Pittaway v W H Tutt & Quinlan - [2002] QCA 336

SUPREME COURT OF QUEENSLAND

CITATION:

Pittaway v W H Tutt & Quinlan & Anor [2002] QCA 336

PARTIES:

JASON PITTAWAY
(plaintiff/respondent)
v
W H TUTT & QUINLAN
(first defendant/first appellant)

STEPHEN E KERIN
(second defendant/second appellant)

FILE NO/S:

Appeal No 10016 of 2001

SC No 6683 of 2001

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 September 2002

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2002

JUDGES:

McMurdo P, McPherson JA and Wilson J

Separate reasons for judgment of each member of the court, each concurring as to the orders made.

ORDERS:

1.     That the appeal be allowed.

2.     That the order of the primary judge be set aside.

3.     That the respondent’s claim be dismissed.

4.     That the respondent pay the appellants’ costs of the claim and of the appeal to be assessed on the standard basis.

CATCHWORDS:

LIMITATION OF ACTIONS – CONTRACT, TORTS AND PERSONAL ACTIONS – WHEN TIME BEGINS TO RUN – PARTICULAR CAUSES OF ACTION – NEGLIGENCE – where defendant solicitors advised plaintiff that he had no realistic hope of success in a personal injury claim – where plaintiff alleged that defendants’ advice was negligent – where plaintiff sued defendants for damages for negligence outside limitation period – where defendants pleaded limitation defence and sought summary judgment in their favour – whether the defendants’ allegedly negligent advice precluded the plaintiff from instituting proceedings against the defendants inside limitation period – whether question of limitation defence ought to be resolved on summary judgment application

PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where plaintiff injured when he drove car into tree – where no other vehicles involved – where plaintiff alleged accident caused by employer forcing him to drive when he was overtired - where firm of solicitors advised plaintiff that he had no realistic hope of success – where plaintiff sued firm of solicitors for negligence outside limitation period – where firm of solicitors pleaded limitation period defence – where application for summary judgment was dismissed – whether judgment should have been given for the defendants

Limitation of Actions Act 1974 (Qld), s 10, s 11
Uniform Civil Procedure Rules 1999 (Qld), r 293

Cheney v Duncan [2001] NSWCA 197; (2001) 34 MVR 28, referred to
Gorton v The Commonwealth of Australia [1992] 2 Qd R 603, distinguished
Hawkins v Clayton (1988) 164 CLR 539, distinguished
Johnson v Perez (1988) 166 CLR 351, referred to
Sampson v Zucker, unreported, CA (NSW) No 40834 of 1995, 11 December 1996, referred to

Toomey v Western Aboriginal Legal Service [1999] NSWSC 560, No 500054 of 1997, 10 June 1999, referred to

Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, referred to
Wilson v Rigg [2000] NSWSC 16, No 20364 of 1998, 7 February 2000, referred to

COUNSEL:

P A Keane QC, with K N Wilson, for the appellants

J A Griffin QC,…

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: [2002] QCA 336
Decision Date: 6 September 2002

CaseChat Overview and Summary

In the case of Pittaway v W H Tutt & Quinlan, the plaintiff, Pittaway, sought damages from the defendants, W H Tutt & Quinlan, for their alleged negligent advice that he had no realistic hope of success in a personal injury claim. The defendants were a firm of solicitors who had provided the plaintiff with legal advice. The plaintiff alleged that the advice was negligent and that it caused him to miss the limitation period for suing the defendants. The defendants argued that the plaintiff's claim was statute-barred and sought summary judgment in their favour. The primary judge dismissed the defendants' application for summary judgment, leading to the defendants' appeal to the court.

The court had to determine whether the defendants' allegedly negligent advice precluded the plaintiff from instituting proceedings against the defendants within the limitation period and whether the question of the limitation defence should be resolved on the summary judgment application. The court noted that the plaintiff had failed to raise a triable issue in respect of the limitation defence, and the primary judge had erred in dismissing the defendants' application for summary judgment.

