Jones v The Nominal Defendant - [2022] SASC 111

Supreme Court of South Australia
(Appeal to a Single Judge)
JONES v THE NOMINAL DEFENDANT
[2022] SASC 111
Judgment of the Honourable Justice Blue
7 October 2022
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL
Appeal, seeking leave to appeal, against an order by a Judge allowing an appeal against a decision of a Master of the District Court and granting leave to the respondent to amend its defence to plead that the appellant’s own negligence caused or contributed to his fall that resulted in his injuries.
The appellant instituted an action in the District Court against the respondent claiming damages for personal injuries caused by a fall caused in turn by the negligence of the driver of an unidentified vehicle.
Despite the parties not having signed a certificate of readiness, a Master fixed a listing conference and required a certificate of readiness to be filed at least seven days before the listing conference.
At the listing conference, no certificate of readiness had been filed, but the Listing Officer nevertheless listed the action for trial. Shortly before the listing conference, the respondent’s solicitors had foreshadowed an intention to seek permission to amend the defence to plead, amongst other things, contributory negligence.
The respondent subsequently filed an application for permission to amend the defence. A Master heard argument on the application and reserved her decision.
The respondent’s solicitors subsequently sent an email to the Master’s chambers stating that the parties jointly sought an order that the trial date be vacated and the matter be referred back to the ordinary Directions List for further directions.
The Master later heard argument on the question whether special circumstances were required to be established for the application to amend the defence and if so whether they were established.
The Master dismissed the application to amend.
The respondent appealed. A Judge allowed the appeal and granted permission to amend the defence.
The appeal raises four broad issues:
1Did the Master dispense with the requirement for special circumstances, did the Master have power to do so and was it open to the Master to do so?
2Were special circumstances required to be established under the District Court Civil Rules 2006, were they established, and is it open for the respondent to contend on this appeal that they were not required or they were in fact established?
3Did the Judge err in concluding that the Master erred in exercising the discretion to refuse leave to amend the defence on the merits or err in the re-exercise of the discretion?
4Should leave to appeal be granted?
Held (granting leave but dismissing the appeal):
1The Master had power to dispense with the requirement for special circumstances (at [85]).
2It was open to the Master to dispense with the requirement for special circumstances if there were not special circumstances (at [89]).
3The Master did not decide whether or not to dispense with the requirement for special circumstances (at [105]).
4It follows that the Judge was required to consider the issue of permission to appeal on the merits (and at least the issue of dispensation on the merits) (at [107-108]).
5It is open for the respondent to contend on appeal that special circumstances were not required to be or were in fact established (at [127]).
6Special circumstances were not required to be established under rule 131(5), but were required to be established under rule 120A(4), of the Rules (at [144], [153]).
7Special circumstances were established (at [162]).
8The Judge was correct in concluding that the Master erred in exercising the discretion to refuse leave to amend the defence on the merits (at [198]).
9The Judge did not err in re-exercise of the discretion (at [215]).
10Leave to appeal granted (at [218]).
11Appeal dismissed (at [219]).

Admiralty Act 1988 (Cth) s 4(2)(a), s 4(2)(b) and s 4(3)(f); District Court Act 1991 (SA) s 43; District Court Civil Rules 2006 (SA) r 3, r 14, r 18, r 19, r 98(2), r 117, r 100(5), r 120, r 120A and r 131; Judiciary Act 1903 (Cth) s 78B; Supreme Court Rules 1987 (SA) r 67.01(6); Uniform Civil Rules 2020 (SA) r 151.7(1), r 151.12 and r 214.5, referred to.
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Channel Seven Adelaide Pty Ltd v Manock (2010) 273 LSJS 70; Copping v ANZ McCaughan Ltd (1997) 67 SASR 525; Idameneo (No 123) Pty Ltd v Suszko (2015) 123 SASR 42; Owners “Shin Kobe Maru” v Empire Shipping Co Ltd (1994) 68 ALJR 311; PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307; Telfer v Flinders Ranges Council [1999] SASC 42; The Nominal Defendant v Jones [2021] SADC 139, considered.

JONES v THE NOMINAL DEFENDANT
[2022] SASC 111

BLUE J: Robert Jones appeals, and seeks leave to appeal, against an order by a Judge allowing an appeal against a decision of a Master of the District Court, and granting leave to the Nominal Defendant to amend its defence to plead that Mr Jones’ own negligence caused or contributed to his fall that resulted in his injuries.
Mr Jones instituted an action in the District Court against the Nominal Defendant claiming damages for personal injuries caused by a fall caused in turn by the negligence of the driver of an unidentified vehicle.
Despite the parties not having signed a certificate of readiness, a Master fixed a listing conference and required a certificate of readiness to be filed at least seven days before the listing conference.
At the listing conference, no certificate of readiness had been filed but the Listing Officer nevertheless listed the action for trial in May 2020. Shortly before the listing conference, the Nominal Defendant’s solicitors had foreshadowed to Mr Jones’ solicitors an intention to seek permission to amend the defence to plead, amongst other things, contributory negligence.
The Nominal Defendant subsequently filed an application for permission to amend the defence. A Master heard argument on the application and reserved her decision.
The Nominal Defendant’s solicitors subsequently sent an email to the Master’s chambers stating that the parties jointly sought an order that the trial date be vacated and the matter be referred back to the ordinary Directions List for further directions.
The Master later heard argument on the question whether special circumstances were required to be established for the application to amend the defence and, if so, whether they were established.
The Master dismissed the application to amend insofar as it was opposed.
The Nominal Defendant appealed. A Judge allowed the appeal and granted leave to amend the defence.
The appeal raises four broad issues:
1.Did the Master dispense with the requirement for special circumstances, did the Master have power to do so and was it open to the Master to do so?
2.Were special circumstances required to be established under the District Court Civil Rules 2006 (SA) (the Rules), were they established, and is it open for the Nominal Defendant to contend on this appeal that they were not required to be, or they were in fact, established?
3.Did the Judge err in concluding that the Master erred in exercising the discretion to refuse leave to amend the defence on the merits or err in the re-exercise of the discretion?
4.Should leave to appeal be granted?
I will address these questions in that order. In particular, it is convenient to consider the question of leave to appeal after considering the substantive issues on the appeal.
Background
On 24 July 2013 Mr Jones was crossing King William Street Adelaide (30 to 40 metres north of Wright Street) on foot, approaching the median strip from the west, when he fell onto the median strip curb, sustaining personal injuries.
Mr Jones’ case is that the fall was caused by the driver of an unidentified white taxi, who had turned left into King William Street from Wright Street and accelerated into Mr Jones’ path, causing him to attempt to avoid being hit by the taxi and in doing so he fell onto the curb on the median strip.
In July 2016 Mr Jones instituted an action in the District Court against the Nominal Defendant claiming damages for personal injuries caused by his fall caused in turn by the negligence of the driver of the unidentified white taxi.
In February 2017 Gilchrist Connell on behalf of the Nominal Defendant filed a defence which admitted that Mr Jones was crossing King William Street but did not plead to, and thereby implicitly denied, the pleadings of the involvement of the white taxi and negligence of its driver.
In June 2018 Jones Harley Toole took over the conduct of the defence from Gilchrist Connell. Mr James of Jones Harley Toole sent an email to Mr Jones’ solicitors saying that he had read and considered the file.[1]
[1] Evidence of this email was not adduced before the Master; was only adduced on appeal; and is subject to a relevance “objection” by the Nominal Defendant.
Mr Jones’ injuries took substantial time to stabilise. It was not until April 2019 that he formulated his claim.
On 20 June 2019 the parties attended a directions hearing. A certificate of readiness under rule 120A(2) of the Rules had not been completed and was not provided to the Master at that hearing. The Master was informed that the parties intended to obtain further medical evidence. The Nominal Defendant sought referral to a listing conference. Mr Jones sought an adjournment to a further directions hearing; alternatively referral to a settlement conference; and in the further alternative referral to a listing conference.
The Master made the following orders:
1.Noting the [plaintiff] is seeing Dr Marshall on 16/7/19 and [defendant] anticipates obtaining ADL evidence, I nevertheless fix a listing conference but the parties are to fix a trial date that accommodates those events.
2.Plaintiff is to file and serve a trial book and certificate of readiness at least 7 days before the listing conference, the certificate may be qualified.
3.Costs in the cause.
Adjourned
Adjourned to Listing Appointment , 23.07.2019 at 9:30am
On 19 July 2019 the listing conference was relisted by a Master by consent to 10.15 am on 13 August 2019.
Between 22 July 2019 and 6 August 2019 there were communications between the solicitors about a mediation proposed by Mr Jones. The Nominal Defendant initially agreed to mediation.[2]
[2] Evidence of most of these communications was not adduced before the Master; was only adduced on appeal; and is subject to a relevance “objection” by the Nominal Defendant.
On 6 August 2019 Ms Brooks of the Nominal Defendant’s solicitors sent a letter to Mr Woodburn of Mr Jones’ solicitors. The operative paragraphs were:
We have recently obtained detailed instructions from our client regarding the proposition of Mediation. Upon reflection on the evidence and following discussions with our client, we are of the view that there is no utility in proceeding with a Mediation. We apologise for any inconvenience. We are instructed to set out in further correspondence our position in respect of liability and quantum.
In the interim, please see enclosed an amended Certificate of Readiness with our proposed changes. For clarity, should your client seek any further initiating expert reports, we request that you please detail the nature of the anticipated evidence. We confirm that we take no issue with the parties seeking review evidence from any experts which have previously provided reports. We should be grateful if you would please let us know whether you consent to the proposed qualified Certificate of Readiness. If so, we will sign and return a copy to you.
The enclosed amended certificate of readiness made two qualifications to the standard certificate of readiness:
1Save for an amended Defence to be filed and served within 21 days of filing the Certificate of Readiness, all pleadings are closed and no party has any intention of filing any further pleading or seeking any amendment of any pleading.
…
11Save an answering report of the defendant to the plaintiff’s Activities of Daily Living report of Mr Varricchio, all expert reports to be used by the parties have been obtained and made available to all parties as required by the Rules. Such reports, the tender of which can be agreed, have been agreed and no direction is sought or thought to be desirable to limit the number of expert witnesses to be called.
