HUGHES & ANOR v THE STATE OF SOUTH AUSTRALIA [2026] SASC 66

First Applicant: THOMAS BRENDAN HUGHES In Person Second Applicant: TAMARA JOY CAMPBELL In Person Respondent: THE STATE OF SOUTH AUSTRALIA Counsel: MR T SIMPSON - Solicitor: CROWN SOLICITOR (SA) Hearing Date/s: 27/11/2025 File No/s: CIV-20-002937 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. HUGHES & ANOR v THE STATE OF SOUTH AUSTRALIA [2026] SASC 66 Decision of the Honourable Justice McIntyre 8 May 2026 PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS In August 2020 the applicants commenced proceedings in the Supreme Court of South Australia seeking damages for an alleged campaign of harassment and intimidation by South Australia Police. The ill-treatment is alleged to have commenced in May 2016, when the applicants were arrested and charged with major indictable offences of violence. The applicants were acquitted of those charges following a jury trial in the District Court of South Australia in August 2017. It is alleged that the applicants have since been subject to surveillance and harassment by South Australia Police, causing them physical and emotional harm. The matter has proceeded through a lengthy interlocutory process. On numerous occasions, the applicants failed to comply with time limits set by the Court for filing material in support of the Claim. In March 2025, the matter was set down for a four-week trial to commence in March 2026 and a timetable for trial preparation was set. In November 2025, it became apparent that the applicants had not complied with that timetable and that the matter would not be ready for the listed trial date. The trial listing was vacated. The respondent subsequently filed an application seeking judgment dismissing the applicants’ action pursuant to rr 146.1 and 194.1 of the Uniform Civil Rules 2020 (SA), together with an order that the applicants pay the respondent’s costs of the action. It is contended that the applicants have committed persistent breaches of Court orders which seriously prejudice the proper and expeditious conduct of the action. Further, it is said that the applicants’ conduct manifests an inability or unwillingness to prosecute the action with due diligence. -- 1 of 15 -- Held, granting the application: 1. Action dismissed. 2. The applicants are to pay the respondent’s costs on a standard costs basis. Uniform Civil Rules 2020 (SA) rr 1.5, 3, 3.2, 12.2, 146.1, 194.1, referred to. VRS Pty Ltd v Buttigieg & Ors [2020] SASC 200; Groom v State of SA [2017] SASCFC 35; Testel Australia Pty Ltd v KRG Electrics Pty Ltd & Anor [2013] SASC 91; AON Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161; Channel Seven Adelaide Pty Ltd v Manock [2010] SASFC 59; PPG Development Pty Ltd v Capitano (2016) 126 SASR 307, considered. -- 2 of 15 -- HUGHES & ANOR v THE STATE OF SOUTH AUSTRALIA [2026] SASC 66 Civil: Application McIntyre J. 1 The respondent filed an interlocutory application on 13 November 20251 seeking judgment dismissing the applicants’ action (‘the action’) pursuant to rr 146.1 and 194.1 of the Uniform Civil Rules 2020 (SA) (‘UCR’) and an order that the applicants pay the respondent’s costs of the action. 2 The application is brought on two bases. First, that the applicants have committed persistent breaches of orders of the Court which it is contended seriously prejudice the proper and expeditious conduct of the action and second, it is said that, by their conduct of the proceedings, the applicants have manifested an inability or unwillingness to prosecute the action with due diligence. 3 For the reasons that follow, I grant judgment dismissing the action and, in addition to the costs orders already made in favour of the respondent, I order that the applicants pay the respondent’s costs of the action on a standard costs basis. Background 4 There is some controversy about the date on which the applicants filed their Claim (‘the Claim’). The applicants say that they filed the Claim on 6 August 2020 whereas the Court record indicates that the proceedings commenced in this Court on 27 August 2020.2 The Claim states that both applicants were charged in May 2016 with aggravated serious criminal trespass, aggravated assault and aggravated threats to kill and theft. They were both acquitted on 7 August 2017 following a jury trial in the District Court of South Australia. In addition to issues raised about their arrest, bail issues and the investigation generally it is alleged that, following the acquittal, both have been subject to “ongoing surveillance and harassment” by SA Police. 5 The applicants sought damages for: ….an ongoing campaign of unwarranted harassment and intimidation by the South Australian Police that has caused and continues to cause harm, mental damage, fear, and emotional and physical distress to both Applicants. 