Smith v McCusker QC

Case [2005] WASCA 226


SMITH & ANOR -v- McCUSKER QC [2005] WASCA 226



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2005] WASCA 226
THE COURT OF APPEAL (WA)
Case No:FUL:133/20037 JUNE 2005
Coram:WHEELER JA
ROBERTS-SMITH JA
MCLURE JA
28/11/05
41Judgment Part:1 of 1
Result: Appeal allowed
B
PDF Version
Parties:JAMES GARNETT SMITH
ELIZABETH ANNE SMITH
MALCOLM JAMES McCUSKER QC

Catchwords:

Practice and procedure
Appeal from grant of summary judgment
Negligence
Legal practitioner
Loss of opportunity to bring action
Unrepresented litigant
Defective pleadings
Turns on own facts

Legislation:

Nil

Case References:

Bank Fü Gemeinwirtschaft v City of London Garages Ltd [1971] 1 WLR 149.
Bank Für Gemeinwirtschaft Aktiengesellschaft v City of London Garages Ltd [1971] 1 WLR 149
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
Forsayth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994
G W Sinclair & Co Pty Ltd v Cocks [2001] ANZ ConvR 522
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Johnson v Perez (1988) 166 CLR 351
Kitchen v Royal Air Force Association [1958] 1 WLR 563
Malec v J C Hutton Pty Ltd (1990) 169 CLR 638
Malec v JC Hutton Pty Ltd (1990) 169 CLR 638
Michael v Nicolson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995
Miles v Bull [1969] 1 QB 258
Smith & Anor v McCusker QC & Anor [2000] WASCA 320
Smith & Anor v McCusker QC & Anor [2001] WASCA 85
Smith v McCusker QC [2000] WASCA 320
Smith v McCusker QC [2001] WASCA 85
Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1997) 9 ANZ Ins Cas 61-343

Laferla v Birdon Sands Pty Ltd, unreported; SCt of NT; 21 August 1998
Servcom Australia Pty Ltd v Shenton [2000] WASC 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SMITH & ANOR -v- McCUSKER QC [2005] WASCA 226 CORAM : WHEELER JA
    ROBERTS-SMITH JA
    MCLURE JA
HEARD : 7 JUNE 2005 DELIVERED : 28 NOVEMBER 2005 FILE NO/S : FUL 133 of 2003 BETWEEN : JAMES GARNETT SMITH
    ELIZABETH ANNE SMITH
    Appellants

    AND

    MALCOLM JAMES McCUSKER QC
    Respondent


ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MASTER SANDERSON

Citation : SMITH & ANOR -v- McCUSKER QC [2003] WASC 150




(Page 2)

Catchwords:

Practice and procedure - Appeal from grant of summary judgment - Negligence - Legal practitioner - Loss of opportunity to bring action - Unrepresented litigant - Defective pleadings - Turns on own facts




Legislation:

Nil




Result:

Appeal allowed




Category: B


Representation:


Counsel:


    Appellants : In person
    Respondent : Mr C L Zelestis QC & Mr S S Sandhu


Solicitors:

    Appellants : In person
    Respondent : Maxim Litigation Consultants



Case(s) referred to in judgment(s):

Bank Für Gemeinwirtschaft Aktiengesellschaft v City of London Garages Ltd [1971] 1 WLR 149
Fancourt v Mercantile Credits Ltd…

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AGLC
Smith v McCusker QC [2005] WASCA 226
Case
[2005] WASCA 226
Decision Date

CaseChat Overview and Summary

Smith v McCusker QC is an appeal by the plaintiff against the grant of summary judgment in favour of the defendant. The plaintiff, an unrepresented litigant, sought to recover damages for professional negligence against the defendant, a legal practitioner. The plaintiff alleged that the defendant's failure to bring a particular action within the requisite time resulted in a loss of opportunity. The case was heard in the Supreme Court of Victoria.

The central legal issues in this case revolved around the appropriate application of the summary judgment procedure in Victoria and the sufficiency of the plaintiff's pleadings. Specifically, the court had to determine whether the plaintiff's claim for professional negligence was viable despite the plaintiff being unrepresented and whether the pleadings were sufficient to warrant a hearing. The court was also required to assess whether the plaintiff's loss of opportunity claim was valid, considering the unique circumstances of the case.

The court found that the grant of summary judgment was inappropriate, as the plaintiff's pleadings, although defective, contained sufficient particulars to warrant a full hearing. The court held that the plaintiff's unrepresented status did not preclude them from pursuing a claim for professional negligence, and the loss of opportunity claim was not inherently flawed. The court emphasised that each case turns on its own facts, and the procedural defects could be addressed through the court's inherent jurisdiction. Consequently, the appeal was allowed, and the summary judgment granted to the defendant was set aside.

Orders

Orders of the court

Appeal allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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