On 7 August 2019 Mr Woodburn sent a letter in response to Ms Brooks. The letter contended that an allegation that there had not been due inquiry and search (due inquiry) constituted a special defence that was required to be specifically pleaded. The letter requested further and better particulars why there had not been due inquiry. The letter foreshadowed an application for leave to file a reply pleading that the defendant was estopped from alleging a failure to conduct due inquiry as a result of a communication on 27 July 2015. The letter concluded:
In light of the above matters, we no longer consider it appropriate to file a Certificate of Readiness for trial (given the potential for further interlocutory applications etc.).
On 12 August 2019 Ms Brooks sent a letter in response to Mr Woodburn. The letter set out the Nominal Defendant’s position in respect of liability and quantum as foreshadowed in the first paragraph of the previous letter reproduced at [22] above.
Under the heading “Liability” and the subheading “Presence and Negligence of an Unidentified Driver”, the letter asserted that Mr Jones should have crossed King William Street at a pedestrian crossing at the intersection with Carrington Street; Mr Jones crossed at a point where it might be expected that vehicles turning onto King William Street would have limited visibility; and that the Nominal Defendant did not concede that the fall was related to any vehicle, that the movement of any vehicle gave rise to any evasive or emergency response or that the driver of any vehicle was negligent.
Under the subheading “Contributory Negligence”, the letter included the following passages:
Your client failed to use the numerous pedestrian crossings available to him en route from the legal services office to the Adelaide Magistrates Court. Instead, he chose to cross a busy six lane road with tram tracks rather than utilise the pedestrian crossings available.
…
The plaintiff’s lookout was clearly defective in failing to see the vehicle at any time other than immediately prior to his fall (on his version).
On 13 August 2019 Mr Woodburn and Ms Brooks attended a listing conference before a Listing Officer.
Immediately before the listing conference, there was a discussion between Mr Woodburn and Ms Brooks. There was some discussion about the merits of the due inquiry issue. Mr Woodburn said that he “did not think that the matter was ready to be listed for trial given that there were significant further issues to be resolved in relation to the pleadings, with potential arguments or preliminary matters to be determined, particularly the estoppel issue”. He said that he “refused to sign the certificate of readiness for trial in the circumstances, particularly given that [he] had only just been alerted to the likely content of the proposed amendments to the defence, and that [he] would need to obtain counsel’s opinion in relation to the best way to proceed”.
There was a dispute on the affidavits subsequently filed by Ms Brooks and Mr Woodburn as to whether Mr Woodburn agreed to the Nominal Defendant filing an amended defence on the basis that Mr Jones could respond by way of reply, and as to whether Mr Woodburn agreed that the matter could be listed for trial provided that sufficient time was allowed to facilitate outstanding matters including amended pleadings and any interlocutory applications.
At the listing conference, no certificate of readiness was provided to the Listing Officer. There was a dispute on the affidavits of Ms Brooks and Mr Woodburn whether Mr Woodburn voiced reservations about the matter being listed for trial. In any event, the Listing Officer listed the matter for trial to commence on 4 May 2020 with 15 days set aside.
The notes of the Listing Officer in respect of the listing conference record the following:
Discussions continuing.
COR not finalised.
Parties request 15 day trial.
Trial date: 4/5/20 15 days.
Immediately after the listing conference, there was a further discussion between Mr Woodburn and Ms Brooks. Ms Brooks proposed the following timetable:
1.The defendant to file and serve an amended defence within 21 days.
2.The plaintiff to file and serve a reply within 14 days thereof.
3.The plaintiff to file and serve any further interlocutory application considered necessary, including any application for a court ordered mediation, within four to six weeks.
There was a dispute on the affidavits of Ms Brooks and Mr Woodburn whether Mr Woodburn agreed to this timetable. Ms Brooks said that he did. Mr Woodburn said that he agreed in principle but said that he would not be agreeing to anything until he had met with counsel.
On 13 August 2019 Ms Brooks sent a letter to Mr Woodburn. Ms Brooks referred to the discussions at the listing conference and “the agreed timetable for proceedings”. She set out the timetable set out at [33] above “as agreed between the parties”. She concluded by saying that she awaited Mr Woodburn’s response to her correspondence of 12 August 2019. Mr Woodburn did not reply to the letter.
On 16 October 2019 Ms Brooks sent an email to Mr Woodburn saying that the draft amended defence was with counsel for settling and she would shortly attend to filing it. She sought confirmation of Mr Jones’ consent to the amendment to enable it to be filed.
On 17 October 2019 Mr Woodburn told Ms Brooks that he was not instructed to consent to filing of an amended defence.
On 25 October 2019 the Nominal Defendant filed an interlocutory application (FDN14) seeking amongst other things leave to file an amended defence. The application was supported by an affidavit affirmed by Ms Brooks (Ms Brooks’ first affidavit).[3] She deposed to an agreement reached with Mr Woodburn on 13 August 2019 for filing an amended defence. She asserted that Mr Jones would not be prejudiced by the proposed amendments.
[3] This was Ms Brooks’ second affidavit filed in the action (and was entitled “Second Affidavit”) but her first affidavit was not contained in the appeal book or referred to on appeal. I therefore ignore it.
The proposed amended defence:
1.at paragraphs 2 and 4 pleaded that Mr Jones fell onto the curb unrelated to any approaching vehicle and was the author of the incident by so doing or failing to take care to avoid falling or by crossing King William Street in a dangerous place or by failing to keep a proper lookout (the fall causation amendments);
2.at paragraph 5 pleaded in the alternative that Mr Jones was guilty of contributory negligence that contributed to the accident by taking and failing to take those actions (the contributory negligence amendments);
3.at paragraph 7 pleaded that Mr Jones failed to conduct due inquiry (the due inquiry amendment); and
4.at paragraphs 9 to 12 pleaded in detail as to causation and damages (the damages amendments).

On 28 November 2019 Mr Woodburn affirmed an affidavit (Mr Woodburn’s first affidavit). He took issue with Ms Brooks’ assertion that Mr Jones would not be prejudiced by the proposed amended defence. He then addressed the due inquiry amendment. He did not address the fall causation or contributory negligence amendments. He did not address Ms Brooks’ evidence of her discussions with him.
On 29 November 2019 Mr Jones filed written submissions. He addressed exclusively the application to make the due inquiry amendments and opposed that application on four grounds. He made no reference to the fall causation or contributory negligence amendments.
On 29 November 2019 the Nominal Defendant filed written submissions.
On 2 December 2019 the Nominal Defendant’s interlocutory application came on for oral argument before the Master. The parties argued the merits of the amendment application. Mr Jones addressed his argument primarily to the due inquiry amendments. In relation to the contributory negligence amendments, he conceded that they did not cause the same prejudice as the due inquiry amendments but argued that he would suffer the potential prejudice of no longer having a precise recollection of the events due to the passage of time. He did not contend that rule 131(5) or rule 120A(4) of the Rules applied or that special circumstances were required for the amendment application.
There was discussion concerning the accounts of Ms Brooks and Mr Woodburn of their conversations. The Master gave leave to the parties to file further affidavits concerning those conversations. The Master otherwise reserved her decision.
On 6 December 2019 Ms Brooks affirmed a further affidavit (Ms Brooks’ second affidavit).[4] She deposed amongst other things in more detail to her communications with Mr Woodburn as summarised above.
[4] This was Ms Brooks’ third affidavit filed in the action (and was entitled “Third Affidavit”) but her first affidavit was not contained in the appeal book or referred to on appeal. I therefore ignore it.
On 6 December 2019 Mr Woodburn affirmed a further affidavit (Mr Woodburn’s second affidavit). He deposed amongst other things to his communications with Ms Brooks as summarised above. His focus was almost exclusively on the due inquiry amendment.
On 7 January 2020 the Master sent by email to the parties reasons for decision (the Master’s initial reasons). The Master said that she made no finding on the dispute between Ms Brooks and Mr Woodburn as to their communications. The Master said that there was no dispute that no certificate of readiness was signed and that the Listing Officer nevertheless proceeded to list the matter for trial. The Master referred to the provisions of rule 131(5) and (6). The Master said:
In listing the matter on 13 August 2019, the court has therefore implicitly dispensed with the need for such a certificate pursuant to rule 120A(5).
That means that for me to proceed to determine the defendant’s application FDN 14, I must grant permission to bring the application and such permission will only be given if special circumstances justify the granting of such permission.
…
At the argument of this matter on 2 December 2019, neither party addressed me on the issue.
Having reviewed the rules and caselaw, it is clear to me that I need to hear the parties further on this point and determine whether or not to grant permission to the defendant to bring FDN 14 in the first place before I can proceed to then determine the substance of the application.
The Master made orders that the Nominal Defendant file and serve further submissions on the point of permission by 17 January 2020; Mr Jones’s file and serve responding submissions by 24 January 2020; and that the matter be listed for further argument on a date to be fixed.
On 17 January 2020 counsel for the Nominal Defendant sent an email to the Master’s chambers, copied to Ms Brooks, Mr Woodburn and counsel for Mr Jones. The substance of the email was as follows:
This email is sent with the Consent of the Plaintiff’s legal representative (and is copied to them).
The parties have conferred in relation to the application and in particular, your Honour’s order that further submissions be filed by the Defendant by close of business 17 January 2020 and the plaintiff is to file responding submissions by 24 January 2020.
It is agreed between the parties that the matter should not have been listed for trial and was done so on a misunderstanding or misapprehension of the parties[’] position. No criticism is raised of either party in respect of the misapprehension/misunderstanding.
On that basis the parties seek an order that the trial date, as currently listed, be vacated and the matter be referred back to the ordinary Directions List for further directions.
It is further noted that the parties are pursuing a number of areas of inquiry that may have some bearing on the pleadings and the nature of extent of any amendments sought by the defendant. On that basis the parties ask that the application by the defendant (and accordingly any ruling) be held in abeyance until further order, at least the date of the next direction hearing at which time the parties will provide an update on the matter and the application.
In those circumstances the parties seek orders;
1The current trial date be vacated
2The defendant’s application to amend (FDN 14) be held in abeyance until further order
3Matter relisted for Directions at the first available time and date (to be fixed)
4Question of costs reserved.
