Davey v Elvin - [2023] VSCA 99

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…

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 Davey v Elvin

Details

AGLC: Davey v Elvin [2023] VSCA 99
Case: [2023] VSCA 99
Decision Date: 28 April 2023

CaseChat Overview and Summary

The case of Davey v Elvin involved an application for adjournment of an application for leave to appeal. The applicant sought to appeal a decision in which a bankrupt individual, who was not a party to the original proceedings, was now being considered for inclusion. The court was tasked with determining whether the application for leave to appeal should be adjourned and if the bankrupt individual could be joined as a party to the appeal. The matter was heard in the Federal Court of Australia.

The primary legal issue before the court was whether there was a basis to allow the joinder of the bankrupt individual as a party to the appeal. Additionally, the court needed to decide if there were valid grounds to adjourn the application for leave to appeal. The court examined the circumstances surrounding the potential joinder of the bankrupt individual and assessed whether such a joinder would affect the outcome of the appeal or the rights of any party involved.

The court found that there was no basis for the joinder of the bankrupt individual as a party to the appeal. It was determined that the inclusion of the bankrupt would not affect the outcome of the appeal nor the rights of any party. Furthermore, the court held that there were no sufficient grounds to justify the adjournment of the application for leave to appeal. Consequently, the application for adjournment was refused.

The court's decision was based on a detailed examination of the procedural implications and the potential impact of the proposed joinder on the appeal process. The court concluded that the application for leave to appeal should not be adjourned and that the bankrupt individual should not be joined as a party to the appeal.

Orders