Wilkinson v Daley

Case [2004] NSWCA 331
CITATION: Wilkinson v Daley and Anor trading as Colin Daley Quinn & 2 Ors [2004] NSWCA 331
HEARING DATE(S): 23 July 2004
JUDGMENT DATE:
17 September 2004
JUDGMENT OF: Handley JA at 1; Sheller JA at 38; McColl JA at 39
DECISION: 1. Appeal dismissed with costs.; 2. Cross-appeal allowed in part.; 3. The Judge's order as to the costs of the trial, other than for the adjournments on 3 and 4 September 2002 and the costs of the motion for leave to re-open set aside.; 4. In lieu thereof substitute an order that the defendants pay 40 per cent of the plaintiff's costs of the trial other than the witness expenses for Barry Driver, Gloria Wilkinson and Sonia Zannino.; 5. Cross-appeal otherwise dismissed.; 6. Appellant to pay 75 per cent of the respondents' costs of the appeal and cross-appeal.
CATCHWORDS: DAMAGES - solicitor's negligence - original cause of action statute barred - action by former client against solicitors - proof of damage - no evidence of identity of putative defendants - no evidence that judgments against unidentified defendants would have been satisfied - loss not proved - ND
LEGISLATION CITED: Victims Support and Rehabilitation Act 1996
CASES CITED: Crump v Sharah [1999] NSWSC 884
House v The King (1936) 55 CLR 499
Murphy v Miller (16 October 1998, NSWCA, unreported)
Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394
Perri v Zaitman [1984] VR 314
Redman v Instant Nominees Pty Ltd [1987] WAR 277
Urban Transit Authority v Nweiser (1992) 28 NSWLR 471
Workers' Compensation Board v Riggins (1992) 95 DLR (4th) 279

PARTIES :

 Samantha Wilkinson (Appellant)
Timothy William Daley and Geraldine Anne Daley trading as Colin Daley Quinn (First Respondent)
Michael Sommerville (Second Respondent)
Ian Ross (Third Respondent)
FILE NUMBER(S): CA 41152/02
COUNSEL: P J Doherty SC/J Anderson (Appellant)
D Fagan SC/BMcManus (Respondents)
SOLICITORS: Gibson Howlin Lawyers (Appellant)
Colin Biggers & Paisley (Respondents)
LOWER COURTJURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DC 4100/00
LOWER COURT
JUDICIAL OFFICER : 		Solomon DCJ


                          CA 41152/02

                          HANDLEY JA
                          SHELLER JA
                          McCOLL JA

                          17 SEPTEMBER 2004

SAMANTHA WILKINSON v TIMOTHY WILLIAM DALEY and


GERALDINE ANNE DALEY trading as COLIN DALEY QUINN & 2 ORS

CATCHWORDS

DAMAGES – solicitor’s negligence – original cause of action statute barred – action by former client against solicitors – proof of damage – no evidence of identity of putative defendants – no evidence that judgments against unidentified defendants would have been satisfied – loss not proved


FACTS

The appellant was assaulted by security guards inside and outside a nightclub which traded under the name of Bobby McGee’s. She instructed the respondents to act as her solicitors to recover victims compensation and damages but her cause of action for damages became statute barred. She sued the respondents for negligence in handling her common law and statutory claims. The trial Judge awarded damages for loss of her rights under the Victims Support and Rehabilitation Act 1996 but dismissed her claim for damages for loss of her common law…

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AGLC
Wilkinson v Daley and Anor trading as Colin Daley Quinn and 2 Ors [2004] NSWCA 331
Case
[2004] NSWCA 331
Decision Date

CaseChat Overview and Summary

The plaintiff, Ms Wilkinson, brought proceedings against her former solicitors, Daley and others, alleging negligence. The alleged negligence related to the conduct of an original cause of action which, by the time the proceedings against the solicitors were commenced, had become statute barred. The primary dispute concerned whether Ms Wilkinson had suffered actionable loss as a result of the solicitors' conduct. The appeal was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether Ms Wilkinson had proven that she suffered damage as a consequence of the alleged negligence of her solicitors. This required the court to consider whether she had demonstrated that, but for the solicitors' negligence, she would have succeeded in her original cause of action and, crucially, that any judgment obtained in that original action would have been satisfied.

The Court of Appeal, comprising Handley, Sheller and McColl JJA, reasoned that Ms Wilkinson had failed to prove the necessary elements of her claim for damages. Specifically, there was no evidence identifying the putative defendants in the original cause of action, nor was there any evidence to suggest that any judgments against such unidentified defendants would have been satisfied. Without proof of these essential elements, the loss claimed by Ms Wilkinson could not be established.

The appeal was dismissed with costs. The cross-appeal was allowed in part, with the trial judge's order as to costs being set aside and substituted with an order that the defendants pay 40 per cent of the plaintiff's trial costs, excluding specific witness expenses. The remainder of the cross-appeal was dismissed. The appellant was ordered to pay 75 per cent of the respondents' costs of the appeal and cross-appeal.

Orders

Orders of the court

1. Appeal dismissed with costs.; 2. Cross-appeal allowed in part.; 3. The Judge's order as to the costs of the trial, other than for the adjournments on 3 and 4 September 2002 and the costs of the motion for leave to re-open set aside.; 4. In lieu thereof substitute an order that the defendants pay 40 per cent of the plaintiff's costs of the trial other than the witness expenses for Barry Driver, Gloria Wilkinson and Sonia Zannino.; 5. Cross-appeal otherwise dismissed.; 6. Appellant to pay 75 per cent of the respondents' costs of the appeal and cross-appeal.

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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