Davey v Elvin
[2023] VSCA 99
•28 April 2023
| SUPREME COURT OF VICTORIA COURT OF APPEAL | |
| S EAPCI 2022 0061 | |
| JOHN PATRICK DAVEY | Applicant |
| v | |
| MATTHEW POMEROY ELVIN | First Respondent |
| RONALD DAVID SILVERSTEIN | Second Respondent |
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| JUDGES: | BEACH, WALKER and R OSBORN JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 28 April 2023 |
| DATE OF JUDGMENT: | 28 April 2023 |
| MEDIUM NEUTRAL CITATION: | [2023] VSCA 99 |
| JUDGMENT APPEALED FROM: | [2022] VSC 214; [2022] VSC 324 (Keogh J) |
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PRACTICE AND PROCEDURE – Application for adjournment of application for leave to appeal – Potential application to join bankrupt person who was not a party to judgment now sought to be appealed – Application for application for leave to appeal to be ‘adjourned part heard’ – No basis for joinder of additional party – No basis to adjourn application for leave to appeal – Application refused.
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| Counsel | |||
| Applicant: | In person | ||
| First Respondent: | Mr CM Archibald KC with Ms E Poole | ||
| Second Respondent: | Ms L Hannon KC with Mr TK Jeffrie | ||
Solicitors | |||
| Applicant: | |||
| First Respondent: | Colin Biggers & Paisley | ||
| Second Respondent | K&L Gates | ||
BEACH JA
WALKER JA
R OSBORN JA:
In May 2016, the applicant, a solicitor, commenced a proceeding in the Magistrates’ Court seeking to recover legal fees from two former clients, Peter Dessmann and Dessco Pty Ltd (‘the clients’). Initially, the clients were represented in the Magistrates’ Court proceeding by the first respondent, and later by the second respondent.
On 5 June 2020, after some 38 court appearances, the magistrate gave judgment for the applicant against the clients, and made orders requiring the clients to pay the applicant the sum of $81,748.29, together with interest in the sum of $35,344.32. Additionally, the magistrate found that the clients and the respondents had breached certain overarching obligations contained in the Civil Procedure Act 2010 (‘the Act’). As a result, the magistrate made a number of further orders, purportedly under Part 4.5 of the Act, imposing a liability on the clients and the respondents to pay compensation to the applicant (based on the Practitioner Remuneration Order) to be assessed by the Costs Court. The compensation ordered covered the period from 10 June 2016 to 5 June 2020.
In July 2020, the clients, the first respondent and the second respondent, each commenced appeals in the Trial Division against the orders made by the magistrate under the Act.
By orders made by Keith JR on 4 August 2021 and 13 October 2021, the clients’ appeal was dismissed. Notwithstanding that dismissal, on 6 December 2021, Keith JR made orders requiring the clients to pay the applicant’s costs on an indemnity basis; and to pay the applicant’s costs pursuant to s 29(1)(a) of the Act, and compensation pursuant to s 29(1)(c). Additionally, Keith JR ordered that the quantification of such compensation was to be considered on a date to be fixed, but not before publication of the decision of Keogh J in the appeals brought by the respondents — those appeals having been heard in October 2021, but not then determined.
On 10 June 2022, in accordance with reasons published on 2 May 2022,[1] and 10 June 2022,[2] Keogh J made orders in which he allowed each of the appeals brought by the respondents. In each appeal, Keogh J varied the orders made pursuant to the Act by the magistrate on 5 June 2020, so as to delete the references to the respondents in those orders — leaving all of the orders made against the clients intact, including those made under the Act.
[1]Elvin v Davey [2022] VSC 214 (‘First Keogh J Reasons’).
[2]Elvin v Davey (Costs Ruling) [2022] VSC 324 (‘Second Keogh J Reasons’).
In July 2022, the applicant filed an application for leave to appeal against the orders of Keogh J. In that application, and in a subsequently filed amended application for leave to appeal, the applicant identified the Trial Division file numbers of the appeals brought by the first respondent, the second respondent and the clients. With respect to the clients’ appeal, the applicant identified that proceeding as follows:
S ECI 2020 02844 — Dessco Pty Ltd (in liquidation) & Peter Patrick Dessmann (bankrupt) — matter was discontinued due to Bankruptcy and Liquidation of the appellants and remains unresolved pending the outcome of Elvin and Silverstein appeals above — see orders of Judicial Registrar Keith dated 6 December 2021.
On 6 April 2023, the applicant filed an affidavit headed ‘Affidavit in support’, affirmed by him, which provided:
I affirm this Affidavit in support of my Application for an adjournment sine die of this Appeal pending the decision of the Federal Circuit and Family Court of Australia in proceedings MLG 1877 of 2022 In the matter of Peter Patrick Dessmann, hereafter the “Federal Circuit Court matter”.
The applicant’s affidavit asserts that Mr Dessmann became bankrupt on 29 April 2021, and (as at 6 April 2023) remains an undischarged bankrupt. The applicant states:
It is principally this status of Peter Patrick Dessmann and the present Federal Court proceedings which are reserved for judgment which form the basis of my application for an adjournment sine die.
