New South Wales Supreme Court CITATION : Harding v Winkler; Harding v MacDonald & Anor [2000] NSWSC 737 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20567 of 1999; 20037 of 1999 HEARING DATE(S) : 4 July 2000 JUDGMENT DATE : 28 July 2000 Kathleen Harding (Plaintiff) v Nicholas Gary Winkler (formerly trading as Nicholas Winkler & Turner) (Defendant) PARTIES : Kathleen Harding (Plaintiff) v Ian Harding Donald MacDonald & Peter Fairfield (formerly trading as MacDonald & Fairfield) (Defendants) JUDGMENT OF : Master Malpass Mr K Ryan (Plaintiff) COUNSEL : Mr M Jones (Defendant 20567 of 1999) Mr D R Pritchard (Defendants 20037 of 1999) Peter Chamberlain & Co (Plaintiff) SOLICITORS : Corrs Chambers Westgarth (Defendant 20567 of 1999) Henry Davis York (Defendants 20037 of 1999) CATCHWORDS : Summary disposition of proceedings - expiry of relevant limitation periods - claim of negligence against solicitors - when damage first occurs - did the alleged wrongful conduct effectively preclude the institution of proceedings. LEGISLATION CITED : N/A Cartledge v E Jopling and Sons Limited (1963) AC 758. CASES CITED : Hawkins v Clayton (1988) 164 CLR 539. Sampson v Zucker (Court of Appeal, 11 December (1996). Wardley Australia limited & Anor v The State of Western Australia (1992) 175 CLR 514. DECISION : See paragraph 30. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION MASTER MALPASS FRIDAY 28 JULY 2000 20567 of 1999 KATHLEEN HARDING v NICHOLAS GARY WINKLER (formerly trading as Nicholas Winkler & Turner) 20037 of 1999 KATHLEEN HARDING v IAN HARDING DONALD MacDONALD & PETER FAIRFIELD (formerly trading as MacDonald & Fairfield) JUDGMENT 1 The plaintiff has been a student in the Faculty of Medicine at the University of New South Wales. Her academic history has been recounted in other judgments of this Court. Accordingly, I propose to refer only to certain aspects of it. 2 She had been enrolled during the 1988 year. At the end of the year, she failed to pass all subjects (she failed two of the four subjects for which she sat). It has been observed in one of the judgments that this had the effect of then excluding her from enrolling again until 1991. By letter dated 20 December 1988, she was required to show cause why she should be allowed to enrol in 1989. Her application to re-enrol was refused by letter dated 24 February 1989. An appeal against that decision to the Appeals Committee was rejected. She was informed of that rejection by letter dated 15 March 1989. 3 In October 1989, she instructed Mr Winkler to act in relation to the matter. On 19 February 1990, proceedings were commenced in this Court. In the Summons, she sought a declaration that the decision of the committee was unreasonable and orders in the nature of certiorari, prohibition and mandamus. 4 In April 1990, she ceased to retain Mr Winkler and instructed a firm of solicitors trading as MacDonald & Fairfield. 5 The proceedings were heard by McInerney J. The judgment was delivered on 11 October 1991. The Summons was dismissed with costs. 6 In his judgment, McInerney J made the following observations:- "The decision of the Appeal Committee of the defendant on 14/3/89 was that the plaintiff should not be permitted to re-enrol in the first year medical course for two years and thereafter have to compete for re-enrolment. The orders sought in the Summons for declaratory relief cannot be complied with because of the effluxion of time resulting from the delay in bringing these proceedings before the Court. Hunt J made an order in March 1990 expediting the hearing and no satisfactory explanation is forthcoming for the inordinate delay in bringing this matter before the Court. The application is pressed, however, because whilst the plaintiff was entitled to apply for re-enrolment in the Faculty of Medicine at the University, as I understand the problem she will have difficulty in obtaining entry because her mark in the Higher School Certificate obtained in 1982 may not now be adequate to enable her to re-enrol in first year medicine because of what I understand is the higher cut off point for students eligible for first year medicine." 7 For completeness I mention that inter alia the reference to the order made by Hunt J is apparently erroneous. The error is not of any real significance. 8 An appeal was brought against the decision of McInerney J. Judgment was delivered on 17 December 1993. The appeal was dismissed with costs. 9 The Court of Appeal took a different view to McInerney J on the question of the validity of the decision of the committee. It took the view that the decision was invalid because the committee had been improperly constituted. However, it held that the passing of time has meant that any grant of prerogative relief would be futile. It was said that:- "The decision of the Committee related to admission for the year 1989 only, and as a result neither certiori, prohibition nor mandamus could effect re-instatement for the year 1989 nor could the granting of declaratory relief." 10 In a brief judgment Powell JA inter alia observed:- "If she had acted with far greater expedition to enforce such rights as she claimed to have,……………the Appellant may well have succeeded in having her appeal reconsidered by the Review Committee in time to enable her, if her appeal had been successful, to recommence her studies in 1989. However, the facts, first, that these proceedings were not commenced until after the 1989 academic year had expired; and, second, that the relief then sought, even if granted, would not have advanced the Appellant's cause, inevitably meant that these proceedings were doomed from the start, and their further prosecution, particularly when it was as dilatory as it appears to have been, nothing less than an exercise in futility." 11 In 1999, she commenced the two proceedings which are now before the court. On 8 February 1999, she filed a Statement of Claim naming the partners of the firm which formerly traded as MacDonald & Fairfield as defendants. On 16 December 1999, she filed a Statement of Claim which named Mr Winkler as a defendant. 