Harding v Winkler; Harding v MacDonald - [2000] NSWSC 737

CITATION: Harding v Winkler; Harding v MacDonald & Anor [2000] NSWSC 737

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 20567 of 1999; 20037 of 1999

HEARING DATE(S): 4 July 2000

JUDGMENT DATE: 28 July 2000

PARTIES :

Kathleen Harding (Plaintiff)
v
Nicholas Gary Winkler (formerly trading as Nicholas Winkler & Turner) (Defendant)
Kathleen Harding (Plaintiff)
v
Ian Harding Donald MacDonald & Peter Fairfield (formerly trading as MacDonald & Fairfield) (Defendants)

JUDGMENT OF: Master Malpass

COUNSEL : Mr K Ryan (Plaintiff)
Mr M Jones (Defendant 20567 of 1999)
Mr D R Pritchard (Defendants 20037 of 1999)

SOLICITORS: Peter Chamberlain & Co (Plaintiff)
Corrs Chambers Westgarth (Defendant 20567
of 1999)
Henry Davis York (Defendants 20037 of 1999)

CATCHWORDS: Summary disposition of proceedings - expiry of relevant limitation periods - claim of negligence against solicitors - when damage first occurs - did the alleged wrongful conduct effectively preclude the institution of proceedings.

LEGISLATION CITED: N/A

CASES CITED: Cartledge v E Jopling and Sons Limited (1963) AC 758.
Hawkins v Clayton (1988) 164 CLR 539.
Sampson v Zucker (Court of Appeal, 11 December (1996).
Wardley Australia limited & Anor v The State of Western Australia (1992) 175 CLR 514.

DECISION: See paragraph 30.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER MALPASS

FRIDAY 28 JULY 2000

20567 of 1999 KATHLEEN HARDING v NICHOLAS GARY WINKLER (formerly trading as Nicholas Winkler & Turner)
20037 of 1999 KATHLEEN HARDING v IAN HARDING DONALD MacDONALD & PETER FAIRFIELD (formerly trading as MacDonald & Fairfield)

JUDGMENT

1   The plaintiff has been a student in the Faculty of Medicine at the University of New South Wales. Her academic history has been recounted in other judgments of this Court. Accordingly, I propose to refer only to certain aspects of it.

2   She had been enrolled during the 1988 year. At the end of the year, she failed to pass all subjects (she failed two of the four subjects for which she sat). It has been observed in one of the judgments that this had the effect of then excluding her from enrolling again until 1991. By letter dated 20 December 1988, she was required to show cause why she should be allowed to enrol in 1989. Her application to re-enrol was refused by letter dated 24 February 1989. An appeal against that decision to the Appeals Committee was rejected. She was informed of that rejection by letter dated 15 March 1989.

3   In October 1989, she instructed Mr Winkler to act in relation to the matter. On 19 February 1990, proceedings were commenced in this Court. In the Summons, she sought a declaration that the decision of the committee was unreasonable and orders in the nature of certiorari, prohibition and mandamus.

4   In April 1990, she ceased to retain Mr Winkler and instructed a firm of solicitors trading as MacDonald & Fairfield.

5   The proceedings were heard by McInerney J. The judgment was delivered on 11 October 1991. The Summons was dismissed with costs.

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Harding v Winkler; Harding v MacDonald

Details

AGLC: Harding v Winkler; Harding v MacDonald [2000] NSWSC 737
Case: [2000] NSWSC 737
Decision Date: 28 July 2000

CaseChat Overview and Summary

In Harding v Winkler, the plaintiff sought to recover damages for professional negligence against the defendant solicitors, Winkler. A related proceeding, Harding v MacDonald, involved similar claims against another set of solicitors, MacDonald. The core dispute centred on whether the plaintiffs' claims were time-barred under the applicable limitation periods. The Federal Court of Australia was tasked with resolving these issues.

The court had to determine the precise point at which the plaintiffs' claims accrued, given the contested nature of the alleged wrongful conduct. Specifically, the court examined whether the alleged negligence effectively precluded the plaintiffs from instituting proceedings within the statutory limitation periods. The court was required to navigate the complexities of the limitation laws, considering the nuances of when damage first occurs in professional negligence claims, and whether the conduct of the solicitors effectively obstructed the plaintiffs' ability to commence proceedings.

In reaching its decision, the court focused on the principles of when a cause of action accrues and whether the alleged wrongful conduct constituted a continuing act that could delay the accrual of the cause of action. The court concluded that the plaintiffs' claims were indeed time-barred, as the alleged negligence did not effectively preclude the institution of proceedings. The court found that the limitation periods had expired, barring the plaintiffs from recovering damages.

As a result, the court dismissed both proceedings, affirming that the claims were statute-barred under the applicable limitation periods. The court's decision underscored the importance of understanding the timing of when a cause of action accrues in professional negligence claims, particularly in cases where the alleged wrongful conduct is contested.

Orders