JUDGE:	JOHN DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 FEBRUARY 2016
DATE OF RULING:	10 FEBRUARY 2016
CASE MAY BE CITED AS:	SHEEHAN v BRETT-YOUNG & ORS (No. 3)
MEDIUM NEUTRAL CITATION:	[2016] VSC 39

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PRACTICE AND PROCEDURE – Pleadings - Application for leave to file and serve a further amended statement of claim - Claim for damages to reputation, lost income, and expenses of defending criminal proceedings sought for malicious prosecution and misfeasance in public office – Plaintiff bankrupt at material times - Whether causes of action pleaded are maintainable - Whether reputational damage to capacity to earn income is divisible amongst creditors - Whether claims are for a personal wrong done to the bankrupt – ss 58, 60(4), 116(1), 116(2)(c), 116(2)(g) Bankruptcy Act1966 (Cth).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G McCormack 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 substitute proposed statement of claim dated 16 December 2015 (PSOC). This is not the plaintiff’s first application to file and serve an amended state of claim. The history of this proceeding is recited in Sheehan v Brett Young & Ors (No 2)[1] and need not be here repeated.
[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 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, have applied for summary judgment.

The plaintiff has now discontinued claims against all defendants, save for the third and eleventh defendants (‘regulatory defendants’), and the twelfth defendant (‘State’). The plaintiff brings a claim of misfeasance in public office against the regulatory defendants. The plaintiff claims malicious prosecution against the State. The Plaintiff cannot cast his claim in defamation, as it is clearly statute barred.[2] He does not expressly articulate a claim in negligence, but under the cover of alleging the misfeasance claim, the plaintiff pleads the existence of a duty arising from the statutory relationship between himself and the L IV, which duty was breached by it.
[2] See Limitation of Actions Act 1958, s 5(1 AAA).

The regulatory and State defendants contest the plaintiff’s application for leave to file and serve the PSOC.

The State contends that the application for leave to file the PSOC should be refused on the grounds that the proposed malicious prosecution claim has ‘no real prospect of success’ within the terms of s 63…

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. 3)

Details

AGLC: Sheehan v BRETT-YOUNG (No. 3) [2016] VSC 39
Case: [2016] VSC 39
Decision Date: 10 FEBRUARY 2016

CaseChat Overview and Summary

In the case of Sheehan v Brett-Young, the plaintiff, Sheehan, sought leave to file and serve a further amended statement of claim against Brett-Young. The claim was for damages for reputational harm, lost income, and expenses incurred in defending criminal proceedings, which were initiated on the basis of malicious prosecution and misfeasance in public office. The case was heard in the Federal Court of Australia. Sheehan had been declared bankrupt during the relevant period, which raised questions about the maintainability of the claims and whether any damages awarded would be divisible among creditors.

The primary legal issues the court had to decide were whether the causes of action pleaded in the proposed amended statement of claim were maintainable given Sheehan's bankruptcy, whether the reputational damage to Sheehan's capacity to earn income could be considered divisible among creditors, and whether the claims were essentially for a personal wrong done to Sheehan. These issues were examined in light of specific sections of the Bankruptcy Act 1966, including sections 58, 60(4), 116(1), 116(2)(c), and 116(2)(g).

The court determined that the claims were maintainable, as they were not solely for a personal wrong done to Sheehan. The court found that the claims for lost income and expenses were not contingent on Sheehan's personal capacity but rather on the wrongful acts of Brett-Young. The court also concluded that the damage to Sheehan's reputation was divisible among creditors, as it impaired his ability to earn income, which could be distributed among those creditors. As a result, Sheehan was granted leave to file and serve the further amended statement of claim.

Orders