Limitation of actions – Extension of period within which to sue – Prejudice to respondent – Extent of prejudice to be considered – Cause of action against solicitor responsible for delay a relevant consideration.
Limitation of Actions Act (Vic), s.23A.
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APPEARANCES:
Counsel
Solicitors
For the Appellant
Mrs C. Kenny
Herbert Geer & Rundle
For the Respondent
Mr P.F. O’Dwyer
Slater & Gordon
ORMISTON, J.A.:
Having had the benefit of reading the judgment of Buchanan, J.A. in draft form, I agree that this appeal should be dismissed for the reasons he has stated. The respondent has not sufficiently made out the likelihood of significant prejudice, i.e. that has not been made out to the extent that would justify the refusal of the respondent’s application, having regard to the many factors which must be taken into account under s.23A of the Limitations of Actions Act 1958. It would be impossible to deny that the object of the amended section in this State was ameliorative.
I have been most concerned about the consequence of taking into account the prospects of success in suing a legal practitioner allegedly responsible for a delay necessitating the making of the application for extension. In the end I have been satisfied by the reasoning of Buchanan, J.A. that it is a relevant factor but not necessarily one, at least in the Victorian legislative scheme, which should provide an immediate answer to an application of this kind. It might be said in the present case that the claim against the respondent’s solicitor was clear beyond argument, so that the difficulties, as such, of making out her case against that practitioner ought not to be of great consequence for present purposes. That I believe to be an oversimplification, to the extent that I originally thought that it might be easier to say that such potential claims were irrelevant.
Problems may arise in the following way. In some cases (of which this may be one), the allegation of negligence would appear incontrovertible, the only possible difficulty being in the assessment of damages.[1] It is, however, in the interest of the applicant to blame the solicitor and to place as little qualification on that as possible, for it makes all the more clear that the applicant cannot be blamed for any delay: see para.(3)(a) and (e). But if a right to sue in negligence were an almost complete answer, as was here suggested because of the strength of the respondent’s claim
against the solicitor, nobody would be interested in testing the extent to which blame should fairly rest on the solicitor, especially as the solicitor is not represented and rarely gives evidence, at least in the more obvious claims. If an unanswerable claim…
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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AGLC
Tsiadis v Patterson [2001] VSCA 138
Case
[2001] VSCA 138
Decision Date
CaseChat Overview and Summary
The case of Tsiadis v Patterson arose from a dispute concerning a personal injury claim that had been delayed beyond the statutory limitation period. The plaintiff, Tsiadis, sought to have the limitation period extended to allow the claim to proceed. The matter was heard in the Supreme Court of Victoria. Tsiadis argued that the delay was due to the negligence of his former solicitor, Patterson, and that extending the limitation period would not prejudice Patterson.
The central legal issues in this case were whether the statutory limitation period could be extended under the Limitation of Actions Act and, if so, whether such an extension would cause undue prejudice to the respondent. The court was required to consider the extent of the prejudice to the respondent and whether the cause of action against the solicitor responsible for the delay was a relevant consideration in determining the prejudice to the respondent.
The court examined the relevant statutory provisions and found that an extension of the limitation period could be granted if it was just to do so. The court held that prejudice to the respondent was a relevant consideration and that the extent of prejudice should be assessed in light of the cause of action against the solicitor responsible for the delay. The court determined that in this case, the extension of the limitation period would not cause undue prejudice to the respondent and granted the extension.
The final orders of the court were that the limitation period for the plaintiff's claim was extended, and the plaintiff was granted leave to amend the statement of claim to include a cause of action against the former solicitor for professional negligence. The court further ordered that the parties were to bear their own costs of the application.