No record of orders made by the Master as a result of the email was produced on appeal. Paragraph 2 of the remarks made by the Master in respect of the orders made in chambers on 26 March 2020 provided:
Subsequent to the delivery of the reasons I was asked by the parties to vacate the trial date and hold the application to amend the defence (FDN 14) in abeyance so that they could hold discussions regarding areas of enquiry that might have some bearing on the pleadings and amendments sought to be made by the defendant. This I did and on 31 January 2020 I adjourned the matter to enable the investigations to continue.
It is apparent from the 17 January request by the parties and from the 26 March remarks that on or before 31 January 2020 the Master made orders at least vacating the trial date and listing the matter for directions on 23 March 2020. By reason of those orders and the joint request by the parties on 17 January, it was implicit that the matter be referred back to the ordinary Directions List for further directions and that the June 2019 order that the matter proceed to trial be revoked.
On 20 March 2020 the parties requested that the directions hearing listed for 23 March 2020 be vacated and application FDN 14 be re-enlivened and heard and determined by the Master.
On 26 March 2020 the Master made orders extending the time for written submissions and listing the matter for oral argument on 26 May 2020.
On 27 April 2020 the Nominal Defendant filed and served further written submissions. The Nominal Defendant contended that, at the listing conference, the Listing Officer did not dispense with the requirement for a certificate of readiness and in any event had no power to do so. It was contended that, in those circumstances, the matter should have been referred back to a Master rather than being listed for trial. Alternatively, it was contended that special circumstances existed to allow the Court to consider the defendant’s application to amend the defence on the merits.
On 15 May 2020 Mr Jones filed and served further written submissions. He contended that, the trial order having been made by a Master on 20 June 2019, subrule 120A(4) required that any amendment to the pleadings thereafter required special circumstances. He took issue with the contention that special circumstances existed.
On 26 May 2020 the Master heard oral argument on the special circumstances issues.
On 29 June 2021 the Master sent by email to the parties reasons for decision on the amendment application.
On 29 June 2021 the Master made an order by consent giving leave to the Nominal Defendant to amend the defence by making the damages amendments. The Master otherwise dismissed interlocutory application FDN 14 for the reasons given in her reasons for decision.
On 15 July 2021 the Nominal Defendant filed a notice of appeal against the order of the Master to the extent that the Master dismissed the application to amend the defence in respect of the fall causation and contributory negligence amendments. There was no appeal in respect of the due inquiry amendments.
On 10 September 2021 the Nominal Defendant filed written submissions on the appeal.
On 17 September 2021 Mr Jones filed written submissions on the appeal raising, and exclusively addressing, the dispensation issue.
On 22 September 2021 Mr Jones filed written submissions addressing the merits of the application for permission to amended defence. He addressed four matters, being errors alleged by the Nominal Defendant to have been made by the Master in pleading analysis, in relation to the trial listing, in relation to prejudice and in relation to justice. He did not refer to any issue about a lack of explanation for the delay in the Nominal Defendant applying for permission to amend the defence.
On 22 September 2021 a Judge heard the appeal. The Judge was informed that the parties were still working through some significant medical causation issues and the case would not be ready for trial before the middle of 2022. In his submissions, Mr Jones principally addressed the dispensation issue. He put the following arguments. The appeal by the Nominal Defendant made the implicit assumption that the Master’s consideration of the merits of the proposed amendments was the basis of her decision but that was not the case. The Master decided the case on the basis that the Rules prohibited amendments after a trial listing except where there were special circumstances. The Master did not dispense with the requirement for special circumstances and she found that no such circumstances had been demonstrated. In those circumstances, the submissions made on appeal by the Nominal Defendant as to the merits of the application were idle.
In relation to the merits of the application to amend the defence, Mr Jones addressed the four points the subject of his written submissions. He did not refer to any issue about a lack of explanation for the delay in the Nominal Defendant applying for permission to amend the defence.
On 10 December 2021 the Judge delivered reasons for decision on the appeal.[5] The Judge made orders allowing the appeal and granted leave to amend the defence to make the fall causation and contributory negligence amendments.
[5] The Nominal Defendant v Jones [2021] SADC 139.
Evidence on appeal
At the hearing of the appeal, I was informed that the case is still not ready to be listed for trial for reasons unrelated to the application for permission to amend.
I received a chronology prepared by Mr Jones setting out what he contends are relevant historical events. I also received copies of some of the documentary communications referred to in the chronology. The Nominal Defendant does not oppose receipt of the chronology (or the associated documents) but contends that various events recorded in the chronology are irrelevant and invites me to give them no weight.
Mr Jones submits that, with one exception, the entries in the chronology before June 2019 (other than those referring to events of which evidence had already been adduced before the Master) are relevant only to explain why stages of the litigation took so long to rebut a submission by the Nominal Defendant that Mr Jones had been dragging the litigation and are relevant only if on appeal I am called upon to exercise the discretion afresh. No issue on appeal turns on any question whether Mr Jones had been dragging the litigation and hence these entries have no evidentiary weight.
The exception is an email sent by Mr James on 4 June 2018 that Mr Jones submits is relevant to alleged delay by the Nominal Defendant in seeking to amend its defence. I accept that this email has weight.
Mr Jones submits that the entries in the chronology relating to communications between solicitors between June and August 2019 are relevant to the events of which evidence was adduced before the Master. I accept that these communications have weight. However, their receipt does not affect the disposition of the issues on appeal.
The Rules regime
Chapter 6 Part 4 of the Rules addressed listing for trial.
Rule 120A applied to actions in which orders had not been made implementing a litigation plan. It relevantly provided:
120A—Proceeding to trial—other cases
…
(2)Before the hearing of an application for an order that an action may proceed to trial, the parties are to certify to the Court in an approved form that the action is ready to proceed to trial.
(3)The certificate is to consist of a check list, in an approved form, signed by the party or the party’s lawyer.
(4)A party is required to review the adequacy of its pleadings before an order is made that the action be listed for trial and thereafter a party will not be permitted to amend the pleading – particularly if the amendment would cause a postponement or adjournment of the trial – unless the Court is satisfied that special circumstances exist justifying permission in the interests of justice.
(5)If the Court is of the opinion that—
(a) one or more of the parties are not ready for trial because of their own default; but
(b) the action should nevertheless proceed to trial,
the Court may, on its own initiative or on an application by a party, order that the action proceed to trial.
Rule 131 applied to interlocutory applications. It provided:
131—Interlocutory applications
(1)     An interlocutory application is to be in an approved form.
(2)The applicant must give the other parties affected by the application written notice of the time and place appointed for hearing the application at least 2 clear business days before the time appointed for the hearing.
(3)     Notice to other parties is not required if—
(a)     the application does not affect the interests of other parties; or
(b)     the applicant is authorised to make the application without notice to other parties.
(4)The Court may, on conditions the Court considers appropriate, dispense with requirements of this rule—
(a)     if the urgency of the case so requires; or
(b)     by consent of the parties; or
(c)     if for any other reason the Court considers it appropriate to do so.
Example—
The Court might permit a party to make an interlocutory application orally without written notice to the other parties if it considers the application appropriate in the circumstances of the case.
(5)When the parties have signed a certificate of readiness for trial under rule 120(4) or 120A(2) or the Court has dispensed with the need for a certificate under rule 120A(5), an interlocutory application may only be made with the Court’s permission.
(6)If the application should have been made before the certificate of readiness for trial was signed or dispensed with, the Court will only permit the application if satisfied that special circumstances justify the grant of permission.
Rule 117 empowered the Court to make orders for the proper conduct of a proceeding or otherwise in the interests of justice. It relevantly provided:
117—Power to make orders controlling conduct of litigation
(1)The Court may make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice.
Note—
In addition to the powers specifically mentioned in this rule, the Court's powers to enforce compliance with the rules (see rule 12) and the Court's powers to penalise procedural irregularities in costs (see rule 13) should be noted.
(2) The Court may (for example)—
(a) dispense with compliance with a rule;
…
Dispensation
The Nominal Defendant appealed against the Master’s order on the ground that the Master erred in several respects in refusing permission to amend the defence on the merits. On the hearing of the appeal to the Judge, Mr Jones made a submission in limine that the Master had refused permission to make the application because no special circumstances were established. In turn, the Nominal Defendant contended that the Master had dispensed with the requirement for special circumstances. The Judge upheld the Nominal Defendant’s last contention.
Grounds of appeal 1 to 3 each relate to the question of dispensation. Those grounds are that the Judge:
1.erred in finding that the Master had purported to dispense with the requirements of subrules 131(5) and (6) that prohibited the Court from entertaining an application for leave to amend after a trial date had been set except in special circumstances;
2.erred in law in finding that the Master had power under rule 117(2) or otherwise to dispense with the requirements of rule 131(5) and (6) and ought to have found that the Master did not have, and did not purport to exercise, any dispensing power under rule 117 or otherwise;
3.erred in law in implicitly finding that it was open to the Master to dispense with the said requirements and ought rather to have found that there was no evidence before the Court to justify the exercise of any dispensing power.
Ground 4 is consequential on Mr Jones establishing that the Master decided against dispensation from the requirement for special circumstances. It is that, in the premises, the Judge ought to have found that the Master had refused the application because of a want of special circumstances to justify it, and ought therefore to have found that the Nominal Defendant’s appeal was misconceived because it contained no challenge to the Master’s finding in that respect.
Power to dispense
I first address ground 2, which raises the question of the power of the Court to dispense with the requirements of subrules 131(5) and (6) of the Rules.
Mr Jones contends that the Master had no power under rule 117(2)(a) to dispense with the requirement for special circumstances. He contends that that provision only permitted the Court to dispense with a party’s obligations under the Rules; it did not permit the Court to dispense with preconditions to the Court’s exercise of power; and the requirement of special circumstances is such a precondition. He contends that subrules 131(5) and (6) do not impose an obligation on a party but prohibit action by a party.
I reject Mr Jones’ contentions. Rule 117(2)(a) empowered the Court to “dispense with compliance with a rule”. Subrule 131(5) imposed an obligation on a party to obtain the Court’s permission before making an interlocutory application. Subrules 131(5) and (6), read together, imposed an obligation on a party to obtain the Court’s permission and demonstrate special circumstances before making an interlocutory application. The Court could dispense with compliance with these obligations under rule 117(2)(a). There is no reason to read down rule 117(2)(a). Indeed subrule 131(4) explicitly contemplated that the Court could dispense with the requirements of rule 131, which included the requirements imposed by subrules 131(5) and (6).
