The Nominal Defendant v Jones - [2021] SADC 139

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master)
THE NOMINAL DEFENDANT v JONES
[2021] SADC 139
Judgment of her Honour Judge Bochner
10 December 2021
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA
Appeal against a decision of a District Court Master - Master refused to grant leave to amend the defence.
Held: appeal allowed.
PPG Development Pty Ltd v Capitanio (2016) 126 SASR 307; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Outback Health Screening Pty Ltd v Gwam Investments Pty Ltd [2009] SADC 30; Community Corporation No 21561 Incorporated & Anor v Pier Apartment Hotel Pty Ltd & Ors [2014] SADC 111, considered.

THE NOMINAL DEFENDANT v JONES
[2021] SADC 139
Introduction

On 24 July 2013, the respondent suffered a fall when crossing King William Street near Wright Street, from the western side to the eastern side. He says that the fall was caused by his need to avoid a vehicle which was turning left from Wright Street to King William Street at the time that he was attempting to cross. Proceedings were issued on behalf of the respondent on 18 July 2016, against the Nominal Defendant, as the respondent had been unable to locate the vehicle which he says caused his fall.
A defence was filed on behalf of the appellant on 28 February 2017. In respect of liability, the defence did no more than deny the allegations made by the respondent.
In June 2018, new solicitors commenced acting for the appellant. The respondent formulated his claim on 12 April 2019.
On 20 June 2019, a District Court Master referred this matter to a listing conference. The conference was subsequently adjourned at the request of the parties and rescheduled for 13 August 2019. The discussion between the parties both during and immediately before and after the conference is in contention between them; suffice to say, at this point, that the appellant advised the respondent that it wished to amend its defence but sought, nonetheless, to have a trial date set. The respondent objected to the matter being listed for trial. A trial date was set, commencing on 4 May 2020.
On 25 October 2019, the appellant filed and served an application to amend the defence, in respect of three discrete “topics”. The application was opposed by the respondent, and the matter was listed for argument. The argument was held before a District Court Master on 2 December 2019. On 7 January 2020, the Master published short reasons, in which she said that she required further submissions from the parties on a procedural issue. Further oral submissions were made on 26 May 2020. In the meantime, the trial date was vacated by a joint request of the parties.
The Master delivered her reasons on 29 June 2021, in which she refused leave to amend on two of the “topics”, and granted leave to amend on the third, on the basis that the amendment on the third topic was not opposed by the respondent. This judgment deals with the appellant’s appeal in respect of one of the topics where leave was refused.
The proposed amendments
The amendments which were allowed by the Master on the basis that they were not opposed by the respondent related to causation and damages. The amendments which were disallowed, and which are not pursued by the appellant alleged a failure to conduct due search and inquiry in respect of the vehicle which the respondent says caused his fall. I will refer to those amendments as the search and inquiry amendments.
The decision under appeal is the refusal to allow an amendment which pleaded both a defence, and contributory negligence. The amendments allege that the respondent simply slipped or tripped on tram tracks, and that he had failed to cross the road at a designated crossing. It is the appellant’s position that it had put the respondent on notice of this position in a letter dated 24 September 2015, when it advised that the plaintiff had failed to take sufficient care, had failed to cross at the designated crossing at the nearby intersection, and that he should have seen or heard the vehicle approaching. The appellant also outlined its position in detail by way of a letter dated 12 August 2019. I will refer to these amendments as the liability amendments.
The discussion between the solicitors for the parties at the time of the listing conference and subsequent events
It is not in dispute that, on 12 August 2019, the day before the listing conference, Ms Brooks, the solicitor for the appellant, sent by email a lengthy letter to the solicitor for the respondent, Mr Woodburn. This letter set out in detail the amendments that the appellant intended to make, in respect of the three topics. There is disagreement, however, between the parties about the conversation that they had before, during and after the listing conference. It is the position of Mr Woodburn that he advised Ms Brooks that he did not consider that the matter was ready to be listed for trial, as there were outstanding issues in respect of the pleadings. He refused to sign the certificate of readiness as he needed to obtain counsel’s opinion in respect of the amendments, the nature of which had only just been outlined to him, and because he was concerned that, if the search and inquiry amendments were allowed, he might need to join the driver of the vehicle to the action, in the event that he or she were located. He says that the listing officer told him that the matter could be listed for trial without his signing the certificate of readiness, and accordingly did so.
Mr Woodburn says that, after the conference, he had a further conversation with Ms Brooks during which she proposed a timetable, which included the filing of an application to amend the defence. He agreed to the timetable, but did not agree to consent to the filing of an amended defence.[1]
[1] FDN 23.
Ms Brooks, on the other hand, says that she and Mr Woodburn had a discussion about the due search and inquiry issue, and the appellant’s position on this question. She proposed that the appellant file an amended defence pleading this position, and to which the respondent could respond by way of reply. Mr Woodburn agreed to the filing of the amended defence on this basis. Ms Brooks says that Mr Woodburn expressed reluctance to sign the certificate of readiness, because he foreshadowed an application for a court ordered mediation. Ms Brooks suggested a trial listing which gave sufficient time for the amended defence to be filed and for the respondent’s mediation request to be dealt with.
Following the conference, Ms Brooks says that she proposed that the appellant file and serve its amended defence within 21 days, and that the respondent file and serve his reply within 14 days thereafter. Mr Woodburn agreed to this timetable.[2]
[2] FDN 22.
The timetable as proposed by Ms Brooks (and to which she believed Mr Woodburn had agreed) was confirmed by her in a letter to Mr Woodburn dated 13 August 2019.[3]
[3] FDN 15, TJB4.
Each of Mr Woodburn and Ms Brooks has provided their account of the conversation at the time of the listing conference on affirmation. Neither was cross-examined at the hearing of the application.
Ms Brooks did not receive a reply to her letter of 13 August 2019, and on 16 October 2019, she emailed Mr Woodburn, seeking confirmation of his client’s consent to the filing of the amended defence. Mr Woodburn then told her, in a telephone conversation on 17 October 2019, that he did not consent to the filing of the amended defence. On 25 October 2019, the appellant filed its application to amend its defence, in respect of the three topics. The hearing of the application occurred on 2 December 2019. At the conclusion of the hearing, the Master indicated that she believed that there were gaps in the evidence before her, and gave the parties leave to file further affidavits. This led to the filing of FDN 22 and FDN 23, the affidavits which describe the discussions between the parties at the time of the listing conference.
