Steicke v Pederick - [2019] SASCFC 148

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
STEICKE v PEDERICK & ANOR
[2019] SASCFC 148
Judgment of The Full Court
(The Honourable Justice Kelly, The Honourable Justice Nicholson and The Honourable Justice Lovell)
29 November 2019
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH DISCRETION OF COURT BELOW - IN GENERAL
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FRESH EVIDENCE - IN GENERAL
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE JUDGMENTS AND ORDERS
Application for permission to appeal against decision of a Master to dismiss an interlocutory application.
Where court orders were prepared by the parties and made with the consent of all parties – where the consent orders contained a self-executing order – where the consent orders had expired and proceedings were concluded – where the applicant filed an interlocutory application seeking for the proceedings to be referred to mediation or in the alternative to be granted an extension of time to comply with the consent orders – where the application for referral to mediation or an extension of time was dismissed – where the applicant seeks to tender further evidential material on the appeal – where the applicant applies for permission to appeal to the Full Court.
Whether further evidential material should be admitted on the appeal – whether the matter should be heard by the Full Court – whether the Master erred in determining he was unable to stay the consent orders and refer the proceedings to mediation – whether the Master correctly identified the consent orders as a contract – whether the Master applied the correct legal test when considering a retrospective extension of time – whether the Master gave weight to irrelevant factors – whether the Master failed to give any weight to relevant factors – whether the Master erred in determining there had not been a misrepresentation by silence on the part of the respondents – whether the exercise of the discretion to dismiss the application was plainly unreasonable.
Held, per Kelly J (Nicholson and Lovell JJ agreeing), refusing permission to appeal:
1. The applicant has not satisfied the test for admission of further evidential material on the hearing of the appeal and the evidence is not admitted.
2. In appealing an interlocutory judgment of a Master of the Supreme Court, permission is required to appeal to the Full Court.
3. Absent a retrospective extension of time, there were no proceedings to stay or refer to mediation and it was not open to the Master to do so.
4. There has been no misapplication of the principles relating to consent orders. The Master was correct to characterise the consent orders as a contractual agreement between the parties. There were no grounds put forward where the interests of justice would require the setting aside of a consent order of the contractual type.
5. The Master correctly applied the test for the granting of an extension of time on expired self-executing orders.
6. The Master did not have regard to irrelevant matters. It was essential to the Master’s determination of the interests of justice that the history of the proceedings and the current situation before the Court as to compliance with the consent orders were considered.
7. The Master gave ample weight to all of the applicant’s submissions but merely deemed them insufficient on balance with other factors before the Court to warrant the granting of a mediation or an extension of time.
8. There is nothing in the behaviour of the respondents nor in the content of the consent orders that indicates there was a misrepresentation by silence.
9. The Master’s decision was reasonable in all of the circumstances.
Supreme Court Civil Rules 2006 (SA) rr 286, 17, 117, referred to.
House v The King (1936) 55 CLR 499; Sunlight Nominees Pty Ltd v Zotti & Zotti [2019] SASCFC 11; Orchard v Orchard (1972) 3 SASR 89; Ferguson v Apex Steel Supplies Pty Ltd [2018] SASC 89; Woods v Roberts (1997) 195 LSJS 328; Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235; Southern Cross Exploration NL & Ors v Fire And All Risks Insurance Co Ltd & Ors [No 2] (1990) 21 NSWLR 200, applied.
Spencer v Nominal Defendant [2007] QCA 254; Siebe Gorman & Co Ltd v Pneupac Ltd [1982] 1 WLR 185; Skinner v Commonwealth of Australia [2012] FCA 1194; FAI General Insurance Co Ltd & Ors v Southern Cross Exploration NL & Ors (1988) 165 CLR 268; Kowalski v Sim & Ors [2019] SASCFC 96, discussed.

WORDS AND PHRASES CONSIDERED/DEFINED
"self-executing order", "consent orders", "misrepresentation by silence", "extension of time"

STEICKE v PEDERICK & ANOR
[2019] SASCFC 148
Full Court: Kelly, Nicholson and Lovell JJ
KELLY J.
Introduction

The applicant in this matter, Elisabeth Steicke, seeks permission to appeal against a decision of Judge Dart, a Master of this Court.[1] While the notice of appeal lists 23 grounds, the applicant essentially contends that the Master erred in dismissing the applicant’s interlocutory application for the proceedings between the parties to be referred to mediation or, in the alternative, erred in not granting an extension of time to comply with self-executing consent orders made on 28 February 2018.
[1] Steicke v Pederick & Anor [2018] SASC 146.
In support of this ground of appeal, the applicant makes a number of complaints which can be summarised as follows:
·the Master erred in giving no or insufficient weight to various matters which were, in the applicant’s submission, relevant to the consideration of the applicant’s application for a referral to mediation/an extension of time, in particular, the fact that the sheer number of boxes of documents, and the state of those boxes, meant there was insufficient time for the applicant to comply with order 3 of the self-executing orders (appeal grounds 4, 5, 6, 8, 10, and 11);
·the Master erred by affording excessive or undue weight to the applicant’s cost consultant having her retainer terminated, the lengthy history of the proceedings and the applicant’s apparent responsibility for all of the prior adjournments, and the applicant’s frequent change of representation and lack of legal representation throughout the proceedings (appeal grounds 1, 2, 3, 7, and 9);
·the Master incorrectly applied the relevant legal principles and did not properly consider the interests of justice (appeal grounds 14, 15, 16, 20, 21, 22, and 23);
·the Master erred in failing to find that there had been a misrepresentation by silence by the respondent as to the state of the documents, and should have found that the applicant could not reasonably have known about the state of the boxes and the resources required to examine them, thereby making it impossible for the applicant to comply with the self-executing orders (appeal grounds 12, 13, 14, 16, 17, 18, 19, and 20).
As the decision of the Master was an exercise of discretion, to succeed on appeal, the applicant must demonstrate that the Master has made an error of the kind identified in House v The King.[2] The applicant must show that the Master acted on a wrong principle, was guided by irrelevant considerations, ignored relevant considerations or the result was plainly unreasonable. It is not sufficient to merely show that a factor was given insufficient or too much weight.
[2] (1936) 55 CLR 499.
There are certain preliminary matters that must first be addressed. On 24 May 2019, the applicant lodged an interlocutory application seeking leave to adduce further evidence at the hearing of the appeal in the form of affidavits, and seeking that the appeal be heard by the Full Court. That application was heard at the outset of the appeal hearing before the Full Court on 7 June 2019. It is appropriate to consider this application before turning to consider the issues on appeal, as that will determine the jurisdictional issue and the extent of the admissible evidence that was before the Court on the hearing of this appeal.
Interlocutory application: admission of further evidence and jurisdiction
Admission of further evidence
Rule 286 of the Supreme Court Civil Rules 2006 (SA) (‘SCR’) permits this Court, at its own discretion, to hear further evidence on a question of fact.
The applicant seeks to adduce further evidence by way of an affidavit of the applicant, Elisabeth Steicke, sworn 23 May 2019. That affidavit annexes four more affidavits, which the applicant seeks to have admitted into evidence, as follows:
·Affidavit of Luke Rowley, sworn 13 February 2018, which was prepared for the hearing on 27 February 2018 of the respondents’ application for dismissal of the applicant’s original application, which ultimately culminated in consent orders signed by the parties on 28 February 2018;
·Affidavit of Elisabeth Steicke, sworn 23 February 2018;
·Affidavit of Elisa Capone, sworn 14 March 2017, outlining the reasons why her daughter, the applicant, was overseas at particular times;
·Affidavit of Anna Capone, sworn 29 November 2017, which further annexes:
- A letter from Dr Richard Clark dated 10 August 2017 explaining the applicant’s health conditions; and
- A Medical Certificate dated 5 October 2017.
