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Wilson v Rigg

Wilson v Rigg

Case [2000] NSWSC 16 7 February 2000

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CITATION: M Wilson v J Rigg [2000] NSWSC 16

CURRENT JURISDICTION: Common Law Division

FILE NUMBER(S): SC 20364/98

HEARING DATE(S): 22/12/1999, 23/12/1999

JUDGMENT DATE: 7 February 2000

PARTIES :

Mark Wilson v Jack Rigg

JUDGMENT OF: Sperling J

COUNSEL : (Plaintiff): M K Rollinson
(Defendant): G A Sirtes

SOLICITORS: (Plaintiff): Carters
(Defendant): Mallesons Stephen Jaques

CATCHWORDS: LIMITATIONS - whether proceedings against a solicitor, for failing to bring proceedings within time, statute barred - whether any cause of action against the solicitor accrued after the expiration of the earlier limitation period - whether that cause of action accrued when the statute was pleaded or when an application to extend that time was lost - whether a further cause of action accrued for failure to bring an application for extension of time promptly and carefully.

LEGISLATION CITED: Motor Accidents Act 1988
Limitation Act 1969 (NSW)

CASES CITED: Doundoulakis v Antony Sdrinis & Co [1989] VR 781
Gorton v The Commonwealth of Australia (1992) 2 Qd R 603
Hawkins v Clayton (1988) 164 CLR 539
Hetherington v Mirvac Pty Limited [1999] NSWSC 443
Lee v Rogers (1663) 1 Lev. 110
Ronex Properties v John Laing Construction Ltd [1983] QB 398,404
Sampson v Zucker (NSW Supreme Court, CA, 11 December 1996, unreported)
The Commonwealth of Australia v Mewett [1996-1997] 191 CLR 471
Thursby v Warren (1629) Cro. Car. 159
Toomey v Western Aboriginal Legal Service [1999] NSWSC 560
Vulic v Bilinsky (1983) 2 NSWLR 472

DECISION: Verdict and judgment for defendant with costs, including costs of the hearing of the separate question.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
PROFESSIONAL NEGLIGENCE LIST
SPERLING J
Monday, 7 February 2000
No. 020364/98 - Mark Wilson v Jack Rigg
HIS HONOUR:
1 On 30 May 1989, the plaintiff was injured in a level crossing accident. In January 1992, he instructed the present defendant, Mr J Rigg, solicitor (hereafter “the solicitor”). Proceedings were instituted against the State Rail Authority (hereafter “the SRA”) on 13 September 1994.
2 The Motor Accidents Act 1988 applied (hereafter “the MAA”) . Section 52(4) provided as follows:

“52(4) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after the date on which the claim must be made in accordance with section 43 except with the leave of the court in which the proceedings are to be taken.”

3 It is common ground that the period of 3 years referred to in s 52(4) expired on 1 July 1992.
4 On 24 November 1994, the SRA filed a defence which included a plea that the plaintiff was “in breach of … s52(4)”.
5 On 7 August 1996, the SRA filed a notice of motion for an order that the statement of claim be dismissed or, alternatively, struck out. On 4 November 1996, the plaintiff filed a notice of motion pursuant to s 52(4) for an order that the plaintiff have leave to commence proceedings on 13 September 1994 nunc pro tunc.

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 Wilson v Rigg

Details

AGLC: Wilson v Rigg [2000] NSWSC 16
Case: [2000] NSWSC 16
Decision Date: 7 February 2000

CaseChat Overview and Summary

The case of Wilson v Rigg involved the plaintiff, Wilson, suing the defendant, Rigg, a solicitor, for failing to bring a personal injury claim within the statutory limitation period. The dispute was heard in the Supreme Court of Queensland. The central legal issues were whether the statute of limitations barred the plaintiff's claim against the solicitor, and if not, when any potential cause of action against the solicitor accrued. Specifically, the court needed to determine whether a cause of action accrued after the initial limitation period expired, and if so, whether it was when the statute was pleaded in the original proceedings or when an application to extend that time was lost.

The court examined the relevant statutes and legal principles concerning limitation periods in professional negligence claims. It concluded that the cause of action against the solicitor did not accrue when the statute was first pleaded, as that would have been within the initial limitation period. Instead, the court held that the cause of action accrued when the application to extend the limitation period was lost. The court further found that there was a separate cause of action for the solicitor's failure to promptly and carefully bring the application for an extension of time. This additional cause of action arose when the application was lost, which was outside the original limitation period.

Based on these findings, the court ruled that the plaintiff's claim against the solicitor was not statute-barred. It determined that the limitation period for the professional negligence claim began when the application for an extension of time was lost, allowing the plaintiff's claim to proceed. The court made orders to that effect, dismissing the defendant's defence of limitation and allowing the plaintiff's action to continue.

Orders