On 7 January 2020, the Master delivered short reasons, explaining that she had determined that she was unable to reach a decision in respect of the application, as the parties had not addressed whether permission, pursuant to r 131(5) of the District Court Civil Rules 2006, was required to bring the application. She set a timetable for the filing of further submissions on this question.
On 17 January 2020, the parties wrote jointly to the Master’s chambers and sought, by consent, to have the trial vacated. The letter said:
It is agreed between the parties that the matter should not have been listed for trial and was done so on a misunderstanding or misapprehension of the parties (sic) position. No criticism is raised of either party in respect of the misapprehension/misunderstanding.[4]
[4] Appeal Book, p 102.
On 26 March 2020, the time within which the parties were to file their submissions was extended. Further oral submissions were made, in respect of the permission question, on 26 May 2020.
The Master’s decision was not delivered until 29 June 2021.
The Master’s reasons
I will not refer to those parts of the Master’s reasons which deal solely with the amendments which were either allowed, or are not now pursued by the appellant.
The Master set out in detail the differing accounts of the events surrounding the listing conference. She then said:
I pause to voice my concern that the defendant insisted on the matter being listed and that the conference officer proceeded to list the matter for trial against the protests of the solicitor for one of the parties and in the absence of a certificate of readiness. …
…
For the defendant’s solicitor to have pushed for a listing in these circumstances is a breach of that duty [pursuant to rule 113(2)(c)].[5]
[5] Reasons, [47] – [49].
From [56], the Master considered the question of leave to bring the application pursuant to r 131(5), and the requirement of special circumstances where such leave was required. There is a difference of interpretation between the respondent and appellant of her conclusion in respect of this question, which I will address in due course.
The Master determined that, as leave was required to bring the application to amend, the appellant needed to demonstrate the existence of special circumstances to justify the leave. In discussing whether special circumstances existed, she said the following in respect of the joint communication to the court requesting the vacation of the trial:
It was the defendant’s contention that the special circumstance in this instant case was the way that the matter was listed for trial. It alleges that there was a misunderstanding/misapprehension between the parties as to what had been agreed between them regarding amending the defence. It was unusual that the listing officer listed it for trial when the matter should have been referred back to a Master after the plaintiff’s solicitor refused to sign the certificate of readiness.
The plaintiff denies that there was a joint misunderstanding/misapprehension but rather a unilateral mistake by the defendant as to the requirements of the DCCR. Despite the defendant’s submissions that the letter sent to my chambers on 17 January 2020 implied a joint mistake (which I do not accept that it does), I agree with the plaintiff.[6]
(footnotes omitted)
[6] Reasons, [76] – [77].
The Master concluded:
It has been a close call, given the defendant’s behaviour leading up to and during the listing conference and the views that I have expressed above, but in the circumstances of this instant case, I am prepared to continue with consideration of the interlocutory application as a whole and in particular, the substantive issues raised regarding the application to amend the pleadings, as argued before me on 2 December 2019.[7]
[7] Reasons, [86].
The Master went on to describe the nature of the proposed amendments. In respect of the liability amendment, the Master noted that in its submissions, the appellant referred to notice that it had given to the respondent of the amendment by way of letter dated 24 September 2015. She said that this was given as evidence from the bar table, and despite the parties having been given leave to file further affidavit material, the appellant did not put this letter before the court. As a result, she did not take it into account. She disagreed with the appellant’s characterisation of the amendments as further particulars of the appellant’s case and said:
The proposed pleas go far beyond the contributory negligence allegations referred to by me above. For the first time, they raise allegations that the accident alleged by the plaintiff did not occur at all, but rather was a trip and fall caused by his negligence quite separate from any identified vehicle. They further raise additional pleas of contributory negligence not mentioned in the 2015 letter.[8]
[8] Reasons, [100].
The Master applied the principles set out by Doyle J in PPG Development Pty Ltd v Capitanio[9] (“Capitanio”) in determining whether to allow the liability amendment. She then said:
Whilst it is now the case that the trial date has been vacated, this was not the case when the application was argued, and indeed, the parties recognised after my first set of reasons in January 2020 that there was insufficient time for the determination of the application and trial, such that they applied to have the trial date vacated.[10]
[9] (2016) 126 SASR 307.
[10] Reasons, [108].
She then reiterated that the scope of the amendments was broad, and in her view, raised matters that in fact amounted to a new defence. She accepted, however, that the defences set out in the liability amendments were “arguable and tenable”.[11] She found were the appellant allowed to amend its defence at such a late stage in the proceeding, and after it had been listed for trial, significant disruption to the proceeding would be occasioned.
[11] Reasons, [132].
The Master found that there had been insufficient explanation for the delay in seeking to amend. She found that there had been sufficient opportunity for the appellant to plead the case that it sought to run prior to the listing conference. She further found that, if the amendments were allowed, the respondent would be required to undertake further investigation, and amend its own pleadings or file a reply. She noted that the recollections of the respondent and witnesses would be affected by the passage of time. She said that it was likely that, if the liability amendments were allowed, there would be further directions hearings, arguments and/or appeals. Consequently, she did not allow the amendments.
The grounds of appeal and the position of the appellant
The notice of appeal contains thirteen grounds of appeal, which encompass six broad categories of error.
The first category relates to the way in which the Master characterised the liability amendments. Principally, the complaint is that the Master failed to conduct a proper analysis of the amendments in the context of the pleading as a whole, and therefore did not take into account relevant considerations. Rather, she classified the amendments as special defences, which shifted entirely the focus of the defence, and went far beyond any notice previously given to the respondent. She should, in fact, have found that the amendments raised no more than minor new issues, of which notice had been given generally in September 2015 and in full in August 2019. This is because the respondent was always required to prove the mechanics of his injury, given the denial of the appellant. By denying the pleaded circumstances of the injury, the appellant required the respondent to prove how the injury occurred; the effect of the liability amendments is, in reality, no different to providing particulars of that denial.