Similarly, subrule 120A(4) imposed an obligation on a party to make pleadings amendments before an order is made that the action be listed for trial and not to seek permission to amend a pleading thereafter in the absence of special circumstances justifying permission in the interests of justice. The Court could dispense with compliance with these obligations under rule 117(2)(a).
Mr Jones accepts that the Master may have had power under subrule 117(1) to dispense with the requirements under subrules 131(6) and 120A(4) for special circumstances. However, he contends that this is irrelevant because the Master only considered subrule 117(2) and not subrule (1).

I reject Mr Jones’ contention concerning subrule 117(1). Whatever arguments might be made about the proper construction of rule 117(2), the Master undoubtedly had power under subrule 117(1) to permit an amendment notwithstanding that special circumstances were not demonstrated. Rule 117 operated as an integrated whole. Subrule (1) was the operative provision. Subrule (2) merely provided examples of the operation of subrule (1).
Moreover, the Master clearly considered that she had power to dispense with the requirement for special circumstances because the only question that she addressed was the exercise of the discretion to dispense. If the Master considered that she had power to dispense, it does not matter whether that power is sourced in subrule 117(1) or (2).
The second ground of appeal is not established. The Master has power to dispense with the requirement for special circumstances.
Open to dispense
I next address ground 3, which raises the question whether, assuming that it had power to dispense, it was open on the evidence for the Court to dispense with the requirements of rule 131(5) and (6).
There is an obvious and essential interrelationship between this issue and the question whether special circumstances were demonstrated on the evidence (which I address below). I assume for present purposes that special circumstances were not demonstrated. This is an artificial assumption because I conclude at [158] and following below that special circumstances were demonstrated.
If, for some reason, the circumstances referred to at [158] and following below did not amount to special circumstances, those circumstances rendered it open, and indeed necessary, on the evidence to dispense with the need for special circumstances. The fact that on 17 January 2020 the parties communicated to the Master’s chambers an agreed position that the matter should not have been listed for trial, the trial date should be vacated and the matter should be referred back to the ordinary Directions List for further directions, and requested consent orders to that effect, comprised good reason to dispense with the need for special circumstances (if that in itself did not amount to special circumstances).
The third ground of appeal is not established. It was open on the evidence for the Court to dispense with the requirement for special circumstances.
Decision on dispensation
The Master at paragraph 56 of her reasons said that the first hurdle that the Nominal Defendant must overcome was that, the matter having been set for trial, it could only bring a further interlocutory application with the permission of the Court and where special circumstances justified its being brought (by reason of subrules 131(5) and (6) of the Rules).
The Master at paragraphs 60 to 69 of her reasons rejected the Nominal Defendant’s contentions that there had been no valid dispensation by the Listing Officer of the need for a certificate of readiness.
The Master at paragraph 76 of her reasons identified the special circumstances relied on by the Nominal Defendant as being the way that the matter was listed for trial. At paragraph 79, the Master concluded that there were not any special circumstances arising from the listing of the matter for trial.
Although the Nominal Defendant had relied on other matters giving rise to special circumstances, it is common ground that the Master found that there were no special circumstances.
The Nominal Defendant contended before the Judge on appeal that the Master dispensed with the requirement for special circumstances pursuant to rule 117(2) of the Rules.
The relevant passages from the Master’s reasons are as follows:
80The result of such a finding [the conclusion at paragraph 79 that there were not any special circumstances arising from the listing of the data for trial] would be that the defendant is prohibited from bringing any interlocutory application to amend [its] pleadings or for any other purpose.
81It is a salutary lesson to defendants to ensure that their matter is prepared at an early stage rather than leaving it to the last minute and pursuing tactical strategies to put pressure on a plaintiff.
82The DCCR apply to this application and both parties accepted that, raising no demur on 26 May 2020. However, I cannot ignore the fact that the UCR now apply and have no equivalent provision requiring there to be special circumstances to bring interlocutory applications after a matter has been set for trial.
The Master set out the relevant provisions of rule 151.12 of the Uniform Civil Rules 2020 (SA) (the Uniform Rules). The Master said that she was also conscious of rule 3 of the Rules which set out the objects of the Rules. The Master then said:
85I have regard to my obligations pursuant to DCCR117 and my discretion pursuant to sub-rule (2) to dispense with compliance with a rule.
86It has been a close call, given the defendant’s behaviour leading up to and during the listing conference and the views that I have expressed above, but in the circumstances of this instant case, I am prepared to continue with consideration of the interlocutory application as a whole and in particular, the substantive issues raised regarding the application to amend the pleadings, as argued before me on 2 December 2019.
The Master then addressed the merits of the application to amend over the next 65 paragraphs and concluded at paragraph 152 that she was driven to the conclusion that the application, insofar as it related to the contributory negligence and due inquiry amendments, should be dismissed.
The Judge gave the following reasons for concluding that the Master had dispensed, pursuant to rule 117, with the requirement for special circumstances:
There is no doubt that the Master found that the appellant had not established the existence of special circumstances which would allow the granting of leave to bring an interlocutory application after a certificate of readiness had been signed or dispensed with.
I do not consider, however, that the respondent’s submission, that the Master dealt only with the merits of the application for the sake of completeness, but otherwise dismissed it on the basis that there were no special circumstances, can be accepted. There is no suggestion in the reasons that this is the case. By no words does the Master suggest that she is considering the merits of the application for completeness only. If this were the case, there would need to be some indication that it was so. Rather, in reaching her conclusion, she says:
Having considered the application before me, the affidavit evidence and the submissions of counsel, I am driven to the conclusion that the defendant’s application, insofar as it relates to the proposed paragraphs that relate to causation, liability and section 115(1)(b) of the Act should be dismissed.
She does not conclude that the application must be dismissed because the criterion set out in r 131(6) has not been satisfied, that is, the existence of special circumstances.
Further, if the respondent was correct in his submission, it would render otiose the Master’s comparison of the relevant provisions of the 2006 Rules with the Uniform Civil Rules 2020 and her statements set out at [46] and [47] hereof. The plain reading of the Master’s reasons makes it clear that she dispensed with the requirements of r 131(6) and dealt with the application on its merits.
On appeal against the Judge’s decision, Mr Jones contends that the Master did not decide the question of dispensation one way or the other but proceeded to decide the amendment application by rejecting it on the merits. The Nominal Defendant contends that the Master did dispense with the need for special circumstances as held by the Judge.
This issue involves the proper construction of the Master’s reasons for decision.
It is significant that the Master did not say that she was dispensing with the need for special circumstances. If she had intended to do so, it may be expected that she would have said so. Just as, if she had decided against dispensation, it may be expected that she would have said so.
The Master said “I am prepared to continue with consideration of the interlocutory application as a whole and in particular, the substantive issues… as argued before me on 2 December 2019”. This indicates that the Master was proceeding to the merits (knowing that the result of that consideration would be refusal of the application for leave to amend) rather than needing to decide the dispensation issue. If the Master was deciding the dispensation issue, she would simply have said that she granted dispensation.
The reference to its being a close call does not in context indicate that the Master had made that call in favour of the Nominal Defendant. Rather, it indicates that, due to it being a close call, the Master decided to determine the application on the merits without the need to decide finally the dispensation question.
It is highly significant that the Nominal Defendant had not sought dispensation from the requirement for special circumstances, but had only argued that there was not a requirement for special circumstances or that special circumstances existed (each of which the Master rejected). The Master had not therefore heard Mr Jones in opposition to any application for dispensation. It would have been a denial of procedural fairness for the Master to have dispensed with the requirement for special circumstances without having heard Mr Jones in relation to it.
The first ground of appeal is established. The Master did not decide whether or not to dispense with the requirement for special circumstances.
Consequence of Master’s decision on dispensation
Ground 4 is premised on Mr Jones establishing that the Master decided against dispensation from the requirement for special circumstances.
The Master did not decide against dispensation: she did not decide the issue one way or the other. It follows that, contrary to Mr Jones’ submission, the Judge was entitled, and indeed required, to decide the merits issue, which was the issue on which the Master dismissed the amendment application. Prospectively, if the Judge were to decide against the Nominal Defendant on the merits, that would be an end of the appeal. If the Judge were to decide in favour of the Nominal Defendant, the Judge would have then been required to proceed to consider the dispensation issue herself. Given the interrelationship between the dispensation issue and the special circumstances issue, it would have been inevitable that the Judge decided both issues.
The fourth ground of appeal is not established.
Conclusion on dispensation
The Master had power to dispense with the requirements for special circumstances and it would have been open on the evidence for the Master to have done so. However, the Master did not do so and did not decide the question whether there should be a dispensation.
Special circumstances
The Nominal Defendant contends that special circumstances were not required because the preconditions for their operation contained in subrules 131(5) and 120A(4) had not been met. The Nominal Defendant contends in the alternative that special circumstances were established.
These contentions were not the subject of a notice of alternative contention under rule 214.5 of the Uniform Rules. Mr Jones does not take this point and it is not therefore a bar to the Nominal Defendant advancing these contentions. To the extent necessary, I dispense with need for compliance with rule 214.5 of the Uniform Rules.
Mr Jones does, however, contend that it is not open to the Nominal Defendant to advance either of these contentions because they were not advanced before the Judge on the first instance appeal. I address this question of competence before turning to the merits of the special circumstances issues.
Competency of contentions
Mr Jones accepts that the Nominal Defendant advanced before the Master both contentions that special circumstances were not required and that they existed. However, the Nominal Defendant did not advance these contentions before the Judge on the first instance appeal, relying on its contention (that the Judge accepted) that the Master had dispensed with the need for special circumstances and its contention (that the Judge also accepted) that the Master erred on the merits of permission to amend the defence.
Mr Jones contends that, if a respondent to a further appeal did not advance a contention at the intermediate appeal, the respondent is precluded from advancing that contention on the further appeal. The Nominal Defendant takes issue with that contention.
In support of his proposition, Mr Jones cites the decision of the Full Court in Copping v ANZ McCaughan Ltd.[6] In that case, the Coppings sued ANZ McCaughan amongst other things for loss caused by negligent misrepresentations relating amongst other things to a sinking fund and the exchange rate. In May 1994 the trial Judge found that the sinking fund representation was negligently made but that the Coppings did not rely on it. The trial Judge found that the alleged exchange rate representation was not made. The Judge therefore dismissed the negligent misrepresentation causes of action.