The test for the admission of further evidence on an appeal is that the evidence could not, with reasonable diligence, have been obtained for use during the original proceedings, the evidence is such that it would have had an important influence on the result of the decision the subject of the appeal, and the evidence is credible.[3] The test is ultimately one of what the Court determines is in the interests of justice and there must be a real possibility that an opposite result would have been reached had the evidence been before the Court at first instance.[4] Where the evidence sought to be adduced is further evidence of matters that occurred at a point in time before the hearing at first instance, that material ought to have been adduced at the initial hearing of the matter and ought not be introduced on appeal, due to the public interest in the finality of litigation.[5]
[3]    Sunlight Nominees Pty Ltd v Zotti & Zotti [2019] SASCFC 11; Orchard v Orchard (1972) 3 SASR 89; Ferguson v Apex Steel Supplies Pty Ltd [2018] SASC 89.
[4]    Woods v Roberts (1997) 195 LSJS 328.
[5]    Radnedge v Government Insurance Office of New South Wales (1987) 9 NSWLR 235.
Essentially, the applicant’s submission in seeking for the further material to be adduced on the appeal is that while the affidavits annexed to the applicant’s May 2019 affidavit had all been before the Court previously, and were all on the court file, those affidavits were not expressly stated to be part of the interlocutory application filed by the applicant in April 2018 and therefore were not specifically before the Master when he exercised his discretion to dismiss the applicant’s interlocutory application, the subject of this appeal. The applicant submits that these affidavits are referrable to the history of the matter and specifically give context to why certain adjournments had occurred throughout the proceedings. The applicant’s counsel could not advise this Court as to why the material was not put before the Master on the hearing of the interlocutory application as he was not instructed at the time. I note that at the hearing of this appeal, the applicant’s counsel did not ultimately refer in his oral submissions to any of the further material he sought to adduce.
The respondents oppose the application. They submit that the history of the matter was clearly relevant to the application and therefore any evidence in support of the application should have been adduced before the Master at the hearing of the interlocutory application in August 2018. The respondents also submit that the Court should refuse to admit the further affidavit material because no adequate reason has been provided as to why the material was not put forward at the interlocutory hearing in August 2018 and that the respondents are prejudiced by having had no opportunity to test the material under cross-examination.
I agree with the respondents’ submissions with respect to the admission of this further evidential material. Aside from the affidavit of the applicant dated 23 May 2019 (which annexes all of the other affidavit material the applicant seeks to adduce), all of these affidavits were on the court file at the time of the hearing and the Master could have turned his mind to consider them had the applicant raised them at the hearing. All of the affidavits annexed to the applicant’s May 2019 affidavit predate the filing of the interlocutory application in April 2018, the hearing in August 2018 and the Master’s decision in September 2018. Therefore, with reasonable diligence, all of the material could have been put before the Master at first instance. The applicant was represented both at the hearing in February 2018, where the consent orders were ultimately signed, and at the hearing in August 2018 when the Master considered the applicant’s application to refer the matter to mediation or receive an extension of time to comply with the consent orders. Furthermore, I consider that the respondents are prejudiced in their lack of opportunity to test the material.
The only affidavit the applicant seeks to adduce which could actually be considered fresh is the affidavit of the applicant on 23 May 2019. That affidavit merely outlines the applicant’s argument on appeal and then annexes the other affidavit material. In my view, it provides no assistance to the Court whatsoever and should not be admitted into evidence.
I also do not consider that any of the affidavit evidence annexed to the applicant’s May 2019 affidavit, had it been specifically put before the Master, would have altered the eventual discretionary outcome. In his reasons for decision, the Master emphasised the need for finality of these proceedings, and referenced the lengthy history of this matter. The material that is sought to be adduced also focuses on a very narrow argument within the overall submissions of the applicant on the interlocutory application before the Master, being the fact that several of the many adjournments of the hearing of the original action brought by the plaintiff were not, in the applicant’s submission, her fault. The Master was well aware of the fact that adjournments had been sought for a number of reasons and further evidence on that topic would not have shed any light on the subject beyond what was already before the Court.
Consequently, I do not consider that the applicant has satisfied the test for the admission of further material on the hearing of the appeal and the evidence is not admitted.
Jurisdiction for the hearing of the appeal
The applicant also applies, by way of the interlocutory application, for permission to appeal the decision of Judge Dart to the Full Court.
SCR 17 states that an appeal to the Full Court lies as of right from a final judgment of a Master of the Supreme Court. Otherwise, from any other judgment of a Master, an appeal lies as of right to a single Judge of the Supreme Court. SCR 288(1)(a) states that an appeal to the Supreme Court lies by permission of the Court if the judgment the subject of the appeal is an interlocutory judgment of the Court given by a Judge, however that is confined to judgments given by Justices of this Court and not Masters.
The respondents submit that there is no right of appeal of this matter to the Full Court as this is an appeal against an order of a Master on an interlocutory application and not a final judgment. The respondents cite Southern Cross Exploration NL & Ors v Fire And All Risks Insurance Co Ltd & Ors [No 2][6] for the proposition that permission is required to appeal an interlocutory judgment to the Full Court. The respondents submit that, at the bare minimum, permission is required.
[6] (1990) 21 NSWLR 200.
I agree with the proposition advanced by the respondent. I will now consider whether permission to appeal should be granted. It is first necessary to summarise the factual and procedural history of this matter.
Background
The respondents were one of a number of different law firms which represented the applicant in long-running Family Court proceedings. The respondents acted for the applicant between 2008 and 2011. Judgment was entered in the Family Court proceedings in November 2017.
During the time that the applicant was represented by the respondents, the applicant was provided with regular itemised monthly invoices. The applicant did not dispute any of the respondents’ invoices during the period the respondents were retained, and the applicant paid to the respondents the majority of the fees and disbursements incurred. However, the respondents at times effectively carried the applicant without payment for periods of up to 9 months and, at the time that the respondents ceased acting for the applicant, fees for professional services and disbursements including counsel fees were still owed. Even though the respondents held funds in trust for the applicant in the sum of $300,000 at the time of ceasing to act, the respondents sought orders of the Family Court to have the monies paid into the Family Court Registry in order to enable the applicant to use those funds to continue her preparation for her Family Court trial and to avoid any prejudice to her in that matter.
After the respondents’ termination of their retainer, the applicant’s then solicitor, Mr Winter, first floated an issue with the respondents’ fees, although at that time Mr Winter said he still expected the respondents’ outstanding accounts would be paid. On 12 April 2011, Mr Winter told the respondents that he was instructed to tax the fees but nothing eventuated from this. Between 22 June 2011 and 3 December 2012, the issue of taxation of the respondents’ fees was raised on various occasions in correspondence between the parties, however no further particularisation was forthcoming.
Approximately three years after the respondents terminated their retainer, on 3 March 2014, the applicant filed the originating application in these proceedings: an application pursuant to the Legal Practitioners Act 1981 (SA) to tax the respondents’ costs (‘Originating Application’). The proceedings giving rise to this appeal arose out of the Originating Application.
It was not disputed by the respondent that of the approximately $3 million in fees and disbursements charged by the respondent, most have been paid by the applicant and that the Originating Application therefore related to, for the most part, costs already paid. However, the respondents had separately commenced proceedings in the District Court for recovery of unpaid costs and had also commenced an action in the Family Court claiming a lien over its files. The Originating Application was filed on the second day of the trial in the Family Court with respect to the lien. The applicant made an unsuccessful application to adjourn that trial on the basis of the Originating Application having been filed.
Although the proceedings in the Family Court concerned whether the respondents had a valid lien over the applicant’s file, the respondents made several attempts to make the file available to the applicant’s then solicitor, Mr Winter, shortly after the termination of their retainer in 2011.

