Toomey v WALS - [1999] NSWSC 560

CITATION: Toomey v WALS [1999] NSWSC 560 revised - 29/06/99

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): 500054 of 1997

HEARING DATE(S): 24/09/98

JUDGMENT DATE:
10 June 1999

PARTIES :

Geoffrey Brian Toomey
Western Aboriginal Legal Service

JUDGMENT OF: Hidden J at 1

COUNSEL : D Baran (plaintiff)
T F Robertson (defendant)

SOLICITORS: Tjakamarra Forrest (plaintiff)
Henrietta J Dean (defendant)

CATCHWORDS: Limitation of Actions - Tort - action against solicitor for professional negligence - whether statute-barred - when cause of action first accrued.

ACTS CITED: Limitation Act 1969

CASES CITED: Hawkins v Clayton (1988) 164 CLR 539
Doundoulakis v Antony Sdrinis & Co [1989] VR 781
Commonwealth v Mewett (1997) 191 CLR 471
Commonwealth v Dixon (1988) 13 NSWLR 601
Grew v Walsh (NSWSC, unreported 16 October 1997)
Sampson v Zucker (Court of Appeal, unreported 11 December 1996)
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
Johnson v Perez (1988-89) 166 CLR 351
Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394

DECISION: Defence under Limitation Act made out.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No 500054 of 1997
Central West Registry

HIDDEN J

Thursday 10 June 1999

Geoffrey Brian Toomey v Western Aboriginal Legal Service Ltd

Reasons for judgment
1 At the outset of this judgment I should record that I informed counsel for the parties of my association, as employed solicitor and as counsel, with the original Aboriginal Legal Service throughout the 1970s and of the fact that, in more recent years, I was briefed as counsel on at least one occasion by a solicitor employed by the defendant. (That solicitor is not the person said to have furnished the advice giving rise to these proceedings, with whom I have had no contact.) I was informed that neither party objected to my hearing the matter, at least for the limited purpose for which it was listed before me.
2 On 12 January 1981 the plaintiff suffered spinal injuries when he dived into the Macquarie River near Wellington, striking his head on submerged rocks. As a result he is a quadriplegic. He alleges that his injuries were the result of the negligence of a number of statutory authorities for reasons which, for present purposes, I need not examine. He further alleges that in early 1985 he consulted a solicitor employed by the defendant, who advised him that he had no basis for an action for damages for negligence against anyone.
3 In December 1994 the plaintiff sought advice from other solicitors, who considered that he may have a cause of action. In November 1995 they lodged an application on his behalf to extend the limitation period for that purpose. On 8 December 1995 Master Greenwood granted the application, so as to enable proceedings to be commenced against the statutory authorities to which I have referred. However, those authorities appealed against the Master’s decision and that appeal was allowed by Ireland J on 21 February 1997.
4 As a result, the plaintiff has…

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 Toomey v WALS

Details

AGLC: Toomey v WALS [1999] NSWSC 560
Case: [1999] NSWSC 560
Decision Date: 10 June 1999

CaseChat Overview and Summary

The case of Toomey v WALS was heard by the Supreme Court of New South Wales, where the plaintiff sought compensation from the defendant, a law firm, for alleged professional negligence. The dispute arose from the defendant's handling of the plaintiff's legal matters, which the plaintiff claimed resulted in significant financial loss. The defendant argued that the plaintiff's claim was time-barred under the Limitation Act 1969 (NSW), asserting that the cause of action accrued more than three years before the proceedings were initiated.

The court was tasked with determining the point at which the cause of action accrued, which is critical in assessing whether the claim was within the statutory limitation period. The court had to consider the nature of professional negligence claims and whether the plaintiff knew, or ought to have known, of the alleged negligence at an earlier date. The central issue was whether the running of the limitation period began when the negligent act occurred or when the plaintiff became aware of the harm and its connection to the defendant's actions.

The court held that the cause of action accrued when the plaintiff became aware, or ought to have become aware, of the harm caused by the defendant's negligence. This finding was based on the principle that the limitation period starts when the plaintiff has sufficient knowledge to initiate proceedings. The court found that the plaintiff did not meet the criteria for when the cause of action accrued, and therefore the claim was time-barred. Consequently, the court dismissed the plaintiff's action for being statute-barred.

Orders