6 The legal basis of the Claim was said to be as follows:3 1. The continued intentional and or negligent infliction of emotional, physical and mental distress and harm. 1 FDN 116. 2 FDN 1. 3 FDN 1. -- 3 of 15 -- [2026] SASC 66 McIntyre J 2 2. The continued intentional and or negligent infliction of the fear of further emotional, physical and mental harm and distress amounting to assault. 3. These actions have caused injury including the loss of our unborn child, mental anguish, mental distress, depression, anxiety and long term mental damage and fear that has been growing worse with the continuation of unwarranted police attention and harassment over the past 4 or more years 7 On 14 September 2020, the applicants filed an urgent interlocutory application seeking an injunction. That application was heard on 4 January 2021 and 4 February 2021. The application was dismissed by Bochner SCM (as she then was) on 6 April 2021.4 8 The matter then proceeded through a lengthy interlocutory process during the course of which the applicants have filed one Claim revision5 and four revisions of the Statement of Claim, the most recent of which (Revision 4) was filed on 7 October 2022.6 Associated with these documents were failures to comply with various time limits set by the Court for filing.7 9 The respondent filed a Defence on 3 September 20218 and the applicants filed a reply on 23 September 2021.9 The respondent filed an amended Defence10 on 7 February 2023 in answer to the applicant’s Statement of Claim, Revision 4. 10 During the course of this matter the applicants have failed to comply with a number of procedural requirements. These are: • Failure to comply with their obligations to make discovery and produce documents within the time required by the UCR and subsequently extended by the Court. The time for compliance was extended on a number of occasions, specifically 7 October 2021,11 4 April 2023,12 6 June 2023,13 17 November 2023,14 31 January 202415 and 25 March 2024.16 4 Hughes & Anor v State of South Australia (Supreme Court of South Australia, Bocher SCM, 6 April 2021). 5 FDN 32. 6 FDN 39. 7 FDN 31; FDN 35; FDN 38. 8 FDN 17. 9 FDN 18. 10 FDN 44. 11 FDN 20. 12 FDN 52. 13 FDN 58. 14 FDN 76. 15 FDN 80. 16 FDN 86. -- 4 of 15 -- [2026] SASC 66 McIntyre J 3 • Failure to file an application seeking leave to issue subpoenas within the time required by the Court. The order was made on 2 December 202117 and extended on 17 January 2022.18 • Failure to inspect documents discovered by the respondent within the time required by the Court. Orders were made on 17 November 202319 and extended on 31 January 2024.20 • Failure to file affidavits of personal injury particulars within the time required by the UCR and as extended by the Court. Time was first extended on 25 March 2024.21 Subsequent extensions of time were granted on 24 April 2024,22 22 May 2024,23 7 June 2024,24 28 June 2024,25 28 January 2025,26 21 March 202527 and 6 May 2025.28 The affidavits were filed on 9 May 2025 but represented bare compliance with the UCR.29 Mr Hughes’ affidavit for example, indicated symptoms of a number of physical and mental conditions but did not disclose any treatment or treating medical practitioners. The applicants indicated an intention to file amended affidavits of personal injury particulars but have not taken any steps to do so. • Failure to file lists of witnesses and evidence upon which they intend to rely at trial within the time required by the Court. Orders were first made on 21 March 202530 and extended on 25 July 2025.31 The applicants are still in default. • Failure to file any expert evidence upon which they intend to rely at trial within the time required by the Court. The first order was made on 21 March 202532 and extended on 25 July 2025.33 Despite the pleadings, which suggest that medical evidence will be necessary to establish aspects of their claims, the applicants appear to have taken no steps to obtain such evidence nor to seek further extensions of time within which to obtain and serve such evidence. 17 FDN 24. 18 FDN 25. 19 FDN 76. 20 FDN 80. 21 FDN 86. 22 FDN 87. 23 FDN 90. 24 FDN 91. 25 FDN 92. 26 FDN 96. 27 FDN 99. 28 FDN 102. 29 FDN 103; FDN 104. 30 FDN 99. 31 FDN 112. 32 FDN 99. 33 FDN 112. -- 5 of 15 -- [2026] SASC 66 McIntyre J 4 • Failure to file an application to waive trial fees within the time required by the Court. Time was extended on 7 May 2025. 