Sloan v Arnold Thomas and Becker (No 3)
[2020] VSC 622
•24 September 2020
| 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 |
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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 |
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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.
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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 various duties owed to him when they advised him to make the offer that settled that proceeding. Mr Sloan alleged three causes of action against ATB (by which, hereafter, I include Mr Flanagan), namely:
(a) a claim in contract for breach of a term of the retainer to exercise due care and skill in prosecuting and compromising the 2006 proceeding;
(b) a claim in negligence (tort) for breaching a general duty to exercise due care and skill in prosecuting and compromising the 2006 proceeding; and
(c) an equitable claim for breaching a fiduciary duty to act solely in Mr Sloan’s best interests in the exercise of due care and skill in prosecuting and compromising the 2006 proceeding (‘the equitable claim’).[1]
[1]Endorsement on the Writ filed 19 December 2011, [15]. Mr Sloan first filed a statement of claim (called an ‘Amended Statement of Claim’) on 31 May 2019 in response to an order made by Daly AsJ on 17 May 2019. In that amended statement of claim he repeated the paragraphs of the general endorsement on the Writ as pleadings, save that he struck through those parts of the pleading that contained references to the common law claims which the associate judge had by then struck out.
By an order made 17 May 2019, the associate judge gave summary judgment in favour of ATB in respect of the claims for breach of contract and negligence on the basis that those claims were statute barred pursuant to s 5 of the Limitation of Actions Act 1958 (Vic) (‘LAA’). Those causes of action had both accrued by 24 October 2011 when the 2006 proceeding was compromised on the advice of ATB. The professional liability proceeding was not commenced within six years of that date.
Since ATB did not press for summary dismissal of the equitable claim at that time, it remained on foot. Pursuant to other orders made on 17 May 2019, Mr Sloan filed an amended statement of claim excising the claims in contract and tort, and adding some further allegations, seemingly by way of particulars of his claim for breach of fiduciary duty. ATB filed an amended defence which, among other things, pleaded that the remaining cause of action for breach of fiduciary duty was also barred by the application by analogy of s 5 of the LAA because the writ was filed more than six years after the accrual of that cause of action.
On 16 October 2019, after a further hearing, the associate judge summarily dismissed the whole proceeding. Her Honour held that the statutory limitation period applicable to the claims in contract and tort (ie six years pursuant to s 5 LAA) applied to the equitable claim by analogy and that there was no real prospect that Mr Sloan could overcome that limitation defence by means of any ‘unconscionability exception’ to the application of that limitation period.
It is against that last-mentioned order that Mr Sloan wishes to appeal. Under the applicable court rules,[2] Mr Sloan had 14 days from 16 October 2019 to serve a Notice of Appeal against the order. Mr Sloan’s Notice of Appeal was filed 12 June 2020, seven months and 13 days after the time for appeal expired.
[2]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 77.06.2 (‘the Rules’).
The Court has a discretion to extend the time within which a Notice of Appeal must be filed. If I were to exercise my discretion in Mr Sloan’s favour in this case, I would then proceed to determine the appeal he has sought to bring upon the grounds he has outlined in his proposed Notice of Appeal.
Should the time for filing the Notice of Appeal be extended?
The question whether the Court should exercise its discretion to extend time for the filing and service of a Notice of Appeal involves consideration of the length and reasons for delay, prejudice to the respondent and whether the proposed appeal so lacks merit as to be futile.[3]
[3]Spanovic v Carter Holt Harvey Ltd [2014] VSCA 240 [4].
In opposing the grant of an extension of time, ATB does not advance any grounds of prejudice. Instead, it points to the significant period of delay and the absence of any specific detail as to the occasions when Mr Sloan’s medical incapacity (referred to below) prevented him over the seven and a half month period from preparing his Notice of Appeal. However, principally, ATB relies upon a submission that the proposed appeal so lacks merit that it would be futile to allow it go forward.
Length and reasons for delay
The period of delay is substantial. It is multiples of the period which Parliament considered was the appropriate time to allow a party to file an appeal of this kind.