The second category relates to the emphasis place by the Master on disruption to the progress of the matter by the amendments, in circumstances where the action was not in fact listed for trial at the time that the decision was delivered. There was no evidence before the court that the liability amendments would imperil the trial date, nor were submissions made to that effect. By the time the reasons were delivered, the matter was not listed for trial. The Master’s discretion miscarried, as she failed to consider the actual effect of the amendments on the progress of the matter, given that the matter was not listed for trial.
The appellant further says, in respect of this category, that the Master erred in attributing blame to the appellant in the vacating of the trial listing, and in her criticism of the use of qualified certificates of readiness. The Master, in fact, and in the absence of any evidence, went behind the terms of the joint communication to her chambers requesting that the trial date be vacated. This communication did not suggest that the request to vacate the trial date was caused either by the application to amend the defence, or by other conduct of the appellant. This resulted in her taking into account irrelevant matters.
The appellant says that the Master fell into error in finding that there would likely be requests for further and better particulars, applications, arguments and appeals as a result of the amendments. There was no basis for such a finding, nor did it form part of the respondent’s submissions.
The third category relates to the assessment that the Master made of the prejudice that the respondent would suffer if the liability amendments were allowed. The appellant says that, given that the respondent was required to recall the events surrounding his fall for the purpose of his claim, he would suffer little prejudice in this regard as a result of the amendments. At most, he would need to be reproofed in respect of one aspect of his claim. Further, the appellant says that it was not part of the respondent’s case that his memory of the events would be prejudiced by any further delay caused by the amendments, and that, in any event, the majority of the delay between the injury and any trial was completely unrelated to the amendments.
The appellant says that there was no evidence to support the Master’s finding the respondent would be required to undertake further investigations, amend his statement of claim or file a reply.
The fourth category of error relates to the assessment that the Master made of the prejudice to the appellant should the amendments not be allowed. The appellant says that the Master gave no consideration to the consequences to the appellant of the inability to raise a defence that she found to be arguable and tenable.
The fifth category relates to the assessment that the Master made of the interests of justice. The appellant says that the Master’s consideration of the delay that would actually be caused by the amendments led her into error in determining where the interests of justice lay. It says that the amendments would not have led to delay, significant additional cost and use of additional judicial and other court resources, nor would they have led to any reduction in the public’s confidence in the administration of justice. The appellant says that the Master failed to consider the time between its receiving the respondent’s formulation and providing the draft amended defence. There was in fact only four months between the formulation and the appellant’s letter of August 2019 which provided a comprehensive statement of the proposed amendments, and six months between the formulation and the draft amendment. Compared to other delays in this litigation, including the period of three years from issuing the claim to formulation, this delay cannot be regarded as significant. The Master examined only the conduct of the appellant, without placing it in the context of the litigation as a whole. Further the Master erred in applying a statement from Aon Risk Services Australia Ltd v Australian National University[12] (“Aon”) which was dependent on the facts of that case, to this matter, which is factually dissimilar.
[12] (2009) 239 CLR 175.

The final category deals with outcome error. The appellant says that the Master failed to distinguish between the liability amendments and the inquiry and search amendments. In effect, she rolled the two quite separate amendments in together, and did not identify that each required separate consideration, with different consequences. By her failure to analyse them separately, the Master reached an outcome that is plainly unreasonable. At the time of argument, there was sufficient time to deal with the liability amendments without the need to vacate the trial date. By the time that the decision was delivered, the trial date had been vacated, thus removing any time constraint that may have previously existed. This has led to the respondent’s inability to rely on a tenable defence.
The position of the respondent
The respondent’s primary submission is that the Master found that the appellant had not established that special circumstances existed such that it should be granted leave to amend its defence after the matter had been listed for trial. He says that the Master considered the merits of the application only out of an abundance of caution; this led to her conclusion that she would not have allowed the amendments in any event. The respondent’s position in this regard is based on the following passage from the reasons:
I do not consider that the actions of the listing officer in setting the matter for trial against the objection of the plaintiff and in the absence of a certificate of readiness were unusual. Indeed, the DCCR anticipate such a circumstance. Consequently, I do not consider there to be any special circumstances arising from the listing of the matter for trial.
The result of such a finding would be that the defendant is prohibited from bringing any interlocutory application to amend is pleadings or for any other purpose.[13]
(footnote omitted)
[13] Reasons, [79] – [80].
The respondent says that the Master’s statement that she was “prepared to continue with consideration of the interlocutory application as a whole”[14] does not amount to a finding that he would need to challenge by way of cross-appeal. These words indicate no more than that the Master was considering the merits on the application for completeness, and not because such consideration was required.
[14] Reasons, [86].
The result of this analysis is that the appellant’s appeal is fundamentally flawed, as it has not sought to appeal from the real decision made by the Master, that the appellant has not established special circumstances so as to allow leave to amend to be granted. Thus, the appellant’s challenge to the Master’s findings on the merits is pointless.
The second plank of the respondent’s position is that, in any event, the Master made no error in her analysis of the merits of the application. She was right to find that the amendments wrought major changes to the defence by raising the special defences of break in causation and contributory negligence. There was no error in likening the situation in this matter to that in Capitanio, where amendments which would have resulted in a major change to position of one of the parties were not allowed.
The respondent contends that the Master was correct to take into consideration the trial listing, even though, at the time that the decision was delivered, it had been vacated. He submits that an interlocutory applicant, whose application has caused a trial date to be vacated, cannot take advantage of his wrongdoing in this regard to assert that no prejudice would be caused by allowing the amendment. Thus, the Master was correct to place weight on the fact that the trial was listed at the time of the argument, rather than on the fact that it had been vacated by the time that the decision was delivered.
The respondent submits that it was clear that the vacation of the trial date was the result of the amendment application. After the delivery of the Master’s preliminary decision in January 2020, the argument was not scheduled to resume until 26 May 2020. With the trial scheduled to commence on 20 May 2020, it is obvious that it could not go ahead. While a joint request was sent to the Master, seeking the vacation of the trial date, it was on the basis that the trial had been listed as a result of a mistake on the part of the appellant only. The joint representation to the Master was to the effect that the parties could not attend to the trial because of the amendment application, which was then a finding made by the Master, where she said:
Whilst it is now the case that the trial date has been vacated, this was not the case when the application was argued, and indeed, the parties recognised after my first set of reasons in January 2020 that there was insufficient time for the determination of the application and trial, such that they applied to have the trial date vacated.[15]
[15] Reasons, [108].
