Fleming v Segal [2002] NSWSC 961

New South Wales Supreme Court

CITATION : Fleming v Segal [2002] NSWSC 961 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20237/00 HEARING DATE(S) : 4 October 2002 JUDGMENT DATE : 17 October 2002

PARTIES : Brian William Fleming Alan Lewis Segal t/a Segal Litton & Chilton JUDGMENT OF : Sperling J at 1

COUNSEL : Mr T Lynch for the Plaintiff Mr D Davies SC for the Defendant SOLICITORS : Hunt & Hunt Lawyers for the Plaintiff Ebsworth & Ebsworth Lawyers for the Defendant CATCHWORDS : Practice & Procedure - application for leave to amend Statement of Claim - no question of principle DECISION : 1. Order pursuant to paragraph 1 of the plaintiff's notice of motion filed on 26 August 2002; 2. Defendant to pay the plaintiff's costs of the notice of motion save as to so much of the notice of motion as was consented to on 6 September 2002; 3. Defendant to file his defence on or before 30 October 2002; 4. Plaintiff to serve all lay and expert evidence on which he intends to rely by 22 November 2002; 5. Defendant to serve all lay and expert evidence on which he intends to rely by 13 December 2002; 6. Liberty to apply on three days notice.

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Professional Negligence List

Sperling J

Thursday, 17 October 2002

20237/00 Fleming v Segal

Judgment 1 His Honour: In these proceedings, the plaintiff sued the defendant by statement of claim filed on 6 June 2000. 2 On 14 February 2002, Howie J held that a limitation defence to that claim failed. 3 An application for leave to appeal from that decision was heard in the Court of Appeal on 2 August 2002. The Court was constituted by Handley and Hodgson JJA and Young CJ in Eq. Mr Davies SC appeared for the applicant (defendant). Mr Lynch of Counsel appeared for the respondent (plaintiff). The leading judgment was given by Hodgson JA, with whose reasons for decision Handley JA and Young CJ in Eq agreed. The decision by Howie J was reversed. That disposed of the claim made in the statement of claim. 4 In the course of the argument on appeal, counsel for the plaintiff was asked whether the plaintiff had an alternative cause of action which would, arguably, not be statute barred. One was propounded, based on advice given in 1989. The following orders were made. 1. Leave to appeal granted and appeal allowed, subject to a Notice of Appeal being filed within 14 days. 2. Opponent to pay claimant's costs of the application and appeal, and to have a suitors' fund certificate if otherwise entitled. 3. Orders below set aside, and in lieu thereof: (a) Opponent to pay the claimant's costs of the separate hearing. (b) Leave to opponent to apply pursuant to Pt.20 r.4(5) to substitute a cause of action based on the facts alleged in the Statement of Claim but specifying the breach of duty referred to in paragraph 9 of the existing Statement of Claim as being negligence referable to the events of August 1989 referred to in the judgment, such application together with a Draft Amended Statement of Claim to be filed and served within 14 days. (c) If no such application and Draft Statement of Claim is filed and served within 28 days, or if such application is dismissed, verdict and judgment for the defendant with costs. 5 Young CJ in Eq, whilst agreeing with Hodgson JA, said in a short supplementary judgment: I think, however, I should make it clear that the Court required counsel for the respondent to specify the ambit of the amendment he might seek to make. Counsel specified a breach being negligence referable to the events of August 1989. No other amendment comes within the scope of the orders made in this Court. 6 Mr Lynch again appeared for the plaintiff (now the applicant) and Mr Davies again appeared for the defendant (now the respondent). 7 With commendable focus, the only basis on which the further amendment was opposed was that it is precluded by what occurred in the Court of Appeal. 8 I considered whether to refer the present application to the Court of Appeal. There was no consensus about that. In those circumstances, I thought it was best that I decide the application myself rather than put the parties to further cost which might otherwise not be incurred. 9 Counsel said they had no objection to my looking at the transcript of argument in the Court of Appeal. I record the following passages from the decision there. At page 23: HODGSON JA: At least understand what it is you are proposing to do. The way the case was conducted, the ordinary result would be a verdict for the defendant but, if you want to do something to avoid that ordinary result, I think you'll have to tell us why that should be avoided. LYNCH: I accept what my friend says the way in which it was conducted before Howie J. In the course of the exchange today, I have refined the possibilities and I would seek leave to file a draft amended statement of claim. HANDLEY JA: But you're being asked to indicate what it's going to contain in addition to what's already there. At page 24: HANDLEY JA: Mr Lynch, if we adjourn for 15 minutes, you might be able to collect your thoughts and we're getting you on the run which may be a little unfair of us but can we come back at 10 past 3 and, if I may say this, you've got to find something within the six years. HODGSON JA: No, not necessarily. It would help to find something after settlement perhaps. HANDLEY JA: Hodgson J is correct, so if you could identify any breaches of duty which you rely upon, other than those pleaded in the existing statement of claim.