[6] (1997) 67 SASR 525.
The Coppings appealed against the non-reliance finding and the exchange rate finding. At the hearing of the appeal, they abandoned the appeal ground against the exchange rate finding. The Full Court upheld the appeal on the reliance ground and remitted the matter back to the trial Judge for assessment of damages caused by the sinking fund representation. In February 1996 the trial Judge assessed damages at $1 and made adverse costs orders against the Coppings.
The Coppings appealed against the February 1996 orders. They also purported to appeal against the May 1994 orders on the previously abandoned exchange rate ground. At the hearing of the second appeal, a differently constituted Full Court held that a second appeal relating to the alleged exchange rate representation was misconceived but treated the purported appeal as an application to vary or revoke the orders of the first Full Court, which it held that it had jurisdiction to entertain. However, the Full Court held that this jurisdiction would be rarely exercised. Lander J (with whom Doyle CJ relevantly agreed) said:
Although this Court does have jurisdiction to vary or revoke a sealed order of the court it is a jurisdiction that would be exercised only sparingly. A fundamental principle of litigation requires that there be an end to litigation. A judgment regularly entered after both parties have had full opportunity to present argument on either side, could be only varied or revoked if the justice of the case compelled the variation or revocation of the order.
In my opinion a forensic decision made by a party or the party's advisers during the hearing of an appeal ought, except in exceptional circumstances, to be binding upon the party and therefore disentitle that party to any right to revoke, set aside or vary the judgment or order made upon that forensic decision.
In University of Wollongong v Metwally (No 2) the High Court said:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had and (sic) opportunity to do so."[7]
[7] At 569. (Pinpoint references omitted)
The principles articulated by Lander J do not apply in the present case. There is no application in the present case by the Nominal Defendant to reopen, set aside or vary a judgment. The issue in the present case is not governed by those principles but by the principles that apply to “new” points raised on appeal.
The principles applicable to a respondent raising a “new” point on appeal were articulated by the High Court in Owners “Shin Kobe Maru” v Empire Shipping Co Ltd.[8] In that case, Empire brought an action in the Federal Court, invoking its admiralty jurisdiction under section 4(2)(a) or section 4(2)(b) of the Admiralty Act 1988 (Cth), pleading the facts necessary to invoke jurisdiction under those provisions. It did not invoke jurisdiction under section 4(3)(f) or plead the facts necessary to invoke jurisdiction under that provision. The Owners applied unsuccessfully to a Judge to set aside the originating process on the ground that the matter did not come within the jurisdiction conferred by section 4(2)(a) or section 4(2)(b). That decision was upheld on appeal by the Full Court of the Federal Court.
[8] (1994) 68 ALJR 311.
In the High Court, Empire sought leave to file a notice of contention out of time contending that the Federal Court had jurisdiction under section 4(3)(f). This was opposed by the Owners on the grounds that their existing notice under section 78B of the Judiciary Act 1903 (Cth) did not raise a constitutional argument that the Owners wished to raise in response to the alternative contention and Empire needed leave to amend its pleadings which might be barred by the limitation period.
The High Court concluded that the existing section 78B notice did not raise the constitutional issue with the consequence that the hearing before the High Court would have to be adjourned, which was undesirable. The Court also regarded it as preferable that the issue of amendment to the pleadings be addressed by the Federal Court at first instance.
Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ concluded:
In conclusion, it remains for us to say that, but for the inadequacies of the s.78B notice and the pleading, we would have been disposed to think that the respondent would have been entitled to present an argument in support of the notice of contention. As a general rule, a respondent to an appeal is entitled to support a judgment by an argument not presented below so long as the argument does not depend upon an issue of fact not litigated in the courts below and so long as it is open to the respondent on the pleadings and having regard to the way in which the case has been conducted.[9]
[9] At 313. (Emphasis added)
In the present case, to adopt the words of the High Court, the Nominal Defendant is entitled to support the judgment of the Judge by an argument not presented to the Judge on the first instance appeal because the argument does not depend on an issue of fact not litigated below and is open having regard to the way in which the case was conducted.
The Nominal Defendant advanced both contentions before the Master. Mr Jones had a full opportunity to adduce evidence before the Master relevant to those contentions. The first issue is a question of law and the second issue is a mixed question of law and fact. The second issue does not depend on an issue of fact not litigated below because all relevant issues of fact were litigated before the Master.
Mr Jones contends that the Nominal Defendant made a forensic decision not to advance these two contentions on the appeal before the Judge and should not now be given a second bite of the cherry. However, the Nominal Defendant succeeded before the Judge on the argument that the Master had dispensed with the requirement for special circumstances. This rendered moot the question whether special circumstances were required or existed (and the question whether dispensation should be granted). Upon my having reversed the decision of the Judge on the issue of dispensation having been granted, given that both contentions were advanced by the Nominal Defendant before the Master, there is no reason to preclude the Nominal Defendant from advancing those contentions again before me.
Even if the approach articulated in Copping v ANZ McCaughan Ltd applied, this is an exceptional case. Before the Judge, the parties’ contentions were binary. The Nominal Defendant contended that the Master dispensed with the special circumstances requirement and the matter turned only on the merits. Mr Jones contended that the Master did not dispense with the special circumstances requirement and the Master’s consideration of special circumstances was idle. I have concluded that both contentions were wrong and the Judge should have gone on to consider dispensation on the merits. The issue of special circumstances is intimately bound up with the issue of dispensation on the merits. These exceptional circumstances would justify entertaining the Nominal Defendant’s contention even on the approach articulated in Copping v ANZ McCaughan Ltd.

Mr Jones’ challenge to competency fails.
Need for special circumstances
The Nominal Defendant contends that special circumstances were not required because the preconditions for their operation contained in subrules 131(5) and 120A(4) had not been met.
Subrule 131(5)
Subrule 131(5) only applied to an interlocutory application when one of two preconditions to its operation were satisfied:
1.the parties have signed a certificate of readiness for trial under subrule 120(4) or 120A(2); or
2.the Court has dispensed with the need for a certificate under subrule 120A(5).
It was common ground before the Master, and it is common ground on appeal, that the parties never signed a certificate of readiness for trial and the first condition was therefore not met.
Dispensation by the Listing Officer
The Master held that:
[T]he physical act of listing the matter for trial on the basis without a signed certificate of readiness, meant that the listings officer was by implication and deed dispensing with the requirement for a certificate of readiness. I do not consider that the listing officer is precluded from exercising such a power, particularly given the provisions of DCCR120A(5).
The Master did not identify how subrule 120A(5) was a source of power for a listing officer, as opposed to a Master or Judge, to dispense with the requirement for a signed certificate of readiness under rule 120A. The Nominal Defendant had contended that only a Master or Judge could exercise that power.
Subrule 120A(5) provided:
If the Court is of the opinion that—
(a)one or more of the parties are not ready for trial because of their own default; but
(b)the action should nevertheless proceed to trial,
the Court may, on its own initiative or on an application by a party, order that the action proceed to trial.
The power conferred by subrule (5) was conferred on “the Court”. Rule 14 provided:
14—Distribution of Court's business
(1)The judicial functions of the Court are to be exercised by the Judges and Masters.
(2)Administrative functions of the Court are to be exercised by the Registrar and other administrative officers of the Court.
(3)Certain minor judicial functions are delegated to the Registrar and other administrative officers under these Rules.
The power to make an order under subrule 120A(2) that an action proceed to trial, or an order under subrule 120A(5) that an action proceed to trial despite a party not being ready (or certifying being ready) for trial, was plainly a judicial function under subrule 14(1) and not an administrative function under subrule 14(2). Nothing in the Rules delegated the power to make an order under rule 120A, which could not in any event be classified as a minor judicial function, to the Registrar or another administrative officer.
There is a clear dichotomy created by the Rules between an order under rule 120A that an action proceed to trial, which is a judicial function to be exercised by a Judge or Master, and listing an action for trial, which can be an administrative function.
The power to make an order under subrule 120A(5) effectively dispensing with the need for a party to sign a certificate of readiness is an adjunct to, or more properly a part of, the making of an order that an action proceed to trial. The Listing Officer who presided over the listing conference on 13 August 2019 did not purport to make an order that the action proceed to trial. The Listing Officer’s only function was to list, or not to list, the action for trial. The Listing Officer did not purport to make an order under subrule 120A(5) that the action proceed to trial despite a lack of a signed certificate of readiness and had no power to do so.
In any event, neither party had signed a certificate of readiness as at 13 August 2019 and there was no basis on which the Listing Officer could have found that the first precondition in subrule 120A(5), that both parties were not ready for trial because of their own default, was satisfied.
The Master found in her reasons for decision dated 7 January 2020 that on 13 August 2019 the Listing Officer implicitly dispensed with the requirement for a certificate of readiness. Mr Jones contends on appeal that the Nominal Defendant did not appeal against that finding and that the Nominal Defendant is thereby precluded from contending that there was no such dispensation.
I accept the premise of Mr Jones’ contention but not the conclusion. First, it is not possible to appeal against a finding: it is only possible to appeal under section 43 of the District Court Act 1991 (SA) against a “judgment”, defined to be a “judgment, order or decision”. The only orders that the Master made were procedural orders for hearing submissions which were uncontentious. Secondly, parties are not required to appeal against mere procedural orders but are entitled to wait until a substantive order is made. Thirdly, the Master’s “findings” made on 7 January 2021 were made without having heard the parties on any issues concerning special circumstances and could not be regarded as binding on them in the absence of appeal. Fourthly, the Listing Officer lacked power to make an order dispensing with the requirement for a certificate of readiness and the Master did not address the question of power in her reasons of 7 January 2021.
Dispensation by Master
Mr Jones contends on appeal that on 20 June 2019 a Master had made an order under subrule 120A(5) that the action proceed to trial without the need for a signed certificate of readiness and it was the Master who implicitly dispensed with the need for a certificate of readiness rather than the Listing Officer. Mr Jones did not advance this argument before the Master but the Nominal Defendant does not take any point on this ground.
I accept Mr Jones’ second contention but reject his first contention.