Because of the bankruptcy of Peter Patrick Dessmann and the later liquidation of Dessco Pty Ltd, the appeal filed by [the clients] was discontinued and dismissed by Order of Judicial Registrar Keith on 15 October 2021. …
The consequence of the dismissal of the Dessmann and Dessco [sic] is that the Order of the Magistrates’ Court against [the clients] stand — including the Orders that the Costs Court calculates the compensation owed to me by [the clients].
A common point of appeal amongst [the clients and the respondents] is that the Costs Court was not Jurisdictional Competent [sic] to assess compensation for breaches of the Overarching Obligations.
Ultimately [the respondents] were successful on the competency of the Costs Court when their appeals were determined by [Keogh J] … in the decision presently before this Court.
I do not dispute, in this Appeal, that the Costs Court was not competent to assess compensation under [the Act].
The legal effect of the success of [the respondents’] appeals is that my orders against [the clients] are no longer able to be enforced. This has an impact on whether I can prove my debt in the liquidation of Dessco PL as at the date of my Affidavit, the compensation order is unquantified and unquantifiable due to defects in the Magistrates’ Court Orders regarding the Costs Court.
As a debt that was not quantified at the date of Peter Patrick Dessmann’s bankruptcy, the law considers such orders to be post bankruptcy debts and accordingly enforceable against the bankrupt.
In his affidavit, the applicant went on to depose to having commenced a proceeding in the Federal Circuit and Family Court of Australia, seeking leave to proceed (‘the leave to proceed application’) against Mr Dessmann in this Court; and that this proceeding was heard on 13 February 2023, and is presently reserved. The applicant deposes that he does not know when a decision will be delivered in relation to his application for leave to proceed against Mr Dessmann.
On 12 April 2023, the applicant filed a formal application (‘the April 2023 application’) seeking an adjournment of the hearing of his application for leave to appeal and appeal, fixed for 28 April 2023, pending the outcome of the leave to proceed application. In the alternative, the applicant seeks an order adjourning his proceeding in this Court part-heard; and, subject to the orders of the Federal Circuit and Family Court, an order joining Mr Dessmann as a third respondent in this Court.
In support of his application, the applicant relied upon r 64.02(2) of the Supreme Court (General Civil Procedure) Rules 2015, which requires ‘each person who was a party to the proceeding or matter in which the decision in question was made and who is affected by the appeal’ to be named as a respondent to the appeal. The applicant also relied upon this Court’s decisions in Lawrence & Hanson Group Pty Ltd v Young.[3]
[3][2016] VSCA 69 (‘Lawrence (No 1)’); [2017] VSCA 172 (‘Lawrence (No 2)’).
The short answer to the April 2023 application is that there is no basis for joining Mr Dessmann as a party to the present proceeding in this Court (even if the applicant receives a favourable determination of the leave to proceed application). Mr Dessmann was not a party to the proceeding before Keogh J. That, of itself, is a sufficient basis upon which to refuse the present application. More specifically, however, Mr Dessmann is neither a necessary nor a proper party to the present proceeding in this Court.
The applicant will either be successful or unsuccessful in this Court in his application to set aside the orders of Keogh J which were made in favour of the respondents. If he is unsuccessful, the application for leave to appeal will be refused, or the appeal will be dismissed. There will be no occasion for this Court to make any further or other orders affecting Mr Dessmann; nor any occasion for this Court to make any variation of the magistrate’s orders.
On the other hand, if the applicant is wholly successful in this Court, then the orders of Keogh J will be set aside, and the orders of the magistrate will stand. Alternatively, if this Court makes some order which results in the remittal of the matter to the Magistrates’ Court, any such order would only be for the purpose of a rehearing of the matter between the applicant and the respondents. Again (with respect to both of these alternatives), there will be no occasion for this Court to make any orders affecting Mr Dessmann, or affecting the operation of those orders to which he is a party.
To the extent that the April 2023 application is based upon the proposition that this Court might make orders on the applicant’s proposed appeal that will enhance the applicant’s prospects of recovering the compensation ordered by the magistrate from Mr Dessmann, the April 2023 application is misconceived. Any application the applicant may now wish to make to vary the magistrate’s orders as they affect Mr Dessmann should have been made to the magistrate (before his Honour’s orders were perfected, or perhaps later under the slip rule); alternatively, the applicant could have sought whatever variation that he now seeks in an appeal brought by the applicant in the Trial Division against the magistrate’s orders. Mr Dessmann would be a necessary and proper party to such an appeal if the applicant wished to affect Mr Dessmann’s rights or liabilities under any of the magistrate’s orders the applicant might now seek to have varied. We note that, to date, no such appeal has been commenced by the applicant, and that any such appeal now commenced would be significantly out of time.
Finally, the Lawrence decisions are of no assistance to the applicant. In that case, a stay was granted so as to enable a logically anterior appeal to be heard and determined before the hearing of the appeal in which the stay was sought. If the logically anterior appeal was determined against the appellant, then the appeal the subject of the stay application would not have needed to be heard.[4] In any event, the stay sought in Lawrence (No 1) was sought so as to enable the appellant to seek leave to proceed against a bankrupt respondent to that appeal. That is not this case.
[4]Lawrence (No 1) [2016] VSCA 69, [25].
For these reasons, the applicant’s application filed 12 April 2023 must be refused.
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