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Crespin v Francis

Crespin v Francis

Case [2016] VSC 277 23 May 2016

Appeal

Stay of Proceedings

Abuse of Process

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT (COMMON LAW)

S CI 2016 1965

KITCHENER CRESPIN	Applicant
v
KEITH FRANCIS	First Respondent
SPENCER JOHN BITCON	Second Respondent

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	20, 23 May 2016
DATE OF RULING:	23 May 2016 (revised on 24 May 2016)
CASE MAY BE CITED AS:	Crespin v Francis & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 277

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PRACTICE COURT – Urgent hearing – Appeal from VCAT – Stay of VCAT proceedings sought – Criminal proceedings – Abuse of process – Error of law – Discretion – Qing Zhao & Anor v Commissioner of the Australian Federal Police (2014) 43 VR 187 – Commissioner of the Australian Federal Police v Zhao & Anor (2015) 255 CLR 46.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr J Sutton	McClure Law
For the First Respondent	Mr R Rozenberg
For the Second Respondent	Mr A Kirby	Meerkin & Apel Lawyers

HIS HONOUR:

This is an urgent application for leave to appeal (and if granted, to appeal) from a decision of a senior member of the Victorian Civil and Administrative Tribunal (‘VCAT’) to refuse Mr Kitchener Crespin a temporary stay of a hearing to which he is a respondent. He and Mr Spencer Bitcon are respondents in a civil proceeding (D494/2013) to a claim brought by Mr Keith Francis in the Building Construction List for recovery of $23,000 for plumbing work performed by him in 2012 on a building site at Glen Iris owned by Mr Bitcon (‘the property’).

The VCAT dispute centres upon who was responsible for the payment of the work performed by Mr Francis. Mr Kitchener was the building contractor to Mr Bitcon.

The hearing before the Senior Member commenced on Friday morning, 20 May 2016. Mr Sutton, who appeared for Mr Crespin, applied for a temporary stay on the basis that continuing with the VCAT hearing would prejudice his client’s defence in a criminal trial which is due to commence in the County Court on 30 May 2016. It was contended that his evidence at the VCAT hearing was relevant to his defence of the criminal prosecution.

The application was opposed by Mr Rozenberg, counsel for Mr Francis, and Mr Kirby, counsel for Mr Bitcon. After hearing argument, the Senior Member refused the application and was preparing to take evidence when this application was brought on before me at lunch time on Friday.

The reasons of the Senior Member are contained in Exhibit JMP1 to the affidavit of James Murray Pergl, sworn 22 May 2016, as follows:

1.At the commencement of today’s one-day hearing the first respondent sought a stay pending criminal proceedings brought against him in the County Court. I refuse that application as I am satisfied on the basis of a statement of Mr Sutton of Counsel for the first respondent that if he had had the opportunity to understand the materials to the extent he does…

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 Crespin v Francis

Details

AGLC: Crespin v Francis & Anor [2016] VSC 277
Case: [2016] VSC 277
Decision Date: 23 May 2016 (revised on 24 May 2016)

CaseChat Overview and Summary

In the case of Crespin v Francis, the respondent sought an urgent hearing in the Practice Court to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT). The primary dispute centred around the respondent's request for a stay of VCAT proceedings, which were in relation to an allegation of abuse of process and an error of law. The court was tasked with determining whether the stay should be granted, considering the broader context of the respondent's criminal proceedings.

The legal issues before the court involved the discretionary power of the Practice Court to grant a stay of VCAT proceedings, especially in light of the respondent's ongoing criminal matters. The court had to consider the principles established in Qing Zhao & Anor v Commissioner of the Australian Federal Police (2014) 43 VR 187 and Commissioner of the Australian Federal Police v Zhao & Anor (2015) 255 CLR 46. These cases highlighted the court's discretion in balancing the interests of justice with the need to maintain the integrity of the legal process.

The court found that the respondent's application for a stay did not meet the stringent criteria necessary to exercise the court's discretion in this manner. The respondent's criminal proceedings and the nature of the alleged abuse of process and error of law did not provide sufficient grounds to warrant a stay of the VCAT proceedings. The court determined that the VCAT proceedings should continue as scheduled, and the respondent's application was dismissed. Consequently, the court ruled that the VCAT proceedings were to proceed without interruption.

Orders