STEFANOVICH v CURRAN [1988] NSWCA 147

STEFANOVICH v CURRAN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, Hope and SAMUELS JJA 24 October 1988, 24 October 1988 [1988] NSWCA 147

LIMITATION OF ACTIONS — negligence — solicitors' negligence — counsel, allegedly uninstructed consent to an adjournment of a trial contrary to their client's instructions — after adjournment and, before relisting, the defendant to defamation proceedings dies — action abates — client sues solicitor more than 6 years after adjournment — less than 6 years after defendant's death — client alleges that time runs from the death of the defendant when damage occurred — Gallen DCJ enters judgment for solicitors on ground that cause of action in negligence was statute barred — on summons for leave to appeal — held: Leave to appeal refused — action statute barred — damage, if any, occurred at the time of the adjournment — Wiffen v Bailey and Romford Urban District Council [1915] 1 KB 600, 607 (CA) not followed. Hawkins v Clayton and Ors (1988) 62 ALJR 240, 260 and Doundoulakis v Antony Sdrinis and Co unreported FCV 1 July 1988; (1988) VJB TO followed. Limitation Act 1969, s14.

Kirby P The Court does not consider that this is an appropriate case in which to give leave to appeal.

Gallen DCJ did not produce full reasons for the judgment which his Honour entered. However the basic facts upon which we were invited to act were those upon which his Honour had been invited to act. The opponents did not contest the right of the claimant to invoke the jurisdiction of this Court if leave to appeal were granted. The Court has approached the summons for leave upon that basis.

The claimant alleges the tort of negligence as an alternative to negligent breach of contract against his former solicitors. His complaint is that those solicitors consented, contrary to their instructions, to an adjournment of the trial of a defamation action. That adjournment he alleges, caused him damage The damage alleged arises from the death of a party to the action after the adjournment and before the case could be relisted for hearing. The claimant contends that the adjournment resulted in the abatement of the cause of action against the deceased. It therefore deprived the claimant of the chance of recovery against that party in his lifetime.