Legal Research
Cases
De Simone v Bevnol Constructions & Developments Pty Ltd

De Simone v Bevnol Constructions & Developments Pty Ltd

Case [2009] VSCA 199 3 April 2009

Appeal

Stay of Proceedings

Charter of Human Rights and Responsibilities Act 2006

Civil Litigation & Procedure

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3933 of 2008

GIUSEPPE DE SIMONE
	v
BEVNOL CONSTRUCTIONS & DEVELOPMENTS PTY LTD

---

APPLICATION ON SUMMONS

---

JUDGES:	NEAVE JA and WILLIAMS AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2009
DATE OF JUDGMENT:	3 April 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 199
JUDGMENT APPEALED FROM:	Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 2629

---

PRACTICE AND PROCEDURE – Application on Summons – Parties involved in proceeding in the VCAT involving (among other matters) a claim that the applicant had engaged in misleading and deceptive conduct – Applicant the subject of a police investigation involving allegations of obtaining a financial advantage by deception – Applicant sought stay of VCAT proceedings (so far as they related to him) on the basis that defending those proceedings might require him to waive his right to silence in any future criminal proceedings – Applicant also sought to have two questions of law referred to the Supreme Court under the Charter – Application refused by a Vice-Presidential Member of VCAT and applicant sought leave to appeal – Whether Judge erred in the exercise of his discretion regarding the stay application – Whether Judge erred in applying the Charter – Whether Judge erred in applying the principles in McMahon v Gould (1982) 7 ACLR 202 – Charter of Human Rights and Responsibilities Act 2006 ss 4, 6, 24, 25, 32, 33, 38 – Application refused.

---

APPEARANCES:	Counsel	Solicitors
The Applicant in Person
For the Respondent	Mr B Reid	Macpherson & Kelley

NEAVE JA
WILLIAMS AJA:

The applicant, Giuseppe De Simone, seeks leave to appeal from the decision of a Vice President of the Victorian Civil and Administrative Tribunal (‘VCAT’) refusing to grant a stay of a counterclaim made against him by Bevnol Constructions & Developments Pty Ltd (‘Bevnol’), the respondent to this application.[1]
[1]The application is made under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’).

The background to the application is as follows. Seachange Management Pty Ltd (‘Seachange’), a property developer, commenced VCAT proceedings against Bevnol, a building contractor, claiming damages, interest and costs for alleged breaches of contract arising out of the development of a retirement village in Ocean Grove.

Bevnol counterclaimed against Seachange, the applicant and the third and fourth respondents, alleging various breaches of contract.[2] The counterclaim also alleged that Seachange and the third respondent engaged in misleading and deceptive conduct contrary to s 9 of the Fair Trading Act 1999 (‘Fair Trading Act’). In the alternative, it was alleged that the applicant, as a director of Seachange, was involved in misleading and deceptive conduct or aided, abetted, counselled or procured misleading or deceptive conduct, contrary to the Fair Trading Act. The respondent sought damages from the applicant under s 158 and/or s 159 of the Fair Trading Act.
[2]The third respondent was Paul Marc Custodians Pty Ltd and the fourth respondent was Martin Jurblum, a…

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 De Simone v Bevnol Constructions & Developments Pty Ltd

Details

AGLC: De Simone v Bevnol Constructions & Developments Pty Ltd [2009] VSCA 199
Case: [2009] VSCA 199
Decision Date: 3 April 2009

CaseChat Overview and Summary

In the case of De Simone v Bevnol Constructions & Developments Pty Ltd, the applicant, De Simone, sought a stay of proceedings before the Victorian Civil and Administrative Tribunal (VCAT) on the basis that defending the proceedings might require him to waive his right to silence in any future criminal proceedings against him. De Simone was under police investigation for allegations of obtaining a financial advantage by deception, and he argued that being compelled to defend the VCAT proceedings might incriminate him in those criminal proceedings. De Simone also sought to have two questions of law referred to the Supreme Court under the Charter of Human Rights and Responsibilities Act 2006. The application was dismissed by a Vice-Presidential Member of VCAT, and De Simone sought leave to appeal.

The primary legal issues before the court were whether the Judge had erred in exercising his discretion regarding the stay application and whether the Judge had erred in applying the Charter of Human Rights and Responsibilities Act 2006 and the principles in McMahon v Gould (1982) 7 ACLR 202. The applicant contended that the Judge had failed to properly consider the implications of compelling him to defend the VCAT proceedings on his right to silence in any future criminal proceedings. The applicant also argued that the Judge had failed to properly apply the Charter and the principles in McMahon v Gould. The respondent, Bevnol Constructions & Developments Pty Ltd, contended that the Judge had properly exercised his discretion and applied the relevant legal principles.

The court found that the Judge had not erred in exercising his discretion regarding the stay application. The court held that the Judge had properly considered the implications of compelling the applicant to defend the VCAT proceedings on his right to silence in any future criminal proceedings, and had found that there was no real prospect that the applicant would be compelled to waive his right to silence. The court also found that the Judge had properly applied the Charter of Human Rights and Responsibilities Act 2006 and the principles in McMahon v Gould. The court held that the applicant's rights under the Charter and the principles in McMahon v Gould did not outweigh the public interest in the resolution of the VCAT proceedings. The court further held that the applicant's right to silence in any future criminal proceedings was not absolute and could be waived if necessary to defend the VCAT proceedings.

The application was dismissed, and the orders sought by the applicant were refused.

Orders