In July 2016, over two years after the Originating Application was filed, the respondents filed an interlocutory application seeking an order that the Originating Application proceedings be dismissed as an abuse of process, citing that the applicant had failed to provide basic particulars of her claim, rendering the respondents unable to determine the basis of why the applicant disputed the fees. The respondents alleged that the Court should infer that the filing of the Originating Application was an attempt to procure an adjournment of the Family Court trial. The respondents also contended that the applicant had repeatedly employed the tactic of changing solicitors to seek adjournments in the past. The Originating Application proceedings were not dismissed in 2016.
The Immediate Dismissal Application
In late 2017, the respondents again filed an application to dismiss the proceedings (‘Immediate Dismissal Application’) on the grounds of abuse of process and/or want of prosecution. The Immediate Dismissal Application was listed for argument. The main facts relied upon by the respondents in respect of that application were as follows:
·there had been over 35 interlocutory hearings, including cancelled hearings, since the Original Application had been filed;
·the applicant had instructed at least 10 different firms of solicitors to represent her since the filing of the Original Application;
·the ongoing failure of the applicant to particularise any complaints or support them with any detailed explanation:
-       during the three to six year period between (a) her initial receipt of the respondents’ monthly itemised tax invoices in 2008 to 2011 and (b) the filing of the Originating Application;
-       at any time when the respondents (from time to time) provided copies of those monthly itemised tax invoices to various of the applicant’s many legal representatives upon their request;
-       in any Notice Disputing Itemised Costs Account pursuant to the requirements of the Family Law Rules; or
-       despite the direction and orders of this Court, during the almost four years since the filing of the Originating Application despite the obvious fact that the Originating Application was a “bare” application crying out for particularisation;
·the repeated failures of the applicant to comply with the directions, guidance and orders of the Court;
·the repeated, abrupt and unexplained changes of solicitors on the part of the applicant;
·the repeated failures on the part of the applicant or her legal representatives to attend various hearings;
·the attendance of the applicant’s counsel at various hearings without any or any proper instructions;
·the numerous attempts of the applicant to seek last-minute adjournments of scheduled interlocutory hearings;
·the dismissal on 23 November 2016 of the applicant’s application against the respondents in Supreme Court SCCIV-14-266 on the grounds of abuse of process;
·the dismissal on 14 March 2017 of the applicant’s application for adjudication of costs in Supreme Court SCCIV-13-190 against another firm of solicitors, Connolly & Co, on the grounds of want of prosecution and abuse of process;
·the fact that the failure of the applicant to prosecute her application in these proceedings was delaying the proper prosecution of the respondents’ remaining claims in the District Court arising from invoices issued in 2011 which remained unpaid 7 years later, which claims had been stayed by the District Court pending the resolution of these proceedings.
In respect of the Immediate Dismissal Application, the respondents advanced two sets of orders prior to the hearing: a set of primary orders seeking the immediate dismissal of the Originating Application and a set of alternative orders allowing the applicant a further limited chance to set out the basis of any complaints she wished to ventilate.
The Consent Orders
Ultimately, the Immediate Dismissal Application was compromised by the applicant and the respondents by way of the consent orders made on 28 February 2018 (‘Consent Orders’).
The orders made on 28 February 2018 were made with the consent of all parties. All parties were legally represented at the time. The orders were intended to give the applicant a limited final chance on strict terms to particularise any complaints she wished to pursue with respect to the respondents’ fees. On the previous day, the respondents’ application to dismiss this action as an abuse of process, and/or for want of prosecution had been listed for argument. The compromise arrived at on 28 February 2018 was agreed against the background of the circumstances set out above. The orders were agreed between the parties following lengthy negotiations between counsel on 27 February 2018. It was apparent at the time that the consent of the respondents was somewhat reluctant, but they were prevailed upon to provide the applicant with a final opportunity to progress the matter. On 28 February 2018, consent minutes were provided to the Court and the orders duly made in the following terms:
THE COURT NOTING:
A.That the originating application in these proceedings for the adjudication of costs (FDN 1) was filed on 3 March 2014;
B.That there have been over 35 interlocutory hearings including cancelled hearings since the originating application was filed;
C.That the Applicant has had at least 10 different firms of solicitors who have represented her since the filing of the application;
D.The Applicant has not particularised any complaints or supported them with any detained explanation:
i.      during the 3-6 year period between (a) her receipt of respondents’ tax invoices in 2008 to 2011 and (b) the filing of the originating application in 2014;
ii.     in any Notice Disputing Itemised Costs Account pursuant to the requirements of the Family Law Rules; or
iii.    despite the directions and orders of the Court, during the 4 years since the filing of her application;
E.The repeated failures of the Applicant to comply with the directions and orders of the Court;
F.The dismissal on 23 November 2016 of the Applicant’s application against the respondents in Supreme Court SCCIV-14-266 on the grounds of abuse of process;
G.The dismissal on 14 March 2017 of the Applicant’s application for adjudication of costs in Supreme Court SCCIV-13-1390 against another firm of solicitors on the grounds of want of prosecution and abuse of process;
H.That these proceedings are delaying the proper prosecution of the Respondents’ remaining claims in District Court Action NO. 1390 of 2016 arising from invoices issued in 2011 which remain unpaid 7 years later, which claims have been stayed by the District Court pending resolution of these proceedings;
I.That the applicant claims to have reasons for the failures described in paragraphs D and E above;
AND UPON:
J.The undertaking of the Applicant to prosecute her application from today with all expedition and diligence;
THE COURT ORDERS that by consent:
1.Extend time for compliance by the Applicant with paragraph 2 of the orders made on 15 December 2017 from 2 February to 28 February 2018.
2.On or before 27 March 2018 the Respondents shall deliver to the Applicant a schedule in tabular format setting out for each invoice identified in the application the following details for each individual item of work in those invoices:
2.1     the item number of the work;
2.2     the date of the item of work;
2.3     brief details of the item of work;
2.4     the units charged; and
2.5     the amounts claimed;
but without prejudice to, and expressly preserving, the Respondents’ contentions that the application is partly or wholly out of time, barred by laches and/or acts of acquiescence on the part of the applicant and/or constitutes an abuse of process.
3.On or before 24 April 2018 the Applicant shall file with the Court and serve on the respondents the same itemised schedule in the same tabular format but with additional columns completed providing full particulars in respect of each item of work of the following:
3.1     whether the amount charged for that item of work is disputed in part or whole;
3.2     the grounds upon which the amount charged for that item of work is disputed, including the identification of all documents, if any, and the terms of any retainer relevant to those grounds of dispute; and
3.3     the amount which the applicant offers to pay for that item of work.
4.In the event that the Applicant does not provide full particulars of dispute for any item of work as required by sub-paragraphs 3.1 to 3.3 above, the Applicant will be taken to have admitted the amount charged for that item of work in full.
5.In the absence of compliance with the requirements of paragraph 3 above, the application for adjudication of costs filed 3 March 2014 be dismissed.
6.On or before 24 April 2018 the Applicant shall file and serve on the Respondents any affidavits upon which the Applicant intends to rely at any final hearing in support of her application.
On 21 February 2018, the applicant engaged a cost consultant, Ms Jillian Eriksen, to undertake an assessment of the documents to enable the applicant to comply with order 3 of the Consent Orders. In her affidavit sworn on 26 February 2018, Ms Eriksen stated that it would take a total of six to eight weeks to review the totality of the invoices the subject of the proceedings as against the relevant terms of the retainer between the applicant and the respondent and prepare a response document in accordance with order 3 of the Consent Orders. Ms Eriksen stated that if it became necessary to review and consider the primary source documentation, it would take significant further time to complete the response.
