Hind v Ronsel Investments Pty Ltd

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S ECI 2019 02152

GREGORY ROY HIND	Plaintiff
v
RONSEL TRUST	First Defendant
RONSEL INVESTMENTS PTY LTD	Second Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	9 April 2020. Further written submissions filed 20 April 2020 and 24 April 2020
DATE OF JUDGMENT:	23 July 2020
CASE MAY BE CITED AS:	Hind v Ronsel Investments Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 428

---

PRACTICE AND PROCEDURE – Application by the defendants for summary judgment pursuant to s 63 of the Civil Procedure Act 2010 (Vic) and/or striking out of the plaintiff’s claim pursuant to Rule 23.02 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) – Whether the plaintiff’s claim has any real prospect of success – Whether the plaintiff’s causes of action against his solicitors are time barred – Allegations of negligence time barred under s 5 of the Limitation of Actions Act 1958 (Vic) – When cause of action accrues in cases of economic loss – Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17 referred to and applied – Wilson v Rigg [2002] NSWCA 246 referred to and applied – Application for summary judgment granted.

---

APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendant	Mr J Tesarsch	Carter Newell

HER HONOUR:

In July 2006, the plaintiff, Mr Gregory Roy Hind, then a man in his forties, together with his mother, Mrs June Hind, registered a partnership, G.R. Hind & J Hind (‘partnership’) for GST purposes, with an effective start date of 1 October 2002.

In 2006 and 2007, the partnership developed two properties at 63-65 Roseberry Avenue, Preston, which had been held by the family for many decades, into an apartment complex comprising twelve units (‘development’), using largely borrowed funds. Neither Mr Hind or his mother were experienced in property development or commercial matters: rather, it appears that the development was a one‑off project with the aim of maximising the value of the family’s assets. Mr Hind is currently unemployed, but has previously worked as a courier and as a security guard.

In the period leading up to the construction of the development, the partnership retained Rigby Cooke Lawyers (‘Rigby Cooke’) to advise them in relation to the financing and construction of the development, with Rigby Cooke providing advice on a building contract and a loan contract (‘original loan’), which were executed in 2005. The partnership was unable to fund the interest payments on the original loan, and was forced to obtain alternative finance from Owenlaw Mortgage Managers (‘OMM’). OMM took control of the development in November 2006, and sold the twelve units in the development between September 2007 and March 2008 as mortgagee in possession.

On 15 June 2010, the Deputy Commissioner of Taxation (‘Commissioner’) issued a proceeding against Mr Hind in the County Court of Victoria (‘County Court proceeding’) claiming a GST tax debt owing of $377,792.25 (‘tax debt’). The tax debt related to a failure to report the sale of seven units in the development in the September and March 2008 tax periods, and the incorrect reporting of the partnership’s GST liability on sales of units in the development in the October and November 2007 tax periods.

Mr Hind did not file a defence in the County Court proceeding, and the Commissioner obtained a default judgment against Mr Hind on 6 August 2010.

On 24 August 2010, Mr Hind applied to have the default judgment set aside, and retained the second defendant, Ronsel Investments Pty Ltd (trading as Ronald Segal & Associates), a legal practice of which Mr Ron Segal was the principal (‘law firm’), to represent him in the County Court proceeding. The first defendant, Ronsel Trust, is a discretionary trust trading as Ronald Segal & Associates. In the defence filed on 12 September 2019, the law firm said that the first defendant is not a legal entity. Nothing turns on this issue for the purposes of the current application, but for completeness I will make an order that the first defendant be removed as a party to the proceeding.

On 12 October 2010, an accountant engaged by Mr Hind on the law firm’s recommendation to assist him in his dealings with the Commissioner, Mr Paul Raye, sent a letter to the law firm (’Raye letter’) which provided as follows:

Dear Greg,
Re: Review of GST Situation and Tax Audit
You have asked me to review your situation regarding GST payable as a result of the findings of a recent tax office audit into your property development…
…On another point which may be helpful in your dealings with the ATO, we note that Div105 of the GST Act may be relevant in your circumstances.
Division 105 of the GST Act governs the treatment of GST where a mortgagee in possession exercises its power of sale. The sale of the property by a mortgagee in possession is taxed for GST in the hands of the mortgagee. This is notwithstanding that ownership of the property passes from the mortgagor to the third party purchaser. The sale of property by a mortgagee in possession will be a taxable supply only if the sale of that property by the mortgagor would have been a taxable supply. That is, effectively the supply of the property is taxed in the hands of the mortgagee as if they were the mortgagor. Consequently, it may be that the ATO should have audited the mortgagee and applied any penalties for non, incorrect and late lodgement against the mortgagee. I will leave this matter with you for possible review by your legal representatives.

On 13 October 2010, Mr Segal sent the Raye letter by fax to Mr Hind. The fax cover sheet stated as follows:

Greg, give me a call once you receive all pages.
Herewith papers from Paul Raye.

Some weeks later, on 30 November 2010, Mr Raye sent Mr Hind a letter, as follows:

Dear Greg,
Re: Review of GST Situation and Tax Audit
You have asked us to further review your situation regarding GST payable as a result of the findings of a recent tax office audit into your property development.
You have provided the following:
1.A spreadsheet of Sales and expenses for the project as compiled by another accountant.
2.Copy of the Audit report and findings.
3.Sales records.
4.Numerous Tax Invoices and other miscellaneous documents in addition to those summarised at 1. above.

We have summarised invoices provided (Item 4. above). We have then combined these figured with those in 1. above and arranged them in chronological order according to the BAS returns lodged for the period 1/7/06 to 30/6/08.
We have then summarised the GST on Purchases (1B) as shown in the BAS returns lodged with the ATO and compared those figures with the GST from our summary – refer last page of Summary.
From the Summary, GST on Purchases from the BAS returns shows a total of $197,064 for the 24 month period. Our summary provides a figure of $233,927, a difference of $36,863 in GST unclaimed.
Note, however, that not all tax invoices were sighted, and that where possible GST amounts were determined from other documents where it seemed reasonable to do so. You may need to use additional endeavours to obtain these if necessary.
If you are happy with these figures, then we suggest that amended BAS returns need to be lodged for the periods shown. We can attend to this if you so require. We also recommend that a request for a remission of penalties and interest be made to the ATO, in whole or in part. We can assist with this, but will need some additional input in order to determine what grounds we can rely on.
In our previous review we referred to a possible use of Division 105 of the GST Act which governs the treatment of GST where a mortgagee in possession exercises its power of sale. However, from the documents since received, I note that the mortgagee in possession passed the responsibility of preparing BAS returns back to you in October 2007, once sales had commenced. Consequently, I now doubt that use of this Division is of any significant benefit to you.

Accordingly, while for present purposes it is not necessary to delve into the intricacies of the operation of taxation law (in particular, A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST Act’)), it appears from the correspondence above that initially, Mr Raye considered that there was a possibility that GST had been wrongfully levied against the partnership, rather than against OMM, but, following the provision of further documents to him by Mr Hind (or the law firm), Mr Raye formed the view that this particular avenue of inquiry was unlikely to be fruitful. The critical plank of Mr Hind’s claims against the law firm is that the law firm failed to investigate whether Division 105 of the GST Act operated to relieve Mr Hind of part or all of his liability to the Commissioner, and to defend the County Court proceeding on that basis.

Further, on or about 6 December 2010, the partnership also retained the law firm to bring a negligence claim against Rigby Cooke with respect to the advice provided by it to the partnership with respect to the financing of the development (‘Rigby Cooke proceeding’), which was issued on 21 December 2010.

On or about 12 December 2010, Mr Hind lodged an objection against the assessment of GST liabilities and interest and penalties comprising the tax debt (‘objection’).

On 18 February 2011, an officer of the Australian Taxation Office (‘ATO’) wrote to the law firm on behalf of the Commissioner. The letter referred to Mr Hind’s application to set aside the default judgment, and asserted that the application to set aside the default judgment was bound to fail, as the judgment had been regularly entered, and, while the ATO had subsequently revised downwards its assessment of the tax debt, the default judgment was valid, as the relevant provisions of the Taxation Administration Act 1953 (Cth) (‘TAA’) provide that a Notice of Assessment is conclusive evidence of the making of the assessment and the quantum of the assessment. In response, in a letter dated 3 March 2011, the law firm sent a letter to the ATO stating, among other things, that:

We advise our clients are prepared to negotiate with you but our clients and their accountants are providing information to your Queensland office and accordingly the amount claimed is still not finalised.
Our clients are running a concurrent action in the Supreme Court of Victoria, against Rigby Cooke Lawyers, who acted in their property and mortgage transactions. Our client wishes to apply the settlement funds of this action towards the ATO’s claim.

Mr Hind’s application to set aside the default judgment came on for hearing on 7 April 2011. The law firm instructed Mr William Alstergren of counsel[1] to appear on Mr Hind’s behalf. On 7 April 2011, Mr Hind’s application was struck out by consent pursuant to an agreement between Mr Hind and the Commissioner to the effect that the judgment in the County Court proceeding would not be enforced until three months after the Commissioner’s determination of the objection.
[1]Mr Alstergren was appointed as Queen’s Counsel in 2012, and is now the Chief Justice of the Family Court of Australia and Chief Judge of the Federal Circuit Court of Australia (‘Federal Circuit Court’). I shall refer to his Honour in these reasons as ‘Mr Alstergren’, given the context in which those references are made. No disrespect is intended.

On 8 May 2011, the Commissioner disallowed the objection.

On 28 June 2012, a mediation was held in the Rigby Cooke proceeding. The Rigby Cooke proceeding failed to settle on that date, with there being a substantial gap between Mr Hind’s expectations (he hoped to recover over $1 million from Rigby Cooke) and the amount that the lawyers for Rigby Cooke were prepared to offer the partnership to settle the Rigby Cooke proceeding. In August 2013, Mr Hind rejected a Calderbank offer made on behalf of Rigby Cooke. The trial date of 4 October 2013 was vacated, owing to funding difficulties faced by the partnership, and rescheduled to commence on 24 March 2014. Mr Alstergren returned his brief on about 19 February 2014, and Mr Hind ultimately accepted a further Calderbank offer made on behalf of Rigby Cooke on or about 20 March 2014, shortly before the trial was due to commence. A payment of $220,000.00 was made to the partnership shortly thereafter. The evidence suggests that the settlement sum was insufficient to meet the legal costs incurred by the partnership in prosecuting the Rigby Cooke proceeding.

In the meantime, on or about 24 April 2013, the Commissioner served a bankruptcy notice upon Mr Hind. On 7 November 2013, a solicitor acting for the Commissioner deposed that on that date she had searched the records of the Federal Circuit Court. That search revealed that Mr Hind had not made an application to set aside the bankruptcy notice, or any application to extend time for compliance with the bankruptcy notice.

On 22 July 2014, Mr Hind was declared bankrupt, when the Commissioner obtained (against the opposition of Mr Hind, who was represented by Mr Tomlinson of counsel at the hearing, instructed by the law firm) a sequestration order against Mr Hind in the Federal Circuit Court, and the Official Trustee became the trustee of Mr Hind’s bankrupt estate. On 21 April 2016, Mr David Sampson replaced the Official Trustee as trustee of Mr Hind’s bankrupt estate.