11 The applicants have been ordered to pay the respondent’s costs of various interlocutory applications and hearings. These are costs of, and incidental to, FDN 26 ordered on 15 March 2022;34 costs of attendance on 7 September 2022;35 costs of, and incidental to, FDN 59 and FDN 65 ordered on 22 August 202336 and costs of attendance on 10 July 2025.37 12 The applicants have indicated that they intend to pursue a number of procedural matters, including seeking to file a further revised Claim and revised affidavits of personal injury particulars. They have not filed any applications in the form required by the Court.38 13 There have been 32 hearings in this matter, excluding the hearings associated with a judicial mediation. 14 On 21 March 2025, in an effort to progress the action, the Court listed the matter for trial commencing on 2 March 2026 with four weeks set aside. A timetable for trial preparation was set (‘the timetable’). At the hearing of the respondent’s application on 27 November 2025, it became apparent that the applicants had not complied with the timetable, and that the matter was not ready for trial and was unlikely to be ready by 2 March 2026. In those circumstances, I vacated the trial on the basis that the four weeks set aside could be used by other litigants. Uniform Civil Rules 2020 (SA) 15 The UCR govern the procedure in this matter. The object of the UCR is set out in UCR r 1.5 which provides as follows: The object of these Rules is to facilitate the just, efficient, timely, cost-effective and proportionate resolution or determination of the issues in proceedings governed by these Rules. 16 The Court in making orders ought to have regard to the object of the rules39 and the overarching obligations of the parties as set out in UCR r 3: 3.1—Overarching obligations (1) A party or a person appearing or required to appear before the Court must in relation to a proceeding or an appellate proceeding— 34 FDN 29. 35 FDN 38. 36 FDN 68. 37 FDN 111. 38 Application and supporting affidavit filed on 3 July 2025 (FDN 109 and FDN 110); Hearing on 25 July 2025 (FDN 112). 39 Uniform Civil Rules 2020 (SA) r 12.2 (‘UCR’). -- 6 of 15 -- [2026] SASC 66 McIntyre J 5 (a) act honestly; (b) not engage in misleading conduct; (c) not take a step that is frivolous, vexatious or an abuse of process; (d) not make an assertion or response to an assertion for which they do not, on the material available at the time, have a proper basis; (e) not take a step unless they reasonably believe that it is necessary to facilitate the resolution or determination of the proceeding; (f) cooperate with the other parties and with the Court in relation to the conduct of the proceeding; (g) use reasonable endeavours to resolve, or alternatively narrow the scope of, a dispute in or the subject of the proceeding by agreement; (h) use reasonable endeavours to ensure that the time and costs incurred are reasonable and proportionate to— (i) the importance and value of the subject matter of the proceeding or step in the proceeding; and (ii) the complexity of the issues in the proceeding or step in the proceeding; (i) comply with these Rules and orders made by the Court; (j) be prepared for and ready to proceed with a hearing, directions hearing or trial at the appointed time; and (k) use reasonable endeavours to act promptly and minimise delay. (2) A lawyer acting or appearing for a party, or a person exercising subrogated rights (including an insurer or indemnifier) in respect of, or who is otherwise entitled to exercise control or influence over, a party (by reason of providing litigation funding or otherwise), must, in relation to a proceeding or an appellate proceeding— (a) act in accordance with subrule (1); and (b) not engage in conduct that causes or permits that party to act contrary to subrule (1). 17 Accordingly, the parties are required to comply with rules and orders of the Court and to use reasonable endeavours to act promptly and minimise delay. The Court may make such orders as it thinks fit in the interests of justice by reason of a failure by a person to comply with overarching obligations.40 18 UCR r 146.1 deals with default judgment and provides as follows: 40 UCR r 3.2(2). -- 7 of 15 -- [2026] SASC 66 McIntyre J 6 146.1—Judgment in default of compliance (1) If a party— (a) commits serious or persistent breaches of these Rules or an order of the Court which seriously prejudice the proper and expeditious conduct of an action; (b) fails to file a substitute originating process, pleading or affidavit within the time specified by the terms of leave granted under rule 70.3, 85.1 or 87.1; or (c) manifests an inability or unwillingness to prosecute or defend an action with due diligence, another party may apply for default judgment against that party. (2) An application for default judgment must be made by filing an interlocutory application and supporting affidavit in accordance with rule 102.1. (3) If the party in default is an applicant in an action, the