Appellant v First Respondent

2 It is clear from the contest in the substantive matter (i.e. whether Mr Davey can recover his alleged costs for acting for the respondents) that a considerable degree of acrimony has developed between the lawyers, as well as their clients.

3 Counsel for Mr Davey did not contend that Mr Davey had not complied with the terms of the undertaking given to the Court and that this in itself constituted a contempt. Rather, emphasis was placed on the trivial nature of the contempt.

4 The end result of this minor infraction is that I find the charge proved and Mr Davey will pay the costs of the respondents in bringing on the Summons. Otherwise no penalty is warranted. My brief reasons for reaching this result now follow - which should be read in conjunction with my decision in the substantive matter.

5 On 30 June 2017 at a hearing before a Judicial Registrar, Mr Davey, through his counsel, undertook to pay the sum of $3,000 to Dessco's solicitor, Mr Silverstein, by Friday 14 July 2017.[1]

6 On 13 July 2017, Mr Davey forwarded a cheque for $3,000 by ordinary mail to the respondents' solicitors (the first cheque). The cheque was made out to 'Ron Silverstein Solicitors Trust Account'. It was not in issue that this cheque arrived at Mr Silverstein's office on Monday 17 July 2017, one working day after the deadline of the undertaking.

7 On 17 July 2017, Mr Silverstein emailed the Supreme Court Registry, seeking the listing of a Summons for contempt. In the email, he explained that he was unable to bank the first cheque as he did not have a trust account.

8 Mr Davey says he attempted to contact Mr Silverstein on 18 and 19 July 2017 to ask whether a replacement cheque was required. He did not receive a response. On 20 July 2017, Mr Davey sent Mr Silverstein a replacement cheque made out to 'Ronald D Silverstein' (the second cheque). Mr Silverstein received the second cheque on 24 July 2017.

9 On 24 July 2017, the respondents filed a Summons and Affidavit with this Court, seeking orders for contempt against Mr Davey.

10 The Summons of the applicants (the respondents in the proceeding) seeks the following orders:

That the Court find that the Appellant has committed a contempt of Court by failing to pay the sum of $3,000 pursuant to his undertaking recorded in Other Matter J(c) of the Order of Judicial Registrar Matthews made on 30 June 2017; and costs.

11 On behalf of the respondents, Mr Silverstein argued that Mr Davey should have paid the $3,000 in accordance with Mr Silverstein's directions of 11 July 2017, namely to pay the cost by bank cheque into Mr Dessmann's bank account. As this had not occurred, Mr Silverstein submitted, the contempt was ongoing. Mr Silverstein further submitted that Mr Davey's failure to comply with the undertaking was one breach in a long line of breaches of Court orders. Mr Silverstein argued that I should find Mr Davey in contempt of court, and that he should be fined and an order for costs should be made against him.

12 Mr Parker, counsel for Mr Davey, accepted that there was contempt. However, it was submitted that the contempt was purged once Mr Davey complied with the order. Mr Parker submitted this was on 17 July 2017, when Mr Silverstein received the first cheque, or alternatively, when Mr Silverstein received the second cheque on 24 July 2017. Mr Parker said Mr Silverstein's directions for payment of the $3,000 were inconsistent with the terms of the undertaking. The terms of the undertaking were that the $3,000 be paid to the first respondent's solicitor.[2] It was said that the contempt was trivial and not deliberate. He read in Court an apology from Mr Davey. He submitted the proceeding should be dismissed.

I apologise to the court and to Mr Dessman and Dessco Pty Ltd that the undertaking to pay the sum of $3,000 by the close of business on 14 July was not met. I was derelict in ensuring that delivery of the fund did not occur by the close of business on 14 July 2017. I am sorry that I was derelict in my conduct to ensure delivery of those funds by the time required and I regret any inconvenience caused and sincerely apologise. Mr Davey.[3]

14 Order 75.11 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules) provides:

(1) Where the respondent is a natural person, the Court may punish for contempt by committal to prison or fine or both.

(2) Where the respondent is a corporation, the Court may punish for contempt by sequestration or fine or both.

(3) When the Court imposes a fine, it may commit, or further commit, the respondent to prison until the fine is paid.

(4) The Court may make an order for punishment on terms, including a suspension of punishment.

15 The Court therefore has a wide power: it may imprison (or impose a suspended sentence) or fine a contemnor. [4]

16 A contempt of court may be committed by a party acting in a way which may frustrate the administration of justice. What is relevant is whether Mr Davey's actions inhibited the administration of justice; there is no need for his actions to be contumacious or obstinate.[5] Here it is accepted that the breach of an undertaking amounts to a civil contempt and the only issue to be determined is that of penalty.

17 There are a number of decisions of this Court and the Federal Court dealing with the imposition of penalties for contempt. From those cases, the following emerge as relevant considerations:

• the nature and circumstances of the contempt (including the objective seriousness of the contempt);

• the effect of the contempt on the administration of justice;

• the contemnor's culpability as judged by his or her state of mind and intention at the time of the contempt;

• the previous good character of the contemnor (including the absence or presence of a prior conviction for contempt);

• the contemnor's personal circumstances and financial means;

• whether the contemnor has exhibited contrition and made an apology;

• the passage of time since the occurrence of the contempt.[6]

18 I repeat what I said at the outset - this is a very minor case of admitted contempt. Whether Mr Davey was being petulant or negligent does not matter much. He should have done better, as he admitted in the apology - which counts in his favour. No harm was done by the late delivery of the cheque.

19 On the other hand, whilst I accept that Mr Davey's actions were relatively trivial, they were nonetheless the actions of a solicitor who breached an undertaking given to the Court, which Mr Davey must have understood had the potential to cause him considerable grief. More importantly he should have been conscious of his obligations as an officer of the Court. The importance of those obligations needs to be noted by all legal practitioners.

20 In the circumstances it is appropriate to find the charge against Mr Davey proved and order that he pay the costs of the respondents on a standard basis. No other entry should be made in the Court record and I do not propose to refer the matter to any regulatory authority.

[1] Order of Judicial Registrar Matthews made on 30 June 2017.

[2] Order of Judicial Registrar Matthews made on 30 June 2017.

[4] Scott v Evia [2007] VSC 15 [45]-[50], [70]; Grocon v CFMEU (No.2) [2014] VSC 134 [102].

[5] Scott v Evia [2007] VSC 15 [46].

[6] See DPP v Johnson & Ors [2002] VSC 583 [55]-[60]; R v The Age Company Ltd [2008] VSC 305 [22]; Alfred v CFMEU (No 2) (2011) FCA 557 [14]; Bovis Lend Lease Pty Ltd v CFMEU (No 2) (2009) FCA 650.