JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 FEBRUARY 2016
DATE OF RULING:	25 FEBRUARY 2016
CASE MAY BE CITED AS:	SHEEHAN v BRETT-YOUNG & ORS (No. 4)
MEDIUM NEUTRAL CITATION:	[2016] VSC 53

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PRACTICE AND PROCEDURE – Pleadings – Application for leave to file and serve a further amended statement of claim – Claims for damages for malicious prosecution and misfeasance in public office – Pleading of mental state required to establish a tenable claim – Whether causes of action pleaded have any real prospect of success – s 63 Civil Procedure Act 2010.

COSTS – Application for gross sum costs order – Principles applying – s 65C Civil Procedure Act 2010, r 63.07 Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G McCormick appeared amicus curiae
For the First, Second, Third, and Eleventh Defendants	Mr S Hay	Lee and Lyons
For the Fourth and Fifth Defendants
For the Sixth, Seventh, Eighth, Ninth, Tenth, and Twelfth Defendants	Mr R Gipp	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

The plaintiff seeks leave to file and serve a second substitute proposed statement of claim which is undated, but served pursuant to my leave granted on 2 February 2016 (PSOC). This is not the plaintiff’s first application to file and serve an amended state of claim. I recited the history of this proceeding in Sheehan v Brett Young & Ors (No 2)[1] and I will refer further to relevant events later in these reasons.
[1] [2015] VSC 651.

In Sheehan v Brett Young & Ors (No 2) the plaintiff’s proceeding against the fourth and fifth defendants was dismissed. The remaining defendants, the first to third and eleventh defendants (the regulatory parties) by summons filed on 22 October 2015 and sixth to tenth and twelfth defendants (the State parties) by summons filed on 21 October 2015, applied for summary judgment.

The plaintiff has now discontinued claims against all defendants, save for the third and eleventh defendants, and the twelfth defendant. The plaintiff claims damages for misfeasance in public office against the regulatory defendants. The plaintiff claims damages for malicious prosecution against the State. The plaintiff cannot cast his claim in defamation, as it is clearly statute barred.[2] He does not articulate a claim in negligence.
[2] See Limitation of Actions Act 1958, s 5 (1AAA).

The regulatory and State defendants contested the plaintiff’s application for leave to file and serve the PSOC and maintain their applications for summary judgment, or alternatively, dismissal of the proceeding on the basis that by reason of the sustained failure of the plaintiff in the proceeding to date to identify a viable cause of action there is no maintainable claim against any of them.

The remaining parties contended that each of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sheehan v Brett-Young

Details

AGLC: Sheehan v Brett-Young (No. 4) [2016] VSC 53
Case: [2016] VSC 53
Decision Date: 25 FEBRUARY 2016

CaseChat Overview and Summary

The case of Sheehan v Brett-Young involved a legal dispute between the plaintiff, Sheehan, and the defendant, Brett-Young. Sheehan sought to file and serve a further amended statement of claim against Brett-Young, asserting claims for damages related to malicious prosecution and misfeasance in public office. The application for leave to proceed with these claims was heard by the court, which was required to determine whether the proposed amended statement of claim had any real prospect of success under section 63 of the Civil Procedure Act 2010. Additionally, the court considered an application by Sheehan for a gross sum costs order under section 65C of the Civil Procedure Act 2010 and rule 63.07 of the Supreme Court (General Civil Procedure) Rules 2015.

The central legal issues that the court had to address were whether the proposed amended statement of claim adequately pleaded the necessary mental states required to establish a tenable claim for malicious prosecution and misfeasance in public office. The court had to assess whether these claims had any real prospect of success. The court also considered the principles applicable to the making of a gross sum costs order, evaluating the proportionality and fairness of such an order in the context of the case.

In reaching its decision, the court found that the amended statement of claim did not sufficiently plead the required mental states for the causes of action asserted. Consequently, the application for leave to file and serve the further amended statement of claim was dismissed. Regarding the application for gross sum costs, the court held that the order should not be granted due to the lack of any real prospect of success for the claims. The court considered the costs incurred and concluded that the application for a gross sum costs order was not appropriate.

The court ordered that Sheehan bear the costs of the application for leave to amend the statement of claim, and it declined to make a gross sum costs order. The court’s decision emphasised the importance of properly pleading the necessary elements of a claim to ensure that the proceedings have a viable prospect of success.

Orders