CITATION: Wilson v Rigg [2002] NSWCA 246 revised - 12/08/2002 FILE NUMBER(S): CA 40113/00 HEARING DATE(S): 3 June 2002 JUDGMENT DATE:
26 July 2002PARTIES :
Mark Robin Wilson - Appellant
Jack Rigg - RespondentJUDGMENT OF: Giles JA at 1; Santow J at 60; Foster AJA at 61
LOWER COURT JURISDICTION : Supreme Court LOWER COURT
FILE NUMBER(S) :CL 20364/98 LOWER COURT
JUDICIAL OFFICER :Sperling J
COUNSEL: D F Jackson QC & H W D Stowe - Appellant
D Davies SC - RespondentSOLICITORS: Sweeney Waterford - Appellant
Mallesons Stephen Jaques - RespondentCATCHWORDS: Limitations - motor vehicle accident - solicitor instructed - solicitor failed to commence proceedings within the time allowed under the Motor Accidents Act 1988 (date 1) - application for extension of time refused (date 2) - solicitor allegedly failed properly to conduct application - action against solicitor more than six years after date 1 but less than six years after date 2 - whether cause of action in relation to failure to commence proceedings statute barred - whether separate cause of action in relation to failure to properly conduct application. D. CASES CITED: Agryropoulos v Layton [2002] NSWCA 183;
Cartledge v E Jopling & Sons Ltd (1963) AC 758;
Cheney & Wilson v Duncan [2001] NSWCA 197;
Christopoulos v Angelos (1996) 41 NSWLR 700;
The Commonwealth of Australia v Mewett (1977) 191 CLR 471;
Doundoulakis v Antony Sdrinis & Co (1989) VR 781;
Hawkins v Clayton (1988) 164 CLR 539;
Registrar General v Cleaver (1996) 41 NSWLR 713;
Ronex Properties Ltd v John Laing Construction Ltd (1983) QB 398;
Sampson v Zucker (CA, 11 December 1996, unreported);
Scarcella v Lettice (2000) 51 NSWLR 302;
Scott v Echegaray (1991) Aust Tort Rep 81-120 at 69,133-4;
Wardley Australia Ltd v The State of Western Australia (1992) 175 CLR 514;
Warmsley v Cosentino [2001] NSWCA 403;
Wilson v Rigg [2000] NSWSC 16.DECISION: (1) Appeal allowed; (2) Set aside Sperling J's decision of the question and the verdict and judgment for the defendant and the order for costs made on 7 February 2000; (3) Answer the qustion that the appellant's claim against the respondent was answered by the plea in para 6 of the defence so far as the appellant relied on a cause of action for negligence in failing to commence proceedings by 1 July 1992 but not otherwise; (4) Remit the matter to the Common Law Division for hearing and determination conformably with that answer and these reasons; (5) Make no order as to the costs of the appeal or of the decision of the separate question before Sperling J.
CA 40113/00
CL 20364/98Friday 26 July 2002GILES JA
SANTOW JA
FOSTER AJA
WILSON v RIGG
Judgment
1 GILES JA: By a statement of claim filed on 24 September 1998 the appellant claimed from the respondent damages for negligence in acting as the appellant’s solicitor. The respondent’s defence filed on…
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- AGLC
- Wilson v Rigg [2002] NSWCA 246
- Case
- [2002] NSWCA 246
- Decision Date
CaseChat Overview and Summary
The appeal in *Wilson v Rigg* concerned a dispute arising from a motor vehicle accident. The appellant, Wilson, had instructed a solicitor to commence proceedings under the *Motor Accidents Act 1988* (NSW). The solicitor failed to commence proceedings within the statutory time limit. An application for an extension of time was subsequently refused. Wilson then commenced an action against the solicitor, alleging negligence in the conduct of the application for an extension of time. The action was commenced more than six years after the initial accident but less than six years after the refusal of the extension of time. The central question before the court was whether Wilson's claim against the solicitor was statute-barred.
The legal issues before the court were whether Wilson's cause of action in relation to the solicitor's failure to commence proceedings within the time allowed was statute-barred, and whether a separate cause of action existed in relation to the solicitor's alleged failure to properly conduct the application for an extension of time. The court had to determine the date from which the limitation period for each potential cause of action should be calculated.
The court reasoned that the cause of action for negligence in failing to commence proceedings within the statutory time limit accrued at the date when those proceedings ought to have been commenced, which was 1 July 1992. Therefore, any claim based solely on this failure was statute-barred. However, the court held that a separate cause of action could arise from the solicitor's alleged negligence in conducting the application for an extension of time. This separate cause of action accrued at the date of the refusal of the extension, which was later than the initial limitation period. The court allowed the appeal, set aside the previous decision and judgment for the defendant, and answered the question posed by the defence. The matter was remitted for hearing and determination, with no order as to the costs of the appeal or the separate question.
The legal issues before the court were whether Wilson's cause of action in relation to the solicitor's failure to commence proceedings within the time allowed was statute-barred, and whether a separate cause of action existed in relation to the solicitor's alleged failure to properly conduct the application for an extension of time. The court had to determine the date from which the limitation period for each potential cause of action should be calculated.
The court reasoned that the cause of action for negligence in failing to commence proceedings within the statutory time limit accrued at the date when those proceedings ought to have been commenced, which was 1 July 1992. Therefore, any claim based solely on this failure was statute-barred. However, the court held that a separate cause of action could arise from the solicitor's alleged negligence in conducting the application for an extension of time. This separate cause of action accrued at the date of the refusal of the extension, which was later than the initial limitation period. The court allowed the appeal, set aside the previous decision and judgment for the defendant, and answered the question posed by the defence. The matter was remitted for hearing and determination, with no order as to the costs of the appeal or the separate question.
Orders
Orders of the court
(1) Appeal allowed; (2) Set aside Sperling J's decision of the question and the verdict and judgment for the defendant and the order for costs made on 7 February 2000; (3) Answer the qustion that the appellant's claim against the respondent was answered by the plea in para 6 of the defence so far as the appellant relied on a cause of action for negligence in failing to commence proceedings by 1 July 1992 but not otherwise; (4) Remit the matter to the Common Law Division for hearing and determination conformably with that answer and these reasons; (5) Make no order as to the costs of the appeal or of the decision of the separate question before Sperling J.
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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