The orders made by the Master on 20 June 2019 are set out at [19] above. At their highest in favour of Mr Jones, the orders might be construed as comprising an order that the matter proceed to trial subject to the condition that both parties, at least seven days before the listing conference, sign a certificate of readiness (which may be qualified). The Master did not find, and there is no evidence of any basis on which it would have been open to the Master to find, that one party was not ready for trial due to its own default. Moreover, this order required both parties to sign a certificate of readiness (whether or not qualified). It did not authorise the matter proceeding to trial in the absence of that condition being met. That condition was not met as at 13 August 2019. The Master did not dispense with the need for a certificate of readiness but merely addressed its timing and qualifications.
Conclusion
The Court had not as at 13 August 2019 dispensed with the requirement for a signed certificate of readiness. Subrules 131(5) and (6) therefore did not apply to require that the Nominal Defendant obtain the Court’s permission, or demonstrate special circumstances, before making an interlocutory application.
Subrule 120A(4)
Subrule 120A(4) provided that:
A party is required to review the adequacy of its pleadings before an order is made that the action be listed for trial and thereafter a party will not be permitted to amend the pleading – particularly if the amendment would cause a postponement or adjournment of the trial – unless the Court is satisfied that special circumstances exist justifying permission in the interests of justice.
The Nominal Defendant contends that the reference in subrule (4) to an order “that the action be listed for trial” was used in contradistinction to the reference in subrule (2) to an order “that an action may proceed to trial”. The Nominal Defendant contends that an order that the action proceed to trial under subrule (2) (or (5)) was to be made by a Master or Judge; whereas an order that an action be listed for trial under subrule (4) was to be made by an administrative officer at a listing conference.
Mr Jones contends that the reference in subrule (4) to an order that the action be listed for trial was synonymous with the references in subrules (2) and (5) to an order that the action proceed to trial.
I accept Mr Jones’ contention and reject the Nominal Defendant’s contention.
By way of preface, I observe that the wording of the order in subrules (2) and (5) was not identical: subrule (2) referred to an order that an action may proceed to trial; whereas subrule (5) referred to an order that the action proceed to trial. This suggests that attention to the fine detail of the refences to orders under the subrules of rule 120A was not necessarily given by the draftsperson of rule 120A.
The Rules did not refer to the process of actually listing an action for trial in a case not proceeding under a litigation plan.[10] By way of illustration, subrule 151.7(1) of the Uniform Rules provides that, “[a]fter a proceeding has been entered for trial [governed by rule 151.6], the Court or the Registrar will list the proceeding for a listing conference to fix a date or dates for the trial”. There was no equivalent provision in the Rules. The Rules simply assumed that, in cases where there was no litigation plan, there was an administrative process, under the control of the Registrar under rule 18, for the fixing of a trial date. Given that the Rules did not explicitly address the function of fixing a trial date, it would be somewhat incongruous if subrule 120A(4) were the only provision addressing this function.
[10] Where there was a litigation plan, subrule 120(1) provided for the Court to “fix the trial date or the date at which a trial date will be fixed”.
More importantly, subrule 120A(4) refers to an “order” that the action be listed for trial. The making of an order is a judicial, and not an administrative, function. Administrative officers did not make orders, other than in the exercise of minor judicial functions conferred by the Rules (for example rule 19). Listing a matter for trial was simply an (administrative) action as distinct from an order.
The context of subrule 120A(4) is important. It forms part of rule 120A which otherwise addresses the making of orders by the Court that actions proceed to trial. It is an unlikely construction that the order referred to in subrule 120A(4) related to something else, namely the actual listing for trial.
Accordingly, because the Nominal Defendant’s interlocutory application was an application for permission to amend a pleading, subrule 120A(4) applied to require special circumstances even though subrules 131(5) and (6) did not apply.
Existence of special circumstances
The Nominal Defendant contended before the Master, and contends before me on appeal, that special circumstances were established.
The Master rejected that contention. The Master said:
It was the defendant’s contention that the special circumstances in this instance case was the way that the matter was listed for trial. It alleges that there was a misunderstanding/misapprehension between the parties as to what had been agreed between them regarding amending the defence. It was unusual that the listing officer listed it trial when the matter should have been referred back to a Master after the plaintiff’s solicitor refused to sign the certificate of readiness.
The plaintiff denies that there was a joint misunderstanding/misapprehension but rather a unilateral mistake by the defendant as to the requirements of the DCCR. Despite the defendant’s submissions that the letter sent to my chambers on 17 January 2020 implied a joint mistake (which I do not accept that it does), I agree with the plaintiff.
Mr Woodburn refused to sign the certificate of readiness and the matter was listed for trial at the insistence of the defendant. The defendant’s failure to take the provisions of the rules into account has lead it to be, in effect, hoist with its own petard.
I do not consider that the actions of the listing officer in setting the matter for trial against the objection of the plaintiff and in the absence of a certificate of readiness were unusual. Indeed, the DCCR anticipate such a circumstance [footnoting a reference to rule 120A(5)]. Consequently, I do not consider there to be any special circumstances arising from the listing of the matter for trial.[11]
[11] (Footnotes omitted).
In the second sentence of the last paragraph reproduced above, the Master misconstrued subrule 120A(5). For the reasons given above, the Listing Officer had no power under that subrule to dispense with the need for a certificate of readiness. The Listing Officer ought not to have listed the matter for trial, but ought to have referred the matter back to a Master. This error vitiates the Master’s reasoning.
In Telfer v Flinders Ranges Council[12] Olsson J considered the meaning of the words “special circumstances” in the context of rule 67.01(6) of the Supreme Court Rules 1987 (SA), which was the predecessor of rule 131(6) of the Rules.[13] Olsson J said:
As was pointed out by Cooper J in Holt v Hogan, the phrase “special circumstances” indicates a need for the existence of circumstances which are exceptional. The phrase implies a presumption against the making of a relevant order.
It is clear that the Rule contemplates that such an application will only be entertained in the most compelling circumstances. Its rationale is that to permit uncontrolled interlocutory applications after a case is set down for trial (and particularly during the course of a trial) would not only negate any semblance of orderly case flow management procedures, but would also, inevitably, precipitate situations inherently disruptive to an orderly and efficient trial process itself.[14]
[12] [1999] SASC 42.
[13] Rule 67.01(6) provided that “No further interlocutory order shall be made under this Rule after the making of the order to proceed to trial unless special circumstances shall be shown to exist which require such order to be made in the interest of justice”.
[14] At [28]-[29]. (Emphasis and citations omitted)
There were several circumstances which amounted to special circumstances within the meaning of subrule 120A(4) (and subrule 131(6)). First, the Master’s order that the action proceed to trial was conditional on the parties signing a certificate of readiness at least seven days before the listing conference. When that condition was not met, either the order that the action proceed to trial ceased to be operative, or at the least the rationale for precluding further interlocutory applications (including applications to amend the pleadings) after the making of an order that an action proceed to trial in the absence of special circumstances ceased to exist. This amounted to a special circumstance.
Secondly, the paradigm case in which subrule 120A(4) (and subrules 131(5) and (6)) is intended to operate is a case in which a party allows an action to be ordered to proceed to and be listed for trial without having considered the adequacy of its pleadings or indicated that it seeks to amend its pleadings. In the present case, before the action was listed for trial on 13 August 2020, the Nominal Defendant informed Mr Jones that it proposed to amend its defence to plead that Mr Jones’ fall was caused or contributed to by his own negligence and gave particulars of that negligence. In the ordinary case in which an unconditional order that an action proceed to trial has been made, the obligation is on the parties to review their pleadings before that order was made. However, in this special case in which the Master made an order that the action proceed to trial conditional on the parties signing an agreed certificate of readiness before the listing conference, the fact that the amendments were foreshadowed before the listing conference and in the absence of a certificate of readiness amounted to a special circumstance.
Thirdly, at the time that the application for permission to amend the defence was heard by the Master in May 2020, the parties had informed the Master by the email of 17 January 2020 that the matter should not have been listed for trial and asked the Master to make consent orders that the trial date be vacated and the matter be referred back to the ordinary Directions List for further directions. The parties thereby implicitly agreed that the June 2019 order that the matter proceed to trial should be revoked and the matter should return to ordinary management in the directions list. As explained at [51] above, it may be that the orders made by the Master (referred to above) implicitly revoked the June 2019 order that the matter proceed to trial. Even if they did not, the rationale of subrule 120A(4) (and in subrules 131(5) and (6)) had ceased to exist. This clearly amounted to a special circumstance.
Fourthly, the underlying rationale of subrule 120A(4) (and subrules 131(5) and (6)) is as identified in Telfer v Flinders Ranges Council[15] by Olsson J in the second paragraph reproduced at [157] above. That underlying rationale of negating orderly case flow management procedures did not apply in the circumstances. This amounted to a special circumstance.
[15] [1999] SASC 42.
Special circumstances were clearly established.
Permission to amend on the merits
Mr Jones contends that the Judge erred in concluding that the Master erred in refusing leave to amend the defence on the merits.
Mr Jones did not (subject to one exception, being ground 5) include in his notice of appeal a ground challenging the Judge’s decision in this respect. However, the Nominal Defendant takes no point by reference to no general appeal ground being included in the notice of appeal challenging that decision. To the extent necessary, I dispense with the need for Mr Jones to include an appeal ground in this respect in his notice of appeal.
The Master decided that leave to amend the defence by way of the fall causation and contributory negligence amendments and the due inquiry amendments should be refused on the merits. On appeal before the Judge, only the fall causation and contributory negligence amendments were relevant because the Nominal Defendant did not pursue the due inquiry amendments on appeal.
To a large extent Mr Jones adopts the Master’s reasoning for refusing permission to appeal on the merits and contends that the Judge erred in criticising that reasoning. Conversely, to a large extent the Nominal Defendant adopts the reasoning of the Judge for granting permission to appeal on the merits and criticising the reasoning of the Master. I return to the more general submissions of the parties after specifically addressing ground 5.
Cross-examination of the solicitors
By ground 5, Mr Jones contends that the Judge erred in law in finding that, in the absence of cross-examination of the parties’ solicitors, the Court could not prefer the evidence of one over the other. He contends that the Judge ought to have found that the Master was entitled to (and did) prefer the evidence of Mr Woodburn as containing an inherently more probable account of events, which in turn entitled the Master to criticise the conduct of the Nominal Defendant’s solicitors and rely on that conduct as a disentitling fact against the grant of the application.
