Maurice May & Co v Dupree [2002] NSWCA 249

New South Wales Court of Appeal

CITATION : Maurice May & Co v Dupree [2002] NSWCA 249 FILE NUMBER(S) : CA 40596/01; DC 4327/98 HEARING DATE(S) : 29/07/2002 JUDGMENT DATE : 6 August 2002

PARTIES : Maurice May & Co v James Dupree JUDGMENT OF : Meagher JA at 1; Davies AJA at 2; Foster AJA at 3-19

LOWER COURT JURISDICTION : District Court LOWER COURT 4327/98 FILE NUMBER(S) : LOWER COURT Gamble ADCJ JUDICIAL OFFICER :

COUNSEL : D. Davies SC with G.M. Gregg - Appellant P.J. McEwen SC - Respondent SOLICITORS : Corrs Chambers Westgarth - Appellant McCabe Terrill - Respondent CATCHWORDS : Appeal against a cross-claim in proceedings where plaintiff sued her solicitor for negligence when advising re possible damages claim and also against the barrister retained to advise. LEGISLATION CITED : Limitation Act 1969 DECISION : Leave to appeal granted.; Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40596/01 MEAGHER JA DAVIES AJA FOSTER AJA

TUESDAY, 6 AUGUST, 2002 MAURICE MAY & CO. v James DUPREE Judgment

1 MEAGHER JA: I agree with Foster AJA. 2 DAVIES AJA: I agree with Foster AJA. 3 FOSTER AJA: In these proceedings, the Court heard counsel on the application for leave and also on the appeal should leave be granted. A previous hearing of the leave application before a bench of two judges resulted in disagreement. 4 The claimant, Maurice May & Co ("Maurice May"), seeks leave to appeal from the decision of Gamble ADCJ given in favour of the opponent, James Dupree ("Dupree") on 9 July 2001, when her Honour dismissed a cross-claim brought by Maurice May against him. The cross-claim had been brought in proceedings in which the plaintiff, Rita Weatherell had sued Maurice May for negligence, when acting as her solicitor in respect of a possible damages claim to be brought by her against certain medical practitioners. The cross-claim alleged negligence on the part of Dupree, on the basis that he, as the barrister retained to advise in respect of the claim, had been negligent in rendering advice. 5 The plaintiff, on 22 March 1991, had undergone, at Ryde Hospital, an operation for lower segment caesarean section, the surgeon being Dr Izzo and the anaesthetist, Dr Csenderits. The basic allegation made by her was that she was not properly anaesthetized during the operation, in that an epidural block anaesthetic had not been successful. She had made known that this was the position during the performance of the operation but the procedure, nevertheless, had been allowed to continue, with the result that she suffered a great deal of unnecessary pain. A general anaesthetic which could have prevented this situation was not, in fact, administered until the baby had been delivered. She alleged that it could and should have been administered earlier. 6 She consulted Maurice May in or about July 1991 with a view to seeking, if possible, damages from the medical practitioners for professional negligence. They, in turn, forwarded briefs to Dupree to advise. In the result, as will appear, no action was commenced within time. The plaintiff sued Maurice May, who joined Dupree as cross-defendant. The plaintiff who had not sued Dupree, settled her case with Maurice May, for the payment to her of $35,000 plus costs. Maurice May then proceeded with the cross-claim against Dupree. 7 It is necessary, in the first place, to consider the pleadings in the case and the evidence adduced. 8 The plaintiff, in her statement of claim, after reciting the facts relating to the operation, the failure of the epidural anaesthesia, the continuation of the operation despite her protest, and her pain, asserted negligence on the part of the medical practitioners. She claimed for pain and suffering and also for post-traumatic stress reaction and depression. She also alleged economic loss and loss of earning capacity. 9 She then alleged the retainer of Maurice May in July 1991, the obtaining of certain supportive medical evidence on the question of liability and damages and, then, Maurice May's obtaining of advice from Dupree, which, it was alleged, Maurice May knew or should have known was inadequate. The result was that Maurice May tendered wrong, misleading and defective advice to the plaintiff, being that her claim was unlikely to succeed. In particular, the advice failed to mention:- "(i) That there was a limitation period. (ii) That there was a number reported cases with similar facts suggesting a favourable outcome to any contested hearing. (iii) That the advice of learned counsel retained by the Defendant did not enjoy the confidence of the defendant. (iv) That further legal opinion was required." 10 The plaintiff alleged reliance on Maurice May's advice and her consequent failure to instruct them to commence proceedings within the limitation period. She sued in negligence and, also, in contract for breach of retainer . She claimed damages under various heads based upon the loss of her right to sue the medical practitioners. 11 Maurice May by its Statement of Defence denied negligence, did not admit that the plaintiff relied on the advice and alleged that the plaintiff had failed "to mitigate her loss by failing to make an application in the District Court to extend the limitation period…". 12 Maurice May, in the cross-claim against Dupree, alleged that on 2 August 1991 and 2 February 1992, it had briefed him to advise on:- "2(a) the question of damages and on evidence; and (b) whether, on the basis of the medical reports of Drs Newlinds, Crombie and Strum, legal proceedings should be instituted against Drs Izzo and Csenderits and, if so, the Cross Defendant was further briefed to settle a Statement of Claim, advise on evidence and advise generally." 13 The cross-claim further alleged the giving of advice, in conference, on 17 February 1993, to the effect that for various reasons relating to difficulties in establishing her claim against the doctors and also her loss, her "prospects of success in an action for damages were generally very gloomy." This advice was said to have been negligent and in breach of Dupree's retainer. He should have, instead, advised that prospects of success were excellent. He failed to recommend that she commence proceedings and to advise that the limitation period would expire on 22 March 1994. In consequence, proceedings were not commenced within time. 14 An application to extend time was made by other solicitors, but on 12 May 2000, was dismissed with costs. An offer of compromise in the sum of $35,000 plus costs was accepted by Maurice May and, in the cross-claim Maurice May sought contribution and/or indemnity in respect of those amounts and also in respect of the costs of the failed application for extension of time. Dupree denied liability. 15 The case against Dupree