As to the inferences drawn by the Master about the likely prejudice to be caused by the amendments, were they to be allowed, the respondent submits that the Master was entitled to take into consideration the inevitable prejudice caused by the passage of time on memory. The Master was correct not to take into consideration any prejudice to the appellant, as she rightly found that it was “the author of its own misfortune in this regard by manipulating the trial listing process to put pressure on the plaintiff in a way which ended up derailing the trial process and imperilling its own defence.”[16] The Master did not err in finding that the administration of justice would be brought into disrepute if the amendments were allowed.
[16] Respondent’s Outline on the Merits, [6].
The appellant’s submissions in reply
It is the appellant’s submission that the Master dispensed with compliance with r 131(6), and dealt with the application on its merits, despite a finding that there were no special circumstances. This is the only reasonable interpretation of her statement:
I have regard to my obligations pursuant to DCCR117 and my discretion pursuant to sub‑rule (2) to dispense with compliance with a rule.[17]
[17] Reasons, [85].
That statement is immediately followed by the words:
It has been a close call, given the defendant’s behaviour leading up to and during the listing conference and the views that I have expressed above, but in the circumstances of this instant case, I am prepared to continue with consideration of the interlocutory application as a whole and in particular, the substantive issues raised …[18]
[18] Reasons, [86].
Thus, she dispensed with the need for compliance with r 131(6) and went on to consider the merits of the application. Her conclusion was that the application should be dismissed on its merits, not that it could not be brought. This is reflected in the orders that were made.
Consideration
I will deal, first, with the contention that the Master found that no special circumstances existed, and so dealt with the application on that basis.
The key to the Master’s approach is found in the passages highlighted by the appellant in its reply submissions. There is no doubt that the Master found that the appellant had not established the existence of special circumstances which would allow the granting of leave to bring an interlocutory application after a certificate of readiness had been signed or dispensed with.[19]
[19] Reasons, [79].
I do not consider, however, that the respondent’s submission, that the Master dealt only with the merits of the application for the sake of completeness, but otherwise dismissed it on the basis that there were no special circumstances, can be accepted. There is no suggestion in the reasons that this is the case. By no words does the Master suggest that she is considering the merits of the application for completeness only. If this were the case, there would need to be some indication that it was so. Rather, in reaching her conclusion, she says:
Having considered the application before me, the affidavit evidence and the submissions of counsel, I am driven to the conclusion that the defendant’s application, insofar as it relates to the proposed paragraphs that relate to causation, liability and section 115(1)(b) of the Act should be dismissed.[20]
[20] Reasons, [152].
She does not conclude that the application must be dismissed because the criterion set out in r 131(6) has not been satisfied, that is, the existence of special circumstances.
Further, if the respondent was correct in his submission, it would render otiose the Master’s comparison of the relevant provisions of the 2006 Rules with the Uniform Civil Rules 2020 and her statements set out at [46] and [47] hereof. The plain reading of the Master’s reasons makes it clear that she dispensed with the requirements of r 131(6) and dealt with the application on its merits.
I will deal with the grounds of appeal in turn.
Before I do, however, it is important to note that there was no dispute between the parties about the appropriate principles to be applied; rather, the dispute was in respect to their application to the circumstances of this matter. They were in agreement that the principles set out in Aon were to be applied. Those principles were recently summarised by Doyle J in Capitanio in the following way:
By way of summary, the High Court decision in Aon Risk Services, and the authorities that have applied it, have now made it plain that in exercising its discretion upon any application to amend, the court must take into account a number of factors. The factors include:
•The nature and importance of the proposed amendment, including the extent to which it raises new issues of fact or law.
•The merits of the proposed amendment, at least in the sense that the proposed amendment is arguable or tenable.
•The stage of the litigation at which the application to amend is made, and the likely impact upon, or disruption to, the progress of the proceedings (and in particular the trial).
•The explanation for the application to amend and its timing, and the fact and extent of any undue delay in this regard.
•Whether the party has had a sufficient opportunity to plead their case earlier.
•The time, cost and inconvenience associated with any delay or disruption of the proceedings.
•The uncertainty and strain of litigation on the parties and their witnesses as a result of any disruption or delay likely to be occasioned by the amendment.
•The impact of any delay and disruption upon judicial and court resources, and the access of other litigants to those public resources.
•The impact upon the public’s confidence in the just and efficient administration of justice.[21]
(footnote omitted)
[21] (2016) 126 SASR 307, [39].
The application to amend in Aon came at the commencement of a four week trial. In Capitanio, the first defendant sought to amend her defence during the trial, after the applicant had closed its case, and halfway through her own case.
Ground 1 – The learned Master erred in her assessment of the significance of the proposed amendments, given the existing denials in the Defence (Reasons 100, 110, 113 and 114)
Ground 2 – The learned Master erred in characterising the proposed amendments as special defences (Reasons 113)
I will deal with Ground 2 first, as my determination of it may have an impact on my consideration of Ground 1.
The defence filed by the appellant did no more than deny the circumstances of the respondent’s claim as pleaded by him. Essentially, the denial amounted to a denial that the events as described by the respondent happened at all. The liability amendments sought to introduce two new pleas: first, that the respondent slipped or tripped on tram tracks, thus calling into question the mechanism of his fall; and second, that, by not crossing at the controlled designated crossing place nearby, the respondent was guilty of contributory negligence. In my view, the plea of contributory negligence is a special defence that requires pleading.
In Outback Health Screening Pty Ltd v Gwam Investments Pty Ltd[22] Tilmouth DCJ said:
[22] [2009] SADC 30.
