MILENA UGRENOVIC v SINISA JOVANOVIC [1989] NSWCA 217

MILENA UGRENOVIC v SINISA JOVANOVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA 18 September 1989

[1989] NSWCA 217

Samuels JA This is a notice of motion in which the plaintiff in the proceedings in the District Court seeks an extension of time in which to lodge an appeal against orders made by his Honour Judge Urquhart in the District Court at Parramatta.

The facts, shortly, are these: The solicitor for the plaintiff (as I will call her) attended a pre-trial conference on 3 December 1987 at which the matter was set down for hearing on 19 October 1988. Following that pre-trial conference the solicitor sent letters both to the plaintiff and to the defendant informing them of the hearing date. There is evidence before me that the plaintiff had been involved in previous legal proceedings in which apparently she sustained an adverse result, so that it cannot be said that she was entirely a stranger to the forensic arena. The solicitor says - and I have no reason to reject his evidence which was accepted by the learned judge - that unfortunately, although he noted the date of hearing on the file, he did not put it in his diary.

Time went by and, in the ordinary course, pre-trial medical examinations were arranged and took place. Hence during September 1988, not long before the date fixed for hearing, there was the usual degree of medico-legal activity. By letters of 12 and 21 September 1988 the Government Insurance Office on the defendant's behalf served on the solicitor medical reports of doctors whom the plaintiff had seen, and, under cover of a letter of 12 September, the solicitor sent to the defendant medical reports upon which the plaintiff intended to rely. On 26 September 1988 a follow-up medical examination took place and the report of that doctor was sent to the defendant under cover of a letter of 6 October. However, this activity apparently completely failed to jog the solicitor's memory and, despite the presumption that the file was constantly under attention, the date which is said to have been put on that file was never noticed.