Mr Hind was discharged from bankruptcy on 24 August 2017. However, his cause of action against the law firm remained an asset of his bankrupt estate. Pursuant to a deed of assignment executed on 6 April 2020, shortly before the hearing of this application, Mr Hind obtained an assignment of the chose in action against the law firm from Mr Sampson for consideration of $5,000.00.

The deed of assignment refers to two annexures, being the amended statement of claim filed in this proceeding, and a document dated 19 February 2020, which is titled ‘statement of claim’ (‘draft amended statement of claim’), but has not yet been filed in this Court (save as an exhibit to an affidavit filed by Mr Hind.) The draft amended statement of claim makes claims against the defendants in this proceeding similar to those made in the amended statement of claim, but the allegations in the draft amended statement of claim also concern the law firm’s allegedly negligent conduct of the Rigby Cooke proceeding.

While the copy of the deed of assignment in evidence does not include the annexures, it is clear from the deed of assignment itself that the cause of action assigned to Mr Hind includes any claims he may have against the law firm with respect to its conduct of the Rigby Cooke proceeding, as well as its conduct of the County Court proceeding.

This proceeding was issued on 16 May 2019. Originally, Mrs Hind was also a plaintiff in this proceeding, but she filed a Notice of Discontinuance on 18 February 2020.

The Statement of Claim

Prior to turning to the parties’ submissions concerning the law firm’s application, it is necessary to consider the allegations in the statement of claim in some detail.

The statement of claim, which was drafted by Mr Hind without legal assistance, makes the following allegations:

(a) the law firm represented itself as having over thirty years’ experience in property law and taxation law;

(b) due to financing issues caused by Rigby Cooke, the partnership lost control of the development to OMM;

(c) at least nine of the contracts of sale for the units in the development did not contain the mortgagee’s signature, and were thus invalid;

(d) Mr Hind retained the law firm to act on Mr Hind’s behalf in relation to his dealings with the Commissioner;

(e) the law firm was aware of Mr Hind’s belief that the taxable supply attracting GST only arose by reason of OMM assuming control of the development, which would have enabled Mr Hind to rely upon Division 105 of the GST Act as a defence to the Commissioner’s claim in the County Court proceeding;

(f) the law firm owed Mr Hind a duty of care to, among other things;

(i) properly review all statements and documents provided by Mr Hind with respect to OMM’s role in the sales of the units in the development;

(ii) advise Mr Hind of all avenues of appeal against the Commissioner’s determination with respect to the objection;

(iii) fully advise Mr Hind of any expert opinions regarding the claim by the Commissioner; and

(iv) obtain the opinion of a barrister with expertise in taxation law with regard to the question of the role of OMM in the development;

(g) the law firm breached its duty of care by, among other things, failing to:

(i) undertake due diligence, explain the impact of source documents and analyse their input to the taxable supply;

(ii) pursue a defence to the Commissioner’s claim in the County Court proceeding;

(iii) advise Mr Hind and the Court that Mr Hind had a ‘creditable’ defence by reason of Division 105 of the GST Act;

(iv) advise Mr Hind that Mr Alstergren was not an expert in taxation law;

(v) advise the Commissioner that OMM unjustifiably refused to allow Mr Hind to remedy a loan default or refinance the loan; and

(vi) advise Mr Hind and the Commissioner that at least nine of the contracts of sale did not have the mortgagee’s signature;

(h) the law firm’s conduct resulted in Mr Hind being made bankrupt;

(i) by reason of the law firm’s failure to discharge its duty of care, Mr Hind has suffered substantial financial loss and damage and reputational harm; and

(j) Mr Hind is entitled to repayment of all monies received by the law firm, and losses suffered as a result of the consequent financial and reputational damage to him.

On 5 August 2019, Mr Hind filed an amended statement of claim, which made some minor alterations to the statement of claim, but substantially repeated the allegations in the statement of claim.

On 2 December 2019, Mr Hind filed further and better particulars to the amended statement of claim, which stated, in summary, as follows:

(a) the law firm was ‘disingenuous’ between 14 October 2010 and 7 April 2011 by ignoring the advice of Mr Raye in the Raye letter with respect to Division 105 of the GST Act and OMM’s involvement in the sale of the units in the development;

(b) the failure by the law firm to present the contents of the Raye letter to the Commissioner and the County Court deprived Mr Hind of the opportunity to defend the County Court proceeding;

(c) on or about 26 November 2006, OMM rejected Mr Hind’s first refinancing proposal and instructed that sales of the units in the development would proceed or the loan facility would otherwise be called in;

(d) in or around July or August 2007, OMM stated to Mr Hind that an unconditional letter of offer to refinance must be presented prior to 4 August 2007;

(e) Mr Hind provided a letter of offer to refinance OMM’s loan on 24 August 2007;

(f) by denying Mr Hind the opportunity to refinance the development, OMM caused the partnership to incur additional penalty interest costs, selling expenses and a GST liability which would not otherwise have been incurred;

(g) OMM refused to entertain any refinancing proposals until the number of sales covered the debt owing to OMM. However, OMM did allow the refinancing of the last units in the development by another lender in December 2007, which required both units to be sold, thus causing Mr Hind to incur further GST liabilities;

(h) in his telephone conversation with Mr Alstergren on 6 April 2011, Mr Alstergren did not clearly inform Mr Hind of the agreement with the Commissioner to strike out the application to have the default judgment set aside;

(i) as a result of Mr Hind’s application to have default judgment set aside being struck out on 7 April 2011, Mr Hind has been disadvantaged by:

(v) the loss of his ability to defend against the Commissioner’s claim in the County Court proceeding;

(vi) the tax debt led to sequestration proceedings being initiated by the Commissioner (‘bankruptcy proceeding’);

(vii) the financial ramifications of bankruptcy hampered Mr Hind’s ability to raise funds to prevent the sale of the family home in Donvale;

(viii) a payment to the trustee in bankruptcy made on 4 May 2018;

(ix)a payment of GST of $260,000 made by the partnership; and

(j) Mr Hind’s estimate of the loss and damage suffered by him was in the range of $4.5 to $4.6 million.

The law firm filed a defence on 12 September 2019. In the defence, the law firm objected to most of the paragraphs of the statement of claim on the basis that the allegations in the statement of claim were embarrassing, ambiguous or vague. The law firm’s substantive responses to the allegations in the statement of claim are summarised as follows:

(a) the law firm admitted that it held itself out to having expertise in property law;

(b) the law firm denied holding itself out as having expertise in taxation law, saying that it relied upon the expertise of Mr Raye and Mr Alstergren;

(c) it stated that this Court has no discretion to ‘set aside’ or extend the statute of limitations in this proceeding;

(d) the law firm admitted that it owed Mr Hind a duty to exercise reasonable care, skill and diligence in relation to the defence of the County Court proceeding;

(e) it denied the assertions in the amended statement of claim regarding what the law firm should have done (see paragraph 24(g) above), and said further that:

(A)It was instructed by [Mr Hind] to apply to set aside [the] default judgment with respect to the County Court proceeding, in circumstances where he had filed but not served a notice of appearance;

(B) In the furtherance of these instructions, and among other things, it:
(I)Briefed counsel to ‘advise and draw affidavit material’, in relation to the application to set aside default judgment;
(II)Instructed the accountant to urgently assess the GST liability of the plaintiffs to the Australian Taxation Office/Deputy Commissioner of Taxation;
(III)Considered correspondence from the accountant, including a submission dated 9 December 2010 addressed to the ATO in relation to the proposed remission of interest and penalties for the period 1 April 2005 to 31 December 2008;
(IV)Conferred with [Mr Hind] and with counsel in relation to the defence of the County Court proceeding, including in relation to strategy;
(V)Corresponded with the ATO including in relation to the proposed adjournment of the return date of [Mr Hind’s] application to set aside default judgment in the County Court proceeding.

(f) the law firm stated that Mr Hind is not entitled to specific performance of the retainer, as the retainer has been discharged, and is not entitled to relief for defamation, as no cause of action in defamation has been pleaded; and

(g) the law firm stated as follows:

Further, the proceeding is statute barred pursuant to section 5(1) of the Limitation of Actions Act 1958 (Vic) as any cause of action accrued more than six years prior to the date of the proceeding was issued by the plaintiffs.
Particulars
The application of [Mr Hind] to set aside default judgment in the County Court proceeding was struck out by consent on 7 April 2011 whereas this proceeding was not issued by the plaintiffs until on or around 16 May 2019.

On or about 2 December 2019, Mr Hind sought the consent of the law firm’s solicitors to the filing and service of a document headed ‘Second Amended Writ’, which, among other things, sought to bring claims against the law firm with respect to its conduct of the Rigby Cooke proceeding. Essentially, Mr Hind contends that the law firm failed to prosecute the Rigby Cooke proceeding with all due care and skill, and in particular, failed to properly explain the requirements of causation. I take this to mean that the law firm had failed to obtain evidence in support of his contention that Rigby Cooke’s allegedly negligent conduct had caused the partnership loss and damage. In order to establish loss and damage, the partnership had to prove that, but for Rigby Cooke’s negligent advice, the partnership would have not proceeded with the development (and thus would not have suffered the losses incurred by it by reason of the failure of the development), or, alternatively, would have obtained finance on terms which would have enabled the partnership to profitably complete the development.

The issue was put succinctly in a letter from the law firm to Mr Hind dated 5 March 2013, as follows:

We refer to the above matter and enclose a copy of the DRAFT Witness Statement of Gregory Roy Hind.
Please review and add additional information where required.
Currently we have claimed that inter alia Rigby Cooke were negligent or alternatively in breach of their duty of care in not advising you of certain aspects of the loan and building contracts. As a result you have suffered loss and damage.
The question may be put, are you claiming that had you known you would not have entered into the contract or are you going a step further and say had you known you would have got finance from somewhere else?
There is a difference and the latter will require us to prove that you could have got alternative finance.
If we need to amend we should do so as soon as possible.
(emphasis added)

This letter was sent a few weeks after the managing judge raised the issue as to how the partnership put its claim for loss and damage with Mr Alstergren during a directions hearing.

The law firm did not consent to the filing and service of the second amended statement of claim, based upon its view at the time Mr Hind (by reason of his bankruptcy) did not have standing to bring any claims against it.

On 28 January 2020, Mr Hind unsuccessfully attempted to file a writ and statement of claim referable only to Mr Hind’s allegations with respect to the law firm’s conduct of the Rigby Cooke proceeding. Apparently, the Court Registry refused to accept this document for filing given that the parties were identical to the parties in this proceeding, and no leave had been granted to amend the pleadings in this proceeding. In this document, Mr Hind made the following allegations:

(a) on 20 December 2005 Mr Peter Byrne of Rigby Cooke arranged for a loan to the partnership from Noble Place Pty Ltd (‘original loan’) which was unworkable, unaffordable, and against his instructions, which was the cause of the failure of the development, as the lender did not allow for the capitalisation of interest upon the original loan;

(b) the inability of Mrs Hind to fund the purchase of a home in Donvale as well as interest payments on the original loan caused the partnership to refinance the development with OMM, and to register for GST purposes in order to claim GST input credits;

(c) the Rigby Cooke proceeding was filed and served on or about 19 December 2010;

(d) the Commissioner was reliant upon there being a successful outcome of the Rigby Cooke proceeding to enable Mr Hind to pay the tax debt;

(e) it appeared to Mr Hind that from around August/September 2012 Mr Segal and Mr Alstergren became distant and unfriendly towards him, expressed negative views regarding his prospects of success in the Rigby Cooke proceeding, and made certain remarks that caused him to believe that his legal representation had been compromised;

(f) the law firm had failed to join all necessary defendants to the proceeding, including the lenders and a finance broker, and had failed to properly establish how Rigby Cooke’s conduct had caused the partnership loss and damage; and

(g) the Rigby Cooke proceeding was settled for an inadequate sum by reason of the law firm’s ‘extreme undue influence’.

