Tsiadis v Patterson

Case [2001] VSCA 138


SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7878 of 1999

MARKELA TSIADIS

Appellant

v.

GAYE PATTERSON

Respondent

---

JUDGES:

ORMISTON, CALLAWAY and BUCHANAN, JJ.A.

WHERE HELD:

MELBOURNE

DATES OF HEARING:

9-10 May 2001

DATE OF JUDGMENT:

29 August 2001

MEDIUM NEUTRAL CITATION:

[2001] VSCA 138

---

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.

---

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.:

  1. 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.

  1. 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. 

  1. 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…

Continue reading Tsiadis v Patterson

Sign in free to access the full text

Details
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.

Orders

Orders of the court

Full text does not contain this section.

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.