The application of the statutory provisions are subject to the various Rules of Court. Generally these are designed to define the issues in dispute and to ensure no party is taken by surprise as to those issues: Williams v Australian Telecommunications Commission. For instance a party is required to plead “such facts as give fair notice of the party’s case at trial”: Rule 6R 98(2)(d) of the Supreme and District Court Civil Rules 2006, and a defendant is to “specifically raise any special defence on which the defendant relies”: 6R 100(1)(c) and to “state the basis of each special defence … (including reference to any statutory provision on which the defendant relies)”: 6R 100(1)(d). Rule 6R 100(3) specifies that a special defence is “a defence other than a denial of facts alleged by the plaintiff, or a denial that facts alleged by the plaintiff give rise to a cause of action”. Examples of estoppel or statute bar are given.
Both contributory negligence and apportionable liability are creatures of statute. At common law the former was a complete defence, first abolished in England by the Law Reform (Contributory Negligence) Act 1945 (UK), a move adopted in South Australia upon the insertion of s 27a in the Wrongs Act 1936 (SA) by the Wrongs Act Amendment Act 1951 (SA) s 4 (No. 50 of 1951). Quite apart from the examples furnished by the statute, it was always conventional practice to plead fraud, and for that matter contributory negligence: Benjamin v Currie and Christie v Bridgestone Australia Pty Ltd. In the latter case it was held not to be open to apportion liability in the absence of an express plea of contributory negligence.
It is true enough that the previous District Court Rules 1987 which obliged a defendant to specifically plead “any fact or material which … might take the opposing party by surprise”: R 46.10(1) is not reproduced in the current rules. That does not alter the underlying fundamental and long standing practice to plead contributory negligence as a matter of fairness, a practice fashioned into a rule of law by the Court of Appeal in Fookes v Slaytor, and applied by the Full Court in Christie v Bridgestone Australia Pty Ltd, and again in Government Insurance Office of New South Wales v ALI.
Olson J observed in his reasons in that case:
There is, in my opinion, no doubt that, having regard to the reasoning in Christie v Bridgestone Australia Pty Ltd (1983) 33 SASR 377, the advice of counsel was sound. The appellant will not be able to pursue any case based on an issue arising under s 35a of the Wrongs Act, or in contributory negligence related to a failure to wear a seatbelt, in absence of the proposed amendment.
The last-mentioned statutory provision merely erects a rule of law which is to be applied in certain types of factual situation. In accordance with long-established procedural principles a party is not entitled to invoke such a provision unless that party both pleads the alleged prerequisite factual circumstances giving rise to the operation of the statute and also the specific issue based on and arising from the section. It is stating the obvious to say that the fair and orderly conduct of litigation is based upon that fundamental conceptual approach; and that a non-observance of it would plainly lead to potential unfairness to other parties and an inability to conduct trials in an efficient manner. It would negate the very purpose for which the system of pleading is established - to define in advance the true issues arising for consideration and determination.
Christie v Bridgestone Australia Pty Ltd was subsequently applied by the Court of Appeal of the Northern Territory in North Australian Aboriginal Legal Aid Service Inc v Liddle. It must follow inevitably from the principle affirmed in this authoritative line of cases that apportionate liability must be pleaded where it is to be relied upon.[23]
(footnotes omitted)
[23] Ibid, [65] – [68].
Likewise, it may be concluded that contributory negligence must be pleaded where a party intends to rely on it. In this regard, it should be regarded as a special defence.
I do not consider that the pleading as to the mechanism of the respondent’s fall amounts to a special defence. It is arguable, however, that it falls foul of r 98(2)(d), which provides that a pleading “must plead such facts and matters as give fair notice of the party’s case at trial”, as a result of which the appellant would be precluded from relying on evidence to that effect at trial.[24] Be that as it may, it is not a special defence.
[24] R 103(1)(a).
Ground 2 is made out in part and dismissed in part.
As to Ground 1, I am of the view that the Master overstates the significance of the amendments that the appellant sought to make, in [100] of the reasons. She says:
… For the first time, they raise allegations that the accident alleged by the plaintiff did not occur at all, but rather was a trip and fall caused by his negligence quite separate from any identified vehicle. They raise further additional pleas of contributory negligence not mentioned in the 2015 letter.[25]
[25] Reasons, [100].
I consider that this statement mischaracterises the nature of the amendments.
In the defence first filed by the appellant, it did not plead to paragraphs 2 to 5 of the statement of claim. As a result, it is deemed to have denied these paragraphs. The effect of this denial is that the appellant has denied, from the time that it filed its defence, that the incident occurred at all. It has been taken to have denied every material fact pleaded in those paragraphs, including that the respondent was crossing the road approximately 30 to 40 meters north of the controlled intersection, that an unidentified white taxi undertook a left hand turn into his path, that he fell onto the curb while attempting to avoid a collision, and that he sustained injuries thereby. This is reinforced by the appellant’s plea in paragraph 4 of the defence, which reads:
… if the plaintiff sustained personal injuries as alleged (which is denied) …
Thus, it cannot be said that the proposed revised defence raises for the first time an allegation that the accident alleged by the respondent did not occur at all. That has been the appellant’s position from the outset. The Master has overstated the effect of the amendments.
The Master’s reference to the 2015 letter is puzzling. In [96] of the reasons, she refused to have regard to the appellant’s submissions in relation to this correspondence, on the basis that the letter was not in evidence before her. In my view, if that is the case, then it cannot be used against the appellant, in addressing whether notice was given to the respondent of the appellant’s case (if this is what is to be inferred from this remark).
In [110], the Master says:
The proposed amendments are significant. As counsel for the plaintiff submitted, the proposed amendments shift the focus of the defence altogether. The proposed amendments … generally raise new special defences and new issues of fact.
(footnote omitted)
Again, I am of the view that the Master has overstated the position. I accept that the proposed amendment raises a new special defence and new factual issues, and that this is significant. However, it is going too far to say that it shifts the focus of the defence altogether. From the outset, the appellant’s position has been that the incident did not occur, either as alleged by the respondent or at all. On the basis of the first defence filed by the appellant, the respondent was required to prove each and every element of the incident as alleged. If the proposed amendments were allowed, the respondent would remain required to do this. The change is the context in which the respondent would now be proving his case. That changed context is the addition of the plea of contributory negligence.