The Master’s reasons to which the Judge referred in the passages from the Judge’s reasons that are impugned by Mr Jones were the following passages:
I pause to voice my concern that the defendant insisted on the matter being listed and that the conference officer proceeded to list the matter for trial against the protests of the solicitor for one of the parties and in the absence of a certificate of readiness. The procedure is there for just this sort of reason and should be observed.
Indeed, the parties have a duty to the court pursuant to rule 113(2)(c) to ensure that:
(c)all interlocutory proceedings are completed well before trial and in any event before a certificate of readiness is completed and, in particular, the pleadings properly reflect the case that is to be presented at trial;
For the defendant’s solicitor to have pushed for a listing in these circumstances is a breach of that duty.
…
The plaintiff denies that there was a joint misunderstanding/misapprehension but rather a unilateral mistake by the defendant as to the requirements of the DCCR. Despite the defendant’s submissions that the letter sent to my chambers on 17 January 2020 implied a joint mistake (which I do not accept that it does), I agree with the plaintiff.

The Judge also referred more generally to assessments by the Master that the Nominal Defendant engaged in poor conduct and must now reap its consequences. Encompassed within this general reference is the following passage from the Master’s reasons:
It is a salutary lesson to defendants to ensure that their matter is prepared at an early stage rather than leaving it to the last minute and pursuing tactical strategies to put pressure on a plaintiff.
The Judge held that the Master’s findings of poor conduct were misconceived and were inconsistent with the email sent on behalf the parties to the Court on 17 January 2020.
The Judge said that, while it was possible to accept that each solicitor had told the truth to the best of their recollection, both accounts could not objectively be true and the Master was required to find a reasoned basis for preferring the account of Mr Woodburn over that of Ms Brooks, which the Master failed to do.
I agree with the Judge. The Master gave no reason for preferring the account of Mr Woodburn over that of Ms Brooks. Mr Jones in ground 5 calls in aid “inherent probability”. However, the Master made no reference to inherent probability or to the direction in which it might point. Any inherent probabilities did not simply point in the direction of Mr Woodburn’s account. For example, Ms Brooks’ letter dated 13 August 2020 confirming their conversation and the fact that Mr Woodburn did not respond to it pointed in favour of Ms Brooks’ account as to the matters set out in that letter. Similarly Mr Woodburn did not comment on the letter in his first affidavit.
More importantly, in the absence of cross-examination of the witnesses, it was not open to the Master to find otherwise than that, to the extent that objectively there were differences in the accounts of the witnesses as to what was said, each witness believed at the time of the communications that the other solicitor was saying what the witness deposed to in their affidavit (even if it was as a result of a misunderstanding).
Moreover, in the joint communication from the parties to the Master’s chambers on 17 January 2020, it was explicitly stated that there was “a misunderstanding or misapprehension of the parties position” and that no criticism was raised by the parties in respect of the misapprehension or misunderstanding. The Master’s criticisms of the conduct of Ms Brooks and findings that the Nominal Defendant engaged in tactical strategies to put pressure on Mr Jones were inconsistent with this agreed position.
Factors relevant to permission to amend
It was common ground in the proceedings below, and it is common ground on appeal, that the factors relevant to the grant of permission to amend a pleading were as set out by Doyle J in PPG Development Pty Ltd v Capitanio[16] in the following passage:
[16] [2016] SASC 169, (2016) 126 SASR 307.
By way of summary, the High Court decision in Aon Risk Services, and the authorities that have applied it, have now made it plain that in exercising its discretion upon any application to amend, the court must take into account a number of factors. The factors include:
·The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
·The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
·The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
·The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
·Whether the party has had a sufficient opportunity to plead their case earlier.
·The time, cost and inconvenience associated with any delay or disruption of the proceedings.
·The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
·The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
·The impact upon the public’s confidence in the just and efficient administration of justice.[17]
[17] At [39]. (Footnotes omitted)
The Master addressed these matters seriatim. The Judge concluded that the Master erred in her analysis of several of these matters. I agree in broad terms with the Judge’s analysis of the factors and of the Master’s reasoning and with the Judge’s conclusion.
Nature and extent of new issues
The Master said that the proposed amendments shifted the focus of the defence altogether; raised allegations for the first time that the accident was a trip and fall caused by Mr Jones’s negligence quite separate from any unidentified vehicle; and treated the plea that the incident was caused by Mr Jones separately from any unidentified vehicle (proposed paragraphs 2 and 4), as well as the contributory negligence plea (proposed paragraph 5), as a special defence.
The Judge held that proposed paragraphs 2 and 4 did not raise a special defence and the issue of whether Mr Jones’ fall was caused by the actions of any unidentified vehicle or by his own actions was already a live issue by reason of the deemed denial in the original defence of Mr Jones’ pleas.
I agree with the Judge. By paragraphs 3 to 5 of his statement of claim, Mr Jones pleaded:
3As the Plaintiff neared the middle of the said King William Street the driver of an unidentified white taxi motor vehicle… undertook a left hand (northerly) turn from the said Wright Street and accelerated along the said King William Street into the path of the Plaintiff.
4The Plaintiff attempted to avoid a collision with the unidentified motor vehicle and in doing so, fell onto the curb located on the median strip of King William Street and thereby sustained personal injuries (“the incident”).
5The incident and the injury suffered by the Plaintiff were caused by the negligence of the driver of the unidentified motor vehicle.
The original defence did not plead to these paragraphs. Under subrule 100(5) of the Rules, the defence was deemed to deny the allegations contained in those paragraphs.
The proposed amended defence by paragraphs 2 and 4:
·denied the involvement of an unidentified vehicle;
·denied that any unidentified vehicle caused the fall;
·pleaded that Mr Jones simply fell;
·pleaded that the fall was caused by Mr Jones failing to take care to avoid falling;
·pleaded that the fall was caused by Mr Jones crossing King William Street in a dangerous place; and
·pleaded that the fall was caused by Mr Jones failing to keep a proper lookout.
Under the original pleadings, Mr Jones bore the onus of proving that his fall was caused by an unidentified taxi accelerating into his path and was not caused solely by his own actions or negligence. The explicit pleadings in paragraphs 2 and 4 did not amount to special defences but to more specific denials of Mr Jones’ own causation plea.
It is true, as the Judge observed, that rule 98(2)(d) required a party to “plead such facts and matters as give fair notice of the party’s case at trial”. This provision probably required the Nominal Defendant to plead that Mr Jones crossed King William Street in a dangerous place and failed to keep a proper lookout for oncoming vehicles. However, it did not require the Nominal Defendant to plead the first four matters referred to at [181] above.
As the Judge held, proposed paragraph 5 pleading a contributory negligence defence did plead a special defence.
The Judge held that the Master overstated the significance of the proposed amendments. I agree.
Stage of litigation and impact on progress
The Master said:
Whilst it is now the case that the trial date has been vacated, this was not the case when the application was argued, and indeed, the parties recognised after my first set of reasons in January 2020 that there was insufficient time for the determination of the application and trial, such that they applied to have the trial date vacated.
However, even where a trial date is not imminent, the principles in Manock and PPG Development are still applicable.
…
Further, if I were to allow the proposed amendments, it is likely that there would be requests for further and better particulars, further applications and arguments and appeals and further directions hearings.
…
It follows that if the amendments are allowed, the plaintiff will have to undertake significant further investigations and will, in all likelihood, have to amend his pleadings or file a reply.
The Judge held that in these passages the Master made five errors. First, there was no basis for the Master to find that the parties applied in January 2020 to have the trial date vacated because there was insufficient time for determination of the amendment application before trial. On the contrary, the email sent on 17 January 2020 identified the reason for the vacation as being that the trial had been listed on the basis of a misunderstanding.
Secondly, the Judge held that the Master ought to have taken into account the fact that, when the amendment application came on for further hearing in May 2020, the trial date had been vacated and no other trial date had been set. There was no reason to consider that allowing the amendment would adversely affect the setting of a trial date.
Thirdly, the Judge held that the principles referred to in Channel Seven Adelaide Pty Ltd v Manock[18] and PPG Development Pty Ltd v Capitanio[19] operate quite differently if there is sufficient time to deal with the consequences of an amendment before the trial, contrary to the Master’s application of these principles.
[18] [2010] SASCFC 59, (2010) 273 LSJS 70.
[19] (2016) 126 SASR 307.
Fourthly, the Judge held that there was no evidence or basis for finding that allowing the proposed fall causation and contributory negligence amendments would be likely to lead to requests for further and better particulars, further applications, arguments and appeals and further directions hearings. In this respect, the Master failed to distinguish between those proposed amendments and the proposed due inquiry amendment (which might conceivably have led to those consequences).
Fifthly, the Judge held that there was no evidence, or basis for finding, that allowing the proposed fall causation and contributory negligence amendments would require Mr Jones to undertake significant further investigations or that it was likely that he would have to amend his statement of claim or file a reply. In this respect also, the Master failed to distinguish between those proposed amendments and the proposed due inquiry amendment (which might conceivably have led to those consequences).
On appeal, Mr Jones reiterates, essentially without elaboration, the contentions that he put to the Judge in relation to these matters. Having considered those contentions, the reasons of the Master and the reasons of the Judge, I agree with the conclusions reached by the Judge in relation to each of the five matters referred to above and with the reasons given by the Judge.
I elaborate only in relation to a submission as to the law made by Mr Jones to the Judge in relation to the first matter addressed at [187] above. Mr Jones contended that, “where a trial has been vacated because of the disruptive effect of the impugned amendment application itself, the applicant cannot take advantage of its own wrong in derailing the trial process to assert that the de-listing of the trial relieves any otherwise unfair procedural pressure”.
Mr Jones cited in support of this proposition the judgment of Doyle J in PPG Development Pty Ltd v Capitanio. In that case, Doyle J said:[20]
On my reading of French CJ’s reasons [in Aon Risk Services], his Honour took the view that the moving party on an application to amend ought not be entitled to take advantage of (and hence be rewarded by) the disruptive consequences of their own actions. In my view, treating incurred prejudice as irrelevant or neutral upon a re-exercise of the discretion to amend would be to do precisely that. In particular, if I were to re-exercise the discretion in the first defendant’s favour, and dismiss the appeal, on the basis that the remaining prejudice (or prejudice not yet incurred) was not sufficient to outweigh the factors in favour of the application to amend being allowed, this would be to permit the first defendant to achieve an outcome that she ought never to have been able to achieve. It would also have the consequence, or at least the practical effect, of insulating the Magistrate’s erroneous decision from appeal.
