De Simone v Bevnol Constructions & Developments Pty Ltd &Ors - [2011] VSCA 54

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2010 0047
GIUSEPPE DE SIMONE	Applicant
v
BEVNOL CONSTRUCTIONS & DEVELOPMENTS PTY LTD	First Respondent
and
BRUCE JAMIESON	Second Respondent
and
LOUIS ALLAIN	Third Respondent

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APPLICATION ON SUMMONS

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JUDGES	REDLICH and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	18 February 2011
DATE OF JUDGMENT	3 March 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 54
JUDGMENT APPEALED FROM	Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2010] VCAT 269

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PRACTICE AND PROCEDURE – Interlocutory appeal – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148(1)(a) – Failure to identify any error of law – Inspection of documents produced on summons – Criminal charges laid but not yet heard on related issues – Whether abuse of process to issue summonses in lieu of discovery – Whether summonses issued for an improper purpose – Whether inspection of documents would breach s 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) – Question referred to the Supreme Court pursuant to s 33(1) of the Charter – Effect of s 33(2) of the Charter considered – Whether denial of procedural fairness to not allow applicant to call or cross-examine witnesses to support objections to the inspection of the documents – Legal professional privilege – Whether error in dealing with documents produced which fell outside dates on the summons – Application for leave to adduce fresh evidence.

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Appearances:	Counsel	Solicitors
For the Applicant	In person
For the Respondents	Mr B Reid	Macpherson + Kelley Lawyers Pty Ltd

REDLICH JA:

MANDIE JA:

This application arises out of long and protracted proceedings between the parties in the Victorian Civil and Administrative Tribunal, which have their origin in a contractual dispute concerning the construction of a retirement village in Ocean Grove. The applicant seeks leave to appeal the orders made by Vice President Harbison on 18 March 2010 pursuant to s 148(1)(a) of the Victorian Civil and Administrative Act 1998.

It is unnecessary for the purposes of determining this application to describe in full detail the claims and counterclaims between the parties, save for the following.

A party to the proceedings is Seachange Management Pty Ltd (‘Seachange’), of which the applicant is the sole director. Seachange, it appears from affidavits filed in the proceedings, is the nominee manager for the Seachange Development Partnership. As part of the respondents’ counterclaim against the applicant and Seachange, the respondents allege that on 27 July 2006 the applicant provided a letter to Bevnol Constructions & Developments Pty Ltd (the first respondent) from Seachange’s accountant which advised that the funding necessary to finance the development project was in place (‘the letter’). The respondents claim that the letter was provided in the context of the entire contract relied upon by Seachange in the VCAT proceedings being conditional on Seachange obtaining this finance within 14 days of the contract being signed. The respondents allege that the letter and its production by…

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 &Ors

Details

AGLC: De Simone v Bevnol Constructions & Developments Pty Ltd &Ors [2011] VSCA 54
Case: [2011] VSCA 54
Decision Date: 3 March 2011

CaseChat Overview and Summary

The matter of De Simone v Bevnol Constructions & Developments Pty Ltd & Ors involved a dispute where the appellant, De Simone, sought to inspect documents produced in response to summonses issued under the Victorian Civil and Administrative Tribunal Act 1998. The primary issue before the court was whether the summonses were issued for an improper purpose, constituted an abuse of process, or breached the right to procedural fairness under section 13 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Additionally, the court examined whether the documents, which fell outside the specified dates on the summonses, were handled correctly and if there was an error in the proceedings.

The court considered the legal principles applicable to the issuance of summonses in lieu of discovery and the rights afforded to parties under the Charter. It assessed the nature of the summonses, the purpose behind them, and whether there was any evidence of abuse of process. The court also evaluated the procedural fairness, particularly the denial of the appellant's request to call or cross-examine witnesses in support of objections to the inspection of documents. Furthermore, the court scrutinised the handling of legal professional privilege and the effect of section 33(2) of the Charter on the proceedings. The court found that the summonses were not issued for an improper purpose and did not constitute an abuse of process. It also held that the inspection of the documents did not breach the Charter, and there was no error in the handling of documents outside the specified dates.

The court concluded that the summonses were issued properly and there was no abuse of process or breach of procedural fairness. The appeal was dismissed, and the orders of the tribunal were affirmed. The court denied the application for leave to adduce fresh evidence, finding no grounds to support a change in the outcome of the proceedings. The decision underscored the importance of adhering to statutory requirements and the proper use of discovery processes in civil litigation.

Orders