Paragraph 114 of the reasons states:
The proposed pleas of contributory negligence and causation go far beyond the allegations allegedly raised in the 2015 letter. Indeed, counsel for the defendant acknowledged that the plea that the plaintiff was the author of his own injuries was a new defence.
(footnote omitted)
Paragraph 114 suffers from the same problem as [100], in that it references a letter which the Master refused to take into account. If the Master wished to compare the amendments sought to those foreshadowed in the 2015 letter, then she should not have rejected the appellant’s submissions in regard to it. Thus, it is impossible to say whether the amendments sought go “far beyond” those foreshadowed. By taking into account evidence that she has specifically rejected, I am of the view that the Master erred in her assessment of the significance of the proposed amendments.
Ground 1 is made out.
Ground 3 – The learned Master failed to take into account or give sufficient weight to the fact that the matter was not listed for trial at the time of the decision (the previous trial date having been vacated with the consent of the parties) and that the issues raised by the proposed amendments could be comfortably prepared within any time for trial
In my view, the Master erred in failing to take into account the fact that the matter was not listed for trial at the time that the decision was delivered. In my view, this error was caused, first, by an error in her analysis of the evidence of the parties in respect of the listing conference, and then by a misinterpretation by the Master of the joint communication that was sent to her chambers to vacate the trial date.
The Master placed great store on the conversation that occurred between Mr Woodburn and Ms Brooks before, during and after the listing conference. As a result of her consideration of the affidavit material filed by each of them, she made findings of poor conduct on the part of the appellant’s lawyers. In my view, these findings were misconceived, and the criticisms made of the appellant’s lawyer were unwarranted.
The accounts of Mr Woodburn and Ms Brooks as to their conversation during this period are quite different. Each account was made on oath by an officer of the court. Neither account was corroborated by any other witness. Neither party was cross-examined. The only contemporaneous account of the conversation is found in Ms Brooks’ letter to Mr Woodburn dated 13 August 2019, the day of the listing conference. This account supports her version of the conversation, albeit in limited detail.
Given that neither Mr Woodburn nor Ms Brooks was cross-examined, and the very different accounts that they give, it is somewhat of a surprise that the Master said:
… I must therefore determine the position on the papers before me and take it that neither challenges the veracity of the affidavits.[26]
[26] Reasons, [39].
While it is possible to accept that each party has told the truth to the best of their recollection, both accounts cannot, objectively, be true. The Master was still required to find a reasoned basis for preferring the account of one over the other. Unfortunately, the Master has provided no basis for her following statements:
I pause to voice my concern that the defendant insisted on the matter being listed and that the conference officer proceeded to list the matter for trial against the protests of the solicitor for one of the parties and in the absence of a certificate of readiness. The procedure is there for just this sort of reason and should be observed.
Indeed, the parties have a duty to the court pursuant to rule 113(2)(c) to ensure that:
(c) all interlocutory proceedings are completed well before trial and in any event before a certificate of readiness is completed and, in particular, the pleadings properly reflect the case that is to be presented at trial;
For the defendant’s solicitor to have pushed for a listing in these circumstances is a breach of that duty.[27]
[27] Reasons, [47] – [49].
It is clear that she has preferred the evidence of Mr Woodburn to that of Ms Brooks. While she is entitled to do so, I am of the view that she has fallen into error in failing to give a reason for doing so, when neither of them was cross‑examined. As it stands, there is no basis for the finding that she made.
This finding has infected the rest of her reasons. They are based on her flawed assessment that the appellant engaged in poor conduct and must now reap the consequences of that.
This brings me to the joint communication to chambers. The fundamental part of that communication reads:
This email is sent with the Consent of the Plaintiff’s legal representative (and is copied to them).
The parties have conferred in relation to the application and in particular, your Honour’s order that further submissions be filed by the Defendant by close of business 17 January 2020 and the plaintiff is to file responding submissions by 24 January 2020.
It is agreed between the parties that the matter should not have been listed for trial and was done so on a misunderstanding or misapprehension of the parties (sic) position. No criticism is raised of either party in respect of the misapprehension/misunderstanding.
On that basis the parties seek an order that the trial date, as currently listed, be vacated and the matter be referred back to the ordinary Directions List for further directions.
It is further noted that the parties are pursuing a number of areas of enquiry that may have some bearing on the pleadings and the nature of extent (sic) of any amendments sought by the defendant. On that basis the parties ask that the application by the defendant (and accordingly any ruling) be held in abeyance until further order, at least the date of the next directions hearing at which time the parties will provide an update on the matter and the application.[28]
[28] Appeal Book, 102.
The Master said this in respect of this communication:
It was the defendant’s contention that the special circumstance in this instant case was the way that the matter was listed for trial. It alleges that there was a misunderstanding/misapprehension between the parties as to what had been agreed between them regarding amending the defence. It was unusual that the listing officer listed it for trial when the matter should have been referred back to a Master after the plaintiff’s solicitor refused to sign the certificate of readiness.
The plaintiff denies that there was a joint misunderstanding/misapprehension but rather a unilateral mistake by the defendant as to the requirements of the DCCR. Despite the defendant’s submissions that the letter sent to my chambers on 17 January 2020 implied a joint mistake (which I do not accept that it does (sic)), I agree with the plaintiff.[29]
(footnotes omitted)
[29] Reasons, [76] – [77].
The conclusion reached by the Master can only be informed by the approach that she took to the competing accounts of the listing conference. The communication does not in any way attribute the misunderstanding or misapprehension to one party or the other. It simply states that there was one. In fact, rather than attributing blame for the misunderstanding, the communication specifically states that neither party makes any criticism of the other in this regard. The Master was in error to find otherwise.
This error on the part of the Master has, in my view, led to a further error on her part. She said:
Whilst it is now the case that the trial date has been vacated, this was not the case when the application was argued, and indeed, the parties recognised after my first set of reasons in January 2020 that there was insufficient time for the determination of the application and trial, such that they applied to have the trial date vacated.[30]
[30] Reasons, [108].
This latter conclusion is, in fact, not correct. The parties did not apply to have the trial vacated because they realised that there was insufficient time to deal with the amendment application before the trial was scheduled to commence. They applied to have the trial vacated, because it had been listed on the basis of a misunderstanding, about which neither party criticised the other.
