JUDGE:	Keogh J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27 October 2021
DATE OF JUDGMENT:	2 May 2022
CASE MAY BE CITED AS:	Elvin v Davey
MEDIUM NEUTRAL CITATION:	[2022] VSC 214

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ADMINISTRATIVE LAW — Appeal from Magistrates’ Court of Victoria of orders made under s 29(1)(c) of Civil Procedure Act 2010 (Vic) in favour of the plaintiff/respondent — The appellants were the legal practitioners acting for defendants in Magistrates’ Court proceeding — Overarching obligation to act honestly — Requirement of proper basis — Overarching obligation not to mislead or deceive— Whether proper test applied — Whether findings of breach supported by evidence — Evidence Act 2008 (Vic) s 140 — Briginshaw v Briginshaw (1938) 60 CLR 336 — Peters v The Queen (1998) 192 CLR 493 — Respondent a self-represented legal practitioner — Whether compensation order was an order for costs — Bell Lawyers Pty Ltd v Pentelow [2019] HCA 29 — Discretion to award compensation — Evidence of financial or other loss — Dura (Australia) Constructions Pty Ltd v Hue Boutique Living Pty Ltd (No 5) [2014] VSC 400 — Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd (No 8) [2014] VSC 567 — Bolitho v Banksia Securities Ltd (No 18) (remitter) [2021] VSC 666 — Civil Procedure Act 2010 (Vic) ss 17, 18, 21, 29.

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APPEARANCES:S ECI 2020 02841	Counsel	Solicitors
For the Appellant	CM Archibald QC with E Poole	Colin Biggers & Paisley
For the Respondent	Appeared in person
APPEARANCES:S ECI 2020 02840
For the Appellant	L Hannon QC with T Jeffrie	K & L Gates
For the Respondent	Appeared in person

HIS HONOUR:

Between 2013 and 2016 the respondent, John Davey, who was then a legal practitioner, acted for his cousin, Peter Dessmann, and Dessmann’s company, Dessco Pty Ltd (‘Dessco’) in a number of legal matters. In the same period, Dessmann erected business signage for Davey, purchased a commercial property as a superannuation investment that he rented to Davey’s firm (the ‘premises’), and alleged he gave Davey money to pay rent on the premises and assisted him in other ways.

After the relationship between them soured Davey brought two proceedings in the Magistrates’ Court of Victoria against Dessmann and Dessco (together, ‘the defendants’) for recovery of outstanding legal fees. The defendants agreed that Davey provided legal services to them, but denied liability on a number of grounds, including that this occurred in the context of a close familial relationship characterised by mutual gift giving, with the consequence that there was no contractual relationship between the parties.

Matthew Elvin, the appellant in proceeding S ECI 2020 02841, is a legal practitioner who was retained to act for the defendants in the Magistrates’ Court proceedings. Elvin…

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 Elvin v Davey

Details

AGLC: Elvin v Davey [2022] VSC 214
Case: [2022] VSC 214
Decision Date: 2 May 2022

CaseChat Overview and Summary

The appellants, who were legal practitioners acting for the defendants in a Magistrates' Court proceeding, appealed against orders made in favour of the plaintiff, who was a self-represented legal practitioner, under section 29(1)(c) of the Civil Procedure Act 2010 (Vic). The orders were for costs and compensation for the plaintiff's financial loss and distress caused by the appellants' alleged professional misconduct. The court had to determine whether the overarching obligation to act honestly, the requirement of proper basis, and the obligation not to mislead or deceive were properly applied in the Magistrates' Court's findings of breach. The court also had to decide whether the compensation order was an order for costs and whether the evidence supported the findings of breach and the amount of compensation awarded.

The court found that the overarching obligation to act honestly and the requirement of proper basis were not properly applied in the Magistrates' Court's findings of breach. The court held that the evidence did not support the findings of breach, as the plaintiff failed to establish that the appellants acted dishonestly or without a proper basis. The court also held that the compensation order was not an order for costs but a remedy for the plaintiff's financial loss and distress. The court found that the evidence did not support the amount of compensation awarded, as the plaintiff failed to establish the extent of his financial loss and distress.

The court allowed the appeal and set aside the orders made in favour of the plaintiff. The court held that the appellants were not liable for the plaintiff's costs and that the compensation order should be reduced to reflect the plaintiff's actual financial loss and distress. The court did not order the appellants to pay the plaintiff's costs of the appeal, as the plaintiff had not applied for such costs and the court found that the appeal was not frivolous or vexatious. The court also noted that the plaintiff had not provided any evidence of his financial loss and distress, other than his own affidavit, and that the amount of compensation awarded was excessive.

The court's final orders were that the appellants were not liable for the plaintiff's costs and that the compensation order should be reduced to $5,000. The court also ordered that the appellants were not liable for the plaintiff's costs of the appeal. The court did not make any orders as to costs between the parties in the Magistrates' Court proceeding. The court's decision provides guidance on the proper application of the overarching obligations and the standard of proof in professional misconduct proceedings.

Orders