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R v Silverstein

R v Silverstein

Case [2020] VSCA 233 10 September 2020

Contempt of Court

Abuse of Process

Interlocutory Orders

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2019 0134

THE QUEEN, ON THE APPLICATION OF JOHN PATRICK DAVEY	Applicant
v
RONALD DAVID SILVERSTEIN & ORS (according to the attached Schedule)	Respondents

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JUDGES:	KYROU, KAYE and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 August 2020
DATE OF JUDGMENT:	10 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 233
JUDGMENT APPEALED FROM:	[2019] VSC 724 (Richards J)

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CONTEMPT OF COURT – Application for leave to appeal from decision of trial judge dismissing application for findings of contempt against respondents – Magistrates’ Court proceeding issued by applicant – Affidavits filed in Magistrates’ Court proceedings sent by first respondent to applicant’s trustee in bankruptcy – Whether contempt of court – Whether Harman undertaking applied – Whether Civil Procedure Act 2010 ss 26 and 27 applied – Whether conduct interfered with administration of justice – Documents outside scope of undertaking – No contempt of court – Leave to appeal refused – Harman v Secretary of State for the Home Department [1983] 1 AC 280, Hearne v Street (2008) 235 CLR 125, Esso Australia Resources Ltd v Plowman (1995) 183 CLR 10, Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34, Central Queensland Cement Pty Ltd v Hardy [1989] 2 Qd R 509, Springfield Nominees Pty Ltd v Bridgelands Securities Pty Ltd (1992) 38 FCR 217, Medway v Doublock Limited [1978] 1 WLR 710, Re Addstone Pty Ltd (in liq); Ex parte Macks (1998) 30 ACSR 156 considered; Sinnott v Chief of Defence Force [2020] FCA 643 distinguished; Civil Procedure Act 2010 ss 16, 17, 18, 23, 25, 26, 27, 29.

PRACTICE AND PROCEDURE – Legal representative also material witness in proceeding – Whether miscarriage of trial – Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395; Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 r 27.02.

PRACTICE AND PROCEDURE – Applicant refused leave to make compensation application under s 29 Civil Procedure Act 2010 – Undefined application foreshadowed after judgment delivered and costs determined – No denial of procedural fairness in the circumstances – Civil Procedure Act 2010 s 29.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondents	Mr R D Silverstein, in person and on behalf of the second and third respondents

KYROU JA
KAYE JA
McLEISH JA:

The applicant, Mr John Davey, and the first respondent, Mr Ronald Silverstein, are each Australian legal practitioners who conduct practice as solicitors in the State of Victoria. In 2016, the applicant commenced a proceeding in the Magistrates’ Court at Broadmeadows against the second respondent (‘Dessman’) and the third respondent (‘Dessco’) in respect of legal fees which the applicant claimed they owed to him (‘the debt recovery proceeding’). Since February 2017, the first respondent acted as solicitor for Dessman and Dessco in that proceeding.

In December 2017, the applicant commenced a proceeding by originating motion in the Supreme Court seeking…

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 R v Silverstein

Details

AGLC: The Queen v Silverstein [2020] VSCA 233
Case: [2020] VSCA 233
Decision Date: 10 September 2020

CaseChat Overview and Summary

The case of R v Silverstein involved the applicant, Silverstein, who sought leave to appeal a decision from the trial judge who had dismissed Silverstein's application for findings of contempt against the respondents. The application was made in relation to proceedings in the Magistrates' Court, where affidavits filed in the proceedings were sent by the first respondent to Silverstein's trustee in bankruptcy. Silverstein argued that the conduct of the respondents amounted to contempt of court, interfered with the administration of justice, and that the Harman undertaking was applicable. The respondents contended that the conduct did not amount to contempt of court and that the Civil Procedure Act 2010 sections 26 and 27 did not apply.

The court had to determine whether the conduct of the respondents amounted to contempt of court, whether the Harman undertaking applied, and whether the Civil Procedure Act 2010 sections 26 and 27 were applicable. The court also had to consider whether the conduct interfered with the administration of justice. In examining these issues, the court referred to various cases, including Harman v Secretary of State for the Home Department, Hearne v Street, Esso Australia Resources Ltd v Plowman, Mobil Oil Australia Ltd v Guina Developments Pty Ltd, Central Queensland Cement Pty Ltd v Hardy, Springfield Nominees Pty Ltd v Bridgelands Securities Pty Ltd, Medway v Doublock Limited, and Re Addstone Pty Ltd (in liq); Ex parte Macks. The court also considered Sinnott v Chief of Defence Force and the provisions of the Civil Procedure Act 2010.

The court found that the conduct of the respondents did not amount to contempt of court, as the documents in question were outside the scope of the Harman undertaking. The court further found that the Civil Procedure Act 2010 sections 26 and 27 did not apply in the circumstances. The court also held that the conduct of the respondents did not interfere with the administration of justice. As a result, the application for leave to appeal was dismissed. The court also refused Silverstein's application to make a compensation application under section 29 of the Civil Procedure Act 2010, finding that there was no denial of procedural fairness in the circumstances.

The final orders of the court were that Silverstein's application for leave to appeal was dismissed, and his application for compensation under section 29 of the Civil Procedure Act 2010 was refused.

Orders