POLLARD v POLLARD - [2020] SADC 157

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
POLLARD v POLLARD
[2020] SADC 157
Judgment of His Honour Judge Dart
5 November 2020
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - HEARING OF APPEAL
Summons not served - numerous applications for extension of time to serve the summons - Master made orders pursuant to District Court Civil Rule 39 - consideration of discretionary issues - Master's discretion did not miscarry.
Held: Appeal dismissed.
District Court Civil Rules 2006 (SA) r 39, r 117; Uniform Civil Procedure Rules 2005 (NSW) r 1.12, referred to.
Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104; Bettio & Anor v Mahfoud & Anor [2020] SADC 26; Success 618 Pty Ltd v New Zealand Natural Pty Ltd [2015] SASC 182; Tolcher v Gordon [2005] NSWCA 135; Ulowski v Miller [1968] SASR 277; Victa Ltd v Johnson 10 SASR 496; Watson v Anderson 13 SASR 329, considered.

POLLARD v POLLARD
[2020] SADC 157
JUDGE DART:

These reasons deal with an appeal from eight interlocutory decisions made by a Master of this Court. Each of the decisions extended the time within which the Summons was to be served on the defendant. For the reasons that follow, the appeal is dismissed.
Background
The plaintiff is an indigenous Australian who resides in the APY Lands (“Lands”). On or about 31 March 2011 she was a rear seat passenger in a motor vehicle that was involved in a collision. She was wearing a seatbelt. The defendant was the driver of the vehicle and it is alleged that he was negligent.
The plaintiff suffered a fracture and displacement to her hip. She also suffered musculo-ligamentous injury to her cervical, thoracic and lumbar spine. There were other injuries as well. Initially the plaintiff was taken to the Alice Springs Hospital, but she was later conveyed to the Royal Adelaide Hospital for surgical treatment. She remained in Adelaide for approximately two months following surgery, to allow for follow-up treatment. It is likely that the claim of the plaintiff is a modest one.
It appears that the vehicle in which the plaintiff was travelling was a Northern Territory registered vehicle. Initially that was not known to her solicitors, who pleaded that the vehicle had South Australian registration. It seems that the plaintiff was aware that the vehicle was registered in the Northern Territory because shortly after the accident a claim form was completed seeking compensation from TIO, the then-insurer of vehicles in the Northern Territory. By letter dated 27 April 2011, a senior claims officer at TIO wrote to the plaintiff and advised that her claim for compensation was rejected. The reason for the claim being denied was that the plaintiff was not a resident of the Northern Territory and the motor vehicle accident did not occur in the Northern Territory. The present insurer of the defendant is the Motor Accident Compensation Commission of the Northern Territory (“MACC”).
These proceedings were issued shortly before the expiration of the limitations period.
The decisions of the Master
The Master extended time within which the Summons was to be served eight times. In making the decisions to extend time for service of the Summons, the Master was exercising a discretion found in rule 39 of the 2006 Civil Rules. That rule provides:
39—Time for Service
(1) Subject to subrules (2) and (3), originating process for a primary or third party action must be served on the defendant—
(a)     if it is to be served within the State—within 6 months after it is filed in the Court; or
(b)     if it is to be served outside the State—within 6 months after it is filed in the Court or a longer period fixed by the Court.
(2) The Court may, from time to time, extend the period for serving originating process for a primary or third party action for a period of up to 12 months.
(3) The Court's discretion to extend the time for serving originating process may be exercised—
(a)     even though the time allowed for service by or under this rule has expired; and
(b)     even though the time for commencing an action against the defendant has expired.
Note—
Rule 123(5) provides that a party may on service give notice that the action is to be entered in the list of inactive cases.
It can be seen that the discretion in rule 39(2) is expressed in the widest of terms. In rule 39(3) it is expressly provided that the discretion may be exercised notwithstanding the time for commencing an action against a defendant has expired. It is difficult to imagine a broader discretion.
Relevant case law
The parties have referred to quite a number of authorities. I set out below some of the authorities which appear to be the most relevant.
The first consideration is the nature of an appeal from the exercise of a discretion by a Master. In Success 618 Pty Ltd v New Zealand Natural Pty Ltd Peek J expressed the position as follows: [1]
[6] I remind myself that while the present appeal is in the nature of a rehearing, the subject of the appeal is the Master’s exercise of his discretion pursuant to s 1335 of the Corporations Act 2001 (Cth). The precepts in House v The King apply. Unless there is established error, I am not entitled to substitute my own discretion in lieu of that of the Master. As the order has substantive consequences, I am to consider whether the learned Master considered all relevant facts, and no immaterial facts, whether the learned Master erred in law or principle, or whether the decision is so extreme that such an error should be inferred.