In compliance with order 2, the respondents provided an itemised schedule to the applicant on 27 March 2018 (‘Itemised Schedule’).
Ms Eriksen attended the commercial storage facility where the files were stored on 11, 12, 13 and 16 April 2018 and inspected a total of 70 boxes. In an affidavit sworn on 24 April 2018, Ms Eriksen stated that there were 254 boxes relating to items in the Itemised Schedule provided by the respondents which were numbered only with no record of the contents of each box; that some of the documents in the boxes were loose and some were in labelled folders; and that the documents in each of the boxes she inspected were not in any order.
The applicant ultimately did not comply with order 3 of the Consent Orders. By operation of order 5, the self-executing order took effect and the Originating Application was dismissed.
The Interlocutory Application
On 24 April 2018, the applicant filed an interlocutory application (‘Interlocutory Application’) seeking that the Consent Orders be stayed and that the proceedings be referred to mediation or, in the alternative, time for compliance with orders 3 and 6 of the Consent Orders be extended. On the same date, Ms Eriksen filed an affidavit setting out the difficulties she encountered in complying with the Consent Orders.
The Interlocutory Application was heard by Judge Dart, a Master of this Court, on 7 August 2018. The Master dismissed the Interlocutory Application on 24 September 2018, noting that there were two specific issues that arose on the applicant’s application that differed from the usual discretionary factors the Court would ordinarily consider when determining an application for an extension of time. Firstly, the orders that the applicant sought to vary were made by consent and, secondly, by reason of a springing or self-executing order, the action had already been dismissed. In dismissing the Interlocutory Application, the Master determined that because the orders were made by consent following lengthy negotiations between the parties, the orders were more akin to a contract agreed between the parties than to an order of the Court and therefore to vary the orders would be to change the underlying contract agreed by the parties. Further, the Master was of the opinion that it was not in the interests of justice to revive the dismissed action by granting an extension of time in any event, given the prejudice that would cause to the respondents and the overall need for finality in the proceedings.
The dismissal of the Interlocutory Application on 24 September 2018 gives rise to this application for permission to appeal.
Issues raised on appeal
The applicant submits that the Master erred in failing to stay the Consent Orders and in failing to refer the matter to mediation. In the alternative, the applicant submits that the Master ought to have granted the applicant an extension of time to comply with orders 3 and 6 of the Consent Orders.
In support of this, the applicant contends that the learned Master did not give weight to the respondents having “mislead” the applicant by not affording sufficient time for the applicant to comply with order 3 and that the Master failed to properly appreciate the number of boxes of documents, the state and non-chronological order of the correspondence files within those boxes that needed to be inspected and the lack of useful labelling on the exterior of the boxes. The applicant also contends that the Itemised Schedule provided by the respondents comprised 37,539 items, the assessment of which could not have been reasonably undertaken in the four-week period provided for by order 3, and that the applicant nor her solicitor had any personal knowledge of the contents of the boxes when consenting to the orders. The applicant submits that the Master should have found that there was a misrepresentation by silence by the respondents as to the state of the boxes, thereby making it impossible to comply with the Consent Orders.
The applicant submits that the Master had scant regard to the applicant’s personal circumstances, including frequent lack of representation in a complex adjudication proceeding and that the applicant was not solely responsible for all of the previous adjournments.
The applicant submits that the Master gave weight to the history of the proceedings, the applicant’s frequent change of representation and lack of representation throughout the proceedings, and the fact that Ms Eriksen’s retainer had been terminated when in fact, the applicant submits, these considerations were not relevant.
The applicant submits the Master has incorrectly applied the decisions in Spencer v Nominal Defendant[7] and Siebe Gorman & Co Ltd v Pneupac Ltd[8] when considering the principles that apply to consent orders, and has incorrectly considered the interests of justice by reference to the decisions of Skinner v Commonwealth of Australia[9] and FAI General Insurance Co Ltd and Others v Southern Cross Exploration NL and Others.[10]
[7] [2007] QCA 254.
[8] [1982] 1 WLR 185.
[9] [2012] FCA 1194.
[10] (1988) 165 CLR 268.
The essence of the respondents’ main submission on appeal is that, at the time the Consent Orders were agreed, the applicant was aware of the extent of the material in the boxes to be assessed. The applicant had in her possession the monthly itemised invoices setting out the respondents’ charges, as is evident from the fact that these invoices were annexed by the applicant to the Originating Application she filed in 2014. At the time of the hearing on 27 February 2018, the day before the Consent Orders were made, the applicant’s counsel and solicitor confirmed they knew that the tax invoices the subject of the proceedings ran to 1800 pages. The respondents also submit that the applicant knew that there were in excess of 400 archive boxes of documents, as that fact had been mentioned repeatedly in affidavit evidence and in submissions, and ought to have known that 182 of those boxes contained files from another law firm and could not therefore be relevant to the applicant’s adjudication of costs application. The respondents submit that the applicant knew the boxes had been organised in a manner which allowed them to be used expediently in the Family Court proceedings.
The respondents further submit that, by agreeing to the Consent Orders, the respondents gave up the chance to seek the immediate dismissal of the Originating Application and therefore would be prejudiced if the Court were to interfere with the Consent Orders.
Discussion
I turn to deal with each of the applicant’s complaints. To give proper consideration to all of the complaints raised by the applicant, I shall treat all complaints concerning either the Master’s failure to give sufficient weight to relevant considerations or the Master’s error in giving undue weight to irrelevant considerations effectively as complaints in accordance with the principles of House v The King.[11]
[11] (1936) 55 CLR 499.
Therefore, the questions that arise for decision are as follows:
·Did the Master err in determining that he was unable to stay the orders and refer the proceedings to mediation?
·Was the Master correct to identify the Consent Orders as a contract between the parties?
·Did the Master apply the correct legal test when considering whether he could retrospectively grant an extension of time?
·In considering the interests of justice, did the Master accord weight to certain irrelevant factors when he should not have?
·In considering the interests of justice, did the Master fail to give any weight to relevant factors when he should have?
·Did the Master err in determining that there had not been a misrepresentation by silence on the part of the respondents?
·Irrespective of the absence of any other error, was the exercise of the discretion to dismiss the application plainly unreasonable?
Should the orders have been stayed and the proceedings referred for mediation?
The first issue that turns for consideration can be dealt with briefly. The applicant contends that the Master erred in not staying the Consent Orders and in not referring the matter for mediation.
Due to the operation of the springing/self-executing order in order 5 of the Consent Orders, it was not open to the Master to retrospectively stay the orders or to retrospectively refer the matter to mediation. Absent a retrospective extension of time, there were no proceedings to stay or refer to mediation. Further, there was no evidence from the applicant that she had any genuine interest in participating properly in a mediation; all prior attempts at settlement and offers to mediate since the inception of the Originating Application had not been accepted by the applicant.
Was the Master correct to find that the Consent Orders were a contract?
The Master found that the Consent Orders were the product of an underlying agreement between the parties, more akin to a contract than to orders of the Court. Consequently, in line with the principles of contract law, the Master consider that the applicant needed to identify a ground to set aside that contract before being permitted to attack the Consent Orders and seek an extension of time to have the orders reinvigorated.
In the Master’s view, as no such ground was identified, the discretionary considerations not to grant an extension of time were ultimately unnecessary to his decision. Therefore, Master dismissed the Interlocutory Application largely on the basis that no ground had been identified to permit the setting aside of the contract.
The applicant does not concede that the Consent Orders were in the nature of a contract however makes the submission that even if the orders could be classified as a contract, the nomination by the respondents of such a short deadline for compliance with the order was misleading and the contract should have been set aside. The applicant submits the Master misapplied the cases of Spencer v Nominal Defendant[12] and Siebe Gorman & Co Ltd v Pneupac Ltd[13] and that the failure to set aside the contract amounts to an error of law.
