Legal Research
Cases
Davey v Silverstein

Davey v Silverstein

Case [2019] VSC 302 8 May 2019

Standing

Discovery & Disclosure

Abuse of Process

Interlocutory Orders

Civil Litigation & Procedure

No judgment structure available for this case.

Type to search within this case.

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2017 05235

JOHN PATRICK DAVEY	Plaintiff
v
RONALD DAVID SILVERSTEIN	Defendant
PETER PATRICK DESSMAN	Second Defendant
DESSCO PTY LTD (ACN 072 755 590)	Third Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2019
DATE OF JUDGMENT:	8 May 2019
CASE MAY BE CITED AS:	Davey v Silverstein & ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 302

---

PRACTICE AND PROCEDURE – Legal practitioners – Application to restrain legal practitioner, a defendant to the proceeding, from acting for co‑defendants – Allegation that legal practitioner may have conflict of interest in representing co‑defendants – Court’s inherent jurisdiction to protect its processes – Miller v Martin [2019] VSCA 86, applied – Finch v Heat Group Pty Ltd (No 2) (2016) 353 ALR 193, referred to – No real risk to the proper administration of justice – Application refused.

PRACTICE AND PROCEDURE – Interrogatories – Application to compel a corporate defendant to answer interrogatories – Where the sole director and shareholder of the corporate defendant, the only person who can answer interrogatories, invoked privilege against self‑incrimination – Re Australian Property Custodian Holdings Ltd (in liq) (No 2) (2012) 93 ACSR 130, considered and applied – CFMEU v Boral Resources (Vic) Pty Ltd (2015) 256 CLR 375, referred to – Discretionary considerations – Application refused.

---

APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendants	Mr R D Silverstein

HER HONOUR:

Introduction and background

In this proceeding, the plaintiff, Mr John Davey (‘Mr Davey’) is the moving party seeking orders that the Court punish the defendants for contempt in respect of certain conduct which is alleged to have perverted the course of justice. In the interests of expedition, given the pending trial date (28 May 2019), I shall not go into any detail concerning the background facts and the multiple court and tribunal proceedings in which the parties are involved. It is sufficient to say for present purposes that it is alleged that the first defendant, Mr Silverstein, the solicitor for the second and third defendants (‘co‑defendants’) in proceedings in the Magistrates’ Court and VCAT, and the second and third defendants are said to have misled the Magistrates’ Court, and have engaged in conduct which has impeded or has sought to impede Mr Davey’s conduct of the Magistrates’ Court proceeding,[1] including engaging in communications with Mr Davey’s then trustee in bankruptcy with the object and effect of extending the plaintiff’s period of bankruptcy.
[1]In the Magistrates’ Court proceeding, Mr Davey sought to recover legal fees from the co‑defendants. On 26 March 2019, a magistrate found that the co‑defendants were liable to pay Mr Davey’s fees. The quantum of those fees has now been fixed. What remains outstanding in the Magistrates’ Court proceeding is an application by the co‑defendants to amend their defence to plead a set‑off, and an application by Mr Davey that Mr Silverstein pay his costs…

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 302
Case: [2019] VSC 302
Decision Date: 8 May 2019

CaseChat Overview and Summary

The case of Davey v Silverstein involved an application by the plaintiff, Davey, to restrain the defendant Silverstein, a legal practitioner, from acting for co-defendants in the proceeding. The plaintiff also sought to compel a corporate defendant to answer interrogatories. Silverstein, as a legal practitioner, was alleged to have a potential conflict of interest in representing the co-defendants. The plaintiff applied for an order to restrain Silverstein from acting for the co-defendants, citing a possible conflict of interest, and also sought to compel the corporate defendant to answer interrogatories despite the sole director and shareholder invoking privilege against self-incrimination.

The court was required to determine whether it had the inherent jurisdiction to protect its processes by restraining Silverstein from acting for the co-defendants, given the potential conflict of interest. Additionally, the court needed to assess whether there was a real risk to the proper administration of justice if Silverstein was permitted to continue acting for the co-defendants. Furthermore, the court had to consider the application to compel the corporate defendant to answer interrogatories, weighing the discretionary considerations involved, particularly in light of the sole director and shareholder's invocation of privilege against self-incrimination.

The court applied the principles from Miller v Martin and Finch v Heat Group Pty Ltd (No 2), concluding that there was no real risk to the proper administration of justice if Silverstein continued to act for the co-defendants. The court held that it would not exercise its inherent jurisdiction to restrain Silverstein from acting for the co-defendants. Regarding the application to compel the corporate defendant to answer interrogatories, the court considered Re Australian Property Custodian Holdings Ltd (in liq) (No 2) and CFMEU v Boral Resources (Vic) Pty Ltd, and found that the invocation of privilege against self-incrimination by the sole director and shareholder warranted refusal of the application. Consequently, the application to restrain Silverstein was refused, and the application to compel the corporate defendant to answer interrogatories was also dismissed.

No further orders were made beyond the refusal of the applications. The court's decision was based on the lack of a real risk to the proper administration of justice in allowing Silverstein to act for the co-defendants and the discretionary considerations favouring the invocation of privilege against self-incrimination by the sole director and shareholder of the corporate defendant.

Orders