The draft amended statement of claim, which is a more condensed version of the document dated 28 January 2020, was prepared on or about 19 February 2020,[2] and stated, among other things, as follows:
[2]In his affidavit filed on 19 March 2020, Mr Hind said that he had also attempted to file the draft statement of claim with the Court Registry on or about 19 February 2020.

The defendant breached his duty of care in the [Rigby Cooke] proceeding … by failing (1) to either present nor argue any form of causation (2) lack of expediency in pursuit of a resolution, allowing the defence to dictate the progress of the proceeding (3) the effects on Mrs June Hind’s bank account (4) premature registering of GST by Mr Greg Hind and the subsequent consequences (5) the reason the lender known as Owenlaw Mortgage Managers was ever involved.
The plaintiffs had minimal legal experience relying and entrusting their faith in the defendants’ professional integrity to represent them, which has consequently resulted in the plaintiffs being taken advantage of.
The plaintiff therefore believes all monies invoiced by the defendant for this work should be reimbursed along with any opportunity costs otherwise the defendant would be unjustly enriched as there was ultimately zero chance for the plaintiffs being successful.
The plaintiff is claiming:       (a)       damages
(b)       interest
(c)       costs
(d)whatever this Honourable Court deems appropriate.

The summary judgment application

In its summons filed on 24 February 2020, the law firm seeks the following relief:

1.Pursuant to sections 62 and 63 of the Civil Procedure Act 2010 (Vic) (CPA) and/or rules 22.16 and/or 23.01 of the Supreme Court (General Civil Procedure Rules 2015 (Vic) (Rules), the claims in the plaintiff’s amended statement of claim dated 5 August 2019 (Statement of Claim) be dismissed.
2.In the alternative, pursuant to sections 63 and 63 of the CPA and/or rules 22.16 and/or 23.01 of the Rules, the claims in the proceeding by the plaintiff be dismissed.
3.In the alternative, pursuant to rule 23.02 of the Rules, the Statement of Claim be struck out, alternatively such paragraphs as the Court sees fit be struck out.
4.The time by which the applications in paragraphs 1 and 2 above may be made [sic] be extended.

The application in paragraph 4 of the summons was made because the solicitors for the law firm had not complied with the timetable set by Clayton JR on 3 October 2019 for the filing and service of the summary judgment application. The delay was said to have been caused by the necessity to investigate the issue of standing by reason of Mr Hind’s bankruptcy.[3]
[3]Little turns upon the delay, although it has been necessary to vacate the trial date of 29 September 2020 while judgment in this application has been reserved.

Rule 23.01 of the Rules provides as follows:

Where a proceeding generally or any claim in a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

Rule 23.02 of the Rules provides as follows:

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court—

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

In addition, the law firm relies upon s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), which provides as follows:

Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

The test under s 63 of the CPA is governed by the statement of the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[4] as follows:

(a)the test for summary judgment under section 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[5]

[4](2013) 42 VR 27.

[5]Ibid [35].

In Sloan v Arnold Thomas & Becker (No 2),[6] I had cause to consider when it is appropriate to grant summary judgment on the basis that the defendant had a limitations defence which was bound to succeed, as follows (omitting footnotes):

Traditionally, the Courts have been reluctant to grant summary judgment where the sole issue is whether a plaintiff’s claims are time barred, save in the clearest of cases.
In D’Aquino v Trovatello, the Court referred to the difficulties faced by the defendant seeking summary judgment on limitations grounds. In response to a defendant’s contention that, on the plaintiff’s case as pleaded, and on the plaintiff’s own material, the case would be unable to succeed, McLeish JA stated as follows:
In taking this course, the respondents assumed a heavy burden. In order to show that the claim had no real prospect of success, it was necessary for the respondents to establish that the applicants had no real prospect of overcoming the limitations defence. That in turn meant, either that the pleaded claims fell wholly outside the limitation period, or that, although there were claims that arose within the limitation period, there was no real prospect of sustaining them at trial.[7]

However, in Bodycorp Repairs Pty Ltd v Holding Redlich, the Court of Appeal stated that granting summary judgment upon limitation grounds may be appropriate ‘where there was no relevant issue of fact which required resolution, and nothing to suggest that there is any prospect further evidence could materially alter [the date upon which the cause of action accrued]’.[8]
[6][2019] VSC 682.
[7]Ibid [53].
[8]Ibid [22]-[24].

The Evidence

The law firm relied on an affidavit of Mr Benjamin Hall, a partner of the law firm’s solicitors, sworn on 24 February 2020 (‘first Hall affidavit’).[9] In the first Hall affidavit, Mr Hall deposed, in summary, as follows:
[9]The law firm also relied on a short, corrective affidavit of Mr Benjamin Hall, sworn on 26 February 2020.

(a) the County Court proceeding was struck out by consent on 7 April 2011, pursuant to consent orders agreed to by Mr Hind and an agreement with the Commissioner that the default judgment would not be enforced until three months after the determination of Mr Hind’s objection to the assessment giving rise to the tax debt;

(b) on 6 May 2011, the Commissioner wholly disallowed Mr Hind’s objection;

(c) in his view, any loss suffered by Mr Hind as a consequence of any breach of duty by the law firm in relation to the County Court proceeding was first suffered when the application to set aside the default judgment was struck out by consent on 7 April 2011, or, alternatively, no later than sixty days after the Commissioner’s determination to reject the objection, on 6 May 2011, being the expiration of the statutory time limit to challenge the determination in the Administrative Appeals Tribunal (‘AAT’), that is, on or about 6 July 2011; and

(d) Mr Hind paid the moneys invoiced by the law firm in relation to its retainer with respect to the County Court proceeding in full no later than 15 July 2011.

The documents exhibited to the first Hall affidavit include the following:

(a) the law firm’s request for further and better particulars and Mr Hind’s response;

(b) a document dated 2 December 2019 headed ‘Second Amended Writ’;

(c) correspondence between Mr Hall’s firm and Mr Hind regarding the question of whether his trustee in bankruptcy had assigned the causes of action against the law firm to Mr Hind;

(d) the writ and statement of claim in the County Court proceeding;

(e) an email from Mr Alstergren to Mr Hind dated 7 April 2011 advising that his application to set aside the default judgment had been struck out by consent and the terms of the agreement between the Commissioner and Mr Hind;

(f) the Commissioner’s determination of the objection, dated 6 May 2011, which contained detailed reasons for dismissing the objection; and

(g) a trust transaction report listing amounts invoiced to Mr Hind by the law firm and paid by him in relation to the County Court proceeding, which showed that the law firm’s fees with respect to the County Court proceeding were fully paid by Mr Hind by 15 July 2011.

The law firm also relied on a second, unsworn, affidavit of Mr Benjamin Hall dated 30 March 2020 (’30 March affidavit’).[10] In the 30 March affidavit, Mr Hall deposed, in summary:
[10]I permitted the law firm to rely upon the unsworn affidavit owing to the restrictions on community movement imposed by reason of the COVID‑19 pandemic.

(a) on 13 October 2010, the law firm faxed to Mr Hind the email dated 12 October 2010 from Mr Paul Raye attaching the Raye letter;

(b) on 13 October 2010, Mr Raye had discussions with Mr Hind in relation to the subject matter of the Raye letter;

(c) on 13 October 2010, Mr Raye sent to the law firm two emails referring to the discussions between Mr Raye and Mr Hind;

(d) the contents of the Raye letter and the emails sent by Mr Raye on 13 October 2010 were reflected in the contents of an affidavit sworn by Mr Hind on 14 October 2010 and filed in the County Court proceeding;

(e) Mr Raye was engaged directly by Mr Hind in relation to the tax debt which was the subject of the County Court proceeding;

(f) on 30 November 2010, Mr Raye sent a letter to Mr Hind, in which Mr Raye stated that he doubted whether Division 105 of the GST Act would be of any significant assistance to Mr Hind; and

(g) contrary to Mr Hind’s assertion that he had no intention of pursuing a claim against the law firm prior to discovering the Raye letter amongst his papers on or around 23 February 2019, Mr Hind visited the offices of the Legal Practitioners’ Liability Committee (‘LPLC’) on 10 August 2015 and on several other occasions in 2016 and 2017, complaining about the conduct of the law firm with respect to the Rigby Cooke proceeding and saying that he wanted to bring a claim against the law firm.

Exhibited to the 30 March affidavit are a number of documents, including:

(a) two emails from Mr Raye to the law firm and Mr Alstergren dated 13 October 2010, referring to discussions between Mr Raye and Mr Hind in relation to GST;

(b) the affidavit sworn by Mr Hind on 14 October 2010 and filed in the County Court proceeding; and

(c) the letter from Mr Raye to Mr Hind dated 30 November 2010.

Mr Hind relied upon an affidavit sworn by him on 19 March 2020. In his affidavit, Mr Hind deposed, in summary, as follows:

(a) the law firm was appointed to act on behalf of Mr Hind in relation to the County Court proceeding and the partnership in relation to the Rigby Cooke proceeding;

(b) the Rigby Cooke proceeding was issued due to Rigby Cooke allowing the partnership to enter into the original loan, which was contrary to Mr Hind’s instructions and which caused a significant financial loss to Mr Hind;

(c) in pursuing the Rigby Cooke proceeding, the law firm failed to pursue a causation argument which denied the partnership any chance of a successful outcome in the Rigby Cooke proceeding;

(d) the Commissioner was reliant on a successful outcome in the Rigby Cooke proceeding to recover the tax debt from Mr Hind;[11]
[11]There was no direct evidence regarding this issue, but it may well be that the Commissioner agreed to await the outcome of the Rigby Cooke proceeding before pursuing further enforcement action against Mr Hind, given that the bankruptcy proceeding was progressed not long after the Rigby Cooke proceeding was dismissed by consent on 20 March 2014.

(e) the failure of Mr Hind to recover an appropriate sum in the Rigby Cooke proceeding left Mr Hind unable to deal with the debt owing to the Commissioner, which ultimately resulted in bankruptcy on 22 July 2014;

(f) until his discovery of the Raye letter on or about 23 February 2019, Mr Hind had no intention to bring a claim against the law firm;

(g) the law firm was aware of a credible defence to the Commissioner’s claim in the County Court proceeding pursuant to Division 105 of the GST Act, but did not inform Mr Hind or the County Court; and

(h) had a defence pursuant to Division 105 of the GST Act been pursued by the law firm, the tax debt and the default judgment in the County Court proceeding would have been set aside.

