The Queen v Silverstein [2020] VSCA 233

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.

Mr R D Silverstein, in person and on behalf of the second and third respondents

1 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.

2 In December 2017, the applicant commenced a proceeding by originating motion in the Supreme Court seeking orders that the first respondent, Dessman and Dessco be found guilty of seven charges of contempt of the Magistrates' Court. The judge who heard the application dismissed the proceeding, and ordered that the applicant pay the costs of Dessman and Dessco.[1] The applicant seeks leave to appeal against that decision.

3 In February 2014, the applicant was declared bankrupt. His trustee in bankruptcy was Henry Kazar ('Kazar'), of Ernst & Young.

4 The debt recovery proceeding took place in the context of complex family issues involving the applicant, and litigation which he had commenced in the Australian Capital Territory concerning a property that was situated there. That litigation concerned the Teddington Trust, which is a discretionary trust, established by deed in 2008. The applicant is the principal beneficiary of the Trust. Its main asset is a property in MacGregor in the Australian Capital Territory. The original trustee of the Trust was Australian Conservation Services Pty Ltd ('ACS'), a company that was controlled by the applicant's father, Thomas Davey. In June 2016, ACS was replaced as trustee by Liladel Holdings Pty Ltd ('Liladel Holdings'), a company controlled by the applicant's sister, Suzanne Davey. Later in 2016, the applicant became concerned that ACS was attempting to sell the MacGregor property. Accordingly, in September 2016, he made an application to the Magistrates' Court of Victoria for preliminary discovery of relevant documents from ACS ('the preliminary discovery application').

5 In the meantime, ACS commenced proceedings in the Supreme Court of the Australian Capital Territory against Liladel Holdings. The issue in that litigation concerned whether ACS or Liladel Holdings was the trustee of the Teddington Trust. In April 2017, Mossop J dismissed the proceeding, concluding that Liladel Holdings had been properly appointed as the trustee of the Trust.[2]

6 The first respondent acted for ACS in the proceeding in the Australian Capital Territory. In addition, in early March 2017, the first respondent was engaged to act directly for the applicant's father Thomas Davey, in relation to matters concerning the Teddington Trust. During that month, the first respondent sent a number of emails to the applicant's trustee in bankruptcy inquiring about a public examination of the applicant, and seeking to persuade the trustee to extend the period of the applicant's bankruptcy. In addition, he sent to the trustee copies of three affidavits that had been filed in the debt recovery proceeding, together with an affidavit that had been deposed by the applicant in support of the preliminary discovery application.

7 The applicant's bankruptcy was due to terminate on 1 April 2017. However, on 27 March 2017, Kazar, his trustee, lodged a notice of objection to discharge, with the result that the bankruptcy was extended to 1 April 2022. Kazar's decision to extend the bankruptcy was made on the basis of information provided to his office by the first respondent. In response, the applicant wrote to Kazar asking him to reconsider his decision. Consequently, on 13 April 2017, Kazar withdrew his objection to discharge, and the applicant was discharged from bankruptcy on 18 April 2017.

8 As mentioned, in 2016, while the applicant was an undischarged bankrupt, he commenced the debt recovery proceeding in the Magistrates' Court at Broadmeadows against Dessman and Dessco, claiming legal fees that he alleged they owed to him. In February 2017, the first respondent commenced to act as solicitor for Dessman and Dessco in that proceeding. Dessman and Dessco defended the proceeding on the basis that the applicant had provided the legal services to them on a gratuitous basis. It was also contended that, in any event, there had been breaches by the applicant of certain provisions of the consumer protection legislation.

9 The debt recovery proceeding was set down for a hearing on 15 March 2017. At the commencement of the hearing on that date, the first respondent raised an issue whether the applicant had standing to bring the proceeding, because he had not then been discharged from bankruptcy. On 22 March 2017, the magistrate ruled that the applicant did not have standing to bring the proceeding, because he was an undischarged bankrupt. Accordingly, her Honour stayed the proceeding and ordered the applicant to pay the defendants' costs. The applicant appealed the magistrate's decision to the Supreme Court. In December 2017, J Forrest J allowed the appeal and set aside the magistrate's orders.[3]

10 In the amended statement of claim in the contempt proceeding against the first respondent, Dessman and Dessco, the applicant pleaded seven counts of contempt, namely:

COUNT 1

AND by their conduct ... in [their] communications with the former Bankruptcy Trustee, the Defendants did conspire and attempt, and did indeed, pervert the course of Justice in the aforementioned Debt Recovery Proceedings;

COUNT 2

AND by the drafting and filing of the Fourth Affidavit of Thomas Alfred James Davey dated the 8th March 2017 in the Debt Recovery Proceedings and providing same to the former Bankruptcy Trustee on the same day, the Defendants did commit an Abuse of Process amounting to perverting the course of justice and contempt of court of the Magistrates' Court of Victoria;

COUNT 3

AND ... the Defendants breached their substantive obligation to the Magistrates' Court of Victoria not to use affidavits created in the course of litigation, or otherwise without the permissions of the Court, in whole or in part, or the information contained therein, for any purpose not directly connected with the conduct of the proceedings and did conspire and commit acts which:

(i) perverted the course of justice;

(iii) abused the processes of the Court;

And accordingly committed contempt of the Magistrates' Court of Victoria.

COUNT 4

AND by his failure to disclose the Bankruptcy Trustee email correspondence of the 22nd February 2017 to the Magistrates' Court, the First Defendant on the instructions of the Second and Third Defendant did conspire to mislead the Magistrates' Court of Victoria, for the purposes of perverting the Course of Justice and amounting to Contempt of said court;

COUNT 5

AND by their omission and breach of their obligations pursuant to the Civil Procedure Act 2010 regarding the correspondence of the former Bankruptcy Trustee dated 22nd February 2017, did with dishonest intent pervert the Course of Justice in the Victorian Magistrates [sic] Court and in doing so, did commit an act or acts of contempt of the Victorian Magistrates' Court at Broadmeadows.

COUNT 6

AND by making the accusation of criminality, without justification against the Plaintiff in the Magistrates' Court of Victoria at Broadmeadows on the 15th February 2017, the First Defendant did commit an act of contempt of said Magistrates' Court.

COUNT 7

AND by his conduct [in seeking to procure the former Bankruptcy Trustee to interfere with the tenancy of the Plaintiff's law firm], the First Defendant intended to interfere with the conduct of the debt recovery proceedings in the Magistrates' Court of Victoria and with the Plaintiff as a witness in those proceedings. By his conduct, the 1st Defendant did commit an act of contempt of said Magistrates' Court.

11 In her reasons for judgment, the trial judge considered each count separately, setting out the facts and evidence relied on by the applicant, and her Honour's reasons for concluding, in respect of each count, that the matters relied on by the applicant did not constitute a contempt by the respondents of the Magistrates' Court. It is convenient to adopt the same format in summarising the facts relied on by the applicant in support of each count, and her Honour's reasons in respect of that count.

The factual basis of each charge and the judge's reasons

12 In support of count 1, the applicant relied on a series of communications by the first respondent to his former trustee in bankruptcy between 14 February 2017 and 19 April 2017. They comprised sixteen emails, and a telephone conversation between the first respondent and Suzanne Davey on 21 March 2017. The content of the emails are set out in detail in the judge's reasons, and may be summarised as follows:

(a) On 14 February 2017, the first respondent sent an email to Fergus McFarlane ('McFarlane'), a consultant of Ernst & Young, who worked on the applicant's bankruptcy under the supervision of Kazar and Lachlan Abbott ('Abbott'). The email was entitled 'Possible offences under the Bankruptcy John Davey Bankrupt'. It noted that if the applicant's case was dismissed, very substantial costs would be awarded against him, which would thereby involve the applicant incurring credit beyond the $5,000 limit. The email asserted that that conduct constituted 'another offense (sic)'.

(b) On 16 February 2017, the first respondent sent an email to McFarlane noting that his client's current outstanding legal costs were at least $25,000, that there were several issues in the debt recovery proceeding concerning the conduct of the applicant, and that there was no basis for the proceeding which was 'unfounded' and 'lack[ed] merit', and was an abuse of process. The email also stated that the applicant had entered into a commercial lease with the first respondent's client, and that the trustee might need to consider if he should disclaim the lease.

(c) On 7 March 2017, the first respondent sent an email to McFarlane attaching several documents. The title to the email alleged that the applicant had failed to disclose the location of an asset in his statement of affairs. In the email, the first respondent stated that he could not understand how the trustee could permit the applicant to be discharged from bankruptcy, in circumstances in which he had not lodged tax returns for three years, had not lodged an income statement, and had failed to disclose the location of trust assets in which he was both an appointor and a corpus beneficiary.

