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Davey v Silverstein

Davey v Silverstein

Case [2019] VSC 724 11 November 2019

Contempt of Court

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S CI 2017 05235

THE QUEEN, on the application of JOHN PATRICK DAVEY	Plaintiff
v
RONALD DAVID SILVERSTEIN, PETER PATRICK DESSMAN and DESSCO PTY LTD (ACN 072 755 590)	Defendants

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19, 23, 24 September 2019
DATE OF JUDGMENT:	11 November 2019
CASE MAY BE CITED AS:	Davey v Silverstein
MEDIUM NEUTRAL CITATION:	[2019] VSC 724

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CONTEMPT OF COURT – Alleged contempts of Magistrates’ Court – Whether conduct had tendency to interfere with the course of justice – Whether affidavits subject to the implied undertaking in Hearne v Street (2008) 235 CLR 125 – Affidavits filed voluntarily, not under court compulsion, and not subject to implied undertaking – No contempt of court proved.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr JP Davey, in person
For the Defendants	Mr RD Silverstein, in person and on behalf of the second and third defendants

HER HONOUR:

John Davey and Ronald Silverstein are both legal practitioners who may practice law in Victoria. This proceeding is one of several in which Mr Davey and Mr Silverstein are engaged in litigation against each other, in which each of them appears in person. It arises out of debt recovery proceedings brought by Mr Davey in 2016 in the Magistrates’ Court of Victoria against Peter Dessman and Dessco Pty Ltd,[1] concerning legal fees that Mr Davey claimed they owed him. Since February 2017, Mr Silverstein has been the solicitor for the defendants in the debt recovery proceedings. In this proceeding, Mr Davey alleges that various things that Mr Silverstein, Mr Dessman and Dessco did, or did not do, in relation to the debt recovery proceedings during 2017 were in contempt of the Magistrates’ Court.
[1]Magistrates’ Court of Victoria proceedings G11540735 and G11441224.

The allegations of contempt are made against a complex factual background involving a bankruptcy, a family trust and some fractured family relationships.

Mr Davey was declared bankrupt in February 2014. His trustee in bankruptcy was Henry Kazar, of Ernst & Young.

The bankruptcy loomed large in the debt recovery proceedings. On 15 February 2017, Mr Silverstein appeared at a hearing in those proceedings and raised a number of matters concerning Mr Davey, including the fact that he was an undischarged bankrupt. The magistrate adjourned the hearing and made directions for the exchange of written submissions and other material.

On behalf of his clients, Mr Silverstein submitted that Mr Davey, as an undischarged bankrupt, could not have instituted or continued the proceeding in his own name. The defendants submitted that the Magistrates’ Court should give judgment in their favour. Mr Davey also filed written submissions, together with an affidavit exhibiting correspondence between him and his trustee in bankruptcy. That correspondence included an email dated 21 February 2017, in which the trustee advised that he would not be intervening in the debt recovery proceedings because they related entirely to the…

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 Silverstein

Details

AGLC: Davey v Silverstein [2019] VSC 724
Case: [2019] VSC 724
Decision Date: 11 November 2019

CaseChat Overview and Summary

Davey v Silverstein involved a dispute concerning alleged acts of contempt against the Magistrates’ Court. The respondent, Silverstein, had filed affidavits which the appellant, Davey, argued interfered with the course of justice. The primary focus of the court was to determine whether the conduct of Silverstein amounted to contempt of court and whether the affidavits were subject to an implied undertaking akin to those discussed in Hearne v Street.

The court examined whether the conduct of Silverstein had a tendency to interfere with the course of justice. The key legal issue was the applicability of the implied undertaking to the affidavits filed by Silverstein. The court considered whether the affidavits were filed voluntarily and not under court compulsion, and if they were subject to the implied undertaking. The court found that the affidavits were filed voluntarily and were not subject to the implied undertaking, as they were not filed under court compulsion.

In its reasoning, the court held that the conduct of Silverstein did not interfere with the course of justice. It concluded that the affidavits were not subject to the implied undertaking as they were filed voluntarily, not under court compulsion. The court found that no contempt of court was proven against Silverstein. The appeal was dismissed, and the respondent was found not guilty of contempt of court.

Orders