968] SASR 277 at 281.
[73] (1988) 52 SASR 237 at 238-239.
For present purposes I will assume that the relevant period of delay is the period between the date of the accrual of the cause of action (15 March 2005) and the date of the application for reinstatement (7 December 2010) i.e. five years and almost nine months. Although that period of delay is not insubstantial and it has not been suggested that the defendants will suffer any palpable prejudice, such as the loss of a potential exhibit or an important witness, should the action be reinstated and proceed to trial. Deterioration in the quality of evidence may occur, as McHugh observed in Brisbane South Regional Health Authority v Taylor,[74]without the parties or anybody realising it. However, in the present case there is nothing which causes me to believe that there is a real risk the defendants will not receive a fair trial.
[74] (1996) 186 CLR 541 at 551.
I am satisfied that the delay has been satisfactorily explained by the plaintiff’s ongoing medical instability. The plaintiff’s solicitor adopted the prudent course of instituting the action within the limitation period since then there have been difficulties with formulating her claim due to her condition. Even if the difficulties perceived by her solicitor were more illusory than real, any default on his part has not been intentional and contumelious.
The hardship to the plaintiff if the action is not reinstated is obvious. She will lose her cause of action because the action is statute barred. It should be observed that the fact that she might have a right of action against her solicitor in relation to the dismissal of action for want of prosecution is not a relevant consideration. If that were not the case a court upon an application to reinstate an action would have to embark upon what in effect would be the trial of an action by the plaintiff against her solicitor. No court could form a safe conclusion on such a matter.[75]For the same reasons it is irrelevant that the plaintiff may be able to issue further proceedings against the defendants pursuant to s48 of the Limitations of Actions Act 1936 (SA) by reason of new material facts, as asserted by Mr Rischbieth in his affidavit of 6 December 2010.
[75] Birkett v James [1978] AC 297 (HL) at 324A-D, 335H-336C, D-E; Williams v FS Evans & Sons (1988) 52 SASR 237 at 254; Mavra v Logan (1980) 24 SASR 567 at 580.
There is a further aspect of the Masters reasons to which I should refer. The Master considered that even if there were special reasons in respect of the plaintiff’s claim against the first defendant, the same could not be said of her claim against the second defendant because “no evidence had been sought against the second defendant since March 2007”. On the material before me I think that it is fair to say, as the Master implied, that the plaintiff’s case against the second defendant is based entirely upon the opinions expressed by Dr Korda in his report of 20 March 2007. The Pepperell report does not appear to advance the plaintiff’s case against the second defendant at all. However, I do not believe that that is an impediment to a finding that special reasons exist in respect of the plaintiff’s claim against the second defendant or for reinstating the action against the second defendant in the exercise of the courts discretion. It might be different if the claim against the second defendant was unarguable or foredoomed to fail. However, the report of Dr Korda suggests otherwise.
The exercise of discretion must be exercised in the plaintiff’s favour.
Were the notices valid?
Before I conclude there is a further matter that I must mention. The power of the Registrar to issue the notices sent to the plaintiff’s solicitor on 4 June 2010 and 9 July 2010 was not challenged on the hearing of the application to reinstate the plaintiff’s action or on the hearing of this appeal. Both the application and the appeal proceeded on the assumption that the notices were valid. I doubt the correctness of that assumption for the following reasons.
Rule 123(1) provides that an action becomes “liable to be entered on the list of inactive cases if 3 months after the end of the time allowed for serving the originating process” no application has been made for extending the time for serving the originating process. If an action is entered on the list of inactive cases and remains on the list for two months the action is automatically dismissed for want of prosecution. Accordingly, after the end of the time allowed for serving a summons a minimum of five months must elapse before the relevant action is dismissed for want of prosecution.
By reason of the order made by the Master on 4 March 2010, time for service of the summons was extended to 2 June 2010. It is arguable that upon a proper construction of Rule 123 the plaintiff’s action did not become liable to be entered on the list of inactive cases until three months after 2 June 2010, that date being “the end of the time allowed for serving the originating process”. In other words, the action became liable to be entered on the list of inactive cases on or about 2 September 2010 and could not have been dismissed for want of prosecution before 2 November 2010.
If that construction is correct then the Registrar was in error in sending to the plaintiff’s solicitor on 4 June 2010 the notice of intention to enter the plaintiff’s action on the list of inactive cases within one month of the date of the notice. Furthermore, the Registrar had no power to enter the action on the list of inactive cases on 9 July 2010 or to administratively dismiss the action for want of prosecution on 10 September 2010.
The approach taken by the Registrar in the present case could only be justified if the reference in Rule 123(1) to the “end of the time allowed for serving the originating process” relates only to the period of six months within which an originating process must be served upon commencement of an action (Rule 39(1)(a)) and does not apply to any subsequent extension of time granted under Rule 39(2). In other words in the present case the end of the time allowed for serving the summons, for the purpose of Rule 123(1), was the day upon which the period of six months expired after the action was instituted. I doubt whether that is a proper construction of Rule 123(1). However, it is not necessary to decide this point because of the view that I have taken that the appeal should be allowed in any event. Also I have not had the benefit of counsel’s submissions on this point.
Orders
1.Appeal allowed.
2.Order made by Master Rice on 15 April 2011 is rescinded.
3.Plaintiff’s action is reinstated.
4.I will hear the parties as to costs.