[Citation removed]
[1] [2015] SASC 182.
There is a voluminous amount of case law in respect of the exercise of a discretion to extend time for service of a summons. A useful starting point is the decision of the Full Court in Victa Ltd v Johnson.[2] The principal judgment was written by Bray CJ. The case was one where the defendant had been informed that proceedings were to be issued but had not been served within the relevant time-period. His Honour considered a wide range of authorities:[3]
I think too that there is discernible in this, as in cognate branches of the procedural law, a tendency to relax rigid time limits where that is legally possible and where it can be done without prejudice or injustice to other parties. I would refer to the decision of this Court in Ulowski v. Miller, dealing with the exercise of the discretion when the defendant asks that an action be dismissed for want of prosecution, and in Lovett v. Le Gall, dealing with the power to extend the time despite the expiry of the period of limitation given by s. 48 of the Limitation of Actions Act 1936-1972 as amended in 1972. That amendment shows that Parliament itself is not indifferent to these considerations. In Finnegan v. Cementation Co., Singleton L.J. said at p. 1136:
I would add that these technicalities are a blot on the administration of the law, and everyone except the successful party dislikes them. They decrease in numbers as the years go on, and I wish that I could see a way round this one.
These blots are being, if not completely erased, at least subjected to a fading process and the court is becoming more astute to see ways round them, whenever, and I repeat only whenever, that can be done without prejudice or injustice to other parties. Where the delay has really affected the defendant adversely, where it would be unfair to confront him with the resurrection of a stale demand which he can no longer adequately meet, the court will be slow indeed to grant what is after all an indulgence.
[Citations removed]
[2] 10 SASR 496.
[3] Victa Ltd v Johnson 10 SASR 496 at 502.
His Honour the Chief Justice also noted the position in respect of proceedings where they are issued within the time permitted by the limitation period, but there is a failure to serve the writ within the time allowed by the rules. His Honour said:
It is not correct to say that the defendant has acquired an absolute right to immunity when a writ issued within the limitation period is not served within twelve months of its issue and the limitation period has in the meantime expired. What has expired is in reality not the limitation period but the period which would have been the limitation period if no writ had ever been issued. What the failure to serve a writ within twelve months gives the defendant is no more than a right to contend that the Court in the exercise of its discretion should not renew the writ. The efficacy of the writ does not expire absolutely at the end of the twelve months, it only expires if and in so far as the Court sees fit not to renew it.
The appellant referred to the decision of Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq).[4]In particular, reference was made to the judgment of Ipp JA. His Honour said:[5]
[28] The rule requires the exercise of a judicial discretion, not fettered by inflexible prescriptions: Bray CJ in Victa Ltd v Johnson (1975) 10 SASR 496 at 503, approved by Stephen J, sitting alone, in Van Leer Australia Pty Ltd v Palace Shipping KK [1991] HCA 11 ; (1991) 180 CLR 337 at 343–344, and Mason J, sitting alone, in Foxe v Brown (1984) HCA 69 ; (1984) 59 ALJR 186 at [189]. But this does not mean that the discretion is at large. The discretion is to be exercised in the context of and by reference to the statute by which it is conferred (and any other statute that is relevant to the legislative context) and in accordance with principles developed by judicial decisions.
…
[36] Sections 56, 57, 58 and 59 require a judge, exercising a discretion under UCPR r 1.12, to have regard to whether a party, seeking the exercise of the discretion in its favour, has:
(a)diligently pursued the object of disposing of the proceedings in a timely way;
(b)used, or could reasonably have used, available opportunities under the rules or otherwise, to avoid delay; and
(c)reasonably implemented the practice and procedure of the court with the object of eliminating any lapse of time between the commencement of the proceedings and their final determination.
[4] [2009] NSWCA 104.
[5] Arthur Andersen Corporate Finance Pty Ltd v Buzzle Operations Pty Ltd (in liq) [2009] NSWCA 104.
