Dougall v Melville

Case [2017] NSWCA 309



Court of Appeal
Supreme Court

New South Wales

Case Name: 

Dougall v Melville

Medium Neutral Citation: 

[2017] NSWCA 309

Hearing Date(s): 

6 February 2017

Decision Date: 

5 December 2017

Before: 

McColl JA at [1],
Payne JA at [90],
Davies J at [91]

Decision: 

(1)   Grant leave to appeal.
 
(2)   Appellants to file a notice of appeal in the form set out in the White Book within seven days.
 
(3)   Orders 1 – 5 of the orders made by the primary judge on 14 June 2016, set aside.
 
(4)   In their place, order that:
 
(a) pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4, the proceedings be dismissed.
 
   (b)   the plaintiff pay the defendants’ costs.

(5)   The respondent to pay fifty per cent of the appellants’ costs of the appeal (including the application for leave to appeal), with a view to the appellants bearing the balance of their costs of those matters.

Catchwords: 

LIMITATION OF ACTIONS – professional negligence and misrepresentation claim – application for summary dismissal pursuant to Uniform Civil Procedure Rules 2005 (NSW), r 13.4 – whether claims barred by 6 year limitation period pursuant to Limitation Act 1969 (NSW), s 14, s 63 and Fair Trading Act 1987 (NSW), s 68(2) – accrual of causes of action – when measurable damage suffered by respondent
 
LIMITATION OF ACTIONS – accrual of causes of action – whether statutory contingencies required to be satisfied – Commonwealth of Australia v Cornwell (2007) 229 CLR 519; [2007] HCA 16
 
COSTS – where appellants succeeded on case not advanced before primary judge – appellants to bear portion of costs notwithstanding success

Legislation Cited: 

District Court Act 1973 (NSW)
Fair Trading Act 1987 (NSW)
Fair Trading Amendment (Australian Consumer Law) Act 2010 (NSW)
Interpretation Act 1987 (NSW)
Limitation Act 1969 (NSW)
Limitation Act 1985 (ACT)
Superannuation Act 1922 (Cth)
Superannuation Act 1976 (Cth)
Uniform Civil Procedure Rules 2005 (NSW)
Workers Compensation Act 1987 (NSW)
Workers Compensation Legislation Amendment Act 2012 (NSW)
Workplace Injury Management and Workers Compensation Act 1998 (NSW)

Cases Cited: 

Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 259 CLR 1; [2016] HCA 16
Be Financial Pty Ltd (as Trustee for Be Financial Operations Trust) v Das [2012] NSWCA 164
Christie v Purves [2007] NSWCA 182
Commonwealth of Australia v Cornwell (2007) 229 CLR 519; [2007] HCA 16
Cox v Journeaux (No 2) (1935) 52 CLR 713; [1935] HCA 48
Dey v Victorian Railways Commissioners (1949) 78 CLR 62; [1949] HCA 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Harriton v Stephens (2006) 226 CLR 52; [2006] HCA 15
Hawkins v Clayton (1988) 164 CLR 539; [1988] HCA 15
HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640; [2004] HCA 54
Itek Graphix Pty Ltd v Elliott (2002) 54 NSWLR 207; [2002] NSWCA 104
Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
Law Society v Sephton & Co

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AGLC
Dougall v Melville [2017] NSWCA 309
Case
[2017] NSWCA 309
Decision Date

CaseChat Overview and Summary

In *Dougall v Melville*, the appellants sought leave to appeal from an order of the primary judge. The dispute concerned claims of professional negligence and misrepresentation brought by the respondent against the appellants. The appellants applied for summary dismissal of these claims, arguing they were barred by the six-year limitation period prescribed by the *Limitation Act 1969* (NSW) and the *Fair Trading Act 1987* (NSW).

The central legal issues before the Court of Appeal were whether the respondent's causes of action had accrued within the relevant limitation periods, and specifically, when measurable damage had been suffered by the respondent. This involved considering the principles governing the accrual of causes of action in cases of professional negligence and misrepresentation, and whether any statutory contingencies needed to be satisfied for the limitation period to commence.

The Court of Appeal determined that the primary judge had erred in not dismissing the proceedings. Applying the principles regarding the accrual of causes of action, particularly the requirement for measurable damage to have been suffered, the Court found that the respondent's claims were indeed out of time. The Court noted that the appellants had succeeded on grounds not fully advanced before the primary judge.

Consequently, the Court of Appeal granted leave to appeal, set aside the orders of the primary judge, and ordered that the proceedings be dismissed pursuant to rule 13.4 of the *Uniform Civil Procedure Rules 2005* (NSW). The respondent was ordered to pay the defendants' costs of the proceedings below. The Court also ordered that the respondent pay fifty per cent of the appellants' costs of the appeal, with the appellants bearing the balance of their own costs for those proceedings.

Orders

Orders of the court

(1) Grant leave to appeal.

(2) Appellants to file a notice of appeal in the form set out in the White Book within seven days.

(3) Orders 1 – 5 of the orders made by the primary judge on 14 June 2016, set aside.

(4) In their place, order that:

(a) pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4, the proceedings be dismissed.

(b) the plaintiff pay the defendants’ costs.

(5) The respondent to pay fifty per cent of the appellants’ costs of the appeal (including the application for leave to appeal), with a view to the appellants bearing the balance of their costs of those matters.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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