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. The adjournment was consented to on 3 August 1976. The statement of claim was issued out of the District Court on 30 September 1982. If time is to be calculated from the allegedly wrongful consent to the adjournment, the six year limitation period expired before the statement of claim was issued. See Limitation Act 1969, s14. There is no facility for an extension of time in a case such as this. However, the claimant asserts that no damage was suffered until the party died in October 1976. If time were calculated from that date, the six year limitation period did not expire before the action was commenced, the statement of claim against the solicitors was commenced in time and Gallen DCJ erred in holding otherwise and entering judgment for the opponents. The claimant based this argument on the contention that damage is an element in the tort of negligence 2 UNREPORTED JUDGMENTS and so time ran only from October 1976 as it was then that the potential damage arising from the earlier adjournment was realised. It was common ground that the claimant's cause of action in negligence was complete "when the damage caused by the breach was sustained". It is that time which, as Deane J recently observed, "is the time that, in the ordinary case, the cause of action [accrues] for the purpose of a provision such as s14(1) of the Limitation Act". See Hawkins v Clayton (1988) 62 ALJR 240, 260; cf also Brennan J at 247; Gaudron J at 266. See also Doundoulakis v Antony Sdrinis and Co, unreported, Supreme Court of Victoria, Full Court, 1 July 1988; (1988) VJB 70 per Ormiston J at 6. During argument it was pointed out that the claimant had suffered some damage on 3 August 1967. This was at least the incurring of solicitor and client costs which were necessarily (and, as the claimant alleged, wrongfully) incurred on that day because of the consent to the adjournment contrary to instructions. Counsel for the claimant then took the Court to the remarks of Buckley LJ in Wiffen v Bailey and Romford Urban Council [1915] 1 KB 600, where his Lordship said (at 607); "[I]t is well established that the difference between solicitor and client costs and party and party costs is not legal damage". No authority was cited by his Lordship for this surprising assertion. No other member of the Court referred to it. No later or other authority could be found which supported the assertion. No Australian case has applied it. The remark is not binding on this Court. It was made in a context other than that of the limitations of actions. In principle, the assertion appears artificial and is not convincing. The obligation to pay additional costs would be regarded by most people as damage in the sense of pecuniary burden or expense unnecessarily incurred. The claimant therefore did suffer damage on 3 August 1967, even though (as is often the case) the major damage was to occur later. In one sense, relevant to the action brought, the damage suffered by the claimant was that of losing the opportunity to have the trial heard on the date on which it had been listed. And that damage was certainly incurred on 3 August 1967. Accordingly, the claimant's cause of action accrued on that date. The statement of claim was therefore, when issued, statute barred. Although the Court did not have Gallen DCJ's full reasons for so deciding, it is plain that his Honour's decision was right. The opponents rely on the statute. It provides a complete answer in law to the claimant's action. The further prosecution of the action would, in the face of the limitation defence, be futile. Necessarily this conclusion requires no consideration of the merits otherwise of the claimant's claim in negligence against his former solicitors. Nor does it require the Court to consider whether the immediate cause of the claimant's loss, the death of the defendant, was reasonably foreseeable when the adjournment was consented to on 3 August 1967. Leave to appeal is refused. The orders of the Court are: 1. Summons dismissed. 2. The claimant to pay the opponents' costs.