Mr Sloan’s explanation for his delay has a number of elements. First, he alleges that he attempted to file a Notice of Appeal ‘shortly after the judgment hand down approx. 31 Oct 2019’ which the court staff apparently rejected telling Mr Sloan he needed to ‘perfect’ his grounds for appeal.[4]
[4]Affidavit of Neil Sloan affirmed 17 July 2020, page 4, [3] (‘Sloan affidavit’). In his oral submissions, Mr Sloan also asserted that he had attempted to file other versions of a Notice of Appeal over the course of the seven and a half months, each time being refused.
Secondly, he claimed that the judgment of the associate judge, and her reasons for it, exacerbated the overwhelming and crippling effects of his psychological condition, causing him an inability to provide a detailed Notice of Appeal.[5]
[5]Sloan affidavit (n 4), page 3, and page 4 [3].
Thirdly, in support of the second point, he relied upon documents exhibited to his affidavit affirmed 17 July 2020 (‘Sloan affidavit’), namely medical reports from his treating general practitioner and his treating psychologist, Dr Joseph Poznanski, and a statutory declaration from a close friend who had observed his behaviour after the hand down of the judgment. Relevantly, Dr Poznanski wrote:
The unfavourable judicial decision that was handed down by the presiding Judge, cause (sic) significant disruption to Mr Sloan’s fragile emotional stability. Mr Sloan once again experienced powerlessness, invalidation of his historical trauma, helplessness, and a temporary loss of faith in his capacities to overcome the powerful depressive episodes, that implicated reactivation of his suicidal ideations. In these circumstances Mr Sloan has not been able to meet the requirements of the Appeal Process. He simply was not able to seek the Appeal within the specified period of 28 days. Mr Sloan needed considerable time to recover emotionally, to regain his energy, and to re-establish his natural motivational schema. It is critical that the Judicial system recognises this fact, that Mr Sloan required considerable time to recover to be able to appeal the outcome of his legal process against the defendants, Arnold Thomas & Becker Pty Ltd.[6]
[6]Report of Dr Joseph Poznanski, 15 July 2020, page 2.
Mr Sloan’s friend, Antonietta Iannarella, declared:
Towards the end of 2019 after a judgment handed down in the Supreme Court, I became worried as Neil was not answering or returning my calls. This was highly unusual as we have communicated over our friendship on a regular basis. On one occasion before Christmas he returned a call notifying me he was not intending to present at seasonal functions invited. He said he was suffering increased depression and that he did not wish to burden people.
On occasions in January this year he also informed me he was experiencing increased suicide thoughts or ideations and that he remained largely bed ridden. He was encouraged to seek further medical assistance and I understand he is now seeing his GP and seeking further psychological therapy and support to manage issues of trauma that I understand relate to his PTSD.[7]
[7]Statutory declaration, Antonietta Iannarella declared 24 April 2020, [2]-[3].
There is no doubt that Mr Sloan has gone a considerable way toward establishing a plausible explanation for the long period of delay in the filing of his Notice of Appeal. That said, his explanation does lack some particularity in attributing the whole period of delay to his medical incapacity. In addition, it is not explained why he was able to file a form of Notice of Appeal on 31 October 2019 but not again thereafter until 12 June 2020.[8]
[8]Assertions made in his oral submissions (see above, n4) that he attempted to file other versions of a Notice of Appeal over the seven and a half month period appeared to undermine the tenor of his other evidence that he was medically incapable of grappling with preparing a Notice of Appeal over this time.
Be that as it may, because I have formed the view that it would be futile to entertain the appeal for reasons I set out below, and that the extension of time should be refused on that basis, it is not necessary that I examine these other issues any further.
Does the appeal lack merit?
The proposed appeal is brought by notice under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’). Such appeals are no longer by way of rehearing de novo. Instead, they are rehearings which, in the absence of further evidence or a change in the law, ordinarily require the appellant to show legal, factual or discretionary error on the part of the associate judge before appellate power may be exercised.[9] In considering whether the proposed appeal has sufficient merit to avoid it being characterised as futile, it is necessary to consider whether it is arguable that the associate judge made such an error.
[9]Oswal v Carson [2013] VSC 355; Applebee v Monash City Council [2013] VSC 481; Nom de Plum Nominees Pty Ltd v Wallace-Smith (in his capacity as liquidator of Ascot Vale Self-Storage Centre Pty Ltd) [2014] VSC 75; (2014) 98 ACSR 243 and Guneser v Aitken Partners [2020] VSC 210 [21].
