Day v Rogers

[2010] NSWCA 206

NEW SOUTH WALES COURT OF APPEAL

CITATION:
Day v Rogers [2010] NSWCA 206

FILE NUMBER(S):
2010/9902

HEARING DATE(S):
18 August 2010

JUDGMENT DATE:
18 August 2010

EX TEMPORE DATE:
18 August 2010

PARTIES:
David DAY  (applicant) 
Keith ROGERS  (respondent) 

JUDGMENT OF:
Hodgson JA Macfarlan JA    

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC 2862/09

LOWER COURT JUDICIAL OFFICER:
Rolfe DCJ

LOWER COURT DATE OF DECISION:
18 December 2009

COUNSEL:
A J MEAGHER SC/ K BARRETT  (applicant)
T J BOYD  (respondent) 

SOLICITORS:
Kennedys (Australasia) Pty Ltd  (applicant)
Luke Clarke Solicitor  (respondent)

CATCHWORDS:
PROCEDURE – Application for leave to appeal – Judgment against each of two defendants on the basis of proportionate liability – One defendant seeks leave to appeal – Whether other defendant a necessary party. 

LEGISLATION CITED:
Civil Liability Act 2002 s 35

CATEGORY:
Procedural and other rulings

CASES CITED:

TEXTS CITED:

DECISION:
(1)  Leave to appeal granted. 
(2)  Notice of appeal to be filed within 14 days. 
(3)  Leave is granted on the condition that the applicant is to be liable for the costs of the application and of the appeal of both sides irrespective of the result of the appeal.

JUDGMENT:

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

2010/9902

HODGSON JA
MACFARLAN JA

WEDNESDAY 18 AUGUST 2010

David DAY v Keith ROGERS

Judgment

1. HODGSON JA:  In this matter it seems to me there are arguable grounds of appeal and, although the amount involved is only of the order of $30,000, the case does raise issues that are of significance, particularly for the applicant and the applicant's insurer.

2. It seems to me that the appropriate course is to grant leave to appeal but on condition that the costs of both sides of the application for leave, and of the appeal, be borne by the applicant irrespective of the outcome of the appeal.

3. There has been some discussion as to whether the solicitors need to be joined in the appeal, in circumstances where the primary judge found a verdict for the respondent in the sum of about $64,000, but entered judgment against each of the applicant and the solicitors for about $32,000, pursuant to s 35 of the Civil Liability Act 2002 (concerning proportionate liability). In my view they do not. Although it may be that success in the appeal might provide a ground for the respondent to seek a larger judgement against the solicitors, that is a matter that is to be pursued, if at all, through a cross appeal brought by the respondent.

4. As I understand it, that cross appeal would also require leave but, having regard to the decision in this application, the application for leave for any cross appeal may be a matter that can be left to the final hearing of the appeal, as there would seem to be ample grounds for giving the requisite leave.

5. I have given some consideration as to whether the condition of the grant of leave should extend in any way to the costs of any possible cross appeal, but have come to the view that no such condition should be imposed. The fact that the condition I am proposing is to be applied to the appeal is a matter that may be taken into account by the court disposing finally of the appeal and any cross-appeal that may be brought, as being of some relevance to what should happen to the costs of cross appeal.

6. For those reasons, the order I propose is:

   (1)Leave to appeal granted. 

   (2)Notice of appeal to be filed within 14 days. 

   (3)Leave is granted on the condition that the applicant is to be liable for the costs of the application and of the appeal of both sides irrespective of the result of the appeal.

7. MACFARLAN JA:  I agree.  I would simply emphasise that the proposition that if the barrister is found to be immune, the plaintiff might be entitled to an increased judgment against the solicitors is, in my view, a doubtful one, and the plaintiff would need to consider the point very carefully before proceeding on the assumption that it has any validity.

8. HODGSON JA:  The order of the court is as I have proposed. 

   oOo

LAST UPDATED:
23 August 2010