FLORA CHIAVERINI v GORDON HOCKEY [1990] NSWCA 40

FLORA CHIAVERINI v GORDON HOCKEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P 13 December 1990, 13 December 1990

[1990] NSWCA 40

TIME — appeal — from District Court — delay of 12 weeks after judgment — reasons not available — application for extension of time within which to appeal — observations by Kirby P on the desirability of filing within time a notice of appeal which may later be amended when reasons of the trial judge are available.

APPEAL — time for lodging — delay — circumstances of difficult question of law and part of time explained — held: Time should be extended but solicitor should pay costs occasioned by application.

LEGAL PRACTITIONERS — costs — order against client — court expenses — expectation that solicitor in default will pay such costs. Supreme Court Act 1970.

Kirby P Flora Chiaverini (the claimant) brought proceedings in the District Court in respect of two motor accidents. She was not directly involved in either. But she claimed that she had suffered a depressive illness as a consequence of them. She sought to bring her claim within the limits of a claim in nervous shock. See eg Chester v Waverley Corporation (1939) 62 CLR 1; Mt Isa Mines Pty Ltd v Pusey (1970) 125 CLR 383; Jaensch v Coffey (1984) 155 CLR 549.

The claim came before Gallen DCJ on 1 and 2 August 1990 successively. In each case, his Honour gave judgment in favour of the opponents now before this Court.

Mrs Chiaverini wishes to appeal to the Court of Appeal. However, her documents were filed on 22 October 1990 in circumstances which I will have to describe. Accordingly, instead of bringing her appeal within the 28 days provided by law, she has brought proceedings some twelve weeks after the judgment which she seeks to challenge in the Court. The circumstances which occasioned this delay have been explained in evidence placed before the Court by Ms Mohini Indira Gunesekera, solicitor for the claimant. Ms Gunesekera was not present in the District Court on either | or 2 August 1990. I am unaware as to whether anyone was present for the claimant at the time when Judge Gallen delivered his judgment. However, some time after judgment and with a view to considering an appeal, Ms Gunesekera secured the notes of the judgment which had been taken by the representative of the Government Insurance Office, which stands behind the opponents.