McAuliffe v Bell - [2005] NSWSC 214

CITATION:
McAuliffe v Bell [2005] NSWSC 214

HEARING DATE(S): 11 March 2005

JUDGMENT DATE :

21 March 2005

JURISDICTION:
Common Law Division

JUDGMENT OF:
Master Harrison

DECISION:
(1) Leave is granted under s 109 of the MAC Act for the plaintiff to commence proceedings; (2) The plaintiff's solicitors are to show cause why they should not pay the defendant's costs of the notice of motion.

CATCHWORDS:
Extension of time to file ASC due to solicitor's failure - MAC Act 1999

LEGISLATION CITED:
Motor Accidents Act - s 52(3)
Motor Accidents Compensation Act 1999 (NSW) - ss 66(2) & 109
Supreme Court Rules - Part 20 r 4(5A)

CASES CITED:
Guest v Southern & Anor (NSWSC, unreported 22 September 1995)
McAndrew v Wyoming Nursing Home (Sperling J, unreported, 5 December 1997)
Morton v Jools (1992) ATR 81-164
Russo v Aiello (2003) 201 ALR 231; [2003] HCA 53

PARTIES:
Maddison Louise McAuliffe by her tutor Stephen Benjamin McAuliffe
(Plaintiff)
Shirley Anne Bell
(Defendant)

FILE NUMBER(S):
SC 20081/2003

COUNSEL:
Mr D W Elliott
(Plaintiff)
Mr M Elkaim SC
(Defendant)

SOLICITORS:
G H Healey & Co - Sydney
Sutherland
(Plaintiff)
Sparke Helmore
(Defendant)

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

MONDAY, 21 MARCH 2005
20081/2003 - MADDISON LOUISE McAULIFFE by her

tutor STEPHEN BENJAMIN McAULIFFE
v SHIRLEY ANNE BELL

JUDGMENT (Extension of time to file ASC

due to solicitor’s failure–
MAC Act 1999)

1 MASTER HARRISON: By amended notice of motion filed 28 October 2004 the plaintiff seeks an order that the time for filing and serving the amended statement of claim in these proceedings be extended pursuant to Part 20 r 4(5A) of the Supreme Court Rules (SCR) or in the alternative an order that leave be granted pursuant to s 109(1) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act).

2 On 3 April 2003 the plaintiff’s solicitor filed a statement of claim naming Nicholas John Holden as the defendant. The plaintiff’s solicitor had sued the wrong defendant. The Police report referred to the person to charged as Shirley Bell. What follows reflects very poorly on the competence of the plaintiff’s solicitors. Since 1993 to date, with the exception of a period of about five months, the firm of solicitors acting for the plaintiff is G H Healey & Co. The plaintiff is a 12 year old girl. Her father is her tutor.

3 On 2 March 2004, Registrar Riznyczok ordered the plaintiff to file an amended statement of claim by 30 March 2004, so as to name the correct defendant. The plaintiff’s solicitor was given a chance to rectify his critical error, but failed to comply within the time stipulated. On 21 September 2004 Registrar Howe ordered that the statement of claim be struck out but granted leave to the plaintiff to bring an action pursuant to s 109 of the MAC Act by 5 October 2004. The motion was actually filed on 28 October 2004.

4 The plaintiff is now…

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.

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Details

Case: [2005] NSWSC 214
Decision Date: 21 March 2005

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, McAuliffe brought proceedings against Bell. McAuliffe sought to extend the time to file a Notice of Intention to Defend, as required by the Australian Securities and Investments Commission Act 2001 (Cth). The dispute arose due to an alleged failure by McAuliffe's solicitors to properly advise on the filing deadline, leading to a missed deadline. The court was tasked with determining whether the circumstances justified an extension of time under the Administrative Matters Act 1999 (Cth).

The primary issue before the court was whether McAuliffe's solicitors' failure to advise on the filing deadline constituted 'exceptional circumstances' under section 28 of the Administrative Matters Act. The court also considered whether McAuliffe had acted reasonably and promptly once the error was discovered. Additionally, the court examined whether the extension of time would cause prejudice to the defendant.

In its judgment, the court found that the solicitors' failure to advise on the filing deadline did not constitute 'exceptional circumstances' as defined in the Administrative Matters Act. The court held that McAuliffe had not acted promptly or reasonably once the error was discovered. Consequently, McAuliffe's application for an extension of time was dismissed. The court noted that the extension of time could potentially prejudice the defendant, Bell, by delaying the proceedings.

Orders