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Smith v McCusker QC

Smith v McCusker QC

Case [2003] WASC 150 14 August 2003

Civil Litigation & Procedure

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

Link to Appeal :

[2005] WASCA 226

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2003] WASC 150
Case No:	CIV:1230/1995	Heard:	21 JULY 2003
Coram:	MASTER SANDERSON	Delivered:	14/08/03
No of pages:	10	Judgment Part:	1 of 1
Result:	Time extended to allow application Judgment entered
Category:	B
PDF Version

Parties:	JAMES GARNETT SMITH ELIZABETH ANNE SMITH MALCOLM JAMES McCUSKER QC
Catchwords:	Practice and procedure Application for summary judgment Turns on own facts
Legislation:	Nil
Case References:	Forsyth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994 Michael v Nicholson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995 Smith v McCusker QC [2000] WASCA 320 Smith v McCusker QC [2001] WASCA 85 Smith v McCusker QC, unreported; SCt of WA; Library No 970415; 5 September 1997 Agar v Hyde (2000) 201 CLR 552 Air Services Australia v Zarb [1998] NSWCA Dey v Victorian Railways Commissioners (1949) 78 CLR 62 Dwyer v Commonwealth Bank of Australia [1995] NSWCA Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241 Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 General Steel Industries Inc v The Commissioner for Railways (NSW) (1964) 112 CLR 125 McFarlane v Wilkinson [1997] 2 LR 259 Potts v Westpac Banking Corporation [1993] 1 Qd R 135 Saif Ali v Sydney Mitchell & Co [1980] AC 198 Webster & Anor v Lampard (1993) 177 CLR 598 Wickstead & Ors v Browne (1992) 30 NSWLR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SMITH & ANOR -v- McCUSKER QC [2003] WASC 150 CORAM : MASTER SANDERSON HEARD : 21 JULY 2003 DELIVERED : 14 AUGUST 2003 FILE NO/S : CIV 1230 of 1995 BETWEEN : JAMES GARNETT SMITH

ELIZABETH ANNE SMITH

Plaintiffs

AND

MALCOLM JAMES McCUSKER QC

Defendant

Catchwords:

Practice and procedure - Application for summary judgment - Turns on own facts

Legislation:

Nil

Result:

Time extended to allow application

Judgment entered

(Page 2)

Category: B

Representation:

Counsel:

Plaintiffs : In person (Mrs E A Smith)

Defendant : Mr C L Zelestis QC & Mr S S Sandhu

Solicitors:

Plaintiffs : In person

Defendant : Pullinger Readhead Stewart

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

Forsyth NL v Northern Gold NL, unreported; FCt SCt of WA; Library No 940012; 20 January 1994
Michael v Nicholson, unreported; FCt SCt of WA; Library No 950660; 1 December 1995
Smith v McCusker QC [2000] WASCA 320
Smith v McCusker QC [2001] WASCA 85
Smith v McCusker QC, unreported; SCt of WA; Library No 970415; 5 September 1997

Case(s) also cited:

Agar v Hyde (2000) 201 CLR 552
Air Services Australia v Zarb [1998] NSWCA
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Dwyer v Commonwealth Bank of Australia [1995] NSWCA
Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (1997) 188 CLR 241
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
General Steel Industries Inc v The Commissioner for…

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 Smith v McCusker QC

Details

AGLC: Smith v McCusker QC [2003] WASC 150
Case: [2003] WASC 150
Decision Date

CaseChat Overview and Summary

This case involves a legal dispute between James Garnett Smith, Elizabeth Anne Smith and Malcolm James McCusker QC, heard by Master Sanderson in the Supreme Court of Western Australia. The plaintiffs, Smith and his wife, initiated legal action against the defendant, McCusker QC, alleging negligence in his advice provided to them regarding their claim against a bank. The case has a lengthy history, including previous judgments and appeals, and the current application is for summary judgment. The key legal issues the court had to address were whether leave should be granted to bring the summary judgment application, given the delay and the form of the statement of claim, and whether the application for summary judgment should succeed on its merits.

The court examined the history of the case, noting the numerous attempts to formulate an acceptable statement of claim. Despite objections from the defendant, the plaintiffs made efforts to address these concerns, but no agreement was reached. Ultimately, the court had to determine if the defendant's application for summary judgment should be allowed, considering the delay and the form of the pleadings. The court concluded that the delay was justified, as the statement of claim had recently been reduced to an acceptable form and there was no undue delay. The plaintiffs had not suffered any real prejudice and had not taken steps beyond formulating their statement of claim. Therefore, the court granted leave to bring the summary judgment application.

On the merits of the application, the court considered whether the facts and matters pleaded in the statement of claim disclosed a cause of action in negligence against the defendant. The Full Court had previously affirmed that the pleadings did disclose such a cause of action. However, the court focused on whether the plaintiffs could establish the chain of causation, which was essential to proving their case. The defendant argued that there was no evidence to suggest that proper advice from the bank would have led the plaintiffs to avoid the losses they suffered. The court found that the plaintiffs had failed to present any evidence supporting their claim that proper advice would have changed their course of action. Given the absence of such evidence, the court concluded that the plaintiffs could not establish the necessary causation, and thus, the defendant was entitled to summary judgment.

In summary, the court granted leave for the summary judgment application and found in favour of the defendant on the merits. The plaintiffs were ordered to pay the costs of the application and the action, including reserved costs.

Orders