Some further factual detail is necessary. In his claim against ATB, Mr Sloan alleges that ATB obtained his written instructions on 21 October 2011 to make the offer to settle the 2006 proceeding for $350,000 plus costs of $100,000. That instruction was preceded by advice from ATB that he should do so. After alleging the three duties set out at [4] above, Mr Sloan alleged that ATB breached each of those duties by the same conduct, namely:
In breach of each of the term and the duties referred to in the preceding paragraph, AB & T and Mr Flanagan failed to exercise due care and skill in prosecuting and compromising the sexual assault proceeding on his behalf and in advising him in relation to the compromise of that proceeding and to act in the best interests of Mr Sloan and in particular by inadequately advising him that he should settle the sexual assault proceeding for the settlement sum of $350,000 without properly or at all considering his entitlement to claim compensation for loss of earning capacity arising from the effects of the sexual assaults committed against him and coercing him to make an offer in terms of the written instructions and ultimately to accept the terms of the settlement which the Defendants were prepared to accept, for motives ulterior to the best interests of Mr Sloan, namely to gain access to the agreement by the Defendants to pay the agreed sum for Mr Sloan’s legal costs of $100,000.[10]
[10]Endorsement on the Writ filed 19 December 2017, [16]. See n1 above.
The allegation of ‘ulterior’ motive in the above paragraph is a reference to two things:
(a) the fact that ATB, retained on a no win/no fee retainer, would secure for itself the payment of its legal fees (or at least some of them); and
(b) that ATB had a conflicting interest because of an alleged commercial interest with the television network defendants given that ATB advertised its legal services on regional television networks, including the defendants’ television network, by placing its advertising through a media buying agency.
After the defendants to the 2006 proceeding had accepted Mr Sloan’s offer to settle on 24 October 2011, Mr Sloan purported to withdraw his instructions to ATB. In a letter to ATB dated 27 October 2011 (received on or about 31 October 2011) Mr Sloan claimed that the authority he had given was not in his ‘best interests’. He stated –
Over the last weekend Oct 22/23 I viewed your firm Arnold Thomas Becker being advertised on regional television, I was shocked to witness this. This means your firm are undertaking a commercial relationship with a TV station or stations. It is not clear if the broadcaster was [the defendant television network].
Despite our view that any ‘business’ is entitled to advertise, what does your commercial relationship mean to my case matters? …[11]
[11]Letter from the plaintiff dated 27 October 2011, exhibit LTF-12 to the affidavit of Lee Tek Flanagan sworn 1 April 2019. In his oral submissions in this proceeding, Mr Sloan said that, at the time he wrote that letter, he viewed the fact that ATB had been advertising on television as ‘a conflict of interest’.
On 9 November 2011, Mr Sloan refused to sign a release proffered by the television network defendants; on 14 November 2011 the television network defendants provided to ATB a cheque in the sum of $450,000; on 16 November 2011 ATB filed a notice of ceasing to act for Mr Sloan; on 21 December 2011 a judge of this Court dismissed the 2006 proceeding on the basis that the settlement agreement of 24 October 2011 was binding on Mr Sloan; and on 22 December 2011, ATB caused $320,000 to be transferred to Mr Sloan’s bank account.
By his Notice of Appeal, Mr Sloan has applied for an order that the whole ‘judgment be set aside’ and, further, that the ‘Original SOC be reinstated as a Common Law claim’. His eight grounds of appeal, taken from his proposed Notice of Appeal, are as follows:
1.The AsJ failed to deliver a ‘timely and accessible’ judgment. As the AsJ has erred in reframing the plaintiff claims as an Equitable claim. As the claims are not about an “Equitable Claim” as (I) the plaintiff do not seek “Equitable Costs”. Or any “difference” in any sum of any so called ‘settlement’ fund (made by the Defendants for ulterior purpose) and the real value of the claim (however may have been calculated) in the related matter of NS V GO & ORS.
2.The AsJ erred in focusing proposition that a discovery of a Conflict of interest the defendants possessed (in related matter NS V GD & ORS), is the time of applying a Statute of Limitations to commence.