Mr Hind exhibited a number of documents to his affidavit, including:

(a) letters of engagement in relation to the County Court proceeding and the Rigby Cooke proceeding dated 27 September 2010 and 6 December 2010 respectively;

(b) the fax sent to Mr Hind by the law firm on 13 October 2010 enclosing the Raye letter;

(c) the letter from the law firm to the Commissioner dated 3 March 2011 (see paragraph 13 above), in which the law firm stated that Mr Hind was prosecuting the Rigby Cooke proceeding and wished to apply the funds from the settlement of that proceeding towards the payment of the tax debt;

(d) other correspondence between the law firm and the ATO in 2011;

(e) the sequestration order made by Registrar Caporale in the Federal Circuit Court of Australia on 22 July 2014;

(f) documents evidencing the sale of the Donvale home in 2018;

(g) journal articles concerning the operation of Division 105 of the GST Act;

(h) a transcript of a directions hearing in the Rigby Cooke proceeding before Macaulay J on 15 February 2013, where Mr Alstergren appeared on behalf of Mr Hind, and his Honour queried how the partnership put its claim for loss and damage;

(i) documents evidencing alternative financing options available to the partnership between 2005 and 2007;

(j) a notice for discovery in this proceeding served by Mr Hind on or about 7 February 2020;

(k) the draft amended statement of claim dated 28 January 2020;

(l) a further draft amended statement of claim dated 19 February 2020;

(m) correspondence between Mr Hind and the law firm in February 2020 concerning Mrs Hind’s discontinuance of her claims in this proceeding;

(n) an affidavit of search filed by the solicitor for the Commissioner on 7 November 2013 with respect to the bankruptcy notice served on Mr Hind on 24 April 2013; and

(o) sundry documents concerning the funding of the development, including a default notice served upon the partnership by OMM on 14 August 2007.

Mr Hind also relied on an affidavit sworn on 6 April 2020, in which he deposed that he received the deed of assignment for the chose in action against the law firm from Mr Sampson on 2 April 2020, and exhibited the deed of assignment (without annexures) and the draft amended statement of claim.

The law firm’s submissions

The law firm submitted that the claims made by Mr Hind in this proceeding are barred by the operation of s 5(1) of the Limitation of Actions Act 1958 (Vic) (‘LAA’), and, as such, the proceeding ought to be dismissed, as there are no real prospects of Mr Hind overcoming the law firm’s limitation defence.

The law firm noted that causes of action in negligence accrue when the plaintiff first suffers loss or damage, and submitted as follows (citations omitted):

The leading authority is the High Court decision of Wardley, above. Although the decision concerned misleading and deceptive conduct, it is also applicable for negligence claims. The majority noted that in determining when the relevant cause of action accrued:
The kind of economic loss which is sustained and the time when it is first sustained depend on the nature of the interest infringed and, perhaps, the nature of the interference to which it is subjected…With economic loss, as with other forms of damage, there has to be some actual damage…prospective loss is not enough.

As regards negligence claims against professional there are instances where loss is suffered by a client upon entry into a disadvantageous transaction (in reliance upon negligent advice), in that the loss of a chance may be calculated even though the particular financial consequences may depend on future events.

The law firm referred to the decision of the Court of Appeal in Body Corp Repairs Pty Ltd v Holding Redlich (‘Bodycorp‘)[12] and relied upon the decision of Osborn JA in Orwin v Rickards (‘Orwin’).[13] In Orwin,[14] the plaintiff’s solicitor had prepared a financial agreement, which had been executed by the plaintiff and the plaintiff’s former de facto partner in March 2010 (‘financial agreement’). Following the breakdown of the relationship in March 2015, the plaintiff’s former de facto partner brought a proceeding seeking to set aside the financial agreement (‘family law proceeding’). In the family law proceeding, the plaintiff’s counsel conceded the financial agreement was invalid, and the family law proceeding was settled on terms requiring a substantial payment by the plaintiff to her former de facto partner. The plaintiff brought a proceeding against her solicitors claiming damages for breach of contract and negligence in relation to the preparation and execution of the financial agreement, alleging that, as a result of the breach of the solicitor’s duty of care, the plaintiff lost the opportunity to rely on the financial agreement in the family law proceeding.
[12][2018] VSCA 17.
[13][2019] VSC 375.
[14]Ibid.

The law firm submitted as follows (citations omitted):

Ms Orwin subsequently accepted that her breach of contract claim was barred, but relied on Wardley to argue that the loss suffered as a result of breach of duty of care was contingent upon the de facto relationship ending and Mr Sarah then making a claim for an alteration of property interests, and therefore that this claim was not statute barred.
Osborn JA ruled that Ms Orwin’s claim was entirely statue barred. In coming to this conclusion, His Honour observed that:
(a)part of Ms Orwin’s claim was for an immediate loss, being the fees paid to Mr Rickards to prepare the agreement;
(b)In Wardley, the plurality recognised that there may be cases where a plaintiff suffered a “measurable loss at an earlier time, quite apart from the contingent loss which threatened at a later date”; and
(c)there was a material distinction between a potential loss which may be suffered dependent upon a contingency and where a loss is suffered immediately even though the assessment of the damages might require the considered of contingencies.

His Honour ruled that:
The plaintiff’s damages were quantifiable in the first instance on the straightforward basis that the costs incurred with respect to the financial agreement were thrown away entirely. The plaintiff claims for this damage and it is plain the loss was suffered in 2010. It follows that the plaintiff’s claim as a whole is statute-barred.

Otherwise, His Honour found that the claim differed from that in Wardley in that it was based on the immediate consequence of the defendant solicitor not performing his duty and was thus akin to a damaged asset case, not one of exposure to a contingent liability. Consistent with this finding, in the event that the decision on the limitation issue was found to be incorrect, His Honour would have assessed damages by reference to the loss of chance of being able to rely upon a valid agreement.

The law firm went on to submit that Mr Hind claims, among other things, the refund of fees paid by him to the law firm in relation to the County Court proceeding from around 14 October 2010 to around 15 July 2011. The law firm submitted as follows:

If the [law firm] was negligent (which is denied), then, in accordance with the decision of Osborn JA in Orwin v Rickards above, the payment of those fees was money thrown away and thus constituted a loss, by which time the negligence cause of action had accrued and the claim as a whole was statute-barred.

The law firm submitted, alternatively, that the Court must consider what economic interest of Mr Hind was allegedly infringed by reference to the allegations pleaded by Mr Hind. The economic interest of Mr Hind said to have been infringed was the loss of the chance to challenge the Commissioner’s assessment upon which the judgment in the County Court proceeding was based. The law firm submitted Mr Hind’s claim for economic loss said to have been caused by the law firm’s negligence is consequently time barred, as:

(a) Mr Hind’s application to set aside the default judgment in the County Court proceeding was struck out pursuant to an agreement between Mr Hind and the Commissioner in April 2011;

(b) Mr Hind’s claim is therefore a claim for the loss of the opportunity to defend the claim against him by the Commissioner; and

(c) applying the reasoning in Orwin,[15] the present case is distinguishable from the circumstances applicable in Wardley,[16] as the alleged loss was suffered immediately even though the assessment of the quantum of damages might require the consideration of contingencies.

[15][2019] VSC 375.

[16](1992) 175 CLR 514.

The law firm submitted that the inability of Mr Hind to challenge the tax debt should be characterised as the loss of a chance rather than the chance of a loss, which distinguishes the present case from Wardley and ‘brings it into the territory’ of Bodycorp[17] and Orwin.[18]
[17][2018] VSCA 17.
[18][2019] VSC 375.

The law firm submitted that the process for Mr Hind to challenge the tax debt was to:

(a) lodge an objection (and such an objection was lodged on Mr Hind’s behalf);

(b) await the Commissioner’s determination of the objection; and

(c) if Mr Hind disputed that determination, to exercise his rights under Part IV of the TAA, that is, to apply to the Administrative Appeals Tribunal (‘AAT’) or the Federal Court of Australia (‘Federal Court’) to review the Commissioner’s determination within sixty days after being served with notice of the determination.

The law firm submitted that any loss suffered by Mr Hind as a consequence of any breach of duty by the law firm in relation to the County Court proceeding was first suffered, at the very latest, sixty days after the Commissioner’s determination on 6 May 2011. The law firm submitted that (citations omitted):

…in this respect, Mr Hind’s right to challenge the determination was an asset which, unless an extension of the limitation period was a certainty, diminished in value immediately upon the expiration of that period. As Giles JA ruled in Wilson v Rigg, concerning a claim against a solicitor for failing to issue a proceeding within a limitation period:
This was more than a risk or prospect of damage, or contingent damage. It was actual damage, albeit that by a successful application for leave the appellant could regain his pre-1 July 1992 position. Damage which is suffered but which might or might not be alleviated if some further event occurs is distinct from a risk or prospect or damage which might or might not be suffered or damage which will be suffered only if a contingency is fulfilled (as in cases such as Wardley)…

As for the merits of Mr Hind’s defence in the County Court proceeding, the law firm submitted that a notice of assessment issued by the Commissioner is conclusive evidence of a debt owed by a tax payer, and cannot be challenged save in proceedings under Part IV of the TAA.[19] The law firm went on to submit that it was clear that the agreement entered into to strike out Mr Hind’s application to set aside the default judgment in the County Court proceeding was made in the context of the application being doomed to failure by reason of the conclusive evidence provisions of the TAA. The law firm submitted that the best that could be done for Mr Hind in those circumstances was to reach an agreement with the Commissioner that Mr Hind would have time to pay the outstanding debt after the determination of the objection, which was what in fact occurred. The law firm submitted that, even leaving aside the limitation point, Mr Hind’s claim that the law firm was negligent in the conduct of the County Court proceeding is therefore misconceived, even if it had been brought within time.
[19]I note that in the decision of the Court of Appeal in Deputy Commissioner of Taxation v Buzadzic (2019) 348 FLR 213, the Court upheld the constitutional validity of the ‘conclusive evidence’ provisions of the TAA.

The law firm observed that the sole basis on which Mr Hind asserts that the limitation period should be postponed is that Mr Hind discovered the Raye letter, which disclosed a possible defence to the Commissioner’s claims in the County Court proceeding by reason of the terms of Division 105 of the GST Act, on or around 23 February 2019. However, the evidence shows that Mr Hind received the Raye letter on 13 October 2010, and further, it appears that Mr Hind had a discussion with Mr Raye about the Raye letter on 13 October 2010.

Accordingly, the law firm submitted that there is no basis for any claim by Mr Hind that the Raye letter was concealed from him, and nor is there any claim, or any basis for any claim that there was any fraud on the part of the law firm. Accordingly, it is readily apparent that there are no grounds for the postponement of any limitation period on the basis of fraud or mistake, as the relevant documents were in the possession of Mr Hind in October 2010.