[12] [2007] QCA 254.
[13] [1982] 1 WLR 185.

In his reasons, when turning to consider the nature of consent orders generally, the Master said:[14]
[11]It is well understood that a consent order operates differently from an order imposed by the Court without the consent of all of the parties. In Spencer v Nominal Defendant Keane JA, with whom de Jersey CJ and Mullins J agreed, said:
A consent order operates both as a contract and an order of the court. Whether the contract embodied in a consent order can be set aside depends on “the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it”. No such ground is said to exist in this case. To accede to the application under s 57(2)(b) of the Act would be to deprive the respondent of the benefit of the contract which underlay the consent order of 14 July 2006 where there is no other basis for setting aside that bargain.
[12]Not all consent orders are born equal, however. In Siebe Gorman & Co Ltd v Pneupac Ltd Lord Denning said as follows:
It should be clearly understood by the profession that, when an order is expressed to be made “by consent,” it is ambiguous. There are two meanings to the words “by consent.” That was observed by Lord Greene M.R. in Chandless-Chandless v. Nicholson [1942] 2 K.B. 321, 324. One meaning is this: the words “by consent” may evidence a real contract between the parties. In such a case the court will only interfere with such an order on the same grounds as it would with any other contract. The other meaning is this: the words “by consent” may mean “the parties hereto not objecting.” In such a case there is no real contract between the parties. The order can be altered or varied by the court in the same circumstances as any other order that is made by the court without the consent of the parties. In every case it is necessary to discover which meaning is used. Does the order evidence a real contract between the parties? Or does it only evidence an order made without objection?
[13]In my opinion the consent order made here is of the first category referred to by Lord Denning. The very detailed orders were agreed between the parties following lengthy negotiations between counsel on 27 February 2018. In a real sense, a contract was agreed between the parties. The respondents were only prepared to forego the hearing of their application for dismissal of the proceedings on terms. Those terms were reflected in the orders made on 28 February 2018. There was an underlying contract between the parties.
[14]The nature of the orders limits the ability of the Court to set them aside. The usual basis for setting aside a simple contract, fraud, mistake or misrepresentation does not arise. No doubt circumstances could arise where the interests of justice requires the setting aside of a consent order of the contractual type, but those circumstances might be expected to be quite rare. Here the respondents gave up prosecution of their application to dismiss the proceedings on the detailed terms agreed between the parties. I am not satisfied that the interests of justice requires the Court to intervene to vary the consent orders. To vary the orders would be to change the underlying contract agreed by the parties.
[Citations omitted]
[14] [2018] SASC 146, [11]-[14].
It is evident on the face of those passages that the Master referred to Spencer in the context of simply setting out the fact that consent orders can operate as both a contract and an order of the court.
The applicant asks this Court to infer that, based on the number of boxes of files and tax invoices in excess of $3 million, the Consent Orders were more in the nature of orders made without objection on the part of the applicant, rather than orders made with the applicant’s consent. Presumably the inference the applicant seeks the Court to draw is that the applicant could not reasonably have consented to the timeline contained within the Consent Orders given the number of boxes to be examined and invoices to be compared against the boxed materials. However, if that is the inference the applicant asks the Court to make, this would fly in the face of the applicant’s submission that she was not aware that to have her costs consultant go through all of the boxes and invoices and compare them with the respondents’ Itemised Schedule would take longer than the time allocated by the Consent Orders.
In my view, there has been no misapplication of the principles and no error has been established. The Master’s application of Siebe was apt.The Consent Orders were prepared by the parties following lengthy negotiations between counsel and submitted to the court after the event. I am satisfied that the applicant and her counsel were well aware of the number of boxes referable to the timeline in which to complete the reply schedule. The affidavit of Ms Eriksen made it clear that significantly more time would be needed if the boxes themselves required viewing and assessment, rather than just the invoices.
To my mind, there is no doubt that the Consent Orders were made by consent rather than without objection. The Master was correct to characterise the consent orders as a contractual agreement between the parties.
The applicant raises a point on appeal that, if the Court were to find the Master was correct in determining that the Consent Orders constituted a contractual agreement between the parties, that contract ought to have been set aside in any event on the basis that the respondents misled the applicant by failing to specifically mention the state of the boxes. This was not argued at first instance and there is no evidence on that topic.
I consider that the Master was correct in his assessment that none of the usual grounds for setting aside a simple contract were available and that the applicant had not put forward any additional matters where the interests of justice would require the setting aside of a consent order of the contractual type.
There is no substance in this complaint. In my view, the Master need not have gone on to consider whether an extension of time was required, given the position he had taken with respect to the contractual nature of the Consent Orders. However, as he did go on to consider that issue, and as the applicant takes issue with the legal test the Master applied, I turn now to consider that argument.
Did the Master apply the correct legal test for an extension of time?
Order 5 of the Consent Orders contained a self-executing or springing order, triggered by non-compliance with order 3 by the specified date of 24 April 2018, which had the effect of dismissing the Originating Application and bringing the proceedings to an end.
SCR 117 gives the Court the broad discretion to make any order it considers necessary for the proper conduct of a proceeding or otherwise in the interests of justice, including the discretion to extend the time for taking any step in a proceeding, which the Court may do even if the relevant time limit has expired. There was no dispute about this between the parties at the hearing of the Interlocutory Application.
The power to grant an extension of time is a remedial provision which confers on the Court a broad power to relieve against injustice.[15] The onus is on the party seeking the extension of time to identify the reason for the proceedings being revived. The common law principles surrounding the granting of an extension of time in accordance with SCR 117 were recently applied by this Court in Kowalski v Sim & Ors:[16]
[15] FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.
[16] [2019] SASCFC 96, [58], [60], [63]-[64].
[58]Australian courts have long emphasised the natural tension between the goal of finality of litigation and the goal of avoiding injustice. Rights of appeal favour the latter goal but they cannot rise above the limits of the statutory grant; and the time limit within which to appeal is an integral part of that grant.
…
[60]In an oft cited passage, McHugh J observed in 1990 in Gallo v Dawson:
…the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time … . When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal … . It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has “a vested right to retain the judgment” unless the application is granted …. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. [Citations omitted]
…
[63]In Trevorrow v State Of South Australia (No 5), Gray J gathered together some guiding principles concerning the exercise of discretion in applications to extend time, all of which we take into account. His Honour stated:
924. In Ulowski v Miller, Bray CJ observed that the discretion to extend time should not be fettered by any absolute or inflexible rules. However, Bray CJ went on to outline what he referred to as five paramount matters to be considered in the exercise of the discretion. Those factors are the length of the delay; the explanation for the delay; the hardship to the plaintiff if the action is dismissed and the cause of action left statute-barred; the prejudice to the defendant if the action is allowed to proceed notwithstanding the delay; and the conduct of the defendant in the litigation. Bray CJ then went on to say:
I think the discretion [to extend time] should be exercised as seems best in the interests of justice after considering in relation to the particular case the five matters mentioned above.
925. In Lovett v Le Gall, Bray CJ held that the following two considerations could be added to the list in Ulowski: the conduct of the plaintiff; and the nature, importance and circumstances surrounding the ascertainment of the new material facts.
926. In Forbes v Davies and Commonwealth of Australia, Kearney J agreed with Bray CJ as to the relevant factors to consider when contemplating an exercise of the discretion to extend time, and added a further factor to the list – the extent to which, having regard to the delay, the evidence is likely to be less cogent than if the action had been brought within the time allowed.
