Subject to the question of further amendment and acknowledging the applicant's entitlement to particulars, we would not accede to ground 2.

In ground 3 the applicant contends that leave to amend should have been refused because the statement of claim is, in substance, the same as that in respect of which leave to amend was refused in November 1996.

We can deal with this ground succinctly. When leave to amend was sought before Owen J in November 1996 the plea of the Compromise Agreement did not include the words "directly to indirectly". In the sense that we have outlined above, this creates a different set of factual allegations.

On 11 November 1996 Owen J made programming orders so that the respondent's application for leave to amend the statement of claim could be dealt with in January 1997. One of these orders required the respondent to file a fresh minute of proposed amended statement of claim within 21 days. This did not happen. In fact, nothing of any substance occurred until August 1997. When the chamber summons was filed in September 1997 for leave to amend an extension of time within which to comply with the orders made by Owen J leave was not formally sought.

In his written outline of submissions counsel for the respondent contended that the failure to seek an extension of time was of no moment because it was a fresh application which the Court could and did entertain under O21. We would not wish it to be thought that we accept that submission. Programming orders can not be circumvented by the simple expedient of filing a fresh application. We also accept that where an extension of time is sought there should be an affidavit explaining the delay. However, it is quite apparent that the Master was alive to the temporal problem and treated the application as if it had included a request for an extension of time. The Master exercised his discretion by granting the extension. It is difficult to see how this, of itself, could amount to a substantial miscarriage of justice.

In the fourth ground of appeal the applicant contends that the Master erred in failing to take into account, sufficiently or at all, the prejudice that would be suffered by the applicant in allowing the respondent to amend in terms of the minute that had been filed.

It is true that this amendment is radical and extensive. The substance of it was advanced for the first time some nine years after the event, four years after the issue of the writ and at a time when the action had been listed for trial and when the allocation of hearing dates was imminent. It is true also that a further (unexplained) delay of about 10 months occurred before the amendment was finally dealt with. However, in the peculiar circumstances of this case, we do not think that the mere fact of delay can carry the day.

This action was commenced before the principles of case management were enshrined in the Rules. That is not to say that they have no application to a case of this kind. It must be said that neither party has shown any significant sense of urgency in getting this matter to trial. Steps were available to the applicant, if he felt that he was being substantially prejudiced by the delay, to bring the issue to a head. He did not take advantage of any such opportunity. If a party can demonstrate that there is a genuine cause of action that is at least arguable then, as a pleading matter, it should be allowed to have its day in court unless to do so would cause real and demonstrable prejudice to the other party. This is not an absolute principle and it has to be assessed on a case by case basis in accordance with what is in the interests of justice. Both sides made reference to passages in the judgments in Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 71 ALJR 294 to support their respective contentions that the amendment should or should not have been allowed. There are arguments both ways, as the list of relevant factors set out in the judgment of Kirby J (at 304 to 307) demonstrates.

In the end the issue is not whether the members of this Court might have reached a different conclusion. It is a question of whether the Master erred in the exercise of his discretion. The applicant points out that the cause of action accrued in February 1987 as the Compromise Agreement is said to have been breached from its inception. The consideration for the Compromise Agreement involves settlement of claims arising from events that occurred in 1985 and 1986. The events involve third parties. At least one of the players named in the statement of claim has since died and one of the companies has been placed in liquidation. In these circumstances the applicant submits that it is almost inevitable the evidence will have been lost or will prove difficult to obtain. This is one of the factors that Kirby J indicated could result in the refusal of leave to amend. On the other hand it must be said that the transactions alleged in paras 7 and 8 of the statement of claim involve the applicant or companies said to have been controlled by him. These transactions either did or did not occur and the applicant either did or did not take a part in them. If he did, the matters are within his knowledge. If he did not, he can say so. If there are difficulties in locating documents it will come out in the process of discovery and, perhaps, interrogatories. The applicant will not be prevented from raising issues of oppression, embarrassment and prejudice on particular occasions as the interlocutory processes unfold.

We return now to the form of the statement of claim. We have already expressed some concern at the way in which parts of the pleading have been drafted. It is perhaps unfortunate that these matters were not clarified and remedied at the time when leave was being sought. It will have to be done. We think that the most expeditious way of advancing this action towards trial is for us to dismiss the appeal but to indicate that in our view paras 7, 8 and 11 require amendment and that the applicant is entitled to particulars. The areas in which we see deficiencies in the pleading should be readily apparent from the reasons.

The Master ordered that the applicant pay the costs of the application. He gave no reasons for so doing. Costs are, of course, always within the discretion of the judicial officer concerned. However, the general rule is that where a party is seeking the indulgence of the court (and an amendment of this type falls into that category) that party will be required to pay the costs of the application including costs thrown away and will not normally receive the costs of the application.

It seems to us that if a judicial officer is to depart from the general rule he or she should explain to the party affected by it why the step has been taken. In this case the Master did not do so. He merely announced his conclusion on costs without giving any reason for so doing. That, in itself, is an appealable error. The next question is whether a miscarriage of justice has occurred.

It might be said to be implicit in the Master's reasons on the substance of the application that he felt that the applicant should have consented to the amendments and that this formed the basis of the ruling on costs. We understand that in the period between January and August 1997 some correspondence passed between the parties about the proposed amendments. When the minute was filed and served in August 1997 the solicitors for the applicant sought the advice of senior counsel. The application was opposed on the advice of counsel. There is annexed to the affidavit of Douglas Bishop sworn 28 November 1997 copies of the applicant's outline of submissions that were before the Master. They appear at pp54-60 of the Application Book. What is readily apparent is that at least some of the matters put to the Master in opposition to the application related to concerns that Owen J had raised in November 1996 about the form of the pleading and which had not been addressed in the fresh minute. Although the Master ruled that the minute was in order it can hardly be described as unreasonable for the applicant to require the respondent to justify the proposed amendment to the satisfaction of a judicial officer.

In our view, no good reason has been demonstrated why the respondent should have received the costs of the application. This amounts to a miscarriage of justice. We think the costs of the application should have been awarded to the applicant. Ground 6 has been made out.

We would grant leave to appeal. We would allow the appeal to the extent that the order that the applicant pay the costs of the application to the Master be set aside and that there be an order that the respondent pay the applicant's costs of the application in any event, those costs to be taxed or agreed. The order made by the Master that the respondent pay the costs thrown away will stand. Otherwise the appeal will be dismissed.

The matter should go back to a Master or Registrar for programming orders which will give effect to this decision and which will advance the action towards trial.