In relation to Mr Hind’s allegation that he suffered emotional stress and reputational harm as a consequence of being made bankrupt, the law firm submitted that there is no plea that Mr Hind has suffered a recognised psychiatric injury.[20] The law firm further submitted that the allegation in the prayer for relief regarding defamation is entirely unsupported by any pleaded material facts and, in any event, these claims would be statute barred by operation of s 5(1AAA) of the LAA.[21]
[20]See Giles v Jeffrey [2019] VSC 562 (127].
[21]Section 5(1AAA) of the LAA provides that any action for defamation must be brought within twelve months of the date of publication. Extensions of time are available, but difficult to obtain: see Knight v Ippoliti [2020] VSC 286.

Turning now to the law firm’s strike out application, the law firm submitted that, if the objectionable parts of a statement of claim are so intertwined with the rest of the pleading such as to make separation difficult, the appropriate course of action is to strike out the amended statement of claim in its entirety. The defendants referred to the decision of Derham AsJ in Austin v Dwyer,[22] where his Honour observed that:
An unrepresented party is as much subject to the rules as any other litigant and, although the Court must be patient in explaining them and may be lenient in the standard of compliance which I exacts, it must see that the rules are obeyed, subject to any proper exceptions.[23]
[22][2018] VSC 770.
[23]Ibid [31].
The law firm submitted that the allegations in the amended statement of claim and further and better particulars are confusing, embarrassing and, at times, scandalous. There are a range of confusing and historical allegations, and it is difficult to discern which acts or omissions of the law firm are alleged to have negligently caused loss to Mr Hind, and what loss has been allegedly suffered by Mr Hind. The law firm described the amended statement of claim as ‘a polemical document of a discursive and argumentative nature which includes extravagantly expressed assertions of … immoral conduct.’[24] The law firm submitted that, as a consequence, it does not know the case it has to meet, and, if the Court were to allow the proceeding to continue, an oppressive burden would fall upon the law firm to determine precisely the case it is required to defend at trial.

Mr Hind’s submissions

[24]See Re Morton; Ex parte Mitchell Products Pty Ltd (1996) 21 ACSR 497.

In his written submissions filed on 19 March 2020, Mr Hind submitted that the law firm’s failure to pursue a defence in the County Court proceeding relying upon Division 105 of the GST Act denied Mr Hind the ability to defend the Commissioner’s claims with respect to the tax debt in the County Court proceeding, and ultimately caused him to be made bankrupt.

Mr Hind said that he had a conversation with Mr Alstergren on 6 April 2011, where Mr Alstergren informed Mr Hind that it would be a waste of time to go to Court to attempt to have the default judgment struck out. Mr Hind submitted that he was told there was nothing he could do, but that the Commissioner would ‘freeze’ the debt. Mr Hind submitted further that he was never made aware of any agreement with the Commissioner that his application to have the default judgment set aside be struck out.

Mr Hind submitted that the law firm was negligent in that it failed to have OMM audited by the Commissioner, in accordance with the advice of Mr Raye in the Raye letter, in order to demonstrate OMM’s involvement in at least nine and up to eleven contracts of sale of units in the development.

Mr Hind submitted that the tax debt was ‘false’, as the contracts of sale for the units in the development were not executed properly. Mr Hind submitted that the law firm should bear responsibility for his dealings with OMM in 2006 and 2007, as the law firm never presented the full picture in the County Court proceeding in relation to the alleged undue influence exerted by OMM with regard to the financing of the development, and its refusal to refinance the development.

Mr Hind submitted that he provided two opportunities to OMM to refinance the development, but OMM was unreasonable in requiring an unconditional letter of offer of finance. Mr Hind submitted that, as a consequence, OMM effectively forced a taxable supply upon him, which the law firm should have brought to the attention of the Commissioner.[25]
[25]While not expressly stated as such by Mr Hind, I assume that Mr Hind contends that any audit of OMM would reveal that OMM paid, or should have paid, any GST liability associated with the sale of the units in the development.

Mr Hind submitted that the Commissioner was reliant on a successful outcome in the Rigby Cooke proceeding to recover the tax debt, but the law firm’s failure to articulate any form of causation denied Mr Hind any chance of a successful outcome in the Rigby Cooke proceeding. Mr Hind further submitted (although the connection between these allegations is far from clear) that the law firm’s failure to establish a causal link between Rigby Cooke’s negligence and the loss and damage suffered by the partnership caused him to be ignorant of limitation issues with respect to the Commissioner’s determination of the objection.

Mr Hind submitted that the law firm’s retainer with respect to the County Court proceeding and his dealings with the Commissioner did not end until on or about 22 July 2014, when Mr Hind was made bankrupt, such that time did not begin to run for the purposes of s 5 of the LAA until that date.

Mr Hind submitted that the law firm failed to conduct itself as would reasonably be expected of a prudent legal practitioner experienced in taxation matters, and failed to inform him of the content of the Raye letter. He does not recall having any face to face discussions with Mr Raye on or around 13 October 2010. Mr Hind submitted that the allegation that the Raye letter was faxed to him was false, as Mr Hind has at no material times had access to fax facilities. Mr Hind submitted further that the law firm failed to discuss the Raye letter with him, or to include its contents in Mr Hind’s affidavit filed in the County Court on 14 October 2010. Mr Hind also submitted that the law firm had failed to properly brief Mr Tomlinson of counsel (who appeared for Mr Hind in the bankruptcy proceeding) with the contents of the Raye letter.

As for the law firm’s conduct of the Rigby Cooke proceeding, Mr Hind submitted that this retainer ended on or about 20 March 2014 as a result of a ‘forced deed of settlement placed upon the plaintiffs in the Rigby Cooke proceeding due to the negligent conduct of the defendant’. Mr Hind submitted that the law firm had placed undue pressure on him and his mother to execute an ‘inadequate’ deed of settlement.

Mr Hind submitted that he did not challenge the determination of the objection made by the Commissioner in May 2011 within sixty days of being notified of the Commissioner’s determination because the Rigby Cooke proceeding was ‘taking control of things’ and that obtaining a successful outcome from the Rigby Cooke proceeding was his only hope of being able to obtain funds to pay the tax debt. Mr Hind said that he had no knowledge of a sixty day limitation period within which to challenge the Commissioner’s determination of the objection.

Mr Hind submitted that the question of when he suffered economic loss is connected with the end of the two retainers in 2014. Mr Hind submitted that, as the law firm’s retainer with respect to the County Court proceeding ended on 22 July 2014 or shortly afterwards, this date was the date upon which he lost the opportunity to prevent the Commissioner from recovering the tax debt, which ultimately led to Mr Hind’s family home being sold.

Mr Hind submitted that, while the current proceeding is focused on the law firm’s conduct of the County Court proceeding, the fact that the law firm acknowledged the reliance of the Commissioner upon a favourable outcome of the Rigby Cooke proceeding should enable him to further amend the pleadings in this proceeding to bring in his claims against the law firm with respect to its conduct of the Rigby Cooke proceeding. He said that he was in the process of preparing to serve a summons seeking leave to file and serve the draft statement of claim, but he was distracted by the law firm’s summary judgment application.

Mr Hind went on to submit that he would not be attempting to pursue any claims for defamation or pain and suffering until after he makes an application to set aside the default judgment in favour of the Commissioner in the County Court, which he proposes to do shortly.

The law firm’s submissions in reply

In its written submissions filed on 24 April 2020, the law firm submitted that while Mr Hind has confirmed his intention to issue a separate proceeding regarding the law firm’s conduct of the Rigby Cooke proceeding, the current application is focused on the law firm’s conduct of the County Court proceeding. The law firm submitted that there is no reason why Mr Hind cannot file a new proceeding relating to the law firm’s conduct of Rigby Cooke proceeding. Any such claim would also have no real prospect of success and would be liable to be dismissed.

The law firm submitted that there was no evidence before the Court that the retainer entered into on 27 September 2010 continued until on or about 22 July 2014. The law firm submitted that this assertion was not pleaded by Mr Hind, and is contrary to the evidence of Mr Hind’s affidavit of 19 March 2020.[26] Further, there is no specific allegation in the statement of claim of any negligence or breach of retainer by the law firm in relation to its conduct of the bankruptcy proceeding.
[26]In paragraph 7 of this affidavit, Mr Hind deposed that: ‘The first appointment was against the Deputy Commissioner of Taxation proceeding CI-10-02527 being heard in the County Court of Victoria’.

The law firm submitted that there is no basis for Mr Hind to allege that he suffered loss as a result of the conduct of the bankruptcy proceeding, as:

(a) there is no allegation by Mr Hind that the judgment in the County Court proceeding was the product of fraud, collusion or miscarriage of justice, which is the only basis upon which Mr Hind could defend a bankruptcy proceeding brought in connection with an otherwise regular judgment debt;

(b) there is no other basis disclosed for the Federal Circuit Court not to accept the County Court judgment as proof of the tax debt; and

(c) the allegation that the law firm failed to properly brief Mr Tomlinson is not pleaded, and the evidence discloses no arguable basis for such a claim.

Discussion

In summary, the law firm’s position is that Mr Hind’s claims against it with respect to its conduct of the County Court proceeding have no real prospects of success, as the loss and damage said to have been suffered by Mr Hind occurred on 7 April 2011, when the consent orders striking out the application to set aside the default judgment were made, or, alternatively, at the very latest, no later than July 2011, when the sixty day period for Mr Hind to challenge the Commissioner’s rejection of the objection expired, and Mr Hind paid the last of the fees owing to the law firm on account of the County Court proceeding. There was no ongoing retainer which extended the period from which time began to run to the date on which sequestration orders were made against Mr Hind in the bankruptcy proceeding: nor was that the date upon which Mr Hind first suffered loss and damage, as the loss and damage suffered by Mr Hind was the loss of a chance to defend the Commissioner’s claim in the County Court proceeding.

Further, the law firm contends that there is no basis upon which Mr Hind could obtain a postponement of the limitation period pursuant to s 27 of the LAA, as there has been no fraud or concealment on the part of the law firm. In any event, Mr Hind’s reliance on Division 105 of the GST Act as a defence to the Commissioner’s claim in the County Court proceeding is misconceived, in that such a defence was bound to fail, by reason of the ‘conclusive evidence’ provisions of the TAA. To the extent that Mr Hind seeks to contend that the law firm was negligent in failing to advise him to challenge the determination of the objection in the AAT (or the Federal Court), or in its conduct of the bankruptcy proceeding, no such allegations are pleaded. Similarly, Mr Hind has not sought leave to amend the statement of claim to include the allegations against the law firm with respect to its conduct of the Rigby Cooke proceeding, and, in any event, those claims are bound to fail.

Mr Hind’s position is that his loss and damage as a result of the law firm’s conduct of the County Court proceeding only crystallised in July 2014, when he was made bankrupt, and he otherwise had a meritorious claim against the law firm by reason of its failure to investigate and pursue a defence to the Commissioner’s claim based upon Division 105 of the GST Act. His claim is meritorious, because, if the law firm had fulfilled its duty of care, it would have mounted an argument that Mr Hind was not liable for the tax debt, because Division 105 of the GST Act meant that OMM, not the partnership, should have been liable to pay GST on the sales of the units in the development. Further, while this argument is not entirely clear, Mr Hind contends that the unconscionable conduct of OMM towards the partnership should have been drawn to the Commissioner’s attention.[27]
[27]Mr Hind’s affidavit and submissions descend into some detail regarding the financing of the development and the allegedly unconscionable conduct of OMM. Mr Hind also refers to an allegation that the contracts of sale for some of the units in the development were not executed by OMM, and were thus invalid. It is not entirely clear how these allegations are relevant to the issues in the current proceeding, and how the law firm is said to be responsible for the losses said to have been caused by OMM. I assume that Mr Hind contends that the law firm should have relied upon Mr Hind’s allegations against OMM in defending the County Court proceeding, and in support of Mr Hind’s claims in the Rigby Cooke proceeding. In any event, these matters are not material to the question of whether Mr Hind’s claims against the law firm with respect to its conduct of the County Court proceeding are time barred, as the relevant events occurred between 2005 and 2007.

