Bowen Buchbinder Vilensky (A Firm) v Smith
[2000] WASC 242
•29 SEPTEMBER 2000
BOWEN BUCHBINDER VILENSKY (A FIRM) -v- SMITH [2000] WASC 242
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 242 | |
| Case No: | FUL:158/2000 | 27 SEPTEMBER 2000 | |
| Coram: | MASTER BREDMEYER | 29/09/00 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed in part | ||
| PDF Version |
| Parties: | BOWEN BUCHBINDER VILENSKY (A FIRM) STEPHEN PAUL SMITH |
Catchwords: | Application for stay of execution Special circumstances |
Legislation: | Rules of the Supreme Court, O 47 r13(1)(a) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Appellant (Defendant)
AND
STEPHEN PAUL SMITH
Respondent (Plaintiff)
Catchwords:
Application for stay of execution - Special circumstances
Legislation:
Rules of the Supreme Court, O 47 r13(1)(a)
Result:
Application allowed in part
(Page 2)
Representation:
Counsel:
Appellant (Defendant) : Mr D R Goodman
Respondent (Plaintiff) : Mr R L Le Miere QC & Mrs N Owen-Conway
Solicitors:
Appellant (Defendant) : Freehill Hollingdale & Page
Respondent (Plaintiff) : Slater & Gordon
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 MASTER BREDMEYER: The plaintiff has an action against Bowen Buchbinder Vilensky, who are solicitors, for professional negligence. He was injured in an accident on a vessel and wanted to sue his employer for common law damages. Under the Seafarers Rehabilitation and Compensation Act(SRCA) 1992 he had to commence the action before 24 December 1993. He instructed his solicitors before that date but they failed to note this deadline.
2 The plaintiff did sue his employer but failed in the Supreme Court and before the Full Court. He got leave to appeal to the High Court and his appeal was argued over one and a half days in May. The decision has not yet been delivered. If the plaintiff succeeds on that appeal the SRCA will be struck down as unconstitutional and his solicitors would not have been negligent for failing to observe the deadline. However, his solicitors could still be liable to him for the costs of the appeal. Had they met the deadline imposed by the SRCA then in force, the appeal would have been unnecessary.
3 The defendant seeks a stay of this action pending the determination of the High Court appeal in the other action. I consider that is a special circumstance and that I should grant this application. If the plaintiff's High Court appeal succeeds I think it very likely that the defendants, who I assume are represented by an insurer, would concede their liability for costs. In other words I consider the action could then easily be settled.
4 At the same time I can appreciate the plaintiff's concern to proceed with this action and not to have it stalled unnecessarily by the actions of the defendant. The stay which I have just said should be granted is as a result of actions of the plaintiff. It is his appeal to the High Court. On 29 August 2000 Master Chapman made some interlocutory orders on an application by the defendant. Master Chapman struck out the statement of claim and gave the plaintiff leave to file and serve a minute of proposed amended statement of claim by 19 September 2000. He then ordered that, in the absence of any application by the defendant to strike out that minute within 21 days after it is filed and served upon the defendant, the minute would stand as the amended statement of claim. He also made an order on costs. The defendants have lodged an appeal against that interlocutory order under O 63A. I consider that the defendant should get on with that appeal and there should be no stay in relation to that. I will, however, stay the orders given by Master Chapman. There seems to be no point in requiring the plaintiff to replead and to the defendant to raise similar objections to the repleading when, according to the defendants' argument,
(Page 4)
- the pleading is totally bad and cannot be cured by repleading, an argument which will be resolved by the Full Court.
5 The orders I make will be as follows:
1. The application for leave and the appeal be heard together.
2. The appeal be entered for hearing within seven days.
3. The application for a stay of the hearing of that appeal is refused.
4. Subject to Order 3, the action is otherwise stayed pending the hearing of the High Court appeal referred to in my reasons.
5. Cost of this application are in the cause of the appeal to the Full Court.
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