PRACTICE AND PROCEDURE – Section 63 of the Civil Procedure Act 2010 (Vic) – Application for summary judgment by solicitors against a former client on the basis that the proceeding has no real prospects of success – Whether the plaintiff’s cause of action for breach of fiduciary duty against his solicitors is statute barred by analogy – Whether there is an analogy between an equitable claim and a statutory claim – Cia de Seguros Imperio v Heath (REBX) Ltd and Ors [2001] 1 WLR 112, referred to and applied – Port Ballidu Pty Ltd v Frews Lawyers [2017] QSC 19, referred to – Scope of the unconscionability exception to applying a limitation period by analogy – Limited to unconscionable conduct which presents a wronged party from bringing a claim within time – Gerace v Auzhair Supplies Pty Ltd (2014) 87 NSWLR 435, referred to and applied.
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APPEARANCES:
Counsel
Solicitors
The Plaintiff in person
For the Defendants
Mr C Juebner
Collin Biggers & Paisley
HER HONOUR:
Introduction
This is the second application by the defendants, the plaintiff’s former solicitors, for summary judgment in their favour. The background to this proceeding is summarised in a decision I published on 8 May 2019, as follows:
The plaintiff, Mr Sloan, is self-represented. The defendants, Arnold Thomas & Becker and Mr Lee Flanagan (together ‘ATB’) are a firm of solicitors and the solicitor with the conduct of an earlier proceeding in which Mr Sloan was the plaintiff, NS v GD & Ors (‘2006 proceeding’). In the 2006 proceeding, Mr Sloan brought a claim against his former employers, and a senior employee of his former employers, with respect to losses allegedly suffered by him arising out of sexual assaults said to have been committed by the senior employee. Confidentiality orders have been made with respect to the 2006 proceeding, which will be respected in these reasons.
The 2006 proceeding was settled on 24 October 2011, when Mr Flanagan told the solicitors for the defendants in the 2006 proceeding that an offer made by them had been accepted. Shortly after this time, ATB ceased to act for Mr Sloan, after he purported to withdraw his authorisation to ATB to settle the 2006 proceedings on the terms upon which it was in fact settled. Those instructions were withdrawn in a letter from Mr Sloan to ATB dated 27 October 2011.
On 21 December 2011, Zammit AsJ (as she then was) made orders dismissing the proceeding by reason of the settlement agreement being valid and…
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.
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Details
AGLC
Sloan v Arnold Thomas & Becker (No 2) [2019] VSC 682
Case
[2019] VSC 682
Decision Date
CaseChat Overview and Summary
The respondents, Arnold Thomas & Becker, sought summary judgment in the Supreme Court of Victoria against their former client, the plaintiff Sloan, who had commenced a proceeding against them for breach of fiduciary duty. The respondents argued that the proceeding had no real prospects of success, and that the plaintiff's cause of action was statute-barred by analogy. The court had to decide whether the plaintiff's cause of action was statute-barred by analogy, and if so, whether the unconscionability exception applied. The court considered the relevant limitation period for the plaintiff's cause of action, which was six years from the date of breach. The court noted that the plaintiff had commenced the proceeding more than six years after the alleged breach, and that the limitation period was therefore likely to have expired. The court then considered whether there was an analogy between the equitable limitation period and the statutory limitation period for professional negligence claims. The court held that there was an analogy between the two limitation periods, and that the unconscionability exception to applying a limitation period by analogy was limited to unconscionable conduct which prevented a wronged party from bringing a claim within time. The court found that the respondents' conduct was not unconscionable in this sense, as the plaintiff had not been prevented from bringing a claim within time. The court therefore held that the plaintiff's cause of action was statute-barred by analogy, and that the respondents were entitled to summary judgment.
The court dismissed the plaintiff's proceeding and ordered that the respondents recover their costs of the application.