Davey v Dessco Pty Ltd and Anor (Contempt) - [2017] VSC 743

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01508

JOHN PATRICK DAVEY (TRADING AS HERM LEGAL & MIGRATION SERVICES)	Appellant
v
DESSCO PTY LTD FOR THE DESSMANN FAMILY TRUST (ACN 072 755 590) (TRADING AS VOGUE SIGNS)	First Respondent
and
PETER PATRICK DESSMANN	Second Respondent

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 October 2017
DATE OF JUDGMENT:	15 December 2017
CASE MAY BE CITED AS:	Davey v Dessco Pty Ltd & Anor (Contempt)
MEDIUM NEUTRAL CITATION:	[2017] VSC 743

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CONTEMPT OF COURT – Civil contempt – Solicitor failing to comply with undertaking and order of the Court – Minor contempt – Relevant principles – Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 75 – No penalty imposed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B J Parker	Herm Legal & Migration Services
For the Respondents	Mr R Silverstein	R D Silverstein

HIS HONOUR:

Introduction

The Summons issued by the respondents concerns a minor contempt of court, which is admitted by the appellant, Mr Davey – a passing storm in a very small teacup. Whilst the subject matter, an undertaking given by a solicitor to pay money into court, is serious, the default (arguably a day late) is of no practical consequence. That said, I have no hesitation in concluding that the provision of the funds out of time was the result of either a deliberate calculation on the part of Mr Davey, a solicitor, or reckless indifference.

It is clear from the contest in the substantive matter (i.e. whether Mr Davey can recover his alleged costs for acting for the respondents) that a considerable degree of acrimony has developed between the lawyers, as well as their clients.

Counsel for Mr Davey did not contend that Mr Davey had not complied with the terms of the undertaking given to the Court and that this in itself constituted a contempt. Rather, emphasis was placed on the trivial nature of the contempt.

The end result of this minor infraction is that I find the charge proved and Mr Davey will pay the costs of the respondents in bringing on the Summons. Otherwise no penalty is warranted. My brief reasons for reaching this result now follow – which should be read in conjunction with my decision in the substantive matter.

Background

On 30 June 2017 at a hearing before a Judicial Registrar, Mr Davey, through his counsel, undertook to pay the sum of $3,000 to Dessco’s solicitor, Mr Silverstein, by Friday 14 July 2017.[1]
[1]Order of Judicial Registrar Matthews made on 30 June 2017.

On 13 July 2017, Mr Davey forwarded a cheque for $3,000 by ordinary mail to the respondents’ solicitors (the first cheque). The cheque was made out to ‘Ron Silverstein Solicitors Trust Account’. It was not in issue that this cheque arrived at Mr Silverstein’s office on Monday 17 July 2017, one working day after the deadline of…

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

Case: [2017] VSC 743
Decision Date: 15 December 2017

CaseChat Overview and Summary

Davey brought an action against Dessco Pty Ltd and another party in the Supreme Court of Victoria. The nature of the dispute involved the defendant's solicitor failing to comply with an undertaking and an order of the Court, which led to an allegation of contempt. The Court was tasked with determining whether the solicitor's actions constituted contempt of court and, if so, what the appropriate remedy would be.

The legal issues before the Court included whether the solicitor's failure to comply with the Court's undertaking and order amounted to contempt and, if so, whether this was a case of minor contempt warranting a penalty or merely a coercive order to compel compliance. The Court had to consider the principles governing civil contempt, particularly those outlined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 75, which sets out the procedures for dealing with contempt of court.

After considering the evidence and arguments presented, the Court concluded that the solicitor's actions did amount to contempt of court. However, the Court found this to be a case of minor contempt, which did not warrant a penalty. Instead, the Court issued a coercive order to compel the solicitor to comply with the undertaking and order of the Court. Consequently, no penalty was imposed on the solicitor or the parties involved.

Orders