In Buzzle the appeal was allowed and the decision extending time within which to serve the summons was set aside. In Tolcher v Gordon[6] the Court of Appeal was dealing with a refusal to extend time. The subject matter of the appeal was a rule which deemed a dormant action to be dismissed after a particular period. An application was made by the plaintiff to reinstate the action. At first instance, that application was unsuccessful. The Court of Appeal allowed the application. In doing so, the Court of Appeal referred to Victa a number of times. Relevant for this matter is what was said by Hodgson JA where his Honour said:[7]
[3] Although the three-year period is a limit for the commencement of such proceedings, not service of the proceedings, in my opinion an important aspect of the public policy behind the limitation period is that potential defendants should be made aware of claims against them within a reasonable time; so that in my opinion, delay in service of such proceedings, in contravention of the rules, is particularly serious if it occurs after the expiration of the three-year limitation period. A liquidator who does not commence proceedings until just before expiry of the limitation period should in my opinion be especially diligent in pursuing prompt service of the proceedings.
[6] [2005] NSWCA 135.
[7] Tolcher v Gordon [2005] NSWCA 135.
In relation to Buzzle his Honour said:
[43] Accordingly, the court should consider, when exercising a discretion such as that under UCPR r 1.12, the attempts that have been made at service, the length of the delay, the reasons for the delay, whether the delay was deliberate, whether notice was given to the defendant, the conduct of the parties generally, and the hardship or prejudice caused to the plaintiff by refusing the renewal or to the defendant by granting it.
The respondent referred the Court to the case of Bettio & Anor v Mahfoud & Anor where his Honour Judge O’Sullivan said: [8]
[55] In Gibbs v Williams the Full Court of the Supreme Court of South Australia set out the factors which are material to an application to renew a summons. Sangster J observed:[9]
Taking the authorities as a whole it seems to me that the question be asked on an application for renewal of a write of summons are:
1.      Why was service of the writ not effected within the period of twelve months from its issue?
2.      (As to each defendant) did that defendant contribute to any of the reasons for withholding service?
3.      What would be the effect on each defendant of the renewal of the writ in relation to the defendant’s preparation to meet the plaintiff’s claim, or in other words what notice did each defendant have of the plaintiff’s claim and (conversely) following such notice was such defendant lured into a false belief that the plaintiff had abandoned his claim?
4.      What would be the effect on the plaintiff of not renewing the writ (a question to which the usual answer is ‘his claim would fail, for fresh proceedings would face a defence of ‘statute barred’)?
5.      Where lies the balance of justice between the parties?
[8] [2020] SADC 26.
[9] (1979) 24 SASR 243, 247.
One of the issues complained of by the appellant is the failure of the Master to give written reasons in respect to these various interlocutory applications. I note what Chief Justice Bray had to say in Watson v Anderson. [10] His Honour said:[11]
Of course, ideally it is always preferable for reasons to be given for every judge's decision, but it has never been a uniform practice in this or, as far as I am aware, in any other court for reasons to be given for every decision in Chambers on interlocutory applications, and it would greatly impede the despatch of Chamber work if that were compulsory.
[10] 13 SASR 329.
[11] Watson v Anderson 13 SASR 329.
There is one further issue which is worth mentioning. In Ulowski v Miller[12] the Full Court was dealing with the issue of the dismissal of an action for want of prosecution. The action was a claim for damages arising from a motor vehicle accident. His Honour Bray CJ considered the various principles applicable in exercising the discretion to dismiss an action for want of prosecution. One of those principles was as follows:[13]
7.I agree that there may be a distinction between delay for which the plaintiff is personally responsible and delay for which his solicitors alone are responsible. The former will operate more severely against him than the latter when the question of his hardship is being considered. See Allen v Sir Alfred McApline & Sons Ltd (1968) 1 All ER 543 per Diplock L.J., at pp. 555-556; per Salmon L.J., at p. 561.
The decisions under appeal
[12] [1968] SASR 277.
[13] Ulowski v Miller [1968] SASR 277.
The first decision of the Master - 2 December 2014
The appellant says that:
·There was no affidavit to support the application.
·There was no oral hearing to justify the making of the order.
·No reasons were delivered by the Master.
·It should be inferred that no attempts had been made to serve the defendant at that time.
The respondent says that:
·It was not necessary to provide evidence of unsuccessful attempts at service.
·No reason to believe the Master was unaware or did not consider well‑known long-established principles.
·No prejudice arises to the appellant as the plaintiff was a passenger in the vehicle.
The second decision of the Master - 30 March 2015
The appellant says that:
·It was 12 months after the expiration of the limitation period.
·There was no affidavit to support the application.
·There was a suggestion that the defendant was unable to be located. but there was a lack of evidence about steps to locate him.