Alternatively, Mr Hind submitted that time should not begin to run until the date upon which he discovered the Raye letter amongst his papers in February 2019. In putting forward these alternative dates, Mr Hind implicitly resiled from his earlier position that the legislation setting limitation periods was archaic and/or no longer applicable to claims for professional negligence, or that the applicable limitation period was twelve years. Further, Mr Hind considers that his claims against the law firm with respect to the Rigby Cooke proceeding are meritorious and within time, and are inextricably linked to his claims against the law firm with respect to the County Court proceeding, given that the tax debt arose out of the conduct of the lender which was the subject of the Rigby Cooke proceeding, and given that Mr Hind hoped to derive a sufficient return from the Rigby Cooke proceeding to pay the tax debt in order to avoid bankruptcy and the sale of the family home.

Notwithstanding the law firm’s submissions with respect to the merits of Mr Hind’s claims against it with respect to its conduct of the County Court proceeding, the only issue for determination in the application for summary judgment is whether the law firm is bound to succeed in its limitations defence. I shall proceed on the basis that Mr Hind’s claims against the law firm are at least arguable, and that the (legitimate) criticisms of the pleading made by the law firm can be remedied with some guidance on the part of the Court.

Two issues arising from Mr Hind’s submissions can be dealt with quite promptly: first, it is beyond doubt that s 5 of the LAA applies to Mr Hind’s claims against the law firm to provide a limitation period of six years, and secondly, there is no evidence or other material to support Mr Hind’s contention that the date from which the limitation period commences to run should be postponed to 23 February 2019, when Mr Hind says he discovered the Raye letter amongst his papers.

Nothing further needs to be said about the first matter, save to note the statement of the Court of Appeal in Bodycorp[28] that:

A cause of action in negligence accrues when the plaintiff first suffers damage caused by the defendant’s breach of duty. In Australia, there is no overriding qualification to this requirement based upon when the claimant discovers the damage, or could with reasonable diligence have discovered the damage.[29]

[28][2018] VSCA 17.

[29]Ibid [131].

As to whether there are grounds for postponing the commencement of the limitation period, s 27 of the LAA provides as follows:

Postponement of limitation periods in case of fraud or mistake
Where, in the case of any action for which a period of limitation is prescribed by this Act –
(a)the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or
(b)the right of action is concealed by the fraud of any such person as aforesaid; or
(c)the action is for relief from the consequences of a mistake –

the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it:
Provided that nothing in this section shall enable any action to be brought to recover or enforce any charge against or set aside any transaction affecting any property which –
(i)in the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know or have reason to believe that any fraud had been committed; or
(ii)in the case of mistake, has been purchased for valuable consideration, subsequently to the transaction in which the mistake was made by a person who did not know or have reason to believe that the mistake had been made.

The evidence establishes that the Raye letter must have been in Mr Hind’s possession since 2015 at the latest, when he first started complaining to the LPLC about the law firm, as it is unlikely that the law firm would have been sending him documents after that date. Despite Mr Hind’s protestations that he did not have access to fax facilities in October 2010, it seems to me to be almost certain that he received the Raye letter on or about 13 October 2010.

The request in the covering fax sheet by Mr Segal to Mr Hind to call him, plus the nature and the substance of the Raye letter, means that it is unlikely that Mr Segal would not want to speak to Mr Hind about Mr Raye’s advice in the Raye letter, or that he would have failed to follow the matter up if Mr Hind did not call him in response to his request. In any event, in his affidavit filed in the County Court proceeding on or about 14 October 2010 (two days after the date of the Raye letter), Mr Hind annexes a spreadsheet prepared by Mr Raye. This spreadsheet is a revised version of the spreadsheet annexed to the Raye letter, and was sent by Mr Raye to the law firm and Mr Alstergren by email on 13 October 2011 with the following message:

Following discussions with Greg, I have amended the net GST input credits owing to $88,427.

Accordingly, given that the question of when Mr Hind discovered the law firm’s alleged negligence is legally irrelevant, and his assertions regarding when he first became aware of the Raye letter are glaringly improbable, and in circumstances where there has been no concealment or fraud on the part of the law firm, Mr Hind can only defeat the law firm’s limitation defence if he can show that he first suffered actual loss and damage (as opposed to loss and damage which would only accrue after the occurrence of a contingency) after 16 May 2013, that is, six years prior to the issue of this proceeding.

While the traditional admonition against dealing with limitation questions summarily perhaps carries less force in the context of s 63 of the CPA,[30] the authorities make it clear that the Court should exercise caution in dismissing proceedings summarily, and, where summary judgment applications are pressed on limitation grounds, such applications should not be granted if there is a possibility that further evidence could materially affect the date upon which the plaintiff’s cause of action accrued: in the current case, when Mr Hind first suffered actual loss and damage by reason of the law firm’s allegedly negligent conduct.
[30]See D’Aquino v Trovatello (2015) 47 VR 31 [49], referring to the statement of the plurality in Wardley regarding the undesirability of dealing with limitation questions summarily. However, I note that a number of the relevant authorities canvassed later in these reasons, are examples of proceedings where limitation questions have been dealt with summarily.

Further, while I accept that self-represented litigants are bound by the Rules, including the rules with respect to pleading, in my view, the Court has to look behind the somewhat clumsy language and confusing structure of the pleading in order to address the task before the Court. In the current case, the approach to be taken was spelt out by the Court of Appeal in Bodycorp.[31] In that decision, when conducting a survey of the relevant authorities,[32] the Court noted the distinction between cases where, upon entry into an agreement, loss and damage may be suffered immediately, and cases where the detriment is exposure to a loss which will only be suffered if events transpire in a particular way, or, in other words, the loss is contingent upon the occurrence of particular events. Further, the Court stated (omitting citations):

In determining when loss and damage is suffered it is necessary to:
(a) analyse the facts of the particular case;
(b)identify the economic interest of the claimant which has allegedly been infringed; and
(c)have regard to the pleaded loss and damage claimed.[33]

[31][2018] VSCA 17.

[32]Including Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 (‘Wardley’), Murphy v Overton Investments Pty Ltd (2004) 216 CLR 385, HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640, and Commonwealth of Australia v Cornwell (2007) 229 CLR 519.

[33][2018] VSCA 17 [18].

Here, the salient facts are as follows:

(a) sometime before August 2010, the Commissioner issued a notice of assessment with respect to the tax debt, and on 6 August 2010 obtained a default judgment in the County Court proceeding, which rendered Mr Hind immediately liable to pay the tax debt;

(b) on 7 April 2011, Mr Hind surrendered the right to defend the tax debt by entering into an agreement to strike out his application to set aside the default judgment. As such, his only avenue of redress was to pursue his objection, and, if dissatisfied with the Commissioner’s determination of the objection, challenge the determination in the AAT (or the Federal Court) within sixty days of the determination;

(c) while the evidence is ambiguous (noting that while Mr Hind has said that he did not challenge the Commissioner’s determination because he was ‘consumed’ by the Rigby Cooke proceeding, he also asserts that the law firm failed to advise him of the relevant limitation period), taking Mr Hind’s case at its highest and best, I will infer, for present purposes at least, that either the law firm failed to inform him of his rights of review, or advised him not to proceed with an application for review;

(d) Mr Hind’s case is that if the law firm had not been negligent, he would have successfully escaped liability for part or all of the tax debt, either by having the judgment in the County Court proceeding set aside, or by persuading the Commissioner to revise the assessment;

(e) Mr Hind’s inability to pay the tax debt, caused at least in part by his failure to recover a significant sum in the Rigby Cooke proceeding, caused him to become bankrupt; and

(f) based upon the further and better particulars filed by Mr Hind on 2 December 2019, and ignoring for present purposes his claims for personal injury and reputational harm, Mr Hind’s claim for loss and damage includes the following categories of economic loss:

(x) unspecified losses caused by Mr Hind’s bankruptcy and the forced sale of the family home, including legal fees and selling costs associated with the sale;

(xi)the payment of $260,000.00 on account of the tax debt; and

(xii) legal fees paid to the law firm for the County Court proceeding and the bankruptcy proceeding (which were fully paid in July 2011).

While I cannot see how this claim could possibly be made against the law firm, Mr Hind’s further and better particulars refer to the partnership’s loss of opportunity to pursue the development. I shall ignore any such claim (if it is in fact pressed) for the purposes of the current application, as that claim does not improve Mr Hind’s ability to resist the law firm’s limitation defence, given the relevant events took place more than a decade prior to the issue of this proceeding.

Applying the principles underlying the decision in Orwin,[34] it would be sufficient for the purposes of making good the law firm’s limitation defence that the pleaded loss and damage includes the fees paid to the law firm for its conduct of the County Court proceeding, which were fully paid in July 2011. However, the manner in which Mr Hind has put his case subtly shifted during the course of this application. In particular, he contends that the retainer of the law firm extended to the date upon which he was made bankrupt, which was less than six years prior to the issue of this proceeding. Further, he contends that as he was relying upon a successful outcome in the Rigby Cooke proceeding to pay the tax debt, the loss and damage suffered by him as a result of the law firm’s conduct of the County Court proceeding (which was dismissed by consent on 20 March 2014) is inextricably linked with the losses sustained by him as a result of the law firm’s conduct of the Rigby Cooke proceeding, which again were suffered less than six years prior to the issue of this proceeding.
[34][2019] VSC 375.

Accordingly, it is necessary to identify what economic interest of Mr Hind’s that is said to have been infringed by the law firm’s alleged negligence, when that economic interest was first materially impaired, and whether the date upon which his cause of action accrued is affected by either the orders made in the bankruptcy proceeding, or the law firm’s conduct of the Rigby Cooke proceeding.

There can be no doubt that Mr Hind’s economic interest, at the time he retained the law firm, was to eliminate or reduce his liability to the Commissioner on account of the tax debt. That was the express purpose of the retainer, and the amount paid to the ATO on account of the tax debt is a discrete head of loss and damage claimed by Mr Hind in the amended statement of claim. The lodgement of the objection and the application to set aside the default judgment were steps taken in pursuit of this economic interest. When the application to set aside the default judgment was struck out, the already slim prospects of setting aside the default judgment (given the conclusive evidence provisions of the TAA) receded further. While theoretically there would be no procedural impairment to Mr Hind making a further application to set aside the default judgment, the prospects of success of such an application would be negligible, given that the Commissioner’s judgment was regularly obtained, and in circumstances where the application to set aside the judgment was struck out by consent when Mr Hind was represented by solicitors and counsel with the actual or ostensible authority to bind Mr Hind to the agreement with the Commissioner.