927. In McPhee v Blyth, Olsson J reaffirmed the view adopted by Legoe J in Luscombe v State of South Australia that the five factors outlined by Bray CJ in Ulowski were relevant to applications made pursuant to section 48 of the Limitation of Actions Act. These factors form the basis for any consideration of an application for an extension of time. An analysis of the circumstances of a matter relevant to these factors assists the Court to ascertain whether, in the interests of justice, the application for extension of time should be granted. [Citations omitted]
[64]More recently, in the decision of the High Court in Prince Alfred College Incorporated v ADC, the plurality approved the approach taken in Brisbane South Regional Health Authority and stated (in the context of an application under the LOA Act for an extension of time within which to bring a claim):
99. In considering the exercise of the discretion under s 48(3) of the Limitations Act, two fundamental propositions established by this Court’s decision in Brisbane South Regional Health Authority v Taylor must be borne in mind. First, an applicant for an extension of time must prove the facts which enliven the discretion to grant the extension and also show good reason for exercising the discretion in his or her favour. An extension of time is not a presumptive entitlement which arises upon satisfaction of the pre‑conditions that enliven the discretion. The onus of persuasion is upon the applicant for an extension of time. The exercise of the discretion to grant an extension of time must take account of the reasons for the limitation regime, and the discretionary nature of the decision to be made must be respected when conducting appellate review of a primary judge’s decision. In Brisbane South Regional Health Authority v Taylor, McHugh J said:
“The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’”.
100. Secondly, the purpose of the legislative conferral of the discretion is to ensure a fair trial on the merits of the case. The loss of evidence which will tend against the prospects of a fair trial will usually be a fatal deficit in an argument that good reason has been shown to exercise the discretion to grant an extension. As McHugh J pointed out in Brisbane South Regional Health Authority v Taylor, the justice of a plaintiff’s claim is seldom likely to be strong enough to warrant a court reinstating a right of action against a defendant who, by reason of the delay, is unable fairly to defend itself or is otherwise prejudiced. His Honour had earlier observed that, in cases of long delay, prejudice may exist without the parties or anyone else realising that it exists.
…
105. … Where a trial is conducted long after the events which gave rise to the dispute, the risk that the trial will be a mere simulacrum of the process of doing justice becomes greater with the passage of time. The onus is upon the party claiming an extension of time to show that a fair trial may be had now, notwithstanding that passage of time. That onus is not discharged by saying that the putative defendant should have been more astute to conserve its own interests by anticipating litigation that did not eventuate until many years after the expiration of the limitation period. … [Citations omitted]
[Citations omitted]
In my view, the Master correctly identified that there were two specific issues that arose in these proceedings that needed to be added to the mix of usual discretionary factors the Court must consider in determining whether it is in the interests of justice to exercise the discretion to extend the time limit for compliance with order 3 of the Consent Orders. Those two issues were that the orders the applicant sought to vary were made by consent and, secondly, that the action had already been dismissed by way of the self-executing order contained in order 5 of the Consent Orders.
The applicant submits the Master misapplied the decisions in Skinner v Commonwealth of Australia[17] and FAI General Insurance Co Ltd and Others v Southern Cross Exploration NL and Others,[18] when determining the correct approach to reviving finalised orders by granting an extension of time, by giving excessive weight to the public policy considerations outlined in FAI.
[17] [2012] FCA 1194.
[18] (1988) 165 CLR 268.
FAI stands for the proposition that the Court may extend time for compliance when it comes to self-executing orders even after the period for compliance has expired.
The Master quoted certain passages from both Skinner and FAI before summarising the principles he anticipated he needed to apply from each:[19]
[19] [2018] SASC 146, [16]-[20].
[16]In Skinner v Commonwealth of Australia Flick J was considering an application by a party to be relieved from the consequences of not complying with a self-executing order. The issue in that case was that an applicant had been ordered to file a Third Statement of Claim by a particular date, failing which the proceedings would be dismissed. The order was not complied with. The applicant purportedly complied with the order shortly thereafter. The Third Statement of Claim still had significant deficiencies. His Honour declined to exercise the power to relieve against the consequences of the self-executing order. His Honour determined that:
46.In such circumstances it is concluded that the extension of time requested should be refused. The proceeding stands dismissed.
47.This conclusion is founded upon:
the history of the proceeding to date and the repeated non-compliance with the orders of the Court;
the absence of any adequate explanation for the failure to comply with the orders made on 8 August 2012;
the fact that the proposed Further Amended Statement of Claim remains confusing and still fails to adequately plead a number of the causes of action upon which the Applicant seeks to rely; and
an evaluation of the competing interests of both the Applicant and the Respondent and the overall interests in the administration of justice.
[17]The High Court had occasion to consider the power of a court to extend time for compliance after non-compliance with a self-executing order in FAI General Insurance Company Limited and Others v Southern Cross Exploration NL and Others. The circumstances of that matter were that, during the course of a lengthy commercial trial in the Supreme Court of New South Wales an order was made for the provision of security for costs by the plaintiff by a particular date. Failure to provide the security meant the action would be dismissed. The security was not provided. At first instance the Supreme Court of New South Wales held that its rules did not provide it with the power to reinstate a dismissed action.
[18]The matter ultimately proceeded to the High Court for an interpretation of the Rules of Court. The principal judgment was written by Wilson J, with whom Brennan, Deane and Dawson JJ agreed. The Court held that the Rules of the Supreme Court permitted the grant of an extension of time. The rule in question was similar in its terms to Rule 117(3). Wilson J said:
It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those which are to be found in the present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.
[19] What I take from the Skinner case is that, in determining whether the interests of justice require an extension of time, the history of the proceeding is relevant, as is the extent to which the order has subsequently been complied with and an evaluation of the competing interests of the parties. From the FAI decision I note in particular the reference to the public policy centred on the finality of litigation being a relevant consideration, but not of itself a reason not to make an order extending time. The Court has the power to extend time nunc pro tunc, which would mean that the operation of the self-executing order did not come into effect. The action would then be treated as never having been dismissed.
[20]In my opinion, the fact that the order was made by consent, and there are no facts or circumstances that would justify the Court varying the underlying contract between the parties, is the end of the matter. However, even if that were not the case, the interests of justice do not require that an extension of time be granted for the purpose of reinstating the proceeding and allowing further time for compliance with the orders.
[Citations omitted]

In light of the considerations raised in Skinner and FAI, the Master then went on to list the reasons why he did not consider that it was in the interests of justice to grant the application for an extension of time:[20]
[21]This matter was instituted more than four years ago. The applicant has still not articulated any basis on which she contests or disputes the respondent’s claim for costs. The matter has not been progressed in a proper and diligent manner. The applicant now wishes to mediate the dispute. The matter was listed for a mediation last year, but that did not proceed because the applicant was unwell and produced a medical certificate saying she could not participate in a mediation for several months. It is difficult to mediate a dispute where the issues in dispute are not reasonably defined.
[22]The Court has indulged the applicant consistently in this matter. There have been constant changes of solicitors which required adjournments to allow the new solicitors to acquaint themselves with the matter. The subject orders were intended to be a final opportunity for the applicant to advise the Court and the respondent of the grounds of her complaints in respect of the claim for costs.
[23]The applicant did not avail herself of the opportunity to do so. Having engaged a costs consultant, it is apparent that the applicant now understands that a formal taxation of the costs will be a long and expensive process. It has taken four years for the applicant to come to that position. The respondents still do not know whether, or to what extent, there is a dispute about the quantum of the claim for costs. In April of this year the costs owing to the respondent had been owed for seven years. There is a need for finality in this proceeding. There comes a time when to allow a proceeding to continue will bring the legal system in to disrepute. That time has been reached.
[20] [2018] SASC 146, [21]-[23].
The history of the proceedings of a matter is clearly one of several factors that will weigh into the balance when considering whether it is in the interests of justice to allow an extension of time to comply with any orders, particularly consent orders. The reason for the delay in compliance, which the applicant identified as being the number of boxes and the state of those boxes, and the extent to which the orders have been complied with are also relevant factors.
