Hart v Cashman and Everingham

New South Wales

Court of Appeal

CITATION:	HART v CASHMAN & EVERINGHAM [2010] NSWCA 5
HEARING DATE(S):	07/09/2009
JUDGMENT DATE:	9 February 2010
JUDGMENT OF:	Handley AJA at 1
DECISION:	The plaintiff’s notice of motion of 31 July 2009 is dismissed with costs.
CATCHWORDS:	PRACTICE and PROCEDURE – appeal – extension of time –intending appellant impecunious – prejudice to respondent - prospects of success required.
LEGISLATION CITED:	Supreme Court Act
CATEGORY:	Procedural and other rulings
CASES CITED:	Abalos v Australian Postal Commission [1990] HCA47; 170 CLR 167 Cole v The Commonwealth [1961] HCA 87; 106 CLR 653 Commercial Union Assurance Co. of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Dearman v Dearman [1908] HCA 84; 7 CLR 549, Gallo v Dawson [1990] HCA 30; 64 ALJR 458 General Steel Industries Inc. v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 Jackamarra v Krakouer [1998] HCA 27; 195 CLR 516 Jones v Dunkel [1959] HCA 8; 101 CLR 298 Nikolaou v Papasavas Phillips & Co [1989] HCA 11; 166 CLR 394, 404 Smith v Chadwick (1884) 9 App Cas 187 Tomko v Palasty (No. 2) [2007] NSWCA 369, 71 NSWLR 61 Vakauta v Kelly [1989] HCA 44; 167 CLR 568
PARTIES:	Barry Francis Hart - Appellant Peter Cashmand and Roland Everingham - t/as Cashman & Partners - Respondents
FILE NUMBER(S):	CA 40465/2007
COUNSEL:	J L Sharpe - Appellant D Nock SC & B Shields - Respondents
SOLICITORS:	The People's Solicitors - Appellant HWL Ebsworth - Respondents

LOWER COURT JURISDICTION:	Supreme Court
LOWER COURT FILE NUMBER(S):	CA 40465/07
LOWER COURT JUDICIAL OFFICER:	Registrar Schell
LOWER COURT DATE OF DECISION:	09/07/2009

40475/2007

HANDLEY AJA

Tuesday 9 February 2010

HART v CASHMAN & EVERINGHAM

T/as CASHMAN & PARTNERS

CATCHWORDS

PRACTICE and PROCEDURE – appeal – extension of time –intending appellant impecunious – prejudice to respondent - prospects of success required.

HEADNOTE

The appellant brought proceedings for professional negligence against the solicitors who had acted for him between 1992 and 1996 in his appeal, on the ground of inadequacy of damages, from verdicts and judgment in his favour in a jury trial heard in 1980. The causes of action in tort arose in 1973. The appeal was dismissed in 1996 and the High Court refused special leave. The appellant alleged that, as a result of the solicitors’ negligence, he had lost the chance of obtaining a new trial as to damages, and lost the chance of obtaining additional damages at the new trial.

The appellant’s claim against his solicitors was based on their failure to bring before the Court of Appeal in 1995 a claim that he had suffered from post-traumatic stress disorder (PTSD) since 1973 as a result of the original wrongs. This had not been diagnosed because PTSD had not been recognized as a psychiatric illness until the publication of DSM-III in 1980 after the trial. The appellant was first diagnosed by a psychiatrist with PTSD in…