3. The AsJ failed to consider their ‘searching’ for analogies, case precedence or other, to fit the shift & alter of the original Statement of Claim as an “Equitable Claim” are irrelevant to the Common Law claim. In respect to particulars specific to the matters.
4. The AsJ failed to fully consider the core of the Common Law claim is a claim for Damage and Costs inflicted upon (i) the plaintiff and by the defendants’ conducting, failing a fiduciary of care (trust-ability), and the containment of mendacious allegations in counter claims & Affidavit(s).
5. The AsJ failed to consider the full scope of the significance of the defendants’ own admissions they possessed a “Commercial Business Relationship” with the ‘ORS’ (in the related matter of NS V GO & ORS). And that the nature of said business relationship in advertising was in fact “concealed” in plain sight. And that the conducting & consequences of the failings on the part of the defendants to declare caused damage.
6. The AsJ failed to consider the defendants, identified (by senior legal practitioners initially who were enrolled to author and lodge the writ) the failing of a “fiduciary duty of care” and a case against ATB was not identified until after a resultant and enforced so called “settlement” (in reference to a Court Application Dec 21 2011). And whereby, no Deed of Release has ever been tendered or considered in fullness by the AsJ in law. And whereby the defendants were previously dismissed, filed notice of discontinuance, yet retained so called “funds” in those matters.
7.The AsJ failed to consider in fullness, an Appeal (to the decision by the AsJ Zammit of Dec 2011), whereby Hon. J Whelan was prepared to overturn the decision. Making something of a mockery to enforce-ability of a so called settlement (in those related matters), and raising questions the AsJ has not fully considered. In additions, supporting legal advice in that appeal matter was prohibited from being considered.
8. The AsJ failed to fully consider they had previously set trial date(s) in the matters, that the defendants themselves proposed mediation dates early in proceedings. And that the Court’s capacity and responsibility to administer Justice does include seeking conflict resolution, and the power to initiate Court-Annexed Arbitration. In light available of available evidence which depose defendants’ Affidavit(s), and particulars submitted by them which remain void of real opportunity to contest. Including, other evidentiary particulars i.e transcripts tendered concerning a directly related criminal proceeding …
In her reasons for decision, the associate judge set out the authoritative statements of principle concerning the test in s 63 of the Civil Procedure Act 2010 (Vic) governing applications for the grant of summary judgment on the basis that a claim has no real prospect of success.[12]
[12]Sloan v Arnold Thomas & Becker (No 2) [2019] VSC 682, [8] (‘Reasons’) [19]-[24] where her Honour cited Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, D’Aquino v Trovatello (2015) 47 VR 31 and Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17.
In considering whether Mr Sloan’s claim had a real prospect of success in light of the proceeding having been issued more than six years after the settlement of the 2006 proceeding, and ATB having pleaded a limitation defence (by analogy), the associate judge dealt with three key issues. The first was the question of when the cause of action for breach of fiduciary duty accrued. The second was whether the limitation period for the contract and tort claims should be applied by analogy to the breach of fiduciary duty claim. And, if so, the third was whether, nonetheless, it may be unconscionable on the part of ATB to rely upon that defence.
In approaching all these matters, her Honour assumed for the purpose of the argument that the matters Mr Sloan had pleaded in his professional liability proceeding were true.[13]
[13]Reasons (n 12), [8].
As for the accrual of the cause of action, her Honour held that the equitable cause of action accrued, at the latest, when Mr Sloan suffered loss and damage as a consequence of the alleged breach. That, her Honour held, must have been no later than 24 October 2011 when the defendants to the 2006 proceeding accepted the compromise and Mr Sloan lost the chance to obtain any compensation greater than the $350,000 and the $100,000 for costs.[14]
[14]Reasons (n 12), [26] .
As for whether the limitation period for the contract and tort claims applied by analogy to the claim for breach of fiduciary duty, her Honour commenced by setting out the relevant legal principles[15] extracted from Knox v Gye,[16] Cia de Seguros Imperio v Heath (REBX) Ltd and Ors,[17] Coulthard v Disco Mix Club Ltd,[18] Belan v Casey,[19] Spaulding v Adams,[20] Issa v Issa,[21] Port Ballidu Pty Ltd v Frews Lawyers[22] and Grace v Auzhair Supplies Pty Ltd.[23]
[15]Ibid, [28]-[39].
