PHILLIPS v BISLEY and ORS [1997] NSWCA 246

PHILLIPS v BISLEY and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MASON P, MEAGHER JA and DUNFORD AJA

18 February 1997, 18 March 1997

[1997] NSWCA 246

Legal Practitioners — Solicitors — negligence — failure to commence proceedings in time causation damages whether loss suffered Negligence — MVA — jurisdiction of cause of action

Limitations of Actions Act 1974 (Qld)

The appellant was injured in a MVA in Queensland. The appellant brought proceedings against the first defendant, the driver of the vehicle the appellant was travelling in, in New South Wales. At the time of service the first defendant was temporarily residing in New South Wales and the appellant subsequently received a settlement of $30,000. An action against the second defendant, the driver of the other vehicle involved, was commenced outside the three year limitation period in Queensland and hence was statute barred. The appellant claimed in negligence in the New South Wales District Court against her former solicitors re the failure to commence proceedings in Queensland in time. The trial judge dismissed the claim on the grounds that the appellant had not proved negligence against the respondents (solicitors) giving rise to a loss suffered by the appellant.

Held, appeal dismissed:

(i) The appellant lost nothing of value through the pleaded negligence of her former solicitors because the evidence demonstrated that there was no viable case against the second defendant. In any event the loss proved arising from the MVA was less than the $30,000 recovered on settlement.

Johnson v Perez (1988) 166 CLR 351; Nikolaou v Papasavas, Phillips & Co (1988) 166 CLR 394; Fletcher & Son v Jubb, Booth and Helliwell [1920] 1 KB 275; MacRae v Stevens (1996) Australia Torts Rep 81-405; Kitchen v Royal Air Force Association [1958] 1 WLR 563; applied.