WILLIAMS (T/as WHEELER) v BODEWIS [1997] NSWCA 344

WILLIAMS (T/as WHEELER) v BODEWIS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P 15 December 1997

[1997] NSWCA 344

Mason P I think this is an appropriate matter for a stay. I am aware of the fact that it is a question of a stay pending an application for special leave to appeal to the High Court and that it is necessary for this court to consider whether there is a substantial prospect that special leave to appeal will be granted, together with the other matters discussed in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd (1986) 161 CLR 681 at 684 and the summary of the principles in D L v Director General of New South Wales Department of Community Services (1996) 136 ALR 200.

The issue of the material upon which a trial judge is entitled to rely in assessing damages in a solicitor's negligence case when the question at issue was the rate of damages payable in another court at an earlier point in time is certainly a matter of general occurrence yet this was the first case that seemed to confront the issue squarely. Whether a trial judge is entitled to rely upon his or her general knowledge or enquiries, or must require expert evidence to be given of the matter and the procedures to be adopted in disclosing the fruits of that knowledge or those enquiries, is a matter which the High Court may think of sufficient importance to have a grant of leave.

The evidence discloses that the plaintiff has been out of his damages for a considerable period of time, the proceedings having commenced in the Common Law Division in 1991. However, the application for special leave has been filed promptly. It appears to be in proper form raising issues which, if the High Court considers them appropriate and made out, may attract a grant of special leave.

I also have regard to the evidence that suggests that there may be more than usual difficulty in recovering the verdict if it is paid and if the appeal to the High Court were successful.