(d) Two hours later on the same date (7 March 2017), the first respondent sent a further email to McFarlane entitled 'Extension of Bankruptcy Urgent'. The email asserted that as the statement of affairs contained false information, the trustee should extend the bankruptcy by at least 30 to 60 days to give the trustee time to investigate the matters. The email asserted that the first respondent had evidence of receipt of income (by the applicant), being payments made by the first respondent's client to the applicant for several costs orders and estate matters.

(e) On 8 March 2017, the first respondent sent an email to McFarlane stating that he would shortly receive an affidavit sworn on the same date by Thomas Davey. The first respondent stated 'In my opinion the contents of it are compelling evidence why you ought to lodge an Objection to his discharge'.

(f) Later on the same date (8 March 2017), Thomas Davey swore an affidavit in the debt recovery proceeding. That affidavit was the subject of count 2. At 6.15 pm, the first respondent emailed a copy of the affidavit to McFarlane. The provision of that affidavit, and other affidavits, to the trustee was the subject of count 3. The covering email was entitled 'Affidavit of Tom Davey dated the 8th March 2017 Re concealment of assets from Trustee in Bankruptcy by undischarged bankrupt solicitor'.

(g) On 10 March 2017, the first respondent sent an email to McFarlane attaching an affidavit of Kieran Wirtitsch dated 4 November 2016, that was filed in the debt recovery proceeding. The email was entitled 'John Patrick Davey undischarged Bankrupt solicitor'. The email proceeded to provide reasons why the trustee should lodge an objection to the release of the bankrupt, noting that they were 'offences committed [by] John Patrick Davey Undischarged Bankrupt'. The reasons were: concealment of an asset from a Trustee Security Agreement for $100,000; 'concealed asset of Trust 44C of SOF Swore false affidavit'; and a failure to disclose income to the trustee or the Australian Taxation Office.

(h) On 23 March 2017, the first respondent spoke by telephone to McFarlane, in which he told McFarlane that the applicant was in receipt of undisclosed income from rental payments. He also sent an email to McFarlane referring to that telephone conversation, stating that McFarlane needed to investigate the rental income issue, and asking whether McFarlane had received the applicant's books.

(i) On the same date, McFarlane sent a response email summarising the information provided to him by the first respondent.

(j) On 24 March 2017, the first respondent sent an email to McFarlane noting that he was still awaiting answers from McFarlane to 'the following questions'. In particular, he asked whether McFarlane would permit Thomas Davey or himself (on behalf of Thomas Davey) to inspect the income records of the applicant, and whether he was prepared to have a public examination of the applicant. The email then continued as follows:

1. Are you prepared to make an application to remove the stay on the proceedings at the Broadmeadows Magistrates' Court case number G11540735 and case number G11441224?
2. John Davey has incurred a debt to my client for costs. The legal costs incurred by my client prior to 12 February 2017 were incurred when my client was unaware that John Davey was a bankrupt. At the date he became aware, my client had spent $20,000 on legal fees in defending himself from John Davey. As John Davey has incurred a debt in excess of $5,000 without disclosing he was a bankrupt, will the trustee report this matter to the inspector general?

(k) On 26 March 2017, the first respondent sent an email to McFarlane in respect of a transfer of shares by the applicant, stating: 'The 50 shares are divisible property as at the date of bankruptcy. It is sold by the bankrupt. Non-disclosure by bankrupt'.

(l) On 28 March 2017, the first respondent sent a series of emails to Ernst & Young. At 7.54 am, he sent an email requesting documentary evidence of the extension of the applicant's bankruptcy for two years and noting that six months rental income of a property might be paid to an income beneficiary of the Trust. The email requested whether he (the first respondent) was correct in assuming that that matter had not been disclosed to McFarlane.

(m) The next email on that date was sent by the first respondent to McFarlane in response to an email from Abbott, explaining the trustee's ability to undertake a public examination under s 81 of the Bankruptcy Act 1966 (Cth). Abbott had invited the first respondent's client to discuss the possibility of funding that investigation. In his responding email, the first respondent asked McFarlane what his client would 'get' for a payment of $3,000 to the trustee, and whether, if the public examination showed that the Trust was controlled by the applicant, Thomas Davey would have priority for costs of a public examination and his debt of $50,000. The first respondent also asked Abbott whether there was any documentary evidence as to what had happened to the $50,000 given by Thomas Davey to the applicant. Abbott responded to the effect that a public examination of the applicant would cost $30,000 to $45,000.

(n) On the same date, the first respondent sent a further email to Abbott noting that, under s 81 of the Bankruptcy Act, a creditor is entitled to undertake a public examination, and that he would recommend that course to Thomas Davey. Abbott replied advising that the applicant had appealed the objection to the extension of the bankruptcy, and that the trustee did not have funds to obtain legal advice in relation to the issues raised in the appeal. Abbott further noted the first respondent's advice that his client had no objection to the trustee withdrawing the objection to the discharge from bankruptcy, and that his client did not wish to fund the trustee for the purpose of obtaining legal advice or for the purpose of conducting a public examination of the applicant.

(o) On 31 March 2017, the first respondent sent a further email to McFarlane attaching a document under which the applicant received the sum of $3,000, and asking for clarification about a deed of priority executed between the applicant and Dessco.

(p) On 4 April 2017, the first respondent sent an email to McFarlane stating that his client would in due course be conducting a public examination of the applicant concerning the 'Trust' and his financial affairs. The first respondent maintained that the applicant was the beneficial owner of the property of the Trust, and that his client was trying to find out 'who has taken the missing income of about $12,000.'

(q) On 19 April 2017, the first respondent sent an email to counsel acting for ACS in the ACT Supreme Court proceeding, which the first respondent 'blind copied' to McFarlane. The email stated that the first respondent understood from evidence given in Court that the applicant had spent $5,500 to renovate 'the property', and that he (the first respondent) was 'certain' that the trustee in bankruptcy was not aware of that at the time of the discharge. In the email, the first respondent further asserted that the money never belonged to the applicant, but to his trustee in bankruptcy, that it should not have gone into the property at MacGregor, that it was 'an offence to conceal assets from a Trustee', and that the money was 'tainted money'.

13 In respect to count 1, the applicant also relied on the content of a telephone conversation between the first respondent and Suzanne Davey on 21 March 2017. In that conversation, the first respondent told Suzanne Davey that he was 'taking [her] to Court'. He said that Suzanne Davey needed a lawyer. In the conversation he then said the following:

This is all about John Davey. He's a very bad person. Really, he's a criminal and we have to do this before he's not bankrupt anymore. We have to stop him. I suggest to make this easy for you that you just agree and let me take care of him and this mess. You don't know what he's like and trust me you want nothing to do with him. We have to stop him and make sure he stays bankrupt. I'm trying to help you. It's just awful what he's done.[4]

14 As the judge noted,[5] Ms Suzanne Davey was then involved in the ACT proceeding as the person who controlled Liladel Holdings. However, she had no involvement in the debt recovery proceeding in the Magistrates' Court at Broadmeadows. Her Honour, however, noted that neither the applicant's pleading, nor the evidence, connected the conversation to the debt recovery proceeding or the trustee in bankruptcy, and therefore it was irrelevant.[6]

15 The judge noted that at the time at which the first respondent engaged in the foregoing communications, he acted as solicitor for Dessman and Dessco in the debt recovery proceeding. He had also received instructions from Thomas Davey on 6 March 2017, which included instructions to do the following: investigate with the trustee in bankruptcy an advance of $50,000 by Thomas Davey to the applicant; search the Magistrates' Court file in the preliminary discovery application; examine the truthfulness of the applicant's statement of affairs, and in particular his statement that the assets of the Teddington Trust were 'unknown'; request the trustee in bankruptcy to investigate the applicant's interest in the MacGregor property; and, if necessary, seek an extension of the bankruptcy in order for that investigation to occur.

16 At the hearing of the contempt proceeding, the applicant contended that the foregoing communications constituted a contempt of the Magistrates' Court, because they were an attempt by the respondents to have his bankruptcy extended, so that he would not have standing in the debt recovery proceeding. Thus, he submitted, the communications had a tendency to interfere with the due administration of justice in that proceeding.