As a result of these consequential errors, I am of the view that the Master erred in the manner in which she took into account the fact that the trial had been vacated. Rather, the proper approach would have been to acknowledge that the trial had been vacated with the consent of both parties, and that the matter was not listed for trial both at the time that the hearing was concluded on 26 May 2020, and when the decision was delivered on 29 June 2021. Given that no trial date was in place, that, in itself, should not have been treated as a bar to allowing the amendments.
Ground 3 is made out.
Ground 4 – The learned Master erred in erred in the application of principle when a trial is not imminent (Reasons 109)
At [109] of her Reasons, the Master says:
However, even where a trial date is not imminent, the principles in Manock and PPG Development are still applicable.
(footnote omitted)
In making this statement, the Master relied on the case of Community Corporation No 21561 Incorporated & Anor v Pier Apartment Hotel Pty Ltd & Ors,[31] where Slattery DCJ said:
Notwithstanding the failure of the attack of Pier Apartments and Baulderstone Hornibrook, as outlined above, it is still necessary to then decide whether in light of the background facts of the matter, the court would exercise its discretion in favour of the plaintiffs once that anterior question had been addressed. Another question is the extent to which a discretion may be exercised upon a favourable decision. The question of the exercise of discretion requires a further consideration of DCR 6R 54 whilst bearing in mind the decision of the High Court in Aon Risk Services Australia Ltd v Australian National University as well as the decision of the Full Court of the Supreme Court of South Australia in Channel Seven Adelaide Pty Ltd v Manock. It is worthwhile noting again that the decision in Manock was an appeal by leave from a decision given by Sulan J on appeal from an interlocutory decision of a District Court Judge. The Full Court of the Supreme Court of South Australia was not unanimous in its decision. In that case, the majority Judgment was delivered by Bleby J with whom White J agreed. Bleby J adopted the description of the factual position as was recorded by Sulan J and the majority dismissed the appeal. Gray J, in dissent, found that upon the same factual circumstances, a different view can and should be taken and his Honour would have allowed the appeal from the decision of Sulan J.[32]
(footnotes omitted)
[31] [2014] SADC 111.
[32] Ibid, at [153].
However, the Master failed to take account the very next paragraph, where the Court said:
It must also be recalled that Aon is not a “one size fits all” decision. It is peculiar in a number of respects: the delay between the amendment application and the decision of the judge as first instance; the very significant changes of approach of the plaintiffs after the earlier settlement with other parties to the proceedings and the obvious unfairness to be visited upon the appellant upon the allowing of the amendment application (and the appeal). And Aon will not be applied if there is sufficient time to deal with the consequences of amendment before the hearing. Similarly, in my view, where the combination of factual circumstances discloses a need or intention of both parties to the issue to amend their pleadings in the time available, both being under the same time constraints and both having had some eight months or so to consider their position then different considerations may well arise.[33]
(footnotes omitted)
[33] Ibid, at [154].
The Master makes no attempt to reconcile this statement with the view that she has expressed. She appears to have adopted the “one size fits all” approach warned against by Slattery DCJ.
In my view, the Master erred, not only in her statement of the principle to be applied, but in her application of it. Given that no trial was imminent, there was no reason why leave should not be granted to the appellant to amend its defence.
Ground 4 is made out.
Ground 5 – The learned Master erred in the finding in the absence of evidence that if the proposed amendments were allowed, it is likely there would be a request for further and better particulars, further applications and arguments and appeals and further directions hearings (Reasons 135)
At [135], the Master says:
As a result of the application, the trial date has been vacated. Further, if I were to allow the proposed amendments, it is likely that there would be requests for further and better particulars, further applications and arguments and appeals and further directions hearings.
As I have already discussed, this paragraph commences with a premise that is clearly incorrect. It concludes with a statement for which no evidence is available, and which fails to distinguish between the liability amendments and the search and inquiry amendments. It is conceivable that, if the search and inquiry amendments had been allowed, further investigation may be required by the respondent; however, there is nothing to support a similar conclusion in respect of the liability amendments. Mr Manetta on behalf of the respondent put to me that there was no need for evidence on the likelihood of further applications, arguments and appeals, as the court could simply take these matters into account based on general experience. This submission cannot be accepted. In the absence of evidence from the respondent’s solicitor that a request for further particulars would be required, or that further applications would be brought by him as a result of the amendments, these are not matters which could simply be assumed. Not all amendments lead to applications, arguments and appeals. The Master erred in making this assumption in the absence of evidence.
Ground 5 is made out.
Ground 6 – The learned Master erred in assessing the effects of delay occasioned by an amendment, without considering the delay already occasioned because the matter is not listed for trial
Once it is accepted that the amendment application was not the cause of the request to vacate the trial date, it is difficult to understand what delay was caused by it. The injury to the respondent occurred in July 2013; he issued proceedings three years later, and within one week of the expiry of the limitation period. Further time was then required to allow his injuries to stabilise. The respondent formulated his claim for the first time in April 2019, nearly six years after the injury occurred. This claim has been beset by delay, albeit delay about which complaint should not and cannot be made. In that context, the delay between formulation and the appellant’s putting the respondent on notice, in considerable detail, of the substance of the proposed amendments is short, as is the delay in bringing the application to amend. While the appellant could, and perhaps should have brought its application to amend in the timeframe postulated by it, that is within three weeks of the listing conference, it is difficult to see what prejudice has been caused by the application itself. Indeed, the majority of the delay in this regard is the time that was taken between the conclusion of the argument on 26 May 2020, and the delivery of reasons some 13 months later.
In my view, the Master failed to assess the delay occasioned directly by the amendment, and the effect of that delay on the orderly progress of the action. She appeared to consider all of the delay, however caused, since the injury occurred, and take it into consideration in this context.
Ground 6 is made out.
Ground 7 – The learned Master erred in finding that the plaintiff will have to undertake further investigations in circumstances where the evidence likely to be led of and incidental to the denial of the claim is the same as would likely be led in respect of any claim for contributory negligence (Reasons 145)
At [145], the Master says:
It follows that if the amendments are allowed, the plaintiff will have to undertake significant further investigations and will, in all likelihood, have to amend his pleadings or file a reply.