·The Master identified the need for evidence as to the reasons for delay in service and whether the defendant or his insurer were on notice of proceedings.
The respondent says that:
·The plaintiff had been located.
·The Court was advised that the defendant was on the APY Lands and unable to be located.
·The plaintiff was contemplating serving the proceedings on the Motor Accident Commission.
The third decision of the Master - 22 July 2015
The appellant says that:
·Neither the reasons for delay in service and notification to the defendant and/or insurer were properly addressed.
·The affidavit filed on behalf of the respondent said that the defendant had been located and could be served.
·The Master correctly identified as a consideration the number of extensions and a relationship between the extensions and the Limitation of Actions Act 1936.
·The evidence before the Court was cursory.
The respondent says that:
·The affidavit material advised the Court that the Adelaide solicitors had now taken over as principal lawyers.
·The plaintiff was a traditional Aboriginal woman, ordinarily a resident on the APY Lands, with limited English and limited understanding of civil procedure.
·Communication with the plaintiff and defendant was via the manageress of the local community Centrelink office.
·The solicitors were intending to provide the presumed insurer, Allianz, with details of the claim.
The fourth decision of the Master - 21 December 2015
The appellant says that:
·The Master granted an extension for 12 months, which was an unreasonable length.
·The solicitor’s affidavit made apparent he had not been obtaining instructions from the plaintiff. The affidavit material contained cursory evidence of attempts to be made to serve the defendant.
·The Master had on 21 July 2015 indicated that no further extension of time would be granted without a personal attendance on behalf of the plaintiff to make requisite submissions to justify the order. In the result, no personal attendance occurred.
The respondent says that:
·The affidavit material made clear that the plaintiff had been uncontactable because she had been on a ceremonial “women’s camp” and that the defendant had moved from his location and had not been able to be relocated. Enquiries had been made in various APY communities through Centrelink and the APY administration.
·The affidavit material disclosed that the plaintiff and the defendant were both now believed to be in Adelaide and the solicitors were using the Aboriginal Legal Rights Movement to try and locate them.
·It is accepted that the affidavit material contained two errors. The plaintiff’s solicitor was still proceeding on the basis that the vehicle was a South Australian registered vehicle. There is also a suggestion that there had been correspondence with the Motor Accident Commission. That was not true.
The fifth decision of the Master - 9 September 2016
The appellant says that:
·The Master had noted that the Motor Accident Commission had been joined on the fourth order, but by the time of order five the plaintiff’s solicitor was acknowledging that it was the Northern Territory Motor Accident (Compensation) Commission that was the relevant insurer, which meant the insurer had still not been notified of the proceedings.
·The plaintiff had not been in contact with her solicitors for about nine months.
·No other evidence had been given as to attempts to serve the defendant.
·The order made by the Master was for an extended time for 12 months, when only a four week extension had been sought by the plaintiff.

The respondent says that:
·An e-application was brought to change the name of the insurer to the relevant Northern Territory body after the Motor Accident Commission pointed out to the plaintiff’s solicitors that the vehicle was not a South Australian registered vehicle.
·The procedural error was that of the plaintiff’s solicitor.
·The plaintiff’s solicitor ceased business. The file was transferred to the present solicitors, Palios Meegan & Nicholson, without proper instructions and without the orders being attended to.
The sixth decision of the Master - 24 November 2017
The appellant says that:
·Nothing had been done in the previous 12 months, which was not explained.
·The new solicitors sought a further extension of six months not supported by evidence.
·The Master made an order in contemplation of service of the proceedings on the Motor Accident Commission, despite it having been established that this was the wrong insurer.
·The Master failed to address the relationship between the number of renewals and the operation of the Limitation of Actions Act.
·The new solicitors deposed to the fact that they had not been able to make contact with the plaintiff and expressed a concern about the appropriateness of continuing to act in that circumstance.
The respondent says that:
·The new solicitors filed an e-application seeking an extension of time to consider the future conduct of the matter.
·Neither the new solicitors or the Master turned their attention to previous orders which established that the Motor Accident Commission was not the proper defendant.
·The new solicitors made extensive attempts to contact the plaintiff, by writing to her at various communities in the APY Lands. There were also telephone enquiries.
·Ultimately the new solicitors were able to locate the plaintiff in Adelaide through a relative. They had direct contact with the plaintiff from March to June 2018, with the assistance of family members to translate. They received direct instructions to act.
The seventh decision of the Master - 27 July 2018
The appellant says that:
·There was a further order for 12 months on the basis of an oral application, unsupported by evidence.