17 The judge rejected that submission for four reasons. First, as a matter of law, the extension of the applicant's bankruptcy could not have affected his standing in the debt recovery proceeding.[7] Secondly, the submission by the first respondent - that the applicant lacked standing in the debt recovery proceeding - did not depend on the duration of his bankruptcy. The submission was that at the time at which the applicant commenced the proceeding, he did not then have standing, because he was an undischarged bankrupt.[8] Thirdly, all of the representations to the trustee in bankruptcy, seeking an extension of the bankruptcy, were made after the first respondent had applied to the magistrate to strike out the debt recovery proceeding.[9] Fourthly, the judge accepted the first respondent's evidence that his communications, seeking an extension of the bankruptcy, were not made for the purpose of the debt recovery proceeding. Rather, the first respondent had sought to have the bankruptcy extended on the instructions of Thomas Davey, so that there could be a more detailed investigation of the applicant's financial affairs.[10]

18 Count 2 alleged that the applicant committed a contempt of court by drafting and filing the affidavit by Thomas Davey dated 8 March 2017 in the debt recovery proceeding.

19 The applicant was estranged from his father Thomas Davey. In the contempt proceeding, he described his relationship with his father as always fractured. The judge described Thomas Davey's affidavit as a 'spiteful document'.[11] In the affidavit, Thomas Davey alleged that the applicant had concealed from the trustee in bankruptcy the address of the MacGregor property, so as to ensure that the trustee did not become aware of the extent of his involvement in the Trust. Thomas Davey also stated that there was no basis on which the applicant could have sworn a statement of affairs with the Trust assets described as 'unknown'.

20 The judge noted that the affidavit was 'entirely irrelevant' to any issue in the debt recovery proceeding.[12] In cross-examination, when questioned by the applicant, the first respondent had contended that the affidavit was evidence of a 'tendency' by the applicant to be dishonest to his father, which 'was the same type of dishonesty' that (the first respondent alleged) the applicant had displayed to the first respondent's client.

21 The judge noted that that explanation given by the first respondent, of the perceived relevance of Thomas Davey's affidavit, was 'muddled', and appeared to be based on a misunderstanding of the rules of evidence.[13] It appeared that the first respondent's professional judgment had been impaired by his sympathy for Thomas Davey. However, the judge considered that the filing of the affidavit did not constitute a contempt of court. Her Honour stated:

Filing irrelevant material, confusion about the rules of evidence, and poor judgment, while all regrettable, did not amount to anything that had 'a real and definite tendency as a matter of practical reality' to interfere with the due administration of justice in the debt recovery proceedings.[14]

22 The judge further noted that, in any event, the first respondent had not tendered the affidavit in the debt recovery proceeding, nor had he attempted to call Thomas Davey as a witness. When the magistrate asked the first respondent how the affidavit was relevant, he had responded that it was 'to do with the issue of tendency and I don't intend to pursue it'. The first respondent then consented to the removal of the affidavit from the file.[15]

23 The applicant also contended that the first respondent had filed Thomas Davey's affidavit in order to attract the protection of absolute privilege before providing that document to the trustee in bankruptcy. However, in fact, the first respondent had sent a copy of the affidavit to McFarlane before it was filed in the court, and the first respondent denied that he had contemplated that the filing of the affidavit would have the effect that it was protected by privilege. Accordingly, the judge concluded that count 2 was not made out.

24 Count 3 was concerned with the provision by the first respondent to the trustee in bankruptcy of four affidavits filed in the Magistrates' Court. Three of those affidavits were filed in the debt recovery proceeding, namely, the affidavit of the applicant dated 30 August 2016, the affidavit of Kieran Wirtitsch dated 4 November 2016, and the affidavit of Thomas Davey dated 8 March 2017. The fourth affidavit was that of the applicant dated 23 September 2016. It was filed in the Magistrates' Court in support of the preliminary discovery application.

25 In concluding that count 3 had not been established, the judge stated the applicable legal principles in the following terms:

In my view, the implied undertaking applies only to documents that are filed or disclosed in a proceeding under compulsion of a court order or a rule of the court. Because that compulsion involves an invasion of a person's privacy, the implied undertaking is a safeguard to ensure that the compulsion is pressed only so far as the course of justice requires. It does not extend to a document - such as an affidavit in support of an interlocutory application - filed at a party's 'initiative and discretion rather than as a consequence of any compulsion'.[16]

26 The judge noted that the affidavit of the applicant dated 30 August 2016, and the affidavit of Mr Wirtitsch dated 4 November 2016, had been filed in the debt recovery proceeding in support of an application by the applicant for summary judgment. While r 22.04 of the Magistrates' Court General Civil Procedure Rules 2010 ('Magistrates' Court Rules') requires that an application for summary judgment be supported by an affidavit, it does not compel the making of the application. Accordingly, her Honour considered that those two affidavits were not subject to the implied undertaking.[17] Similarly, the affidavit of the applicant dated 23 September 2016 was filed pursuant to r 32.08(2) of the Magistrates' Court Rules, which provided that an application for preliminary discovery must be supported by an affidavit setting out certain facts. The judge again noted that although the rule required such an affidavit to be filed in support of the application, it did not compel the application to be made, so that the affidavit was not subject to the implied undertaking.[18]

27 The judge observed that it was not clear why the affidavit of Thomas Davey was filed. It was not filed in accordance with a Court order. The judge considered that the only conclusion, that was open, was that the affidavit was filed 'voluntarily' by the defendants in the debt recovery proceeding, and thus it was not subject to the implied undertaking.[19]

28 The judge also rejected an alternative submission made by the applicant that the obligation of non-disclosure, specified in s 27 of the Civil Procedure Act 2010, is not confined to documents which had been provided under compulsion in a civil proceeding. The judge considered that that submission by the applicant misconceived the purpose and effect of s 26 and s 27 of that Act. In particular, her Honour considered that the purpose of s 27 was to replicate the common law implied undertaking as to documents provided by way of discovery. Her Honour further considered that there was no evidence that the affidavits in question had been disclosed in the debt recovery proceeding in compliance with the disclosure obligation referred to in s 26 of the Civil Procedure Act.[20]

Counts 4 and 5 - non-disclosure of email from trustee in bankruptcy

29 Counts 4 and 5 both concerned the non-disclosure by the respondents to the Magistrates' Court, in the debt recovery proceeding, of an email from McFarlane to the first respondent dated 22 February 2017. In that email, McFarlane stated that it was the view of the trustee that the issue between the applicant and the first respondent's clients related entirely to the recovery of income generated after the commencement of the applicant's bankruptcy. Accordingly, the trustee did not intend to become involved in a matter that did not concern 'pre-appointment litigation'.

30 It was common ground in the proceeding that the first respondent did not disclose that email to the magistrate, who, at the time, was considering whether the debt recovery proceeding should be stayed or dismissed on the ground that the applicant lacked standing in that proceeding. In the contempt proceeding, the applicant contended that the conduct of the respondents, in not disclosing the email to the Magistrates' Court, misled that Court, was an abuse of its process, and tended to interfere with the due administration of justice. Accordingly, the applicant submitted that it was a contempt of the Magistrates' Court.

31 The judge rejected that submission. In the debt recovery proceeding, the applicant, on 21 February 2017, swore an affidavit exhibiting an email that he had received from the trustee, in which the trustee stated that because the issue in the debt recovery proceeding related to the recovery of income generated after the commencement of the bankruptcy, the trustee would not be intervening in that proceeding.

32 In the contempt proceeding, the judge noted that there was nothing to be gained by the first respondent also informing the Magistrates' Court that the trustee had taken the same position. The magistrate was aware of the trustee's position, because the applicant had informed her of it. Accordingly, the non-disclosure by the first respondent of the trustee's email did not constitute a contempt of court or a contravention of an obligation under the Civil Procedure Act.[21]

33 Count 6 was concerned with a statement made by the first respondent to the magistrate during the course of the hearing of the debt recovery proceeding on 15 February 2017. On that date, the applicant's application for summary judgment had been listed for hearing. Shortly before that date, the first respondent, who had been recently instructed by Dessman and Dessco, had filed an application on behalf of his clients to strike out the claim.

34 In the course of argument before the magistrate on 15 February 2017, the magistrate noted that the application, filed by the first respondent, had taken the applicant by surprise. She observed that the applicant should accordingly be afforded an opportunity to be heard in relation to it. The following exchange then took place between the first respondent and the magistrate:

Mr Silverstein: Yeah, your Honour. I do agree with you, yes, that Mr Davey should be given procedural fairness. I think the matters are extremely serious.

Magistrate: Absolutely.

