STOJANKA SKORIC v LILLY LEPOSAVA STEFANOVIC [1991] NSWCA 248

STOJANKA SKORIC v LILLY LEPOSAVA STEFANOVIC SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS JA 20 May 1991

[1991] NSWCA 248

Samuels JA In this matter, judgment was given in the District Court on 23 March 1988. It was an unsuccessful action for damages for negligence against a solicitor. The defendant, the present claimant and respondent to the appeal, supported her recollection, I presume of conversations with the opponent and other action taken on behalf of the client, by tendering message slips upon which it seems considerable reliance was placed. I am told, however, that at the trial, counsel for the plaintiff, the appellant and present opponent, expressly disclaimed any intention of suggesting that these items of evidence were fabricated.

The appeal was filed on 15 April 1988, that is rather more than three years ago. The index was settled on 9 November 1988. The appeal books have never yet been printed or served, it, of course, being the responsibility of the appellant to attend to those matters.

From time to time during the years which have elapsed, the solicitors for the claimant have pressed their adversaries to produce the appeal books without success, as I have indicated.

It seems from evidence filed by the opponent that from the time the appeal index was settled, for the following two years or so, attempts were being made by the solicitors for the opponent to obtain evidence which might support the allegation that the message slips were in fact not authentic, the line of attack which was contemplated being that they were of a style which had not been in existence at the time that they were supposed to have been used to record contemporary events. This would probably have required amendment of the notice of appeal but no such amendment has ever been sought. It was not indeed until August 1990 that in reply to another awakening call from the solicitors for the claimant, the solicitors for the opponent said that they had instructions to proceed with the appeal, and were awaiting evidence in admissible form which, if obtained, would be the subject of an application to adduce fresh evidence. This was the first indication given to the solicitors for the claimant that this exercise was being undertaken.