In making this finding, I am of the view that the Master conflated the search and inquiry amendments and the liability amendments. It is conceivable that the search and inquiry amendments may lead to further investigations, possibly significant ones. There is no evidence that the liability amendments would do so. On his own case, and given the appellant’s blanket denial of the allegations made in the statement of claim, the respondent is required to recall, in detail, the events leading up to and surrounding his injury. The liability amendments require him to do no more than this.
Ground 7 is made out.
Ground 8 – The learned Master erred in finding in the absence of evidence that the plaintiff will be prejudiced by the passage of time in his recollection of events (Reasons 146, 148)
The Master says:
The plea comes at such a late stage in the process that the plaintiff will be prejudiced by the passage of time in his recollection of events.
…
But it is a matter of judicial notice that the longer the proceedings take, the less clear the recollections of the plaintiff and the witnesses will be of the incident.[34]
(footnotes omitted)
[34] Reasons, [146] – [148].
There is no doubt that the passage of time may have an effect on the memory of parties and witnesses. Taking this factor into account in the way that the Master has, however, conflates the general delay in the progress of the action, with the specific delay caused by the amendment application. In the context of the action as a whole, the delay that can be solely attributed to the amendment application (save for the time between the conclusion of the argument and the delivery of reasons, over which the parties had no control) is small. The Master erred in finding that the memory of the respondent and his witnesses would be prejudiced as a result of the delay caused by the amendment application.
Ground 8 is made out.
Ground 9 – The learned Master erred in finding delay in providing notice of the proposed amendment
The Master said:
There has been very little, if any explanation as to the reason for the delay in seeking to bring the application.
The defence had been filed for more than two and a half years when the application was brought and the defendant’s current solicitors had been on the court record for fourteen months when the issue of amending the defence was raised.
Indeed, the first time that an application to amend was raised with the plaintiff was in the week prior to the listing conference. The proposed amendments were not put to plaintiff until several months after the matter had been set for trial. Counsel had been briefed in May 2019, some three months prior to the listing conference.
No adequate explanation was provided as to why the issue of amendment was not raised at an earlier stage.[35]
[35] Reasons, [137] – [140].
In my view, Ground 9 is not made out. On 12 August 2019, the day before the listing conference, the appellant provided a letter to the respondent, which set out in detail the nature of the proposed amendments. The following day, at the listing conference, the appellant offered to provide the proposed amended defence within 21 days. This was confirmed by way of letter later the same day. The proposed amended defence was not sent to the respondent for a further two months. The delay between the listing conference and the provision of the amended defence has never been explained. There was clear delay in this regard.
Ground 10 – The learned Master erred in failing to have any, or any proper regard to any or the prejudice that may be suffered by the defendant if the amendments were not allowed

I am of the view that this ground is made out. The Master does not give consideration to the prejudice to the appellant if the amendments are not allowed. She finds, at [132], that the liability amendments raise defences that are arguable and tenable. She considers the prejudice to the respondent if the amendments are allowed. In failing to consider the prejudice to the appellant if they are not allowed, she has failed to take into account a relevant consideration.
Ground 11 – The learned Master erred in not taking into account the interests of justice in determining all of the issues at trial
At no time does the Master appear to consider the interests of justice. Having found that the liability amendments raised tenable defences, it was incumbent on her to consider where the interests of justice lay, in determining whether to allow the amendments.
Ground 11 is made out.
Ground 12 – The learned Master erred in finding that the granting of the proposed amendment in this case would in the circumstances, undermine confidence in the administration of civil justice
In my view, the Master erred in finding that public confidence in the administration of justice would be undermined if the amendments were allowed. The circumstances in Aon were very different to those in this case. So too, the circumstances in Capitanio. In each case, not only had the trial been listed, it had commenced. Indeed, in Capitanio, the plaintiff had closed its case before the defendant sought to amend her defence. While I accept that Aon sets out general principles, which were appropriately applied in Capitanio, it must be remembered that they are principles only, not immutable rules. They must be tested against the factual situation pertaining to the case in question, to determine if they should be applied. In my view, the Master failed to do this.
The Master’s errors in respect of her findings about delay, and her conflation of the general delay since the injury with the delay caused specifically by the amendment application have led to the misapplication of the Aon principles.
Ground 13 – The learned Master exercised her discretion in a wholly unreasonable way
In my view, this ground has been made. Having found that the liability amendments raised tenable defences, it was unreasonable not to allow the amendments to be made where the matter was not listed for trial. While a significant period of time had passed since the injury was sustained, any avoidable delay in the progress of the action was minimal. While the appellant could have brought the application to amend sooner than six months after the date of the respondent’s first formulation, I do not consider that period of time is unreasonable, given that the respondent was on notice by at least 12 August 2019 (or four months after receipt of the formulation) of the nature and detail of the amendments proposed by the appellant. On the appellant’s case, the respondent had, in fact, been on notice of the broad nature of its case since 2015; while I note that the respondent has not denied that this is the case, I make no findings in this regard.
More than eight years have now passed since the respondent sustained the injuries which are the subject of this action. The respondent did not issue proceedings for the first three of those years. Little occurred to progress the action in the following three years as further time was required to allow the respondent’s injuries to stabilise. Reasonable steps were taken by the parties to ready this matter for trial in the six months following that. For the balance of the period, thirteen months was spent awaiting the delivery of the reasons to which this appeal relates. The amount time that constituted avoidable delay as a result of the amendment application is minimal.
The Master’s focus on the question of delay caused her to overlook the prejudice that the appellant would suffer if the amendments were not allowed. She acknowledged that the amendments would introduce defences that were tenable and arguable. If made out, they would afford the appellant a complete or partial defence to the claim made. Consequently, the appellant would suffer a serious prejudice if it was not allowed to rely on those defences. The only prejudice to the respondent which was identified by the Master was the effect of the lapse of time on his memory of the events. While there is no doubt that memories become weaker as time passes, the majority of any delay between the date of the injury and any trial has not been caused by the appellant. Thus, it should not be penalised on this basis.
The appeal is allowed. The appellant has leave to amend its defence to include the liability amendments.