Howell v Weston - [2001] NSWCA 174

CITATION: HOWELL v. WESTON [2001] NSWCA 174 revised - 11/07/2001

FILE NUMBER(S): CA 40947/99

HEARING DATE(S): 08/06/2001

JUDGMENT DATE:
10 July 2001

PARTIES :

Paul Roch Howell (Appellant)
William Weston (Respondent)

JUDGMENT OF: Powell JA at 1; Beazley JA at 45; Hodgson JA at 51

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 7767/97

LOWER COURT
JUDICIAL OFFICER : Garling DCJ

COUNSEL: D. T. Kennedy SC/J. Klarica (Appellant)
L. G. Foster SC/G.A. Sirtes (Respondent)

SOLICITORS: Dennis & Company (Appellant)
Deacons Lawyers ( formerly Deacons Graham & James) (Respondent)

CATCHWORDS: COURTS AND JUDGES - District Court - Action for damages alleging professional negligence - Application for dismissal on grounds of want of prosecution - Application adjourned on application of plaintiff - Show cause notice given for adjourned day - No appearance of plaintiff on adjourned day - Action dismissed with costs - No formal reasons given - Whether error of law - Whether, if Court of Appeal called upon to exercise discretion, action should be dismissed. D

DECISION: (By majority) Appeal allowed.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40947/99
DC 7767/97

POWELL JA

BEAZLEY JA

HODGSON JA

HOWELL v. WESTON

JUDGMENT

1 POWELL JA: By leave granted by this Court on 24 July 2000, the Appellant appealed against an order made by Garling DCJ in the District Court on 8 October 1998, on which day his Honour dismissed with costs the proceedings which had been brought by the Appellant seeking to recover from the Respondent damages which he claimed to have suffered as a result of what was alleged to have been the Respondent's professional negligence.

2 Garling DCJ's order was made on the application, pursuant to the provisions of DCR Pt 18 r 3, of the Respondent upon the ground of the Appellant's failure to prosecute those proceedings with all due dispatch.

3 DCR Pt 18 r 3 provides as follows:

"3(1) Where a plaintiff makes default in complying with any order or direction as to the conduct of the proceedings, or does not prosecute the proceedings with due dispatch, the Court may, on application by any party or of its own motion, dismiss the proceedings or make such other order as the Court thinks fit.

(2) Where proceedings are dismissed under subrule (1), rules 7 and 8 apply as though the dismissal were a discontinuance.

(3) The Court may not make an order under subrule (1) without giving the plaintiff a reasonable opportunity to be heard.

(4) The Court may, on application by any party, set aside an order that is made on the Court's own motion under subrule (1)."

4 The Appellant's claim for damages as set out in the Statement of Claim filed on his behalf to commence the proceedings, arose out of his retaining the Respondent, in mid-1986, to act for him, as his solicitor, in connection with a loan of $110,000.00 proposed to be made to a company known as Deonmero Pty.…

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 Howell v Weston

Details

AGLC: Howell v Weston [2001] NSWCA 174
Case: [2001] NSWCA 174
Decision Date: 10 July 2001

CaseChat Overview and Summary

The appeal concerned an action for damages alleging professional negligence brought in the District Court. The plaintiff’s action had been dismissed for want of prosecution. The plaintiff sought to appeal this dismissal to the Court of Appeal.

The Court of Appeal was required to determine whether the District Court had erred in law by dismissing the action for want of prosecution, and if not, whether the Court of Appeal, in exercising its own discretion, should nevertheless dismiss the action.

The majority of the Court of Appeal found that the District Court had erred in law. They reasoned that the dismissal of the action without formal reasons, particularly after an adjournment at the plaintiff's request and the issuance of a show cause notice, did not adequately address the principles governing dismissal for want of prosecution. The court considered the plaintiff's conduct and the potential prejudice to the defendant, but ultimately concluded that the dismissal was not a proper exercise of the court's discretion.

By majority, the appeal was allowed, and the order dismissing the action was set aside.

Orders

Orders of the court

(By majority) Appeal allowed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	HOWELL v. WESTON [2001] NSWCA 174 revised - 11/07/2001
FILE NUMBER(S):	CA 40947/99
HEARING DATE(S):	08/06/2001
JUDGMENT DATE:	10 July 2001
PARTIES :	Paul Roch Howell (Appellant) William Weston (Respondent)
JUDGMENT OF:	Powell JA at 1; Beazley JA at 45; Hodgson JA at 51

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 7767/97
LOWER COURT JUDICIAL OFFICER :	Garling DCJ

COUNSEL:	D. T. Kennedy SC/J. Klarica (Appellant) L. G. Foster SC/G.A. Sirtes (Respondent)
SOLICITORS:	Dennis & Company (Appellant) Deacons Lawyers ( formerly Deacons Graham & James) (Respondent)
CATCHWORDS:	COURTS AND JUDGES - District Court - Action for damages alleging professional negligence - Application for dismissal on grounds of want of prosecution - Application adjourned on application of plaintiff - Show cause notice given for adjourned day - No appearance of plaintiff on adjourned day - Action dismissed with costs - No formal reasons given - Whether error of law - Whether, if Court of Appeal called upon to exercise discretion, action should be dismissed. D
DECISION:	(By majority) Appeal allowed.