Mr Silverstein: I think they actually go to criminality. ... [crosstalk]

Magistrate: You'll get an opportunity to take the witness stand, Mr Davey.

Mr Silverstein: I think, ah, I think they are extremely serious. Um, I only became aware of this on Sunday night ... the trustee was only aware of this yesterday ...[22]

35 Shortly after the first respondent had received instructions from Dessman in the debt recovery proceeding, the solicitors, who previously acted for Dessman, provided him with documents relevant to that proceeding. They included the affidavit of Mr Wirtitsch. That affidavit exhibited a deed of priority between Dessco and the applicant. Having taken instructions, the first respondent formed the view that the deed was in effect a gift of $100,000, that the applicant had breached his fiduciary obligations to his client by not explaining to him the effect of the deed, and that the applicant had deceived his client into signing the document that gave him $100,000. The first respondent first became aware that the applicant was an undischarged bankrupt on 12 February 2017. Dessman had not been aware of the bankruptcy, and he sought advice from the first respondent about the implications of having entered into a commercial lease with the applicant during his bankruptcy.

36 When the first respondent conferred with Dessman before the hearing on 15 February 2017, Dessman instructed him to draw to the magistrate's attention the similarity of behaviour by the applicant to himself. In his affidavit in the contempt proceeding, the first respondent deposed that he made the allegation of criminality based on his instructions and on a combination of factors. They included that the applicant had failed to discover in the debt recovery proceeding a general security agreement, the absence of any correspondence between the applicant and Dessman explaining the transaction, and the lack of any benefit to Dessco in signing the document.

37 In her reasons, the judge observed that it was not clear what crime the first respondent believed that the applicant had committed. In his evidence, the applicant denied any criminality and stated that he had not concealed assets from or failed to disclose income to his trustee in bankruptcy. The judge accepted the evidence of the applicant. Her Honour considered that the allegation of criminality, made by the first respondent at the hearing on 15 February, was not justified. Her Honour considered that on the evidence before her, by 15 February 2017, the first respondent had a reasonable basis for believing that the applicant was not an honest person, but the available material did not provide a proper basis for an allegation of criminality.[23]

38 However, her Honour did not conclude that the conduct of the first respondent amounted to contempt. Her Honour stated:

However, I am not concerned here with Mr Silverstein's professional conduct. I am concerned with whether Mr Silverstein was in contempt of court. I cannot find that he was.

The allegation of criminality made on 15 February 2017 did not have 'a real and definite tendency as a matter of practical reality' to interfere with the due administration of justice in the debt recovery proceedings. It was made once, in the course of a discussion about timetabling the hearing of the defendants' strike out application. Mr Davey's objection was immediately noted by the magistrate, who assured him he would have an opportunity to respond. The magistrate then made directions for the filing of material in relation to the application. As it turned out, the allegation of criminality was not repeated. It did not feature in the submissions made by Mr Silverstein in support of the strike out application, and nor was it referred to in the reasons for decision given by her Honour on 22 March 2017.

Count 6 is not made out.[24]

39 Count 7 concerned an email sent by the first respondent to McFarlane on 16 February 2017, in which he stated:

Without complicating this matter anymore the bankrupt has entered into a commercial lease with my client. You may need to consider if you are prepared to disclaim that lease.

40 The applicant contended that that statement was a contempt of court, because it tended to interfere with the due administration of justice in the debt recovery proceeding, specifically by interfering with him as a witness in the proceeding.

41 The judge noted that it is a contempt of court to subject a litigant to improper pressure to discontinue or compromise a proceeding, or to intimidate a witness in a manner likely to deter the witness from giving evidence. However, the applicant was not pressured or intimidated by the query raised by the first respondent in his email to the trustee dated 16 February 2017. The trustee did not disclaim the lease. The applicant might never have known about the email sent by the first respondent to the trustee, if he had not compelled the trustee to disclose that correspondence in October 2017. Accordingly, the judge concluded that the email sent by the first respondent to the trustee did not have a tendency to interfere with the due administration of justice in the debt recovery proceeding.[25]

42 The notice of application for leave to appeal contains some seven grounds. As drafted, they are quite prolix, and can be sufficiently summarised as follows:

1. The judge erred in characterising the four affidavits, filed in support of the interlocutory applications in the debt recovery proceeding and the application for preliminary discovery, as not being filed by compulsion, and accordingly not subject to the common law Harman undertaking or to ss 26 and 27 of the Civil Procedure Act.
2. The judge erred in construing ss 26 and 27 of the Civil Procedure Act as not altering the common law position and only applying to the overarching obligation 'prior to discovery'.
3. The judge erred in failing to conclude that the conduct of the respondents, seeking to extend the period of the applicant's bankruptcy, constituted a tendency to interfere with the administration of justice. Alternatively, that conduct constituted an abuse of process. The judge further erred in taking into account the fact that the first respondent was instructed to seek the extension of the period of bankruptcy, as his intent was immaterial to the question of whether his conduct had a real and definite tendency to interfere with the due administration of justice.
4. Consideration by the judge, whether the first respondent was acting on instructions, was irrelevant, and materially affected the judge's decision on count 7.
5. The decision of the judge to permit the first respondent, as the legal representative of Dessman and Dessco, to give evidence on behalf of himself and his clients in the trial, caused a miscarriage of the trial.
6. For the reasons stated in ground 5, the Court's discretion as to costs miscarried.
7. In refusing to hear the applicant on the question of breaches by the first respondent of the overarching obligations, the applicant was denied procedural fairness, and the discretion as to the award of costs against him miscarried.

43 At the hearing of the application for leave to appeal, the applicant confirmed that the proposed grounds of appeal were directed to counts 1, 2, 3 and 7.

44 The submissions made by the applicant, in support of grounds 1 and 2, were primarily directed to count 3, which concerned the provision by the first respondent of the four affidavits, that had been filed in the two Magistrates' Court proceedings, to the trustee in bankruptcy of the applicant. In particular, the applicant contended that the judge erred in relying on the decision of J Forrest J in Rowe v Silverstein[26] and the decision of Tracey J in Bashour v Australian and New Zealand Banking Group Ltd[27] as authority for the proposition that the affidavits, that were provided by the first respondent to the trustee in bankruptcy, had not been produced compulsorily for the purposes of the implied undertaking in question. It was submitted that, in Rowe, J Forrest J concluded that the affidavits in that case did not attract the common law undertaking, because they had been read in open court. In Bashour, it was submitted, Tracey J considered that the position of affidavits filed in support of an interlocutory application was 'not free from doubt'. On the other hand, it was submitted that, in Hearne v Street,[28] the High Court specifically recognised that documents, which were required to be filed by a rule of court, were provided 'compulsorily' for the purposes of the implied undertaking.

45 The applicant further submitted that the obligation of confidentiality, specified in s 27 of the Civil Procedure Act, is additional to the implied undertaking at common law. He contended that the obligation under s 26, to disclose documents in a proceeding, is an ongoing obligation, which, pursuant to s 26(4)(b) of the Act, is additional to the obligations of a party on discovery.

46 The applicant further submitted that documents, which were filed in support of or opposition to the summary judgment application in the debt recovery proceeding, were critical to the resolution of the dispute, and therefore came within s 26(1)(b) of the Civil Procedure Act. Accordingly, the affidavits, filed by the applicant in support of the summary judgment application in the debt recovery proceeding, were filed by way of compulsion, so that the implied undertaking at common law, and the obligation prescribed by s 27(5) of the Civil Procedure Act, applied to them.

47 In support of ground 3, the applicant submitted that the judge erred, in her consideration of count 1, by taking into account that each of the respondents had mixed motivations in their communications with his trustee in bankruptcy by which they sought to extend the bankruptcy. The applicant contended that the decision of Burchett J in Clarkson v Mandarin Club[29] is authority for the proposition that the existence of such 'mixed motivations' does not preclude a finding that the conduct in question was a contempt of court. Further, it was submitted, as the judge correctly identified in her reasons,[30] proof of an intention to interfere with or obstruct the due administration of justice is not an element of contempt. Thus, the applicant submitted, the judge was in error in taking into account the motivation or purpose of the respondents in seeking the extension of the applicant's bankruptcy.

