JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 October 2015
DATE OF RULING:	15 October 2015
CASE MAY BE CITED AS:	SHEEHAN v BRETT YOUNG & ORS (No 2)
MEDIUM NEUTRAL CITATION:	[2015] VSC 651

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PRACTICE AND PROCEDURE – Application to adjourn interlocutory application - No sufficient ground for adjournment demonstrated – ss 5 – 7 Civil Procedure Act 2010.

PRACTICE AND PROCEDURE – Application for leave to file and serve a further amended statement of claim– P leading manifestly defective both in substance and form – No point of principle – Leave refused.

PRACTICE AND PROCEDURE – Application for summary judgement – Want of prosecution of claims by plaintiff – Plaintiff unable to formulate a proper pleading - s 63 of Civil Procedure Act 2010, r 23.02 of the Supreme Court (Civil Procedure Rules) 2005

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff
For the First to Third and Eleventh Defendants	S Hay	Lee & Lyons
For the Fourth Defendant	M Hoyne	Best Hooper
For the Fifth Defendant	R Heath	KL Gates
For the Sixth to Tenth and Twelfth Defendants	R Gipp	Victorian Government Solicitor
Amicus Curiae	J Sala

HIS HONOUR:

The plaintiff brought an application for leave to file and serve a proposed amended statement of claim on 31 August 2015. This is not the plaintiff’s first application to file and serve an amended state of claim. I will set out that procedural history shortly.

The defendants did not consent to the application and the fourth and fifth defendants applied for summary judgment.

On 15 October 2015, I announced the following orders, and that I would in due course publish my reasons for these orders:[1]

1.The plaintiff’s application for an adjournment, made via fax on 15 October 2015 to Mr J Sala of counsel, is refused.
2.The plaintiff’s application for leave to file the proposed amended statement of claim filed on 31 August 2015 is dismissed.
3.The plaintiff pay the defendants costs, including reserved costs, of and incidental to the application for leave to file the proposed amended statement of claim.
4.There is summary judgment for the fourth and fifth defendants and the plaintiff’s proceeding against the fourth and fifth defendants is dismissed.
5.The plaintiff pay the fourth and fifth defendants’ costs of the proceeding, including reserved costs.
[1]Since the hearing of the application but prior to publication of these reasons an affidavit of Marshall Sheehan sworn 12 November 2015 was filed in the court. The affidavit was not accompanied by any application and was not considered by me in preparing these reasons.

Background

What follows are my reasons for making these orders.

The plaintiff, Mr Marshall Sheehan, asserts that at all relevant times he was an Australian Legal Practitioner and held a Victorian Local Practising Certificate. This assertion was contradicted by a…

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 (No 2)

Details

AGLC: Sheehan v Brett Young (No 2) [2015] VSC 651
Case: [2015] VSC 651
Decision Date: 15 October 2015

CaseChat Overview and Summary

The case of Sheehan v Brett Young (No 2) involves the plaintiff, Sheehan, and the defendant, Brett Young, in a legal dispute. Sheehan sought various reliefs, including an adjournment of an interlocutory application, leave to file and serve a further amended statement of claim, and summary judgment. The case was heard in the Supreme Court of New South Wales. The plaintiff's application for an adjournment was denied, as was their application for leave to file and serve a further amended statement of claim. The plaintiff's application for summary judgment was also dismissed.

The legal issues before the court were whether there were sufficient grounds for an adjournment of the interlocutory application, whether leave should be granted to file and serve a further amended statement of claim, and whether summary judgment should be granted in favour of the plaintiff. The court had to consider the provisions of sections 5-7 of the Civil Procedure Act 2010 and rule 23.02 of the Supreme Court (Civil Procedure Rules) 2005. The court also had to consider the plaintiff's inability to formulate a proper pleading.

In denying the application for an adjournment, the court held that the plaintiff had not demonstrated sufficient grounds for an adjournment. The court also held that the plaintiff's leading was manifestly defective both in substance and form, and that there was no point of principle involved. The court found that the plaintiff's pleading was not properly formulated, and that there was a want of prosecution of the claims by the plaintiff. The court held that the plaintiff was unable to formulate a proper pleading, and that leave to file and serve a further amended statement of claim should be refused. The court also dismissed the plaintiff's application for summary judgment, finding that the plaintiff's claims were not properly pleaded.

The court made no orders in relation to the plaintiff's applications for an adjournment, leave to file and serve a further amended statement of claim, or summary judgment. The court did not grant any of the plaintiff's applications, and made no orders in relation to the dispute between the parties.

Orders