[16](1872) LR 5 HL 656.
[17][2001] 1 WLR 112, 126.
[18][2001] 1 WLR 707.
[19](2003) 57 NSWLR 670.
[20][2012] TASSC 61.
[21][2015] NSWSC 112.
[22][2017] QSC 19.
[23](2014) 87 NSWLR 435.
The principles to which her Honour referred establish, in summary, that:
(a) when a remedy in equity corresponds to a remedy at law, and the legal remedy is subject to a limitation under a limitation statute, the equitable remedy is subject by analogy to the same limitation;
(b) whether there is a sufficiently close correspondence is a question of degree, and reference is to be made to relevant authorities; and
(c) it has regularly been held that a claim for breach of fiduciary duty on facts that would have also allowed a common law claim for fraud, negligence or breach of contract has had applied to it the same statutory limitation period as the corresponding common law claim.
Applying those principles, her Honour found that there was such a close similarity between the claims Mr Sloan had pleaded in contract and tort, and the claim he made in equity for breach of fiduciary duty, that the six year limitation period applicable to the common law claim should also apply by analogy to the equitable claim. Her Honour found that degree of similarity in the fact that the conduct Mr Sloan relied upon against ATB for breach of each duty was the same, and the loss that he claimed as a consequence of each breach was also the same. This was summarised by her Honour in this way:
In my view, the plaintiff’s claim that the defendants breached their fiduciary duty to him is analogous to his claims for breach of contract and negligence. All claims centre on the advice given by the defendants to the plaintiff to settle the proceeding. The loss claimed is the same in the case of his breach of fiduciary claim and his breach of contract and negligence claims, being the difference between the real value (however calculated) of the plaintiff’s claim in the 2006 proceeding and the settlement sum. The facts as to when the advice was given and the settlement entered into are not in dispute. For each cause of action, the relevant breach was said to be the giving of inappropriate advice to settle the 2006 proceeding.[24]
[24]Reasons (n 12), [48].
Mr Sloan has not identified any arguable error in the law that her Honour applied, the facts that she relied upon or her application of the law to those facts. Nor can I detect any such arguable error.
A number of Mr Sloan’s grounds of appeal in his proposed notice suggest, somewhat misguidedly, that her Honour was in error to ‘alter’ his common law claim to an equitable claim. As mentioned, he seeks an order that his common law claim be restored. It appears that he misconstrues the effect of the order made on 17 May 2019 striking out his common law claims leaving only his equitable claim as the remaining vestige of this proceeding. By some of his other grounds of appeal,[25] Mr Sloan appears not to understand that her Honour accepted, for the purpose of the application, the truth of his allegations that ATB acted in breach of its fiduciary duty in giving him advice to settle the 2006 proceeding. Beyond that, his grounds of appeal do not allege any intelligible errors of law in respect of the second key issue.
[25]In particular, grounds 4 and 5 of the Notice of Appeal.
The third key issue was whether Mr Sloan has any real prospect in arguing that ATB should be precluded from relying upon the limitation defence (by analogy) due to unconscionable conduct. On this point, her Honour stated the applicable principles as follows:[26]
[26]Reasons (n 12), [40].
In Gerace, the New South Wales Court of Appeal rejected the contention that equity would decline to apply the statutory time limit in circumstances where the equitable cause of action was founded on unconscionable conduct, save where the unconscionable conduct affected the plaintiff’s ability to bring a proceeding within time. Meagher JA stated as follows:
A modern statement of the principle according to which equity will decline to apply a statute by analogy, or will postpone the time from when it commences to run, is that of Lord Bingham (then Master of the Rolls) in his judgment in the Court of Appeal in Sheldon v RHM Outhwaite Ltd [1996] 1 AC 102 at 115. There his Lordship observed:
The equitable exception to the old and unqualified statutory limitation rule rested on the principle that a defendant whose unconscionable conduct has denied the plaintiff the opportunity to sue in time should not in conscience be permitted to plead the statute to defeat the plaintiff’s claim provided the claim were brought timeously once the plaintiff learned or should have learned of it.