48 In further support of ground 3, the applicant submitted that the affidavit of Thomas Davey, that was filed in the debt recovery proceeding, was not relevant to any of the issues in that proceeding. Rather, it was contended, the affidavit was filed by the first respondent for the purpose of influencing the trustee in bankruptcy to extend the term of the applicant's bankruptcy. The applicant contended that that conduct by the first respondent constituted a contempt of court for two reasons. First, it was conduct comprising a reprisal or retribution against the applicant which, it was contended, was more serious than the conduct of the defendant in Clarkson[31] which was held to be a contempt of court. Secondly, it was submitted that the filing of the affidavit of Thomas Davey was a contempt of court because it had a tendency to improperly pressure the applicant in the debt recovery proceeding.

49 The applicant submitted that the affidavit of Thomas Davey was irrelevant to any of the issues in the debt recovery proceeding. Thus, he contended, the filing of that affidavit in that proceeding was calculated to intimidate him from persisting with his claim in the proceeding, and accordingly was a contempt of court. In support of that proposition, the applicant referred to and relied on the decision of the New South Wales Court of Appeal in Y and Z v W.[32]

50 Grounds 4 and 5 were directed to the circumstance that the first respondent was a material witness in the proceeding, while at the same time acting and appearing on behalf of himself and Dessman and Dessco. The applicant submitted that in the circumstances of the present case, the dual role of the first respondent 'prejudice[d] the administration of justice'. The applicant cited the decision of the New South Wales Court of Appeal in Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd,[33] and the decision of McMillan J in Bailey v Richardson,[34] in support of the proposition that a solicitor, who is a material witness in a proceeding, owes a duty to the court not to continue to act in the proceeding. The applicant contended that, in acting as solicitor (and counsel) in the proceeding, the first respondent owed a duty to the court which was in conflict with his role as a witness. The applicant noted that, early in the proceeding, the applicant had made an application to remove the first respondent from the record as solicitor acting on behalf of Dessman and Dessco. In rejecting that application, Daly AsJ observed that she had no reason to doubt that both the first respondent and Dessman would continue to claim a privilege against self-incrimination in the trial, and thus they would not be giving evidence in it.[35] However, contrary to that expectation, the first respondent gave evidence at the trial of the contempt charges.

51 In support of ground 6, the applicant relied on the matters that he had advanced in support of ground 5. In addition, he submitted that the first respondent, of his own volition, and without instructions from his clients, had sought the renouncement of the applicant's lease. It was submitted that the judge fell into error by considering as irrelevant the conduct of the first respondent in acting without his clients' instructions.

52 In support of ground 7, the applicant submitted that the judge, on 11 November 2019, had refused to hear an application he wished to make against the first respondent pursuant to s 29 of the Civil Procedure Act. He submitted that in those circumstances he was denied procedural fairness in respect of the question of costs that was decided against him.

53 In response, the first respondent submitted that the finding by the judge, that the four affidavits, that he had forwarded to the trustee in bankruptcy, had not been filed under compulsion, was supported by the decisions in Rowe, Bashour, Hearne and ASIC v Pattison.[36] He submitted that although none of the affidavits were read in open court, nevertheless they were not provided under compulsion.

54 Further, the first respondent submitted, s 26 of the Civil Procedure Act did not apply to any of the affidavits. The three affidavits, filed by the applicant, were not part of the discovery process under s 26. All of the documents, exhibited in the affidavits, were disclosed by Dessman. The first respondent submitted that the prohibition in Hearne did not apply to the affidavit of Thomas Davey, as the prohibition is only directed to the party obtaining the disclosure, and not to the party providing the disclosure.

55 In response to ground 3, the first respondent submitted that the judge did not erroneously take into account his motives in having communications with the applicant's trustee in bankruptcy. He submitted that the judge correctly found that those communications did not have a tendency to interfere with the course of justice for the reasons stated by her Honour. Those reasons were that the extension of the applicant's bankruptcy could not have affected his standing in the recovery proceedings, and all of the representations to the trustee had been made after the first respondent had applied to strike out the debt recovery proceeding.

56 In response to grounds 4 and 5, the first respondent submitted that at all times he had acted with the authority of his clients. In the contempt proceeding, the first respondent was not compellable as a witness. Further, the issue of the appropriateness of the first respondent acting on behalf of Dessman and Dessco was not raised at the trial. The applicant had the opportunity to make an objection, but he chose not to do so. It was further submitted that the objections raised by grounds 4 and 5 have already been disposed of in favour of the respondents by this Court on 20 March 2020.

57 In response to grounds 6 and 7, the first respondent submitted that the application, that the applicant sought to agitate under s 29 of the Civil Procedure Act, was irrelevant to the issue of costs in the proceeding, in respect of which the judge had correctly ruled in his favour. Accordingly, the judge was not obliged to hear and consider the proposed application by the applicant under s 29 of the Act.

58 The principal submissions, made by the applicant under ground 1, were based on the proposition that the implied undertaking, known as the 'Harman undertaking'[37] applied to the four affidavits, that were filed in the two Magistrates' Court proceedings, and which the first respondent provided to the applicant's trustee in bankruptcy.

59 In the contempt proceeding, and on this application, the competing contentions, concerning the application of the Harman undertaking, proceeded on the basis that that undertaking extends to and covers all documents which have been filed, served or produced to the Court in a proceeding by compulsion. The issue before the primary judge, and on this application, concerned what is meant by 'compulsion' in that context, and in particular whether the three affidavits, that were filed in support of the application for summary judgment in the debt recovery proceeding, and the affidavit that was filed in support of the application for preliminary discovery against ACS in the Magistrates' Court, were, in effect, filed and served by 'compulsion'.

60 The starting point, for considering that issue, is the decision of the House of Lords in Harman. In that case, a solicitor, who was a legal officer of the National Council for Civil Liberties acted as solicitor for a plaintiff in an action against the Home Office arising out of his treatment in prison in an experimental 'control unit'. In the course of that proceeding, the Home Office disclosed a large number of documents, including six confidential documents that the Home Office had objected to producing on the ground of public interest immunity. Shortly after the trial of the proceeding, the solicitor permitted a journalist, who had been present during some of the hearing, to have access to the documents that had been read out in court, including the confidential documents, for the purpose of composing a newspaper article. The solicitor was found guilty of contempt. An appeal by her to the Court of Appeal failed, and she then unsuccessfully appealed to the House of Lords.

61 In dismissing the solicitor's appeal, the House of Lords focused on the intrusive nature of the compulsory processes of discovery and inspection in litigation as the foundation of the implied undertaking of confidentiality that attaches to such documents.[38] Thus, Lord Scarman stated the principle in the following terms:

The law imposes the obligation under consideration in this appeal for the protection of the party compelled to make discovery of documents in legal proceedings. It does so by implying an undertaking by the party to whom discovery is made and his solicitor not to use them for any purpose other than that of the action. Disregard of the undertaking is enforceable by the party for whose benefit it is exacted in committal proceedings for contempt of court.[39]

Imposed by law the obligation is formulated as arising from an undertaking exacted by the Court from the party and his solicitor to whom the documents are disclosed. It is the condition upon which discovery is ordered. The undertaking protects the confidentiality of the documents which the course of justice requires to be disclosed in the litigation.[40]

63 In his concurring speech, Lord Roskill cited a passage from the judgment of Lord Denning MR in Riddick v Thames Board Mills Ltd,[41] part of which was as follows:

The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. The courts should, therefore, not allow the other party - or anyone else - to use the documents for any ulterior or alien purpose. Otherwise the courts themselves would be doing injustice.[42]

64 That rationale, for the implied undertaking, has been adopted and restated in a number of subsequent decisions.

65 In Esso Australia Resources Ltd v Plowman,[43] the High Court was concerned with the application of the Harman principle to documents produced in an arbitration. The Court concluded that documents, produced by a party under compulsion pursuant to a direction by an arbitrator, attracted the same confidentiality that would attach to them if the documents had been produced in the course of litigation, subject only to the legitimate interest of the public in obtaining information about the affairs for public authorities. In reaching that conclusion, Mason CJ stated the underlying principles, relating to the Harman undertaking, in the following terms:

In relation to documents produced by one party to another in the course of discovery in proceedings in a court, there is an implied undertaking, springing from the nature of discovery, by each party not to use any document disclosed for any purpose otherwise than in relation to the litigation in which it is disclosed. Over a century ago, Bray on Discovery stated:

A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicate them to any stranger to the suit ... nor to use them or copies of them for any collateral object ... If necessary an undertaking to that effect will be made a condition of granting an order.

Because an undertaking is implied, it has not been the practice to condition the making of orders in that way. The implied undertaking is subject to the qualification that once material is adduced in evidence in court proceedings it becomes part of the public domain, unless the court restrains publication of it.