12 In both proceedings, a claim founded on professional negligence is alleged. In the Statement of Claim filed in February 1999, the particulars of negligence may be found in paragraph 14 and the particulars of loss and damage found in paragraph 15. Certain of these matters have been abandoned (see Exhibit 1). In the Statement of Claim filed on 16 December 1999, paragraphs 14 and 15 thereof also set out respectively the particulars of negligence and the particulars of loss and damage. 13 In each of the proceedings, a Notice of Motion has been filed. The relief sought is summary dismissal of the proceedings. Both Notices of Motion have been heard together. 14 The defendants have relied on affidavit material and tender of documentation. No evidence has been adduced on behalf of the plaintiff. 15 The court has a discretionary power to grant summary relief. The power is exercised having regard to the relevant circumstances of the particular case before the court. The onus rests with the party seeking relief. Despite the discretionary nature of the power, the authorities dictate that summary relief should only be given in what may be described as clear cases. 16 In each of the proceedings, relief is sought on the basis that the alleged causes of action are statute barred because of the expiry of the relevant limitation period. 17 In resisting the applications, the plaintiff has principally advanced two alternative arguments. In the first of the two arguments, it is said that the plaintiff was unaware that she had the relevant causes of action until judgment had been delivered by the Court of Appeal. It was said that the defendants had camouflaged the existence of the cause of action and that this conduct had been unmasked by what had been said by the Judges of Appeal. In the second of the two arguments, it was said that prior to that time her cause of action had been inchoate and only became crystallised thereafter. This argument looked to what had been said in Wardley Australia limited & Anor v The State of Western Australia (1992) 175 CLR 514 at 533 for support. These arguments have been further elaborated both in writing and orally. 18 I do not accept any of the arguments advanced on behalf of the plaintiff. In my view, the relevant limitation periods had expired prior to the commencement of both of the proceedings. 19 The causes of action are framed in tort. There was no dispute that causes of action founded on negligence accrue when damage first occurs. 20 She had lost her prospects of re-enrolling for the academic year of 1989, at least by the time of the commencement of the proceedings against the university. This may have earlier taken place during 1989 (when the time that had then passed made it no longer possible for her to recommence her studies in that year). This loss represented measurable damage. 21 On one view, her prospects may have been effectively lost by her own delay. She did not instruct Mr Winkler until October 1989. By that time, the academic year of 1989 was nearing its end and there would seem to have been at the very least a lack of utility in enrolling her for that year. 22 The lack of awareness of the existence of a cause of action does not prevent time from running (see inter alia Cartledge v E Jopling and Sons Limited (1963) AC 758 and Hawkins v Clayton (1988) 164 CLR 539). 23 The plaintiff has sought comfort in observations made by Deane J in Hawkins at 588-591 (see Sampson v Zucker (Court of Appeal, 11 December 1996) ). In my view, these observations do not assist the plaintiff in this case. 24 The observations made by Deane J concerned a matter of statutory construction. The limitation provisions were construed as excluding any period during which the wrongful act itself had effectively precluded the institution of proceedings. 25 There is what has been described as an interesting question of the standing of this principle. However, for present purposes I put that aside. In this case, the alleged tortious acts cannot be said to have precluded her from taking relevant action. 26 The plaintiff did not adduce any evidence to support the arguments made on her behalf. Not only did they lack evidentiary support, they were in conflict with evidence that was placed before the court. 27 Mr Winkler had ceased to act in April 1990. In 1991, he brought proceedings in the Local Court to recover unpaid legal fees. In those proceedings, the plaintiff filed a Notice of Grounds of Defence which was verified by affidavit. The affidavit was sworn on 27 June 1991. One of the defences pleaded was in the following terms:- "The defendant claims that the plaintiff acted negligently in acting on the defendant's behalf and that the damages to the Defendant exceed any claims by the Plaintiff." (Exhibit 1). 28 The swearing of this defence preceded the delivery of judgment by McInerney J. There were observations made in that judgment which clearly drew attention to the futility of the proceedings that had been both commenced and prosecuted on her behalf by her solicitors. Indeed the observations suggest a prior awareness that the orders sought had lost their utility because of the effluxion of time. The reasoning advanced for pressing the matters was recorded in the judgment. 29 The successors to Mr Winkler did not take over the conduct of the proceedings against the university until about April 1990. In correspondence, the plaintiff's present solicitors have accepted that the alleged negligence occurred in 1990/91 (see letter dated 18 March 1999). Measurable damage in relation to the claim made against them had occurred at least by the time of the delivery of McInerney J. 30 In my view, the onus of demonstrating an entitlement to summary relief has been satisfied in each of the proceedings. Accordingly, both Statements of Claim are dismissed. The plaintiff is to pay the costs of each of the proceedings (including the costs of the Notices of Motion for summary relief). The Exhibits may be returned. ********** Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.