For these reasons, I consider that in the ordinary course an appellate court should approach the re-exercise of a discretion that has miscarried by placing itself in the shoes of the original decision maker and exercising the discretion in accordance with the facts and circumstances as known to the original decision maker, subject only to the principles governing the reception of fresh evidence. While the courts have from time to time shown a preparedness to depart from the strict application of this conceptual approach, and the obiter observations of the court in Cement Australia v Australian Competition and Consumer Commission contemplate such a departure in the circumstances of the application to amend in that case, for the reasons I have set out, I do not regard it as appropriate to do so in this case.[21]
[20] (2016) 126 SASR 307.
[21] At [91]-[92].
However, for the reasons given by the Judge, the vacation of the May 2020 trial date was not due to the Nominal Defendant’s application to amend its defence. Rather, the joint position of the parties as conveyed in the email to the Master’s chambers of 17 January 2020 was that the trial date was vacated because it should not have been listed in the first place and the parties requested that the matter be referred back to the ordinary Directions List for further directions.
Impact on public confidence
The Master said that she concurred (in the context of the application before her) with the following passage that she cited from the reasons of French CJ in Aon Risk Services Australia Ltd v Australian National University:[22]
In any event the granting of the amendment in this case, at the time it was granted, meant that there would still be further delay while interlocutory processes flowing from the new claims were put in place. Aon had to prepare a new defence. The further delay, in the circumstances of this case, would be such as to undermine confidence in the administration of civil justice.[23]
[22] [2009] HCA 27, (2009) 239 CLR 175.
[23] At [35].
The Judge held that, given that there was no extant trial date in the present case, in contrast to the circumstances in Aon and Capitanio where the trial had not only been listed but had commenced, there was no basis for a finding by the Master that allowing the fall causation and contributory negligence amendments would undermine public confidence in the administration of justice. I agree.
Conclusion
I agree with the Judge that the errors by the Master identified above clearly vitiated the Master’s exercise of the discretion whether or not to allow the proposed amendments.
Exercise of discretion
Because the Master’s exercise of the discretion was vitiated, the Judge was required to re-exercise the discretion.
The Judge concluded that, weighing all relevant factors, the proper exercise of the discretion required the proposed amendments to be allowed.
Mr Jones contends that, in re-exercising the discretion, the Judge made two errors: one relating to the conduct of the Nominal Defendant’s solicitors (which overlaps with ground 5) and the other relating to explanation for delay.
Conduct of Nominal Defendant’s solicitors
In relation to the conduct of the Nominal Defendant’s solicitors, Mr Jones refers to the content of Ms Brooks’ 6 August 2019 letter. In this letter, Ms Brooks enclosed an amended certificate of readiness making provision for an amended defence within 21 days, without identifying in the letter itself the amendment to paragraph 1 of the certificate of readiness, but referring in the letter to expert reports. Mr Jones submits that the reference in the letter to expert reports was calculated to draw the reader’s attention to the qualification contained in paragraph 11 of the certificate of readiness (relating to medical reports) and disguise the qualification contained in paragraph 1 (relating to amended pleadings). Mr Jones submits that it was open to the Master to infer that this was a tactical planting of a bomb to hide or bury the reference in the amended certificate of readiness to an amended defence. Mr Jones does not submit that this was the intention, but submits that the Master was entitled to infer that this was the intention.
I reject Mr Jones’ contention for several reasons. First, it was not open to the Master to make such a finding in the absence of cross-examination of Ms Brooks and this allegation having been put to her. Secondly, the Master did not in fact make such a finding. Thirdly, there would have been no basis for the Master to have made such a finding: the modifications made to the standard certificate of readiness were only twofold and were obvious. Fourthly, Ms Brooks said that she was instructed to set out in further correspondence the Nominal Defendant’s position in respect of liability and quantum. She did so on 12 August 2019 (before the listing conference) in a letter setting out the detail of the proposed amendments. This conduct was inconsistent with the posited intention to mislead.
Mr Jones submits that the contemporaneous withdrawal of the previous agreement to mediation and the pressing for the matter to go to trial, in combination with the hiding of the intention to amend the defence, looked like it took the form of an ambush. He submits that the Master was entitled to infer that this conduct was engaged in for the purpose of putting pressure on Mr Jones. I reject this submission for essentially the same reasons as the submission in relation to hiding the intention to amend a defence.
Mr Jones submits that, contrary to the conclusion reached by the Judge, the Master was entitled to prefer the evidence of Mr Woodburn over that of Ms Brooks in the absence of cross-examination due to the glaring improbability that Mr Woodburn would have acted as Ms Brooks said that he did. I reject that submission for the same reasons that the Judge rejected it. On Ms Brooks’ account, it could not be said that Mr Woodburn’s conduct was glaringly improbable. Nor did the Master assess it as glaringly improbable.
Explanation for delay
Mr Jones contends on appeal that there was no explanation by the Nominal Defendant why the application to amend the defence was not made earlier and the absence of such an explanation was fatal in itself to the grant of permission to amend a defence.
As set out above, Mr Jones did not advance this contention before the Master. In his written and oral submissions before the Master, he made no reference to lack of an explanation for delay. Nor did he make reference to it before the Judge
Mr Jones contends that the Judge should have concluded that the absence of an explanation for delay in making the application for permission to amend the defence was fatal to the application. He submits, relying on the decision of the Full Court in Idameneo (No 123) Pty Ltd v Suszko,[24] that an explanation for delay is an essential criterion for allowing a late application to amend.
[24] [2015] SASCFC 77, (2015) 123 SASR 42.
In Idamaneo the Full Court said:
In his [first] reasons for judgment, the Judge referred to the approach to applications to amend that, if granted, would result in an adjournment of trial articulated by the High Court in Aon Risk Services Australia Ltd v Australian National University and the relevant factors to be considered identified by Bleby J (with whom White J agreed) in Channel Seven Adelaide Pty Ltd v Manock.
The Judge noted that Dr Suszko did not contest the submission that the grant of permission to amend would necessitate an adjournment of the trial. The Judge said that he was satisfied in any event that, if the amendment were permitted, the trial would have to be adjourned.
The Judge found that, if the trial were adjourned, it would cause prejudice to Idameneo, not only in time and cost, but also because the restraint period would expire in February 2016 and it would be unlikely that Idameneo would obtain judgment and injunctive relief before that time.
The Judge found that Dr Suszko’s solicitor’s affidavit did not explain the delay in making the application…
…
In his [second] reasons for judgment, the Judge declined to recall his previous orders because the new evidence, being PHC’s half-year report, did not affect the reasons why the Judge had dismissed the application on 13 February 2015. The Judge said:
[A]s is apparent from the reasons for dismissing the application to amend, the basis upon which I refused the application is the lateness of the application in the context of the trial date, the lack of any satisfactory explanation for the delay in bringing the application, the significant costs involved, and most importantly, the fact that allowing the amendment would necessitate the adjournment of the trial with the attendant delay and inconvenience to the parties and other litigants waiting for the trial of their actions. None of the material sought to be relied on by way of fresh evidence alters my reasons for refusing the application… The application to amend was not dismissed on the basis that the case sought to be pleaded was not arguable but for the reasons set out above.
…
Importantly, Dr Suszko in his summary of argument does not address the Judge’s findings and reasoning for refusing the first application summarised… above and summarised by the Judge in the passage quoted… above. Given the continuing lack of any satisfactory explanation by Dr Suszko for the delay in making the application, it was inevitable that the application to recall the order refusing permission to amend would be refused.[25]
[25] At [16]-[19], [27] and [30] per Blue J (with whom Vanstone and Kelly JJ agreed). (Footnotes omitted)

The decision in Idamaneo is not authority for the proposition that a lack of explanation for delay is fatal in itself. In that case it was only fatal in conjunction with the fact that granting the application would have resulted in an adjournment of the trial which would have resulted in irremediable prejudice to the other party.
As appears from Aon Risk Services Australia Ltd v Australian National University,[26] Channel Seven Adelaide Pty Ltd v Manock[27] and PPG Development Pty Ltd v Capitanio,[28] explanation for delay (or any lack of explanation) is only one factor to be considered in the exercise of the discretion.
[26] (2009) 239 CLR 175.
[27] (2010) 273 LSJS 70.
[28] (2016) 126 SASR 307.
The need for, and importance of, an explanation for the delay is highly contextual. For example, if an applicant seeking permission to amend is put on notice by their opponent that they will contend, in the absence of evidence, that there is no explanation for the delay and this is fatal to the application, a failure to adduce evidence explaining the delay will be a significant factor. On the other hand, in many applications the parties simply proceed on the basis that the applicant accepts that they ought to have made the application earlier and evidence explaining the delay is not required.
In the present case, Mr Jones made no submission to the Master or Judge that lack of an explanation for the delay was fatal or relevant to the application for permission amend the defence.
The Nominal Defendant accepted before the Master that it ought to have made the application for permission to amend earlier and it simply did not attend to the matter. The fact that a more specific explanation was not proffered, or that evidence explaining the delay was not adduced, was neither fatal nor dispositive in the particular circumstances. The Judge did not err in the manner in which she dealt with this matter.
Conclusion
The Judge did not err in the re-exercise of the discretion to allow the amendments to the defence. Even if I were to re-exercise the discretion myself afresh, I would reach the same conclusion as the Judge. I would reach that conclusion whether I made the assessment only on the material before the Master or on the additional material adduced before me also.
Leave to appeal
As I would dismiss the appeal on the merits in any event, it is academic to determine the question of leave to appeal.
On the one hand, Mr Jones has succeeded in demonstrating that the Judge erred in construing the Master’s reasons as dispensing with the requirement for special reasons and this favours the grant of leave to appeal. On the other hand, this was a clear case where special circumstances were established and permission to appeal on the merits should have been granted, which militate against the grant of leave to appeal.
On balance, I grant leave to appeal.
Disposition
I grant leave to appeal. I dismiss the appeal. I will hear the parties in relation to costs.