The court found that the primary judge had failed to give proper consideration to the limitation defence raised by the defendants. The court held that the question of limitation was a matter of law and could be determined on a summary judgment application. The court found that the plaintiff's claim was statute-barred, and the defendants were entitled to judgment as a matter of law.

The court allowed the appeal, set aside the order of the primary judge, dismissed the plaintiff's claim, and ordered the plaintiff to pay the defendants' costs of the claim and appeal. The court held that the primary judge had erred in dismissing the defendants' application for summary judgment and that the defendants were entitled to judgment as a matter of law. The court found that the plaintiff's claim was statute-barred, and the defendants were not liable to the plaintiff for any damages.

Orders

Orders of the court

1. That the appeal be allowed.

2. That the order of the primary judge be set aside.

3. That the respondent’s claim be dismissed.

4. That the respondent pay the appellants’ costs of the claim and of the appeal to be assessed on the standard basis.

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

Full text does not contain this section.

CITATION:	Pittaway v W H Tutt & Quinlan & Anor [2002] QCA 336
PARTIES:	JASON PITTAWAY (plaintiff/respondent) v W H TUTT & QUINLAN (first defendant/first appellant) STEPHEN E KERIN (second defendant/second appellant)
FILE NO/S:	Appeal No 10016 of 2001 SC No 6683 of 2001
DIVISION:	Court of Appeal
PROCEEDING:	General Civil Appeal
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 September 2002
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2002
JUDGES:	McMurdo P, McPherson JA and Wilson J Separate reasons for judgment of each member of the court, each concurring as to the orders made.
ORDERS:	1. That the appeal be allowed. 2. That the order of the primary judge be set aside. 3. That the respondent’s claim be dismissed. 4. That the respondent pay the appellants’ costs of the claim and of the appeal to be assessed on the standard basis.
CATCHWORDS:	LIMITATION OF ACTIONS – CONTRACT, TORTS AND PERSONAL ACTIONS – WHEN TIME BEGINS TO RUN – PARTICULAR CAUSES OF ACTION – NEGLIGENCE – where defendant solicitors advised plaintiff that he had no realistic hope of success in a personal injury claim – where plaintiff alleged that defendants’ advice was negligent – where plaintiff sued defendants for damages for negligence outside limitation period – where defendants pleaded limitation defence and sought summary judgment in their favour – whether the defendants’ allegedly negligent advice precluded the plaintiff from instituting proceedings against the defendants inside limitation period – whether question of limitation defence ought to be resolved on summary judgment application PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – SUMMARY JUDGMENT – where plaintiff injured when he drove car into tree – where no other vehicles involved – where plaintiff alleged accident caused by employer forcing him to drive when he was overtired - where firm of solicitors advised plaintiff that he had no realistic hope of success – where plaintiff sued firm of solicitors for negligence outside limitation period – where firm of solicitors pleaded limitation period defence – where application for summary judgment was dismissed – whether judgment should have been given for the defendants Limitation of Actions Act 1974 (Qld), s 10, s 11 Uniform Civil Procedure Rules 1999 (Qld), r 293 Cheney v Duncan [2001] NSWCA 197; (2001) 34 MVR 28, referred to Gorton v The Commonwealth of Australia [1992] 2 Qd R 603, distinguished Hawkins v Clayton (1988) 164 CLR 539, distinguished Johnson v Perez (1988) 166 CLR 351, referred to Sampson v Zucker, unreported, CA (NSW) No 40834 of 1995, 11 December 1996, referred to Toomey v Western Aboriginal Legal Service [1999] NSWSC 560, No 500054 of 1997, 10 June 1999, referred to Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514, referred to Wilson v Rigg [2000] NSWSC 16, No 20364 of 1998, 7 February 2000, referred to
COUNSEL:	P A Keane QC, with K N Wilson, for the appellants J A Griffin QC,…