It would be inequitable if a party were compelled by court process to produce private documents for the purposes of the litigation yet be exposed to publication of them for other purposes. No doubt the implied obligation must yield to inconsistent statutory provisions and to the requirements of curial process in other litigation, eg discovery and inspection, but that circumstance is not a reason for denying the existence of the implied obligation.[44]

66 In Mobil Oil Australia Ltd v Guina Developments Pty Ltd,[45] Hayne JA (as his Honour then was) expressed the rationale for the rule in similar terms:

It is because the 'compulsion [to disclose documents on discovery] is an invasion of a private right to keep one's documents to oneself' and because 'the public interest in privacy and confidence demands that the compulsion should not be pressed further than the course of justice requires' that both the litigant and the practitioner obtaining discovery are taken to undertake to the Court that the documents obtained on discovery will not be used for any purpose other than the action in which they are produced ... .[46]

67 In Hearne,[47] the plaintiff brought proceedings against two related companies in nuisance. A director of each of those companies forwarded to the office of a State Minister part of an expert report served by the plaintiff in the proceedings and part of the plaintiff's affidavit. They sent those documents to the Minister in order to gain his support for the procuring of an Act of Parliament to preserve the defendants' interests. The defendants were found guilty of contempt. Their appeal to the High Court was dismissed. In their joint judgment, Hayne, Heydon and Crennan JJ expressed the relevant principles in the following terms:

Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced pursuant to a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to a judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.

It is common to speak of the relevant obligation as flowing from an 'implied undertaking'.[48]

68 Plainly, some of the categories of documents, referred to in that passage, had been supplied either to the other party or to the Court by compulsion in the strictest sense of that term. They include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced pursuant to a direction from an arbitrator, and documents seized pursuant to an Anton Piller order. An analysis of the authorities cited by the joint judgment in respect of the other categories ― documents produced for the purposes of taxation of costs, witness statements served pursuant to a judicial direction and affidavits ― is instructive in understanding the ambit of the documents, contemplated by that passage.

69 In respect of the first category ― documents produced for the purposes of taxation of costs ― Hayne, Heydon and Crennan JJ cited the decision of Laddie J in the Chancery Division in Bourns Inc v Raychem Corporation[49] and the decision of the Court of Appeal in that case, affirming the decision of Laddie J.[50] In that case, the applicant challenged the right of the respondent to use documents, obtained in the taxation of costs of litigation in England, in related proceedings between the parties in the United States of America. Laddie J held that although the disclosure of the documents, for the purpose of the taxation of costs in the English proceeding, was not a process of discovery, nevertheless they had been produced by a process that constituted compulsion, so that the Harman undertaking applied to them. Laddie J stated:

... taxation inter partes arising out of civil litigation is essentially adversarial. One party is claiming money from another and the taxing master must, if requested, hold a hearing and decide issues of fact. He can call for evidence and has the power to examine witnesses. The documents produced by the payee are kept out of the fray because of their highly sensitive nature. But when called upon by the payer to hand them over, and that request is endorsed by the master, the payee must elect between complying with the request or withdrawing reliance on them. In effect, the master makes the payee an offer he cannot refuse. In my view, to say that compliance with the request is voluntary in those circumstances is misconceived.[51]

There is no automatic discovery [in taxation of costs], but ... natural justice requires that the payer should have disclosed to him the documents relied on in the proceedings. ... If the taxing master had ordered the documents to be disclosed to Raychem then there could be no doubt that the disclosure would have been subject to the implied undertaking. True, there was no such order, but the disclosure was made in circumstances where the documents were requested, they were directly relevant to an issue and natural justice meant that an order for production was necessary. In the circumstances it would be right for the court to imply an undertaking even though Bourns disclosed the documents without an order being made.[52]

71 In Hearne,[53] in referring to witness statements served pursuant to a judicial direction, Hayne, Heydon and Crennan JJ cited three authorities, namely, Central Queensland Cement Pty Ltd v Hardy,[54] Springfield Nominees Pty Ltd v Bridgelands Securities Ltd[55] and State Bank of South Australia v Smoothdale (No 2) Ltd.[56]

72 In the first case ― Central Queensland Cement ― the applicant, pursuant to a Practice Direction of the Supreme Court of Queensland, delivered a documentary witness statement to the respondent. The Practice Direction required that no later than six weeks before the date fixed for the commencement of a trial, each party must serve on the other a signed written statement of the proposed evidence in chief of each witness who was to be called. Following delivery of the witness statement, reports appeared in the media that suggested that the statement or a part of it had been passed to journalists. McPherson J held that the witness statement came within the ambit of the Harman undertaking, and accordingly granted the applicant an injunction restraining the defendant from using the statement for any collateral purpose. His Honour stated:

I am therefore in no doubt that the undertaking applies equally to the witness statement of Mr Town as it would to any other document produced by one side to the other for the purpose of litigation. Indeed, one can very well see how it would apply with equal force to the answer or answers to interrogatories delivered in an action, that being a form of compulsory disclosure commonly resorted to in proceedings in this Court. I cannot see any distinction in nature or substance on such an answer and the present witness statement of Mr Town. ... One has only to look at the Practice Direction and use the experience that all of us have in trying actions in the commercial causes jurisdiction to realise that these procedures are available and are intended for use only for the purpose of properly conducting the litigation, and for no other.[57]

73 That passage, from the judgment of McPherson J in Central Queensland Cement, was adopted and applied by Wilcox J in Springfield Nominees[58] which, in turn, was cited (with approval) by King CJ in the decision of the Full Court of the Supreme Court of South Australia in State Bank of South Australia v Smoothdale (No 2).[59]

74 The other category of documents, referred to by Hayne, Heydon and Crennan JJ in Hearne, and which requires some consideration, consists of affidavits. Their Honours cited two authorities in respect of that category, namely, Medway v Doublelock Ltd[60] and Re Addstone Pty Ltd (in liq); Ex parte Macks.[61]

75 In Medway, the plaintiff was involved in an application made by his former wife in the Family Division of the High Court, under the Matrimonial Causes Act 1973 (UK), to vary a maintenance agreement. In the course of those proceedings, in accordance with an order made under a rule of the Matrimonial Causes Rules 1977, the plaintiff made two affidavits giving full particulars of his means. The plaintiff was also involved in separate litigation in the Queen's Bench Division brought by a company controlled by him ('the defendant'). In that proceeding, the defendant applied for security for costs. In support of that application, the director of the defendant swore an affidavit exhibiting copies of the plaintiff's affidavits of means that were made in the Family Division proceeding. Goulding J granted the plaintiff's application for an injunction restraining the defendant from disclosing or making use of the plaintiff's affidavits of means in the Queen's Bench Division proceeding. His Honour noted that the affidavits had been made in obedience to an express order of the Court in the Family Division.[62] He rejected a submission made by the defendant that the Harman undertaking is confined to documents which a party is compelled to disclose in the process of discovery. His Honour stated:

I do not accept that submission. It is perfectly true that the language of implied undertaking has been used in the authorities discussing the principle I have already mentioned, but ... it rests on a wider ground, namely that public interest requires that a party, compelled by a process of law to make what may be damaging disclosures for the purpose of a particular suit, should not thereby be at risk of their use for other purposes.[63]

76 In Re Addstone, Peter Macks, the liquidator of a group of companies (the Emanuel Group) applied to the Federal Court for directions as to whether he had power to enter into proposed arrangements to procure funding for the conduct of some litigation. In support of the application Macks relied on three affidavits sworn by him and one sworn by another person. The Court ordered that Macks had power to enter into those arrangements. Orders were made that the affidavits and a transcript of the hearing were confidential and not available for inspection. Subsequently, creditors of the companies, who were subject to the proceeding brought by Macks, applied for access to the affidavits. Macks agreed to provide the confidential affidavits to them. However, an issue arose whether the creditors should only be entitled to use the information, contained in the affidavits, in their capacity as creditors, and not as defendants in the proceedings against them. Mansfield J, who heard the application, considered that it was not necessary to impose such a condition as part of the order that he made. His Honour stated:

The order to produce the information in issue [the affidavits] will be the equivalent of an order for discovery. The normal implied undertaking that the documents will not be used other than in respect of any application exercising further the liberty to apply reserved to the creditors ... and not to use those documents for a collateral purpose, will therefore apply. ... That implied undertaking has been held to apply in respect of documents produced under subpoena by a non-party ... I see no reason why it should not apply in respect of material directed to be disclosed by the Court.[64]

77 The foregoing review of the cases, cited by Hayne, Heydon and Crennan JJ in Hearne, demonstrates the nature and elements of documentary disclosure which courts regard as having been made under compulsion, for the purposes of the application of the Harman undertaking to those documents. Of course, those categories are not closed. As the type and nature of remedies available to parties develop and expand, the classes of disclosures, which fall within the principle stated in Harman, will also develop.