Court may— (a) stay the action until the non-compliance is rectified; (b) grant judgment dismissing the action; (c) list the matter for an early trial or hearing; or (d) make any other or further order as it thinks fit. (4) If the party in default is a respondent or an interested party in an action, the Court may— (a) grant judgment in favour of the applicant for some or all of the relief sought; (b) grant judgment in favour of the applicant for damages or relief to be assessed; (c) order that an interested party be removed as a party to the action; (d) list the matter for an early trial or hearing; or (e) make any other or further order as it thinks fit. Respondent’s contentions 19 UCR r 146.1(1) contains three limbs. The Court’s discretion to enter default judgment is enlivened if any one of the limbs is satisfied. The respondent contends that limbs (a) and (c) have been satisfied in that the applicants have: • committed persistent breaches of the UCR and Court orders, which have seriously prejudiced the proper and expeditious conduct of the action; and • manifested an inability or unwillingness to prosecute their action with due diligence. -- 8 of 15 -- [2026] SASC 66 McIntyre J 7 20 The respondent contends that the discretion to dismiss the action has been enlivened and that the discretion ought to be exercised in the interests of justice, having regard to the objects of the UCR, the competing interests of the parties and the finite resources of the Court. In particular, the respondent relies on the fact that the various timetables set by the Court have included consultation with the applicants. The applicants have been invited to propose time frames within which various necessary steps will be completed. They have agreed to the time frames but, notwithstanding this agreement and the Court orders made in conformity with that agreement, they have regularly failed to comply with various orders. The applicants have never sought an extension of time prior to the expiration of the time period. The respondent pointed to the fact that there were two obligations outstanding as at the date of the argument: the obligation to file a list of witnesses and evidence to be relied upon at trial, despite the respondent filing lists that identified 59 witnesses who might be required at trial depending on the applicants’ position. 21 The respondent says that preparation for this trial will be a very significant undertaking and that the applicants’ ongoing and repeated non-compliance with the UCR and Court orders has increased the already significant demands on the Court’s time and the respondent’s resources. The respondent contends that the applicants' ongoing and repeated non-compliance with rules and orders, following regular court attendances in an attempt to move this matter forward, demonstrates that the applicants are not engaging with the court process in a diligent way. The respondent says that the applicants’ conduct of the action results in the undermining of public confidence in the judicial system to provide efficient justice and unfairly weighs on the Court's and the respondent's resources. In those circumstances it is said that the Court ought, in the exercise of its discretion, to grant the respondent’s application. Applicants’ contentions 22 The applicants did not file a summary of argument but rather filed an interlocutory application dated 24 November 202541 seeking to dismiss the respondent’s application for summary judgment and to dismiss the respondent’s Defence. I determined to treat the interlocutory application as their written submissions in response to the respondent’s application. I adjourned argument on the application to dismiss the Defence until this ruling, as default judgment dismissing the action would render the application to dismiss the Defence unnecessary. 23 The matters set out in the interlocutory application and supporting affidavit42 do not greatly assist in the consideration of the applicants’ opposition to the respondent’s application for default judgment. When the respondent’s application was listed for argument, the applicants were provided with copies of the relevant UCR and a decision of Dart DCJ (as he then was) in VRS Pty Ltd v Buttigieg & 41 FDN 120. 42 FDN 121. -- 9 of 15 -- [2026] SASC 66 McIntyre J 8 Ors43 (‘Buttigieg’) where his Honour set out the relevant considerations on an application of this type. Neither the UCR nor those considerations were addressed in the material filed by the applicants. Instead, the material addresses the issue of the application to strike out the Defence and other matters unrelated to the respondent’s application, such as allegations of improper conduct on the part of the Police, issues whilst on an overseas holiday to Fiji in 2019 and a further airing of the applicants’ complaints about various procedural matters. 