In South Australia, applications to dismiss for want of prosecution are governed by the broader principles in Ulowski v Miller, not the narrow Birkett v James test requiring intentional and contumelious default or inordinate and inexcusable delay causing a substantial risk of unfair trial. The relevant factors include the length and explanation for delay, hardship to both parties, the defendant's conduct, whether the plaintiff is at fault, whether the defendant has suffered prejudice, and whether the delay has affected the administration of justice. Prejudice to the defendant is an important factor but not a prerequisite. A court order giving 'leave to submit' a proposed amended pleading to the opposing party is not an order requiring compliance; failure to take advantage of it cannot constitute disobedience or contumacy. Appeals from Masters under r 106.05 lie as of right without leave.
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