Accordingly, I agree that Mr Hind’s economic interest in eliminating or reducing his liability to the Commissioner was irrevocably impaired by reason of the making of the consent orders striking out the application on 7 April 2011. Indeed, the only basis that it could be said that the damage to Mr Hind’s economic interest caused by the consent orders made on 7 April 2011 was negligible is if one accepts the law firm’s (strongly arguable) contention that by reason of the conclusive evidence provisions of the TAA, the prospects of setting aside the default judgment were always negligible. However, it is not necessary for present purposes to reach a final view on that issue.

However, setting aside the default judgment was only one mechanism by which Mr Hind could achieve his goal of eliminating or reducing his liability to the Commissioner. The other avenue was the objection process. I understand Mr Hind’s allegations with respect to the law firm’s handling of the objection process, while a little confusing and ambiguous, to be twofold. First, the law firm failed to direct the Commissioner’s attention to the conduct of OMM, and to request that OMM be audited by the ATO, which may have been successful in reducing or eliminating the tax debt. Secondly, Mr Hind alleges that the law firm failed to advise him of the limitation periods associated with challenging the Commissioner’s dismissal of the objection in the AAT. While the evidence regarding the reason why Mr Hind failed to challenge the Commissioner’s determination is ambiguous, I am prepared to assume for present purposes that the fault for the failure to challenge the assessment lay with the law firm, and that the prospect that any challenge would be fully or partially successful was more than negligible.

As noted above, the objection was lodged with the Commissioner by Mr Raye on or about 12 December 2010, presumably (for present purposes) with some input from the law firm. Accordingly, any failure on the part of the law firm to include information about OMM’s role in the development occurred before 12 December 2010.

However, that is not the end of the matter. Under s 14ZZN of the TAA, any appeal of a Commissioner’s determination to the Federal Court must be made within sixty days of the date of the decision. There is no avenue by which a taxpayer may extend time for the bringing of an appeal to the Federal Court.

Any application to the AAT to review the merits of the Commissioner’s determination must also be made within sixty days.[35] However, s 29(7) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘AAT Act’) provides that a person making an application for review to the AAT (including a determination of the Commissioner) may apply for an extension of time within which an application for review must be brought. The AAT may extend the time if ‘satisfied that it is reasonable in all the circumstances to do so’.
[35]Section 14ZZC of the TAA (as in force at the relevant time). I have proceeded on the basis that the Commissioner’s decision concerning Mr Hind’s objection was a ‘reviewable objection decision’ within the meaning of s 14ZQA of the TAA.

Relevant factors for determining whether an extension of time will be granted include:

(a) the reason for the delay in making the application;

(b) the action taken by the applicant to remedy the matter (say, by engaging in discussions with the ATO);

(c) the merits of any application for review;

(d) whether any extension of time would cause any prejudice to the Commissioner; and

(e) considerations of fairness between the applicant for an extension of time and others in the same or similar position.[36]

[36]See Duong v Australian Postal Corporation (2005) 41 AAR 288, 293-294.

Commentary discussing the authorities concerning applications for extension of time to seek review of the Commissioner’s decisions with respect to objections under s 29(7) of the AAT Act[37] suggests that the length of any delay in seeking to review an objection is relevant, but not determinative, and that extensions of time have been granted in cases where the failure to file on time was due to the shortcomings of the taxpayer’s agent or representative. Further, the AAT may extend time for making an application for review notwithstanding the expiry of the sixty day period. Accordingly, any application for an extension of time would not be bound to fail, even if it were made three years after the expiry of the original limitation period. However, given the factors relevant to the determination of such an application, if the application was opposed by the Commissioner, it could not be said that it would be bound to succeed.
[37]Westlaw AU, Australian Income Tax 1936 Commentary, ‘Commentary on Section 14ZZ‘ [RL1.2805]

Accordingly, it would be possible for Mr Hind to have made an application for review at any time up until the date he was made bankrupt. While any application for review would not have affected the validity of the judgment, the existence of any outstanding application for review may have, in practical terms, delayed Mr Hind’s bankruptcy. However, once Mr Hind was made bankrupt, the right to make an application for an extension of time to review the Commissioner’s determination vested in the trustee, not Mr Hind, as the bankruptcy removed his liability to the Commissioner, and he thus no longer had standing to bring an application for review.[38]
[38]See the decision of the Full Court of the Federal Court in Robertson Jnr v DCT (2004) 55 ATR 106.

The ability of Mr Hind to make an application for an extension of time to bring an application for review of the Commissioner’s determination of the objection up until the date he was made bankrupt lends support to the proposition that Mr Hind did not suffer loss and damage until the date of bankruptcy. However, the question of when a cause of action against a solicitor who fails to make a claim within a limitation period capable of being extended accrues has been the subject of a decision of the New South Wales Court of Appeal in Wilson v Rigg (‘Wilson’).[39]
[39](2002) 36 MVR 451.

The plaintiff in Wilson[40]had been injured in a level crossing accident, and consulted a solicitor, the defendant. The solicitor failed to ensure that the plaintiff brought a claim against the State Rail Authority within the three year limitation period applicable to actions for personal injury arising out of a motor vehicle accident (‘first limitation period’). A subsequent application for leave to extend the first limitation period was unsuccessful. Subsequently, the plaintiff issued a proceeding against the solicitor for negligence, more than six years after the first limitation period expired, but less than six years after the application for an extension of time was dismissed.
[40]Ibid.

Following a summary hearing concerning the solicitor’s limitation defence, a judge upheld the solicitor’s limitation defence, stating:

… In the present case, the value of the cause of action was reduced by the prospect that the defendant would plead the statute in bar (a virtual certainty) offset by the prospect that an application for leave would succeed. Unless it could be said there was no chance of leave being refused and no loss otherwise following from having to apply for leave, the value of the cause of action was diminished and damage was sustained on 1 July 1992.[41]

[41]Wilson v Rigg [2000] NSWSC 16 [18].

The primary judge’s decision was upheld on appeal, with the Court rejecting the plaintiff’s contention that time began to run only when the application to extend time was refused, on the basis that until then, it was not inevitable that he would be unable to bring a claim against the State Rail Authority.

In his reasons, Giles JA referred to the authorities concerning when a cause of action for negligently causing economic loss accrues, including Wardley,[42] and went on to state as follows:

In my opinion, the appellant’s submission does not sufficiently recognise that the suffering of damage is a matter of fact.
The appellant had a valuable asset, his cause of action against the SRA. When the respondent failed to bring proceedings by 1 July 1992, the value of the asset immediately diminished. It diminished because of the likelihood that the SRA would plead that he was not entitled to commence proceedings, and the likelihood that it would be necessary for the appellant to apply for leave under s 52(4) of the Motor Accidents Act and might not obtain leave. If the appellant were to assign his cause of action for valuable consideration, the consideration would be less for those reasons.
From what in fact happened, the only evidence on which an assessment could be made, there was a real likelihood that the SRA would plead that the appellant was not entitled to commence proceedings, and that the appellant would have to apply for leave under s 52(4) of the Motor Accidents Act and would not obtain leave. Sperling J found that the former was a virtual certainty and in effect that a grant of leave was not a certainty. As a matter of fact there was a diminution in the value of the appellant’s asset, and it was more than negligible.
This was more than a risk or prospect of damage, or contingent damage. It was actual damage, albeit that by a successful application for leave the appellant could regain his pre-1 July 1992 position. Damage which is suffered but which might or might not be alleviated if some further event occurs is distinct from a risk or prospect of damage which might or might not be suffered or damage which will be suffered only if a contingency is fulfilled (as in cases such as Wardley Australia Ltd v Western Australia).[43]

[42](1992) 175 CLR 514.

[43]Ibid [26]-[29].

His Honour referred to the decision of the Full Court of this Court in Doundoulakis v Antony Sdrinis & Co (‘Doundoulakis’),[44]where Ormiston J stated as follows:

Upon proper consideration the distinction drawn in argument … between the appellant’s right and remedy against his former employer, is relevant to the decision whether and when a cause of action arises against a solicitor who fails to commence proceedings within time on behalf of his client. The negligent destruction or impairment of either right or remedy can sound in damages. Merely because the statute bars the remedy and not the right must not obscure the fact that each is valuable.[45]

[44][1989] VR 781. I note that the decision under appeal was also a decision made summarily by a judge sitting in the Practice Court.

[45]Ibid, 784.

Returning to the decision in Wilson,[46] the Court held that since the fact that it was open to the Court to extend the limitation period did not mean that the value of the plaintiff’s claim against the State Rail Authority was not materially diminished by the expiry of the first limitation period. Accordingly, that the value of the plaintiff’s claim was reduced to nil by reason of the unsuccessful application to extend the first limitation period does not mean that the plaintiff did not suffer material loss upon the expiry of the first limitation period, observing:

So far as the duty was tortious, the appellant’s cause of action against the respondent accrued when he first suffered damage in consequence of the breach of duty. Damage is an element of the cause of action in tort for negligence, and the cause of action is not complete until damage is sustained, but is then complete even though further damage is later sustained.[47] (emphasis added)

[46](2002) 36 MVR 451.

[47]Ibid [21].

Applying the principles above (which from my review of the authorities appear to have widespread and uncritical acceptance)[48] to the (relevantly undisputed) facts in this proceeding, on 6 May 2011 Mr Hind received an adverse determination from the Commissioner, stemming at least in part from what Mr Hind says was the law firm’s failure to inform the Commissioner of OMM’s role in the development, and to mount an argument based upon Division 105 of the GST Act. Between 6 May 2011 and 6 July 2011, Mr Hind had an unimpeded right to bring an application in the AAT for review of the merits of the Commissioner’s determination, assuming, in Mr Hind’s favour, that on any application for review Mr Hind would not be limited to challenging the Commissioner’s determination on the grounds relied upon by him in the objection.
[48]See, for example, Commonwealth v Mewett (1997) 191 CLR 471, at 508-9 per Dawson J, Cheney v Duncan (2001) 34 MVR 28; and Winnote Pty Ltd and anor v Page (2006) 68 NSWLR 531, 550-1.

However, after 6 July 2011, the value of Mr Hind’s right of review was materially impaired, on the basis that he was then required to bring an application for an extension of time, the success of which was not a foregone conclusion. The value of that right was further reduced, to nil, when Mr Hind became bankrupt on 22 July 2014, and thus no longer had standing to bring an application for review. However, that the value of Mr Hind’s right diminished further after 6 July 2001 does not alter the fact that, by reason of the expiry of the sixty day time limit on 6 July 2011, the value of that right was materially impaired on that day, and thus his cause of action against the law firm with respect to its conduct of the retainer concerning Mr Hind’s dealings with the Commissioner was complete.

The authorities make it clear that once a tortious cause of action has accrued, that cause of action covers all loss and damage attributable to the same breach. As stated by Mason P in Winnote Pty Ltd and anor v Page:[49]

Merely because a substantial loss occurs … at a later point of time does not establish that there was no damage stemming from the same breach occurring at an earlier date being damage that occurred outside the limitation period, thereby barring the whole claim.[50]

[49](2006) 68 NSWLR 581.

[50]Ibid [66].