24 The submissions cite a number of authorities under the heading “Fraud Vitiates Judicial Acts”. The relevance of these to the applicants’ opposition to the respondent’s application is not explained nor is it readily apparent. 25 In addition, both applicants made oral submissions the hearing. Mr Hughes said that the foundation of the action was their unanimous not guilty acquittal in the District Court following a jury trial in August 2017. He referred to difficulties that they have faced subsequently as a result of actions taken by the police, none of which were relevant to the application before the Court. When directed to the issues that were of relevance, Mr Hughes contended that as self-represented litigants, he and Ms Campbell have received no assistance from the Courts. He accepted that they had breached orders but claimed that this was due to the “sideshow that has been going on with the service and the initial document” and because of issues with the transcript of various hearings.44 This focus on issues of concern to them but of limited relevance to the issue at hand, was typical of the applicants’ submissions at directions hearings. At the conclusion of Mr Hughes’ submissions I asked him as follows: Q Can I just summarise what you've said to me, so that I'm sure I've understood what you've put and then I'll see if Ms Campbell wants to add anything. A Yes. Q So what you've said to me is that you've brought a number of issues up repeatedly trying to get things fixed. That it's been difficult because you're self-represented. You've raised the issue about your initial application, statement of claim and service of that document, transcript issues. You've made the point that the Respondent has also not been as diligent as they could have been, particularly in relation to filing the defence and then the defence to the amended statement of claim. You've – A Not to mention one of the documents - sorry, sorry about that Q And you've referred to the issues that you had with the lawyers who were going to represent you after your acquittal in 2017, and the fact you've had no choice but to represent yourselves. You've referred to being singled out to the police for attention on some unfounded charges and you've said that, you accept that you've not complied with all the orders that have been made in this, but that's because of these other issues that you've referred to. Is that a fair summary of what you're putting to me? 43 [2020] SASC 200 (‘Buttigieg’). 44 T14–15. -- 10 of 15 -- [2026] SASC 66 McIntyre J 9 26 Mr Hughes agreed that this was a fair summary but added some additional submissions about the foundation of this matter being based on dishonesty45 which I took to be a reference to the original criminal charges. He said that they did not have any “human rights” and that he and his partner were being “walked over”. We then had the following exchange: Q Mr Hughes, what I want to put to you squarely is what the Crown is saying is that there's been five years of this litigation and we haven't really advanced at all. And in part I accept what you say about delays in filing of defences, but certainly since I've been managing the matter there have been a number of delays because you and Ms Campbell have not complied with orders that I've made for you to file certain documents. A Well we feel like we're getting shafted the whole time, because we are. Q Okay. But that's the basis upon which I'm being - it's been submitted that I ought to dismiss your claim under the rules. Do you want to say anything more about that? A Yeah, I don't think you should dismiss the matter. 27 With Mr Hughes having completed his oral submissions, Ms Campbell was invited to address the Court. She referred to the pressure that she and Mr Hughes were under as self-represented litigants. She reiterated the complaints about transcript errors and past procedural matters but was not able to indicate why these issues prevented them from complying with the UCR or the trial timetable. 28 There was also a suggestion from the applicants that the court record was inaccurate, or to use Mr Hughes’ term “corrupted”, and could not be relied upon. When asked to clarify this submission it is true to say that they were unable to do so.46 I reject the submission that the Court record is in any way “corrupted” or inaccurate. Discussion 29 The applicants have a sense of grievance about a range of matters and in particular the fact that they were charged with offences which were found not proven after a jury trial. No doubt this was a distressing experience. 