According to these statements, equity applies by analogy a limitation statute for a corresponding remedy at law in the absence of an equitable ground, such as concealed fraud, which makes it unconscionable to permit the defendant to rely on the statute. None of these formulations suggests that whether a statute is to be applied by analogy depends on the answer to a larger question, namely whether in the absence of the analogy, there would not be a defence of laches.
None of the aspects of ATB’s conduct, alleged by Mr Sloan to have been in breach of fiduciary duty and thereby unconscionable, denied Mr Sloan the opportunity to sue ATB within time (that is by 24 October 2017) for the reasons explained by her Honour:[27]
Further, the documentary evidence shows that, at all relevant times, or at least since 9 October 2011, an essential feature of any settlement agreement between the plaintiff and the defendants in the 2006 proceeding was that $100,000 of any settlement sum was to be earmarked for the payment of legal costs to ATB. That the costs were in fact calculated as being approximately $100,000 was known from approximately 16 November 2011, and no action was ever taken by the plaintiff to dispute those costs. Accordingly, the plaintiff knew that any settlement of the 2006 proceeding would ensure that ATB received its costs. Further, it is apparent from the plaintiff’s letter to Mr Flanagan of 31 October 2011 that the plaintiff knew, or suspected, that ATB placed advertisements with the television network defendants. As a matter of logic, television advertisements cannot, by their very nature, be concealed. This letter also referred to what the plaintiff considered to be the defendants’ conflict of interest in wanting to be paid their legal costs from the settlement sum.
Accordingly, to the extent that there was arguably a conflict between the defendants’ duties to the plaintiff, and their own interests, that conflict was known, or at least discoverable, no later than 16 November 2011, but probably at least from 28 October 2011.
[27]Ibid, [50]-[51].
Mr Sloan had argued before her Honour that his cause of action against ATB did not accrue until 21 December 2011 when the Court dismissed his 2006 proceeding. In my view, her Honour was plainly correct to reject that argument.[28] The proceeding was dismissed by the Court only because Mr Sloan would not accept what the Court found he should have accepted, namely that the proceeding had been settled by agreement on 24 October 2011. That was when he suffered his loss in reliance upon the advice said to have been given to him by ATB in breach of fiduciary duty. The occurrence of that consequential loss completed the cause of action.
[28]Reasons (n 12), [52].
Mr Sloan argued before me, in substance, that the date from which any limitation period ran must be the date when he first learned that he might have a cause of action against ATB, rather than when he first learned the facts which founded such a cause of action.[29] So, he argued, the limitation period did not run until the judge who heard the application to dismiss the proceeding on 21 December 2011 said to him, words to the effect, ‘your problem might be with your lawyers’.
[29]This also appears to be the subject of ground 2 in the Notice of Appeal.
I reject his submission. The law is that the statutory time limit is applied by analogy to an equitable cause of action except insofar as any unconscientious behaviour on the part of the defendant has prevented the plaintiff from suing within time. In the circumstances of this case, the correct focus is on the discovery of the facts which gave rise to the alleged equitable cause of action. As Mr Sloan conceded before me, he had formed the view since the weekend of 22/23 October 2011 that ATB had a conflict of interest when he viewed the television advertising.
Mr Sloan has not advanced any other unconscionable conduct on ATB’s part that might have concealed the alleged conflict of interest from him so as to prevent him from suing within time. In my view, her Honour rightly held:[30]
… there has been no concealment, and, consistent with my findings above, the plaintiff knew of the facts giving rise to the defendants’ alleged breach of duty more than six years prior to the proceeding. Accordingly, the proceeding will be dismissed.
[30]Reasons (n 12), [55].
Again, in my view, Mr Sloan has not advanced any arguable error in her Honour’s analysis or findings to suggest that his proposed appeal has any merit.
Conclusion
In conclusion, it is my view that the proposed appeal so lacks merit that it would be futile to allow it to proceed. Therefore I refuse Mr Sloan’s application for an extension of time within which to file his proposed Notice of Appeal. The effect of that refusal is that there is no appeal on foot for the Court to determine.
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