Sloan v Arnold Thomas and Becker (No 3) - [2020] VSC 622

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S CI 2017 05157

NEIL SLOAN	Applicant
v
ARNOLD THOMAS & BECKER PTY LTD (ACN 097 361 469) & ANOR	Respondents

---

JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2020
DATE OF JUDGMENT:	24 September 2020
CASE MAY BE CITED AS:	Sloan v Arnold Thomas & Becker (No 3)
MEDIUM NEUTRAL CITATION:	[2020] VSC 622

---

CIVIL PROCEDURE - Where an associate judge had summarily dismissed the proceeding – Civil Procedure Act 2010 (Vic) s 63 – Where proceeding was summarily dismissed on the basis the equitable cause of action was barred by operation of a statutory time limitation applied by analogy in accordance with the principle in Knox v Gye (1872) LR 5 HL 656 – Application to extend the time to file a Notice of Appeal against summary dismissal of the proceeding – Proposed appeal pursuant to Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06.2 – Whether the proposed appeal so lacks merit it would be futile to extend the time – Whether it was arguable that the associate judge made a factual, legal or discretionary error – Application refused.

---

APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendant	Mr C Juebner	Colin Biggers & Paisley

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Should the time for filing the Notice of Appeal be extended?................................................. 3

Length and reasons for delay...................................................................................................... 3
Does the appeal lack merit?......................................................................................................... 5

Conclusion......................................................................................................................................... 13

HIS HONOUR:

Introduction

Mr Neil Sloan, a self-represented litigant, has applied for an extension of time within which to appeal an order made by an associate judge on 16 October 2019. By that order, Daly AsJ summarily dismissed this proceeding. The circumstances behind Mr Sloan’s application can be stated relatively briefly.

Mr Sloan alleges that, in the early 1980s, he was sexually assaulted when working as a teenager at a regional television station. He claims that he was sexually assaulted by an executive of the television network which ran the station. From that assault, he claims to have suffered significant emotional and psychiatric injury (post-traumatic stress disorder, major depressive disorder and dissociative disorder) which has adversely impacted his life, including his income earning capacity.

In 2006 he brought a proceeding (‘the 2006 proceeding’) against the television executive and the network that employed him, claiming damages for assault. He settled that claim when, by letter dated 24 October 2011, the defendants to the 2006 proceeding accepted his written offer to compromise the proceeding. Mr Sloan’s written offer was contained in a letter dated 21 October 2011 sent by his then solicitors, Arnold Thomas & Becker (‘ATB’), the first defendant in this proceeding.

Mr Sloan commenced this proceeding (‘the professional liability proceeding’) by writ filed 19 December 2017. It concerns his claim that ATB, and the principal solicitor with the conduct of the 2006 proceeding on his behalf, Mr Lee Tek Flanagan, breached…

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.

Keep reading for free

Create a free CaseChat account to read Sloan v Arnold Thomas and Becker (No 3) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] VSC 622
Decision Date: 24 September 2020

CaseChat Overview and Summary

Sloan commenced proceedings against Arnold Thomas and Becker, asserting an equitable cause of action. The associate judge summarily dismissed the proceeding, concluding that the claim was barred by a statutory time limitation. Sloan applied for an extension of time to appeal against the summary dismissal, contending that the associate judge erred in applying the time limitation. The court was tasked with determining whether the proposed appeal lacked merit to the extent that extending the time to file a Notice of Appeal would be futile. Additionally, the court needed to ascertain if the proposed appeal was arguable, based on a potential factual, legal, or discretionary error by the associate judge.

The court considered the criteria for extending time to appeal, focusing on whether the proposed appeal was likely to succeed. It examined the arguments presented by Sloan and assessed the merits of the proposed appeal. The court concluded that the proposed appeal was unlikely to succeed, as it found no arguable error in the associate judge's application of the statutory time limitation. The court reasoned that Sloan's equitable cause of action was indeed barred by the time limitation applied by analogy to the principle in Knox v Gye (1872) LR 5 HL 656. Consequently, the court determined that extending the time for Sloan to file a Notice of Appeal would be futile.

In light of the above, the court dismissed Sloan's application for an extension of time to appeal against the summary dismissal of the proceeding. The court found that the proposed appeal lacked sufficient merit, and there was no arguable error by the associate judge warranting an extension of time. The court's decision effectively upheld the associate judge's determination that the equitable cause of action was time-barred.

Orders