30 The applicant’s issued proceedings in this Court in 2020 seeking redress, alleging a number of causes of action arising from, and commencing with, their arrest and subsequent involvement in the justice system, the prosecution and acquittal. As Nicholson J (with whom Kourakis CJ and Hinton J agreed) observed in Groom v State of SA47 (‘Groom’), dismissing an appeal against summary 45 T16. 46 T21-22. 47 [2017] SASCFC 35. -- 11 of 15 -- [2026] SASC 66 McIntyre J 10 judgment awarded on the basis that the appellant’s Statement of Claim disclosed no reasonable basis for any of the claims alleged by the appellant:48 On the present state of the authorities, and as a general rule, neither SAPOL nor the DPP owe a citizen a duty of care in respect of prosecutorial or investigative functions. The appellant has not pleaded any facts which would serve to distinguish, in any material way, his situation from this general position. [Citations omitted] 31 In this case, the pleadings are adequate but at this point they are simply allegations. They require proof. It is not enough to reference the fact of the acquittals. As the applicants have been informed on a number of occasions, absent a settlement, the only way to establish their claims is by calling evidence at a trial. Accordingly, the Court has repeatedly attempted to expedite the action towards a trial. 32 I accept that compliance with the UCR is difficult for self-represented litigants. I do not wish to understate the pressure that the applicants have felt in conducting this litigation. It is apparent from the way they have conducted themselves during the various directions hearings. I do not however accept that the applicants have not been provided with any assistance. In addition to referring the applicants for legal advice and assistance, various Judicial officers have attempted to explain what the applicants were required to do in order to progress their claims. They have not been receptive. They have, moreover, been given numerous extensions of time within which to comply with the UCR and various orders. Notwithstanding this, the applicants have been unwilling or unable to accept the need to prove their case or to deal with the substantive aspects of their action. Since they issued the action, they have failed, in any material way, to advance their claims despite numerous directions hearings, Court orders and a trial listing. They have persistently failed to comply with interlocutory orders to prepare the matter for trial to the extent that the trial had to be adjourned. This has seriously prejudiced the proper conduct of the action. In those circumstances, UCR rr 146.1(1)(a) and (c) apply. There is no satisfactory explanation for these failures. Accordingly, the discretion in UCR r 146.1(3) is enlivened. 33 The respondent asks the Court to exercise its discretion to grant judgment dismissing the action under UCR r 146.1(3)(b). It is said that the Court has already listed the matter for an early trial and that, in over five years case management of this matter, the Court has extended time for compliance with the UCR and Court orders, and the applicants have been either unable or unwilling to progress their claim. Accordingly, it is contended that the preferable course is to grant judgment dismissing the action. In support of that contention, the respondent referred to a number of helpful authorities: Davenport Community Council Incorporated & Ors 48 Ibid at [36]. -- 12 of 15 -- [2026] SASC 66 McIntyre J 11 v Aboriginal Lands Trust & Ors;49 Buttigieg;50 Testel Australia Pty Ltd v KRG Electrics Pty Ltd & Anor51 (‘Testel’); and AON Risk Services Australia Ltd v Australian National University (‘AON’).52 34 In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,53 S Doyle J (as he then was) considered the context of the UCR, and noted their effect stating:54 … it seems to me that the Uniform Civil Rules have been drafted in terms which seek to afford particular prominence and significance to both the objects of the rules, and the complementary obligations upon parties and their lawyers. They seek to encourage and empower the Court (and the parties) to construe and apply the rules in a practical and robust manner designed to promote the just, efficient, timely, cost-effective and proportionate resolution or determination of civil proceedings. Whilst the interests of justice remain paramount, what this requires in the context of modern litigation must be informed by the increasing concerns associated with the complexity, delay and expense associated with civil proceedings. 35 The High Court considered these issues in the context of a late application to amend pleadings in Aon. Aon was considered and applied by the Full Court of the Supreme Court of South Australia in Channel Seven Adelaide Pty Ltd v Manock55 and in PPG Development Pty Ltd v Capitano where the Aon principles were restated by S Doyle J (as he then was) in relation to an application to amend pleadings as follows:56 • 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. 