78 Nevertheless, the review of the cases, which we have undertaken, demonstrates that the affidavits, that were filed in the two Magistrates' Court proceedings ― the debt recovery proceeding and the third party discovery proceeding ― and which are the subject of ground 1, fall well outside the scope of documents to which the Harman principle has been held to apply. The cases do not support the conclusion that every affidavit filed in compliance with a rule of court is relevantly produced under compulsion.

79 The principles stated by Hayne, Heydon and Crennan JJ in Hearne, and in the cases cited by their Honours, support the reasoning of J Forrest J in Rowe,[65] which was relied on by the first respondent in the hearing before the trial judge and on this application.

80 In Rowe, the plaintiff (Mrs Rowe) was engaged in an action against her former solicitor (Mr Silverstein). Before the commencement of the trial of that proceeding, J Forrest J heard an application by Mrs Rowe for the release of documents that had been used in other related proceedings involving Mr Silverstein. In one of those proceedings (in which Mrs Rowe sued the Law Institute of Victoria for alleged defalcation by Mr Silverstein of her funds), the Legal Services Board made discovery of a large number of documents. In addition, witness statements were filed in accordance with orders made by the Court. J Forrest J held that because those documents had been provided pursuant to the 'compulsory processes of the court', Mrs Rowe was required to maintain the confidentiality of them in the absence of leave given to her by the Court.[66]

81 Mrs Rowe also sought to use four affidavits filed on behalf of the Federal Commissioner of Taxation in a proceeding in which the Federal Commissioner had obtained orders in the form of a Mareva injunction against the second defendant. In respect of those documents J Forrest J stated:

These affidavits were not filed in the course of a compulsory process such as witness statements or answers to interrogatories where rules of a Court or orders of a Court require the production of such material. In this case, the affidavits were filed voluntarily by the Commissioner to obtain the injunction.[67]

82 The decision of the Full Court of the Federal Court in Liberty Funding Pty Ltd v Phoenix Capital Ltd[68] is also consistent with our analysis of the approach taken by the plurality in Hearne. In that case, the appellants were applicants in a proceeding ('the first proceeding') in the Federal Court against the respondent claiming relief in respect of a document disseminated by the respondent, which it was alleged contained erroneous and misleading information about the applicants' products. In that proceeding, the applicants had sought an order for specific discovery of documents concerning the extent of dissemination of the relevant document. In order to facilitate a mediation, the judge, who managed the proceeding, made an order that the respondent file an affidavit dealing with the dissemination of that document. In due course, following a mediation, the first proceeding resolved. Subsequently, the second applicant in the first proceeding and another party commenced a new proceeding against the respondent in the Federal Court alleging wrongful use of the applicant's confidential information and breach of copyright. Those proceedings were subsequently transferred to the Supreme Court of Victoria. The applicants wished to use, in that proceeding, the affidavit that had been sworn on behalf of the respondent in the first proceeding. The Full Court of the Federal Court held that the affidavit was covered by the Harman undertaking. The Court stated:

The ... affidavit was intended to fulfil the role (albeit somewhat extended) of an affidavit of discovery. It was intended to be read and relied on by the other side in the litigation.

...

The affidavit was not brought into existence as part of the anticipated evidence for a hearing, whether final or interlocutory. It was intended to be a convenient procedural device in the nature of, but in lieu of, a usual affidavit of discovery. That is sufficient, we think, to distinguish ... cases [which] dealt with the status of proposed evidence served in advance of the trial.[69]

83 In the present case, the applicant has sought to rely on the decision of Logan J of the Federal Court in Sinnott v Chief of Defence Force.[70] In that case, a former member of the Royal Australian Air Force ('RAAF') instituted proceedings in the Federal Court naming the Chief of Defence Force ('CDF') as the respondent, seeking review of a decision by the CDF to reject her application to re-enlist in the RAAF. That proceeding subsequently resolved. The CDF then applied to use an affidavit, filed by the applicant's solicitor in the proceeding for ulterior purposes. The affidavit had been filed and served in support of an application for an extension of time and also in support of the substantive claim in the proceeding. Logan J considered that the affidavit had been 'necessarily' filed and served in support of the extension of time application and the proceeding. His Honour then stated:

I consider that I am bound by Liberty v Phoenix and Hearne v Street to hold that the CDF is bound not to use the December affidavit for other than the purposes of the present proceeding unless he obtains a leave of the court.[71]

84 With respect, based on our review of the authorities, we doubt that the decision of the Full Court of the Federal Court in Liberty Funding, or the principles stated by the plurality in Hearne, support the proposition that such an affidavit was one filed and served by material 'compulsion' for the purposes of the Harman undertaking. Rather, the decision by Logan J extends that concept beyond the meaning ascribed to it in the cases which we have discussed.

85 That analysis of the relevant authorities brings us to the present case. In the debt recovery proceeding, the three affidavits were filed and served pursuant to the provisions of the Magistrates' Court Rules. Rule 22.03 provides that an application by a plaintiff in a civil proceeding for summary judgment must be made in accordance with pt 2 of r 22. Rule 22.04 provides that an application must be made by summons supported by an affidavit verifying the facts on which the claim is made, and stating that in the belief of the deponent the defence has no real prospect of success either wholly or in part. Certainly, r 22.04 directs that an application for summary judgment 'must' be supported by such an affidavit. However, a plaintiff is under no compulsion to make the application. If a plaintiff refrains from making such an application, the matter will proceed to trial in the ordinary way. The summary judgment procedure is entirely optional, providing to a plaintiff, in an appropriate case, the opportunity to obtain such judgment, in a case in which a defendant may have no real prospect of success.

86 Similarly, the applicant was not compelled to make the preliminary discovery application relating to ACS, in which he filed an affidavit deposed by himself on 23 September 2016. While he was required under r 32.08 of the Magistrates Court Rules, to file an affidavit in support of that application, there was no material compulsion on him to do so.

87 By contrast, the documents, that were at issue in the cases referred to by Hayne, Heydon and Crennan JJ in Hearne, were documents in respect of which the provider of the documents, in a real sense, had no such option whether to make disclosure. Documents that are provided pursuant to an Anton Piller order or subpoena are documents provided in obedience to a court order, non-compliance with which, ordinarily, can be dealt with by way of committal for contempt of court. Rule 24.02 of the Supreme Court (General Civil Procedure) Rules 2015 provides that where a party fails to comply with an order for discovery or inspection of documents or for answers to interrogatories, the Court may order (in the case of a plaintiff) that the proceeding be dismissed, or (in the case of a defendant) that the defendant's defence (if any) be struck out. Importantly, while, in the passage in Hearne,[72] reference was made to affidavits, in the two cases cited by the plurality, those affidavits were made and filed pursuant to a court order.

88 The category of witness statements ― also referred to by Hayne, Heydon and Crennan JJ in Hearne ― is, at least as a matter of degree, somewhat different. However, in modern litigation, a failure to provide a witness statement as to a particular matter may have significant consequences for the fate of a claim or a defence. In recent years, witness statements have been routinely directed to be provided in most commercial litigation, and in non-common law litigation, in the advance of trial. Such statements are intended to constitute the evidence in chief of the particular witness. If the witness statement is not so provided, the evidence may not, ordinarily, be adduced. In that way, the consequences for the prospects of success of a particular party to the litigation, for non-delivery of such a statement, may be substantial.[73]

89 In order to determine ground 1, it is not necessary to define, with precision, the limits of the kind of documents contemplated by the authorities as having been provided under compulsion, for the purposes of the application of the Harman undertaking. In light of the manner in which the case was argued before the Court, it would be undesirable for us to do so. However, as we have demonstrated, the affidavits in question in this case fell well outside the scope of the kind of documents considered to have been provided under compulsion for the purposes of the principles discussed in the authorities in respect of the Harman undertaking.

90 It follows that the conduct of the first respondent, in providing those affidavits to the applicant's trustee in bankruptcy, did not constitute a contempt of court comprising a breach of any implied undertaking to the Court. Accordingly, ground 1 of the application for leave to appeal must fail.

