JUDGES:	BEACH, WALKER and OSBORN JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	28 April 2023
DATE OF JUDGMENT:	20 June 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 147
JUDGMENT APPEALED FROM:	[2022] VSC 214 (Keogh J)

---

CIVIL PROCEDURE – Application for leave to appeal decision of trial judge on questions of law in respect of appeal from Magistrates’ Court of compensation orders made under s 29(1)(c) of the Civil Procedure Act 2010 (‘CPA’) in favour of applicant – Applicant self-represented legal practitioner plaintiff in Magistrates’ Court proceeding – Conduct of respondents as legal practitioners acting for defendants in Magistrates’ Court proceeding – Overarching obligation to act honestly – Requirement for proper basis – Proper basis certification – Overarching obligation not to mislead or deceive – Whether trial judge erred in stating test for proper basis under CPA – Whether trial judge erred making findings of fact concerning conduct of respondent – Whether trial judge erred in conclusions concerning alleged breaches of ss 17, 18(d) and 21 of the CPA by respondents – Whether trial judge erred in relation to applicant’s contribution to costs and delay in the Magistrates’ Court – Whether trial judge erred in allowing respondents to raise new points on appeal – Whether trial judge misapprehended basis on which compensation was sought by applicant – Whether trial judge erred in concluding evidence did not establish applicant had suffered loss – Professional fees not equated to financial loss when applicant is self-represented solicitor – Whether trial judge erred in discounting costs of one respondent in Magistrates’ Court – Whether trial judge erred in rejecting proposition that the filing of three separate appeals was relevant to costs – Application for leave to appeal refused.

Civil Procedure Act 2010, ss 17, 18(d), 21, 29, 42.

Bell Lawyers Pty Ltd v Pentelow (2019) 269 CLR 333, Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) [2014] VSC 400, Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666, considered.

---

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

TABLE OF CONTENTS

Introduction

Proposed grounds of appeal

Statutory provisions

The trial judge’s Reasons

Did the trial judge err in stating the test for a proper basis (part of proposed ground 1)?

Consideration

Did the trial judge err in making findings of fact relevant to Elvin’s conduct (proposed ground 5)?

Consideration

Did the trial judge err in his findings with respect to Elvin’s alleged breach of the proper basis obligation under s 18(d) (part of proposed ground 1)?

Consideration

Did the trial judge err in his conclusions with respect to the alleged breach of Elvin’s obligation with respect to misleading 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.

Continue reading Davey v Elvin & Silverstein

Details

AGLC: Davey v Elvin & Silverstein [2023] VSCA 147
Case: [2023] VSCA 147
Decision Date: 20 June 2023

CaseChat Overview and Summary

Davey, a self-represented legal practitioner, appealed the decision of the trial judge regarding questions of law in respect of an appeal from the Magistrates’ Court concerning compensation orders made under s 29(1)(c) of the Civil Procedure Act 2010 (CPA). The appeal was against Elvin and Silverstein, who represented the defendants in the Magistrates’ Court. Davey sought leave to appeal the trial judge's decision, which dismissed his appeal from the Magistrates’ Court. Davey contended that the trial judge erred in his application of the law, particularly concerning the test for proper basis under the CPA, and in making factual findings about the conduct of the respondents. He argued that the trial judge misapprehended the basis of his compensation claim and erred in concluding that he had not suffered a loss. Davey also challenged the trial judge's decision on the contribution to costs and delay in the Magistrates’ Court, as well as the allowance of new points by the respondents on appeal.

The court considered several legal issues, including whether the trial judge correctly applied the test for proper basis under the CPA and whether he erred in his findings of fact concerning the conduct of the respondents. The court also examined whether the trial judge correctly interpreted the basis of the compensation claim and whether he erred in concluding that Davey had not suffered a loss. The court further examined the trial judge's conclusions concerning alleged breaches of ss 17, 18(d) and 21 of the CPA by the respondents, the applicant's contribution to costs and delay in the Magistrates’ Court, and whether the trial judge misapprehended the relevance of the filing of three separate appeals to costs. Finally, the court considered whether the trial judge erred in discounting the costs of one respondent in the Magistrates’ Court.

The court found that the trial judge did not err in his application of the law or in his factual findings. The court held that the trial judge correctly applied the test for proper basis under the CPA and did not misapprehend the basis of the compensation claim. The court also held that the trial judge correctly concluded that Davey had not suffered a loss, as professional fees were not equated to financial loss when the applicant is self-represented. The court further held that the trial judge did not err in discounting the costs of one respondent in the Magistrates’ Court, and that the filing of three separate appeals was not relevant to costs. The court concluded that the trial judge's decision was correct and dismissed the application for leave to appeal.

The court ordered that the application for leave to appeal be dismissed, with each party to bear their own costs.

Orders