49 [2024] SASC (unreported, 31 January 2024, Master Dart). 50 Buttigieg (n 44). 51 [2013] SASC 91 at [11]-[16]; [27]; [29] (Blue J). 52 (2009) 239 CLR 175 at [30] (French CJ); [98]-[99]; [111]-[115] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). 53 [2020] SASC 161. 54 Ibid at [46]. 55 [2010] SASCFC 59. 56 (2016) 126 SASR 307 at [39]. -- 13 of 15 -- [2026] SASC 66 McIntyre J 12 • 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. 36 Whilst this is not an application to amend pleadings, these cases make it plain that in applying the UCR, there is a balance to be struck between the interests of parties to pursue their case as they wish, public confidence in the administration of justice and the efficient management of court resources for the benefit of all litigants. 37 In Buttigieg, Dart DCJ (as he then was) considered Testel and AON, in the context of the Court’s discretion to exercise the power conferred by UCR r 146:57 What is apparent is that the power given by rule 146 should be exercised cautiously and only as a last resort. The AON case shows that, in exercising discretions in relation to the conduct of proceedings, the Court should have regard to broader considerations than merely the respective interests of the parties to the litigation. The purposes of rule 146.1 might be described as allowing the Court: 1. To protect the integrity of its processes; 2. To do justice between the parties; 3. To maintain public confidence in the judicial system; and 4. To ensure the efficient use of publicly funded resources. 38 As in Buttigieg, all four considerations apply to the exercise of the discretion in the present case. 39 The applicants have been afforded significant opportunities to progress their action. The action was given an early trial date in order to expedite the applicants’ claim but the applicants have not done what they are required to do in order to progress the matter expeditiously and efficiently towards that trial. There has been persistent non-compliance with orders and the timetable. The applicants repeatedly raise the same grievances such as asserted inaccuracies in transcripts and records of outcome. Despite having been informed of the procedural steps available to them to address those grievances, they have not taken those procedural steps. Instead, they have come to multiple directions hearings raising the same issues whilst failing to prosecute the substantive action. Of particular concern, is the failure to acknowledge or address the apparent evidentiary gaps in their case, such as the need to identify the witnesses they wish to rely on or to obtain medical and psychological evidence. 57 Buttigieg (n 44) at [19]. -- 14 of 15 -- [2026] SASC 66 McIntyre J 13 40 Notwithstanding numerous directions hearings and extensions of time afforded to them, the applicants have not complied with their obligations under the UCR and have not complied with orders of the Court made in consultation with them with the aim of preparing their claim for trial. This has necessitated the adjournment of the trial. The lack of progress in this matter brings the issue of maintaining public confidence in the judicial system and the efficient use of publicly funded resources into sharp focus. This matter cannot continue as it has. Conclusion & orders 41 I note, and agree with, Dart DCJ’s observations in Buttigieg that:58 In considering what orders to make pursuant to rule 146, the Court should do the minimum necessary to rectify the prejudice caused by the failure of the respondents to comply with orders of the Court. 42 In this case, the Court has already attempted to progress the matter by listing it for early trial59 despite the applicants’ defaults. I am not satisfied that it is appropriate to stay the action until the non-compliances are rectified;60 they are too numerous and too substantive. In substance, apart from filing the Statement of Claim, the applicants have done nothing to advance their Claim since it was filed in 2020 despite considerable latitude being given to them. Regrettably, I have concluded that the only proper course of action is to grant the respondent’s application and to dismiss the action. 43 There is no good reason in the circumstances to depart from the usual order that costs follow the event. In addition to the costs orders already made in favour of the respondent, I order that the applicants pay the respondent’s costs of the action on a standard costs basis. 58 Ibid at [22]. 59 UCR r 146.1(3)(c). 60 Ibid r 146.1(3)(a). -- 15 of 15 --