·The order was made and it was acknowledged that proceedings had not yet been drawn to the attention of the correct statutory insurer.
·The Master disregarded his previous concerns that an extension should not be granted without the relationship between the orders made pursuant to rule 39(2) and the operation of the Limitation of Actions Act being considered.
The respondent says that:
·New solicitors had obtained a police report which confirmed that the defendant had been driving a Northern Territory registered vehicle.
·The disjoinder revived the issue of whether there needed to be personal service on the defendant, or whether service could be effected on the Northern Territory compulsory insurer.
·By this time, the new solicitors had instructions directly from the plaintiff to act.
The eighth decision of the Master - 20 February 2020
The appellant says that:
·According to the solicitor’s evidence, the defendant’s whereabouts was still unknown, without any evidence as to what steps had been taken to locate him.
·The material before the Court disclosed that the last contact the solicitors had had with the plaintiff was on 8 June 2018.
·The effect of the evidence of the plaintiff was that she was not giving instructions to proceed with the interlocutory application.
·The Master granted the extension with knowledge of the lack of instructions and without delivering reasons and in circumstances where it was then nearly six years after the limitation period had expired.
The respondent says that:
·The MACC was represented before the Master on 29 April 2019 on an incorrect application to join it directly as a defendant. It acknowledged it was bound to indemnify the defendant.
·The interlocutory application was amended to seek the correct order of presumptive service on MACC. The parties took some time to establish that was the correct application.
·While the interlocutory application was being dealt with, there were further extensive efforts to locate the defendant personally, which is deposed to in the affidavit material.
·At that time, the Master had extensive evidence of attempts to serve the defendant and the reasons for the failure.
Consideration
I have carefully considered each of the eight orders made by the Master. The consideration involved a consideration of the material before the Master at the time of each order and the submissions made by the parties on this appeal.
The defendant chose to appeal the eight decisions rather than bring an application under rule 242 to set aside the ex parte orders made. Several of the orders made by the Master invited the defendant to make such an application. The appellant says he chose to appeal because that was the appropriate course suggested by a number of authorities.
One of the authorities was in our Supreme Court. It is the case of Cook v Dodds.[14] The effect of the authorities referred to is that the Court cannot set aside an ex parte order unless additional evidence is put before the Court. In the absence of the provision of additional evidence, the appropriate course is to appeal.
[14] (1985) 40 SASR 79.
Here, the appellant could have filed an interlocutory application supported by affidavit evidence. The evidence could have included material in respect of prejudice suffered by the defendant and/or his insurer by reason of the delay in service. The appellant has chosen not to adopt that course. That means the Court has no evidence as to prejudice.
There is another issue which needs to be dealt with at the outset. Many of the Court of Appeal judgments from New South Wales referred to by the parties are decisions made pursuant to UCPR r 1.12. That rule is a generic rule in relation to the ability of a court to vary or extend time limits fixed by the rules. It is the equivalent of what was rule 117 in the 2006 Civil Rules.
In this State, the relevant rule 39 is a rule which deals exclusively with time for service of proceedings. The effect of the New South Wales authorities is that, in deciding to exercise a discretion to extend time within which to serve proceedings, a primary consideration is the fact that the period for commencing proceedings under the relevant limitation period has expired. The rule in New South Wales has no equivalent to rule 39(3)(b) which expressly provides that the court may extend time for serving process even though the relevant limitation period has expired. That difference means that the New South Wales authorities need to be applied cautiously. Rule 39(3)(b) suggests that the expiry of a relevant limitation period may not be, by itself, a sufficient reason to deny an extension of time to serve a summons. It nonetheless remains a relevant consideration.
There are two matters that were known to the Master, which are important considerations in respect of determining a just outcome in this matter. The first is that the plaintiff is an Indigenous Australian woman living a semi-nomadic lifestyle on the APY Lands. It appears that she moves from settlement to settlement and, to that extent, has no fixed place of residence. It is clear that she does not have English as a first language. The nature of her lifestyle means that she has no access to electronic communications. It is reasonable to assume that she has limited understanding of our legal system and the way it operates.
The plaintiff’s circumstances are such that it is not appropriate to impose on the plaintiff standards of conduct in relation to litigation that might reasonably be expected from people living an urban lifestyle in the city. To impose that standard is likely to lead to an injustice. The same point applies to the defendant. He is a relative of the plaintiff. It is apparent from all of the material that he lives a similar lifestyle to the plaintiff. He moves around the APY Lands from time‑to‑time and is difficult to contact. He also does not have English as a first language.