In the current case, by 6 July 2011 Mr Hind’s ability to reduce or eliminate his liability for the tax debt was substantially impaired. While at that time his subsequent bankruptcy was not inevitable, it was a possible consequence of him being exposed to that liability. That the fact of bankruptcy caused Mr Hind more loss, or made it easier to show that he had sustained loss by reason of the conduct of the law firm, does not alter the fact that he first sustained material loss at an earlier time, and his cause of action in negligence was complete on that earlier date.

The fact that Mr Hind was made bankrupt on 22 July 2014, and allegedly suffered further losses by reason of the law firm’s failure to reduce or eliminate Mr Hind’s exposure to the tax debt, does not alter the fact that Mr Hind first suffered loss and damage as a result of the law firm’s allegedly negligent conduct some two years prior to that time, and well before May 2013. That much is evident from the reasoning in Wilson[51] (which I am for all practical purposes bound by) and in Doundoulakis,[52] which I am actually bound by.[53]
[51](2002) 36 MVR 451.
[52][1989] VR 781.
[53]In Di Sante v Camando Nominees Pty Ltd [2000] VSC 211, Warren J observed (at [28]) that ‘The Doundoulakis judgment remains binding authority in this State in relation to solicitors’ negligence claims where a solicitor has allowed a claim to become statute barred in the circumstances that arose in that case.

Accordingly, the only relevance of the bankruptcy proceeding to the current application is that Mr Hind’s bankruptcy, founded as it was on the judgment with respect to the tax debt, was said to have caused Mr Hind further losses arising out of the negligent conduct of the law firm with respect to the conduct of the County Court proceeding and its dealings with the Commissioner. The date of 22 July 2014 is merely a date when the full consequences of the law firm’s allegedly negligent conduct were fully realised: it was not when Mr Hind’s economic interest in reducing or eliminating the tax debt was first materially impaired. Further, as observed by counsel for the law firm, there is no pleading, or any basis for pleading that the law firm was negligent in its conduct of the bankruptcy proceeding. I agree that, when considering applications of the current claim, it is necessary to focus on the pleaded case, and the amended statement of claim makes no allegations of negligence with respect to the bankruptcy proceeding. Further, while the exact terms of the law firm’s retainer with respect to the bankruptcy proceeding are not in evidence, the trust account records in evidence indicate that the law firm’s retainer with respect to the bankruptcy proceeding was a separate retainer to the retainer which is the subject matter of this proceeding.

Mr Hind submitted that the Rigby Cooke proceeding is relevant to the question of when his cause of action accrued, because the Commissioner was reliant upon a successful outcome of the Rigby Cooke proceeding in order to recover the tax debt. The failure of the partnership to recover a reasonable and appropriate amount upon the settlement of the Rigby Cooke proceeding (brought about by the law firm’s negligent conduct of the Rigby Cooke proceeding) meant that Mr Hind could not pay the tax debt, and led to the Commissioner pursuing the bankruptcy proceeding. Accordingly, Mr Hind’s claims against the law firm with respect to the Rigby Cooke proceeding are intertwined with his claims against the law firm with respect to its conduct of the County Court proceeding, and as such, represent another reason why his cause of action against the law firm did not accrue until 22 July 2014, or at the earliest, 20 March 2014.

With respect, this line of reasoning is misconceived. As I understand it, and assuming Mr Hind would be able to make good his allegations at trial, Mr Hind claims the following:

(a) by reason of the negligent conduct of Rigby Cooke, the partnership entered into an improvident contract with the first lender, which caused the partnership to refinance with OMM;

(b) OMM’s unconscionable conduct caused the partnership to incur a GST liability it would not otherwise have had, leading to recovery action being taken by the Commissioner with respect to the tax debt;

(c) the law firm’s negligent conduct of the County Court proceeding and Mr Hind’s dealings with the Commissioner (including its failure to advise Mr Hind of the period within which he could apply to the AAT to review the Commissioner’s determination with respect to the objection), meant that Mr Hind was unable to reduce or eliminate the tax debt;

(d) given that Mr Hind remained liable to pay the tax debt, he was hopeful that a successful conclusion of the Rigby Cooke proceeding would put him in funds to pay the tax debt; and

(e) the inability of the partnership to achieve a successful outcome in the Rigby Cooke proceeding (once again caused by the law firm’s negligent conduct) meant that Mr Hind did not have sufficient funds to pay the tax debt, and as a consequence, he became bankruptcy, and the family home had to be sold.

The difficulty facing Mr Hind’s contentions in the context of the current application is that, while there is a factual and temporal connection between Mr Hind’s claims in this proceeding, and his claims with respect to the law firm’s conduct of the Rigby Cooke proceeding, the claims are with respect to two quite distinct economic interests, and give rise to two separate causes of action. As discussed earlier, Mr Hind’s economic interest with respect to the County Court proceeding was to reduce or eliminate the tax debt, which was materially impaired, as I have held, no later than 6 July 2011. Mr Hind’s economic interest in the Rigby Cooke proceeding was to maximise the recovery of damages with respect to Rigby Cooke’s infringement of the partnership’s economic interest in obtaining a profit from the development, or at least avoiding loss. That Mr Hind hoped to use the funds (or part of the funds) obtained by him from a settlement payment or a verdict for damages in the Rigby Cooke proceeding to pay the tax debt does not mean that the law firm’s allegedly negligent conduct of the Rigby Cooke proceeding caused a loss which altered the date from which time began to run for Mr Hind to bring his claims in this proceeding. After all, if the law firm had in fact assisted Mr Hind to reduce or eliminate the tax debt, that would not have precluded Mr Hind from bringing his claims in the Rigby Cooke proceeding, or his claims against the law firm with respect to its conduct of the Rigby Cooke proceeding, in relation to other loss and damage said to have been caused by the conduct of the law firm. The loss and damage claimed by Mr Hind in those proceedings would simply not include an amount referrable to the tax debt.

Accordingly, given my finding that Mr Hind’s cause of action against the law firm accrued no later than 6 July 2011, that neither Mr Hind’s bankruptcy or his claims with respect to the law firm’s conduct of the Rigby Cooke proceeding affected the date upon which Mr Hind first suffered loss and damage as a result of the law firm’s allegedly negligent conduct, and that there is no basis to postpone the date from which time began to run, the law firm is entitled to summary judgment. In my view, there is no prospect of there being any other evidence available which would affect the date Mr Hind’s cause of action accrued, and when time began to run.[54] However, prior to entering judgment, there are some procedural issues which need to be resolved, as discussed in the following section of these reasons.
[54]An affidavit of documents was filed on 20 March 2020.

Other matters

Given that I will grant summary judgment with respect to Mr Hind’s claims against the law firm with respect to the County Court proceeding, then strictly speaking it is not necessary to consider the law firm’s strike out application. As I noted earlier in these reasons, the amended statement of claim is confusing in parts, and uses somewhat clumsy language. Mr Hind himself concedes that his pleading could be refined and improved. However, I do not consider the pleading of the amended statement of claim to be so dire as contended for by the law firm. The form of the pleading has not been a significant impediment to the factual analysis required by the law firm’s summary judgment application, and the pleading of what Mr Hind said the law firm was required to do to fulfil its duty of care to him was quite clear. It would not be a very difficult exercise to get the pleading into an acceptable form and shape. Further, I note that Mr Hind has stated that he does not wish to press his claims for defamation and personal injury at this stage, appropriately so, given that I accept the law firm’s criticism of these claims.

Further, the status of Mr Hind’s allegations against the law firm with respect to its conduct of the Rigby Cooke proceeding is uncertain, and, as events have transpired, limitation issues also arise here. Here, the question of when time began to run is not complex: the relevant economic interest of Mr Hind with respect was his interest in maximising his recovery from Rigby Cooke. This economic interest was infringed when, by reason of his agreement to accept a payment from Rigby Cooke and to the dismissal of the Rigby Cooke proceeding. Mr Hind irrevocably lost the chance to pursue his claims in the Rigby Cooke proceeding and achieve a better result at trial.[55] While the evidence does not establish when the settlement agreement was made, or when payment was made by Rigby Cooke pursuant to the settlement agreement, the Rigby Cooke proceeding was dismissed by consent on 20 March 2014.
[55]See Sloan v Arnold Thomas & Becker [2019] VSC 292 and Sloan v Arnold Thomas & Becker (No 2) [2019] VSC 652. The latter decision is the subject of an application for an extension of time to bring an appeal, which at the time of writing has not yet been heard and determined.

Mr Hind first sought the consent of the law firm to amend his statement of claim on or about 2 December 2019. The law firm refused to consent to the amendment, quite reasonably, given that at that time there was a real question mark over Mr Hind’s standing to bring any claims against the law firm, which was not resolved until Mr Hind entered into the deed of assignment on 2 April 2020.

Mr Hind said that he tried to electronically file separate proceedings against the law firm including allegations with respect to its conduct of the Rigby Cooke proceeding on 28 January 2020 and 19 February 2020, but that these documents were rejected by the Court Registry because the parties referred to in those documents were the same as the parties in this proceeding. For present purposes, I am prepared to accept that Mr Hind’s explanation is correct, although it may be necessary at some later stage to explore more precisely what occurred. The difficulty currently facing Mr Hind is that the limitation period with respect to his allegations against the law firm with respect to its conduct of the Rigby Cooke proceeding almost certainly expired no later than 20 March 2020.

I accept that, given that Mr Hind is self‑represented, and, at the relevant time (between December 2019 and April 2020), was understandably focussed upon procuring the deed of assignment and responding to the law firm’s application for summary judgment, it may have escaped Mr Hind’s attention that, by failing to issue a proceeding, or issuing a summons to amend his statement of claim in this proceeding to bring in his claims regarding the law firm’s conduct of the Rigby Cooke proceeding, he may well have jeopardised his ability to pursue those claims, as they are now out of time. Accordingly, what I propose to do is to refrain from entering judgment in favour of the law firm for the time being, and set a timetable to enable Mr Hind to make a formal application to amend his statement of claim, on the understanding that no leave will be granted to Mr Hind to maintain his claims against the law firm with respect to the retainer entered into on 27 September 2010. I would draw Mr Hind’s attention to the terms of r 36.01(6) of the Rules, which provides that:

The Court may, notwithstanding the expiry of any relevant limitation period after a day a proceeding is commenced, make an order under paragraph 1 where it is satisfied that any other party to the proceeding would not by reason of the order be prejudiced in the conduct of that party’s claim or defence in a way that could not be fairly met by an adjournment, an award for costs or otherwise.

Accordingly, I propose to make the following orders:

1. The date in paragraph 5 of the orders made by Judicial Registrar Clayton on 3 October 2019 be extended to 24 February 2020.

2. The first defendant be removed as a party to the proceeding.

3. Any application made by the plaintiff in his affidavit to further amend the amended statement of claim in this proceeding to bring his claims with respect to the second defendant’s retainer entered into on 6 December 2010 be made by 4.00pm on 10 August 2020, to be listed for hearing on a date to be fixed not before 24 August 2020 via audio visual link.

5. The parties’ submissions on the question of the parties’ costs of the defendants’ summons filed on 24 February can also be heard on the proposed return date.

---

[2020] VSC 428

23 July 2020