In my view, the Master correctly applied the test for the granting of an extension of time on expired self-executing orders. The test is a discretionary one. The applicant’s contention that the Master misapplied the authorities when assessing the interests of justice is based on the further submissions that the Master failed to take into account certain relevant considerations and gave weight to irrelevant considerations. I will now consider each of these submissions in turn.
Did the Master afford weight to certain matters that he should not have?
The applicant’s counsel submits that the Master in his reasons has given weight to the number of adjournments in this matter and has, in effect, solely blamed the applicant for all of the 35 adjournments. The applicant also submits that the Master gave weight to the fact that the applicant frequently changed legal representatives or was unrepresented at times.
The substance of this complaint arises from the Master’s comments at [22]:
[22] The Court has indulged the applicant consistently in this matter. There have been constant changes of solicitors which required adjournments to allow the new solicitors to acquaint themselves with the matter.
I do not agree with the applicant’s submission. Earlier in his reasons, the Master simply acknowledged that there had been 35 adjournments of the matter in the context of repeating the respondents’ submissions on the Interlocutory Application. He did not qualify that by identifying for what reason each adjournment had taken place. The notes attached to the Consent Orders as prepared between and agreed by the parties stated that the applicant “has had at least 10 different firms of solicitors who have represented her since the filing of her applicant”. The frequent change of solicitors employed by the applicant was, therefore, a fact. At [22], the Master is simply stating the fact that the applicant’s frequent change of solicitors necessitated adjournments in the matter. That is also a fact. There is nothing in the materials to suggest that the Master considered the applicant was to blame for all of the adjournments and the reason behind each adjournment would have been readily available to the Master by looking at the court file.
The inference the applicant’s counsel invites this Court to draw is not made out. The Master did not err in taking these facts into consideration. The history of the proceedings, and prospects for future resolution of the matter, was relevant to the Master’s assessment of the interests of justice.
In any event, it is noteworthy that the respondents submit that eight of the 35 adjournments were at the instigation of the respondent or by consent, leaving the applicant responsible for 27 adjournments. Counsel for the applicant did not accept that figure, but did agree that the applicant was responsible for 21 of the adjournments.
The applicant also complains that the Master erred in placing weight on the fact that the engagement of the costs consultant, Ms Eriksen, had been terminated prior to the Interlocutory Application hearing in August 2018. The Master’s comments on this matter were as follows:[21]
[8]… It is noteworthy that the retainer of the solicitor engaged as a costs consultant to assist the applicant to comply with the orders has been terminated. Counsel for the applicant was not aware that the retainer had been terminated. There is no affidavit from the applicant in support of application FDN54. There is no evidence of the time required to comply with order 3 were the action reinstated.
[21] [2018] SASC 146, [8].
The relevance of this is plain when considered against the history of the proceedings, where the applicant had frequently changed solicitors in the past, necessitating further adjournments of the matter.
One of the factors to which the Master needed to have regard when considering whether it was in the interests of justice to grant an extension of time was the extent to which the applicant had complied or attempted to comply with the Consent Orders. As it emerged during questions from the bench during the appeal hearing of this matter, the applicant has apparently taken no steps towards the adjudication of costs pursuant to the Originating Application, nor towards substantial compliance with order 3 of the Consent Orders, beyond the hiring of Ms Eriksen and Ms Eriksen’s attendance on five occasions at the storage facility to view the boxes. Ms Eriksen’s affidavit evidence at the time the Consent Orders were signed was that if the primary source documentation (i.e. the contents of the boxes themselves) needed to be inspected, substantially more time would be required for compliance. Ms Eriksen had commenced her assessment of the boxes. The termination of Ms Eriksen’s retainer as costs consultant was therefore a relevant consideration for the Master when assessing whether the interests of justice permitted an extension of time for compliance with order 3.
Furthermore, there was no evidence as to what the applicant would do even if an extension of time was granted. In the absence of any evidence as to the length of time it would take the applicant to engage a new costs consultant, have the costs consultant attend at the storage facility and view the boxes, and prepare a reply itemised schedule – or whether she had any intention of doing any of those things – there was no error by the Master in his assessment of those considerations. The Master gave them the weight that was appropriate given the history of the proceedings. It was essential to the Master’s determination of the interests of justice that the history of the proceedings and the current situation before the Court as to compliance with the Consent Orders was considered.
Did the Master fail to give weight to relevant matters?
With respect to this argument, the applicant makes a particular complaint that the Master did not consider the sheer number of boxes of documents pertaining to the Itemised Schedule and the state of those boxes when considering the applicant’s argument that there was insufficient time to comply with order 3.
I do not accept this submission. As outlined above, the fact that there were in excess of 400 boxes of documents was the subject of both affidavit evidence and submissions. Furthermore, 182 of the boxes contained material which would have been irrelevant to the applicant’s Originating Application, being boxes containing Donaldson Walsh files. During the argument on appeal, the applicant’s counsel conceded that the applicant did indeed know about the number of boxes but simply did not know the physical, unorganised state of those boxes.
In his reasons, the Master specifically referred to the affidavit of Ms Eriksen filed on 24 April 2018, setting out the difficulties she encountered in complying with order 3. In that affidavit, Ms Eriksen sets out in detail the attempts made by both her and Ms Arabella Allen, another solicitor at the firm representing the applicant, in making contact with both the respondents’ lawyers and the commercial storage facility where the boxes of material were held to organise a time for inspection of the primary source materials. Ms Eriksen stated that in her view she was in part prevented from assisting the applicant to comply with order 3 because of the state of the boxes and issues with making the boxes readily available for inspection.
Ms Eriksen stated that, in her view, order 3 required the applicant to carry out an exercise similar to that undertaken to produce a detailed response to a long form bill. Ms Eriksen then set out the details of each of her attendances at the commercial storage facility and the difficulties she encountered, namely:
1.The boxes were numbered only (and that there was a total of 254 boxes);
2.There was no record of the contents of each box and no way to determine the contents of each box without going through the box;
3.Some of the documents in the boxes examined were loose and some were in labelled folders;
4.The documents were not in any particular order and, in particular, were not in chronological order.
I pause here to note that the evidence of the first respondent, which was unchallenged in cross-examination, was that the boxes were not generally in chronological order, but that all of the correspondence was in chronological order. Further, the first respondent gave evidence that while the boxes were not labelled on the exterior, there was a box listing which the applicant used to identify the boxes she wished to inspect and, upon opening the boxes, there were labels on the folders and files inside.
The applicant adduced no evidence to the effect that she had not known about the chronological order of the boxes, or the fact that the boxes were ordered for use in the Family Court proceedings, or as to why the labels on the interior of the boxes together with the box listing did not provide an adequate system in which to assess the contents as against the Itemised Schedule.
Ms Eriksen stated in her affidavit that she believed it to be “impossible to respond to or tax the items in the Itemised Schedule without a complete reorganisation of the documents in each of the boxes into an orderly system that correlates and aligns with the Itemised Schedule”. She also noted that the Itemised Schedule comprised 37, 539 items.
Ms Eriksen included in her affidavit that she was instructed by the applicant not to perform an item by item review of the items recorded in the Itemised Scheduled for reasons of efficiency and cost.
The Master referred to these difficulties in his reasons. It is therefore clear that all of this material was available to him upon his consideration of the Interlocutory Application and it is clear he had taken all of this information into account in exercising his discretion.
I consider it was also relevant to the Master’s consideration of this complaint that, on the hearing of the Interlocutory Application, the applicant did not make any submissions outlining how much more time would be required to comply with order 3 should an extension of time be granted. Ms Eriksen identified in her affidavit of 24 April 2018 that she estimated it would take her a further 3,140 hours to complete the process anticipated by order 3, which is approximately 78.5 weeks. However, as it emerged at the hearing of the Interlocutory Application that the retainer of Ms Eriksen had been terminated, a realistic estimate of how many further days or weeks would be required was not available to the Master.