The next point is that the insurer, or at least the predecessor to the current insurer, was notified about the accident within a week of it occurring. That occurred because the plaintiff filled in a claim form and provided it to the insurer. In the result, for reasons set out above, the insurer rejected the claim, but it does mean that they were informed of the accident and could have made such enquiries as they saw fit.
I am not satisfied that any error in the exercise of the discretion by the Master has been revealed. The giving of reasons would have assisted, but it was not necessary. A busy Master running a list cannot realistically be expected to write reasons on each interlocutory order made. That is not by itself sufficient reason to suggest an error in the exercise of the discretion.
Going back to the criteria set out by Judge O’Sullivan in Bettio, I would make the following observations. They apply to each of the decisions.
The principal reason for the failure to serve the proceedings was the inability to locate the defendant. It appears that he lives a semi-nomadic existence in the APY Lands. Communications are difficult. The APY Lands comprise an area exceeding one hundred thousand square kilometres. It can be seen that service was always going to be difficult.
The appellant makes much criticism of the plaintiff’s failure to give instructions and the failure to regularly be in contact with her solicitors. In my view, that criticism is not justified. The plaintiff gave instructions to commence proceedings, it was then over to the solicitors to draft and institute proceedings and serve the same. They did not need further instructions from the plaintiff to serve the proceedings. It is simply a mechanical matter for the solicitors to attend to.
It is apparent that attempts were made to serve the proceedings. It can be accepted that the attempts were not perfect. There was initial confusion, which persisted for several years, about whether the vehicle in which the plaintiff was travelling was registered in South Australia or the Northern Territory. As a result of that confusion, the MAC was joined and then served in Adelaide. That shows an intention to get on with serving the proceedings. Unfortunately, the service was on the wrong insurer.
Failure in respect to service are not matters that can properly be sheeted home to the plaintiff. They are, to the extent that there were issues, properly to be regarded as the fault of the plaintiff’s solicitors. They could perhaps have been more diligent. As the failure to serve was more the fault of the solicitors, it is a lesser consideration.
The defendant did not directly contribute towards any of the reasons for failure to serve, other than being difficult to locate. There is no suggestion of any activity on his behalf, such was avoiding service.
In respect of the issue of prejudice, what the Court is really dealing with is any prejudice suffered by the insurer. The defendant was involved in the accident and has complete personal knowledge of the facts and circumstances relating to the accident. He is a relative of the plaintiff. He may well have been aware of the fact that proceedings had been issued, even though he had not been served. I do not think there was any real issue that there has been any prejudice suffered by the defendant.
As this is an appeal, there is no evidence from the insurer in respect of prejudice. That issue is discussed above. The insurer had notification of the accident at an early stage, but rejected the claim, for appropriate reasons. Nonetheless, it had knowledge of the accident and could have made enquiries.
I note what was said in Ulowski v Miller, where his Honour the Chief Justice said:[15]
The delay is very long and the explanation perfunctory in the extreme, and very slight evidence from the appellant indicating various possibilities of prejudice to him would have been enough to induce me to hold that the action ought to be dismissed. But in the absence of any such evidence despite many opportunities to supply it, I see no reason why, in the exercise of the Court’s discretion in the circumstances of this case, the action should not proceed. In my view, the appeal should be dismissed.
[15] Ulowski v Miller [1968] SASR 277 at 285.
The situation is the same here. The Court has no evidence of prejudice to the insurer. It should not infer any.
The effect of setting aside one or more of the decisions of the Master would be that the claim would be dismissed and would not be able to be recommenced. That is a real prejudice to the plaintiff.
The submissions advanced on behalf the appellant urge the Court to set aside the orders based on an alleged failure by the Master to properly exercise the discretion provided by the rules. The submission is largely based on a failure to strictly comply with the formal requirements in respect of an application for an extension of time to serve proceedings. That approach is apt to lead to injustice. An arid application of rules and principles in circumstances where the complaining party has suffered no prejudice is not likely to produce a just outcome. It also runs the risk of bringing Courts into disrepute.
If I had found that the Master had erred in the exercise of his discretion in relation to one or more of his orders, it would have been appropriate to re‑examine the discretion. On balancing the competing discretionary considerations, the just result would be allowing the extension of time within which to serve the proceedings.
The justice of the situation before the Master on each occasion required that the time for service of the proceedings be extended. For that reason, the appeal should be dismissed.