GREEN v CUTMORE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL SAMUELS JA 22 April 1991 [1991] NSWCA 127 Samuels JA On 19 September 1983, Rita Cutmore, the first opponent in this application, and her husband, were tenants of the claimant in Tamworth. On that day an iron fence which had been erected by the claimant dividing the property from the footpath, fell on the first opponent and injured her foot. In 1988 her action for damages came on in the District Court at Tamworth before McDevitt DCJ. She sued the claimant, alleging negligence or breach of the duty which he, as lessor, owed to her as a lessee - at least so far as I can make out from the judgment, that was the way in which the action was brought - and the claimant cross-claimed against the second opponents who were insurance brokers, alleging their failure to equip him with a policy of insurance which would have indemnified him against any damages which he might be ordered to pay to the first opponent. In due course the learned Judge gave judgment for the first opponent against the claimant in the sum of some $37,000, but found for the second opponents against the claimant. The claimant, therefore, was in the unfortunate situation of being liable to pay damages to the first opponent without any indemnity or recourse to insurance. Thereafter there followed a series of events which, on the evidence before me, which may not of course tell the whole of the story, seems wholly deplorable. Counsel who appeared at the trial for the claimant, advised within a few days that an appeal should be brought, but nothing was done. I do not attempt to summarise the whole of the evidence which is contained in the two affidavits sworn by the claimant in support of the application. At some stage, comparatively early on, that is in September 1988, the sheriff served a bankruptcy notice on the claimant, but that remedy was not pursued against him. I interpolate that the first opponent has not been represented here today. The claimant's solicitor, Mrs Comerford, has given evidence that she had a conversation with the first opponent's solicitor this morning and he told her that his client could not afford to be represented and neither consented to nor opposed the relief which the claimant sought. I find it extraordinary that in the three years which have elapsed since judgment, no attempt, other than the service of a bankruptcy notice, which was not further pursued, has been made on behalf of the first opponent to execute upon the judgment. This is even more remarkable if, as may be the case, the first opponent is not in affluent financial circumstances. Following the service of the bankruptcy notice and the claimant's report of it to his solicitor, he was advised to attend at the Tamworth court to make an application to pay the amount of the judgment by instalments. Precisely how this advice accorded with the solicitor's counsel's advice that an appeal should be pursued I cannot hope to understand. The claimant then went to three solicitors; he got in contact with the Law Society and received a list of firms who might be 2 UNREPORTED JUDGMENTS willing to represent him on the basis of his receipt of legal aid. Whether he obtained legal aid or not, I do not know. He instructed solicitors in Orange and his files were sent to that firm. They apparently did nothing. So ultimately the claimant got in touch with his current solicitors whom he instructed during late January 1990. However, the files were not sent to those solicitors by the solicitors previously acting till March 1990. A conference was sought with counsel but counsel was heavily engaged in other matters. It seems that no attempt was made to instruct other counsel able to give immediate attention to a matter which was, by then, something more than two years old. Ultimately a conference with counsel was arranged in July 1990 and a notice of motion seeking an extension of time within which to appeal was filed on 5 November 1990. A further notice of motion has since been filed containing a claim for additional relief. The original notice of motion which was filed on 5 November 1990 was identical in all respects with the written advice given by counsel who appeared at the trial in about March 1988. However, a further notice of appeal has since been filed which is in rather greater detail and which certainly challenges specifically certain findings of fact made by the learned judge. The relief sought is opposed by the second opponent. The principles are, of course, those which were referred to by the Full Court of the Federal Court of Australia in Jess v Scott 70 ALR 185. They are very general. Certainly, the court will not permit itself to be hamstrung by technicalities. It will look to see, in most cases, where the balance of prejudice is to be found. Now, in the present case, the claimant, on the material before me - and I hasten to add that I cannot make a definitive judgment about this - has been deprived of his right of appeal by the failure of various solicitors to act with proper professional care. As a result of that, so it seems, more than three years have now elapsed since judgment was obtained. I should add that I am inclined to think, on the face of an affidavit sworn by George Alan Hosking, one of the second opponents, that the claimant himself was perhaps more closely involved in the matter than his own affidavits disclose. So far as the second opponents are concerned they were entitled to assume, after this lapse of time, that they would not further be disturbed by any claims in respect of this casualty. Indeed, Mr Hosking swears in his affidavit that the claimant, in conversation, has told him that he was appealing against the judgment in favour of Mrs Cutmore but that "It has nothing to do with you. The judge's decision was wrong giving her any money." And then later there were further conversations and a letter written on 27 November 1990 in which the claimant - incorrectly - indicated that his application for an appeal out of time had been successful, and asked Mr Hosking to forward copies of all insurance contracts "purchased by me on 19/1/83". That letter would also tend to suggest that the second opponents were not to be involved in any further proceedings. During the course of the application counsel for the claimant informed me that he had instructions from his client not to proceed further against the second opponents, and he indicated that an appropriate undertaking would be given that if there were a new trial in the matter no relief would be sought against the second opponents. However, it is not only upon the ground of prejudice which might be suffered by the second opponents that I think that this application should be refused. It is true that the solicitor for the first opponent has adopted what seems to me to be an extraordinary equivocal and almost inexplicable attitude. There may be some URJ GREEN v CUTMORE (Samuels JA) 3 explanation for it, and I wish to make no criticism of him because he has not had the opportunity to give his own account of the matter. But it rather strengthens the justification in my inferring that to have this matter pursued after a lapse of three years must involve prejudice to the first opponent, the plaintiff in the original action. Why, as I have said, no attempts have been made to satisfy her judgment, I do not know, and I cannot readily imagine any plausible reason. However, for her to find herself enmeshed in a new trial after three years or more must be prejudicial. I would not reject the relief which the claimant now seeks solely on the ground that, on the face of it, he has claims in negligence against more than one solicitor. As I have, I hope, emphasised, I am not in a position to make any findings of that kind and I do not do so. But, on the face of it, if this relief is refused it does not appear that the claimant will be totally without remedy. Bearing in mind the delay and the fact that the claimant appears to have taken an interest in his own affairs I think that, despite the fact that the first opponent is not represented here, I can infer that she will suffer prejudice if an appeal is mounted; and that, in any event, she should not be put, at this stage, to the tribulations of once again being involved in litigation. Accordingly the balance of prejudice and of justice appears to me to lie against the claimant and I will not make an order extending the time within which an appeal may be filed. Before I make the formal orders I should add this: I propose to direct the Registrar of the Court of Appeal to send the papers in the case to the Law Society, with the suggestion that the Law Society investigate the conduct of all the solicitors who have been involved in these proceedings. I give that direction now. The motion is dismissed with costs.