In reaching his conclusion to dismiss the Interlocutory Application, the Master said:
[23]… Having engaged a costs consultant, it is apparent that the applicant now understands that a formal taxation of the costs will be a long and expensive process.
In my view, this demonstrates that the Master had turned his mind to the issues raised by the applicant regarding the alleged impossibility of complying with order 3, and determined that those complaints were without merit. It is clear from the Master’s reasons that he gave ample weight to the applicant’s submissions but merely deemed them insufficient on balance with other factors before the Court to warrant the granting of a mediation or an extension of time:[22]
[21]This matter was instituted more than four years ago. The applicant has still not articulated any basis on which she contests or disputes the respondent’s claim for costs. The matter has not been progressed in a proper and diligent manner. The applicant now wishes to mediate the dispute. The matter was listed for a mediation last year, but that did not proceed because the applicant was unwell and produced a medical certificate saying she could not participate in a mediation for several months. It is difficult to mediate a dispute where the issues are not reasonably defined.
[22]The Court has indulged the applicant consistently in this matter. There have been constant changes of solicitors which required adjournments to allow the new solicitors to acquaint themselves with the matter. The subject orders were intended to be a final opportunity for the applicant to advise the Court and the respondent of the grounds of her complaints in respect of the claim for costs.
[23]The applicant did not avail herself of the opportunity to do so… There is a need for finality in this proceeding. There comes a time when to allow a proceeding to continue will bring the legal system in to disrepute. That time has been reached…
[22] [2018] SASC 146, [21]-[23].
In light of this, I do not consider there is any error identified in the Master’s approach to assessing the interests of justice as to whether or not to grant an extension of time.
Did the Master err in failing to find a misrepresentation by silence?
The applicant submits that because the Consent Orders were prepared by the respondents and presented to the applicant’s solicitors, the respondents in effect set the timeline for compliance, knowing that the applicant would be unable to comply in that time due to the number of boxes and the state of those boxes. The applicant submits that this amounts to a misrepresentation by silence on the part of the respondents.
For this argument to succeed, the applicant must satisfy the Court that she was misled by the respondents’ failure to say or do something, which in turn induced her to enter into the Consent Orders.
There was no evidence at the hearing of the Interlocutory Application, nor before the Court on appeal, that there was such a misrepresentation on the part of the respondents. There is no evidence that the applicant understood from the timeline stipulated in the Consent Orders that the respondents were confirming that eight weeks would be sufficient to look through and assess all of the 439 boxes of material. In fact, the evidence of Ms Eriksen in her affidavit dated 26 February 2018 was that substantially more time would be required if the primary source material needed to be examined.
Furthermore, the Consent Orders were intended as a final opportunity for the applicant to formulate and particularise her action for adjudication of costs against the respondents. The Originating Application had been filed some four years earlier. The respondents had repeatedly made the files available to the applicant’s new solicitors for review even though the files were subject to lien proceedings. No attempt to examine the boxes was made by the applicant until 28 March 2018, approximately a month after the Consent Orders were signed, when the applicant’s solicitors sent an email to the respondents requesting to inspect the files. Ms Eriksen’s first attendance to inspect the files was on 11 April 2018, less than two weeks before the deadline stipulated in the Consent Orders.
The applicant submits that while the Consent Orders allowed eight weeks for compliance, in effect, she was only given four weeks to comply, as the respondents were granted four weeks to prepare their Itemised Schedule to which the applicant needed to respond. However, there was nothing in the Consent Orders which would have prevented the applicant from instigating the process to view the files prior to receiving the respondents’ Itemised Schedule.
It is noteworthy that Ms Eriksen in her affidavit also states that the applicant had instructed her not to undertake an item by item review of the items recorded in the Itemised Schedule for reasons of efficiency and cost.
In my view, the applicant and her counsel were actively involved in the preparation of the Consent Orders that were ultimately made in February 2018. During the hearing on 26 February 2018, the applicant was kept updated and provided instructions to her counsel by telephone. The affidavit of Ms Eriksen dated 26 February 2018 that was before the Court clearly stated the following:
7.Having reviewed the Documentation, I have formed the following views:
7.1 I estimate that it will take me approximately 6 to 8 weeks to review the totality of the invoices the subject of these proceedings (“the Invoices”) as against the relevant terms of the engagement between the applicant and the respondent (from time to time) and prepare a responding document to be relied on by the Applicant in these proceedings (“the Response”).
7.2 If it becomes necessary for me to review and consider primary source documentation (“the Supporting Documentation”), it will take me significant further time to complete the Response.
It can be seen that at the time the Consent Orders were entered into, the eight-week estimate as provided by the costs consultant never related to inspection of the boxed materials. Therefore, even if the respondents had misrepresented the number of boxes and the state of those boxes, the Consent Orders never contemplated an item by item assessment with reference to the boxed material within an eight-week period.
In any event, given the length and complexity of the Family Court proceedings and the expense of those proceedings, not to mention the fact that the applicant was in possession of all of the invoices from the respondents as well as an Itemised Schedule identifying the extent of the material to be examined, it is implausible to suggest that the applicant was not aware of the amount of boxed material that was the subject of the Originating Application. In light of that, it was implausible to suggest that the applicant believed the costs consultant, Ms Eriksen, could complete a full assessment of every item in the Itemised Schedule by reference to the original source documents in the boxes within the eight-week timeline. There was no suggestion that that was what was anticipated by the costs consultant or by the terms of the Consent Orders. There is no evidence adduced by the applicant to suggest otherwise, or to clarify what she specifically believed she was consenting to.

In any event, the Consent Orders were entered into at a time when the applicant was represented and following lengthy negotiations between the parties. The applicant would have been well aware of the deadline in order 3 at the time the Consent Orders were entered into. There is also no explanation offered by the applicant as to why she waited until after the deadline, and after the self-executing order had taken effect, to ask the Court for more time. It is clear that from at least 11 April 2018, Ms Eriksen was aware of the state of the boxes. There is no explanation from the applicant as to why she didn’t engage a costs consultant until February 2018.
I do not consider there is any substance to this complaint. There is nothing in the behaviour of the respondents nor in the content of the Consent Orders that indicates that there was a misrepresentation by silence. There is no evidence from the applicant as to what she believed the state of the boxes to be at the time she entered into the Consent Orders.
Was the decision plainly unreasonable?
In light of all of the above considerations, the decision of the Master cannot be said to be plainly unreasonable. The Master had regard to all of the relevant material, including the lengthy history of the proceedings, and also had regard to the need for finality in proceedings such as these. The applicant had instigated her application for adjudication of costs in 2014 and had failed to particularise her complaints in any detail whatsoever. The Consent Orders were intended as a final opportunity for her to provide the respondents and the Court with some guidance as to the substance of her complaints. She failed to do so, and failed to provide any evidence or explanation for the failure to do so. There was no evidence before the Court as to what the applicant would do even if an extension of time was granted. The nature of the Consent Orders was such that it would not have been in the interests of justice to grant the applicant’s application for an extension of time. The Master’s decision was reasonable in all of the circumstances.
Conclusion
For the reasons set out above, I consider that the Master applied the correct legal principles when assessing the Interlocutory Application. I do not consider that the Master erred in exercising his discretion in the manner that he did. The result was not plainly unreasonable.
I would refuse the applicant permission to appeal to this Court.
NICHOLSON J: I agree that permission to appeal should be refused for the reasons given by Kelly J.
LOVELL J: I agree for the reasons given by Kelly J that permission to appeal should be refused.