91 In reaching that conclusion, we should observe that it is our experience that, ordinarily, parties to a proceeding ― and, in particular, legal practitioners ― err on the side of caution when seeking to use or rely on documents, filed or provided in a particular proceeding, for another purpose that is extraneous to the proceeding, by first making an application to the court for leave to do so.[74] We would encourage practitioners in this State to continue to observe that practice, where there is doubt about the application of the Harman undertaking, both as a courtesy to the courts, but, more importantly, to avoid the kind of dispute which has arisen in the present case.

92 Under ground 2, the applicant contended that if the affidavits, that were filed in the two Magistrates' Court proceedings and provided by the first respondent to the trustee in bankruptcy, were not covered by the Harman undertaking, nevertheless they were documents that the applicant was required to disclose, in those proceedings, pursuant to the overarching obligation specified in s 26(1) of the Civil Procedure Act. The applicant submitted that they were documents which were 'critical' to the resolution of the dispute in each proceeding, and thus were documents to which s 26(1) applied. Accordingly, it was submitted, s 27 of the Civil Procedure Act applied to them, so that the first respondent was prohibited from using those affidavits other than in connection with the two Magistrates' Court proceedings in which they were filed.

93 That submission is flawed. The affidavits in question were not documents to which s 26(1) applied. The applicant's contentions are based on a wholly artificial construction of s 26(1) of the Civil Procedure Act. That section is concerned with the obligation of a litigant, and any legal practitioner acting for that litigant, to disclose documents in that person's possession, power or control of which the person is aware and which the person considers, or ought reasonably consider, are critical to the resolution of the dispute. Section 26(4)(a) provides that that overarching obligation is an ongoing obligation for the duration of the civil proceeding. The obligation is directed to ensuring that the parties disclose to each other, at the earliest opportunity, documents which are critical to the resolution of the litigation in question, and which might not otherwise be available to the other party. It is, essentially, a process of ongoing discovery. By contrast, the affidavits in question were required to be served, and were served, in the two civil proceedings, pursuant to r 22 of the Magistrates' Court Rules, in order to enable the applicant, in the debt recovery proceeding, to make an application for summary judgment in that proceeding, and, in the preliminary discovery application, to establish his entitlement to an order for such discovery. Those documents were not, in either case, 'critical' to the resolution of the particular dispute in each case. Further, they were not documents contemplated by s 26.

94 The protection specified in s 27 of the Civil Procedure Act extends only to information or documents which have been disclosed pursuant to the overarching obligation contained in s 26. As the affidavits in question were not supplied pursuant to that obligation, s 27 did not apply to them.

95 For those reasons the judge was correct to conclude that the provision of those affidavits by the first respondent to the applicant's trustee in bankruptcy did not constitute a breach by the first respondent of the prohibition contained in s 27 of the Civil Procedure Act. Accordingly, ground 2 of the application must fail.

96 Ground 3, and the submissions advanced by the applicant in support of it, were directed to two aspects of the decision of the judge. First, they concerned the judge's conclusions, in respect of count 1, that the correspondence forwarded by the first respondent to the applicant's trustee in bankruptcy, seeking an extension of the period of the applicant's bankruptcy, did not constitute a contempt of court. The application for leave to appeal described ground 3 as directed to counts 1 and 5, but at the hearing the applicant confirmed that it was confined to count 1 only. Secondly, ground 3, and the applicant's submissions, were directed to the judge's conclusions concerning count 2, which alleged contempt by the first respondent in filing and serving the affidavit of Thomas Davey in the debt recovery proceeding.

97 The submissions made by the applicant, in respect of the first point ― the judge's conclusions in respect of count 1 ― in essence, were, first, that the judge's conclusion, that the first respondent had 'mixed motivations' in communicating with the trustee in bankruptcy, did not preclude a finding of contempt of court. Secondly, and allied to that proposition, was the submission that the judge erred in taking into account the intention of the first respondent in engaging in those communications with the trustee in bankruptcy.

98 The first such submission is fundamentally flawed. Contrary to the submission made by the applicant, the judge did not make any finding of fact that the first respondent had 'mixed motivations' in communicating with the trustee in bankruptcy. Rather, the judge specifically accepted the first respondent's evidence that his communications, seeking an extension of the bankruptcy, were not made for the purpose of the debt recovery proceeding, but that they were made on behalf of Thomas Davey in order that there would be a more detailed investigation of the applicant's financial affairs.[75] The applicant did not, by any ground of appeal, seek to impugn that finding of fact by the judge. Accordingly, the submission advanced by the applicant, that the first respondent had such 'mixed motivations', fails at the threshold.

99 The second submission made by the applicant, in that respect, was to the effect that the judge erred in taking into account the intention of the first respondent in engaging in that correspondence. We do not accept that submission for two reasons. First, count 1 expressly alleged a particular intent on behalf of the respondents. Count 1 alleged that the respondents did 'conspire and attempt, and did indeed pervert the course of Justice in the Debt Recovery Proceedings'. Plainly, no perversion of justice occurred. The allegations of conspiracy and attempt each involved, necessarily, allegations of intentionality.[76]

100 Secondly, in the context of the contempt of court, that was alleged in count 1, the motives of the first respondent (and thus of each respondent) were relevant.

101 Conduct may constitute a contempt of court if it interferes with, or obstructs, or has the tendency to interfere with or obstruct, the due administration of justice.[77] In order to establish a contempt of court, it is not necessary to prove an intention by the alleged contemnor to interfere with or obstruct the due administration of justice.[78] However, where in a case ― such as the present ― it is alleged that conduct of a defendant constituted a contempt of court because the defendant, by that conduct, had attempted to achieve a particular proscribed purpose in respect of the litigation, plainly an integral aspect of the alleged contempt comprises the purpose or intention of the defendant in carrying out that conduct. Thus, in the present case, where it is alleged that the first respondent engaged in the correspondence with the trustee in bankruptcy in order to undermine the applicant's standing in the debt recovery proceeding, plainly it was necessary for the judge to determine whether the first respondent engaged in that correspondence with that intention and purpose.

102 In essence, the communications by the first respondent to the trustee in bankruptcy could only have been (potentially or arguably) conduct that could constitute contempt of court, if those communications had been undertaken by the first respondent with the objective of depriving the applicant of standing in the debt recovery proceeding. The judge's factual conclusion, that that was not the objective or intention of the first respondent in engaging in that correspondence, was thus relevant to, and a necessary part of, her Honour's decision concerning the contempt alleged in count 1.

103 In that context, it is also important to bear in mind the reasons of the judge for rejecting count 1. As we have mentioned, her Honour concluded that the communications between the first respondent and the applicant's trustee in bankruptcy did not constitute a contempt of court for four reasons, namely: first, the extension of the applicant's bankruptcy could not have affected his standing in the debt recovery proceeding; secondly, the submission made by the first respondent to the magistrate (concerning the applicant's standing) did not depend on the duration of the applicant's bankruptcy, but focused on the (alleged) lack of standing of the applicant at the time at which the debt recovery proceeding was commenced; thirdly, all of the communications by the first respondent to the trustee in bankruptcy were made after the first respondent had applied to strike out the debt recovery proceeding; and fourthly those communications were not made for the purpose of undermining the applicant's standing in the debt recovery proceeding.[79] Each of those reasons, individually, was a sufficient basis upon which to conclude that the contempt alleged in count 1 had not been established. That conclusion was not dependent on the fourth such reason stated by her Honour.

104 It follows, from the foregoing, that the first aspect of ground 3 ― that relates to the communications between the first respondent and the applicant's trustee in bankruptcy ― must fail.

105 The second aspect, of the submissions made by the applicant under ground 3, concerns the filing by the first respondent of the affidavit of Thomas Davey in the debt recovery proceeding, and the provision by him of a copy of that affidavit to the trustee in bankruptcy. The applicant contended that the affidavit was irrelevant to the issues that were raised in the debt recovery proceeding, and that the first respondent filed the affidavit in that proceeding, and forwarded a copy of it to the trustee in bankruptcy, in order to intimidate him in the conduct of the debt recovery proceeding.

106 It is well recognised that contempt of court may be committed by intimidatory or retributive conduct directed against a party, a witness, or a legal practitioner in litigation.[80] The critical question in each case is whether the conduct was intended to intimidate, or seek retribution from, the person who is engaged in the litigation, or whether it had a real tendency to have that effect.[81]

107 In the present case, the judge, with justification, described the affidavit of Thomas Davey as a 'spiteful document', and noted that it was 'entirely irrelevant' to any issue in the debt recovery proceeding.[82] In cross-examination, when asked to explain the relevance of the affidavit, the first respondent asserted that it was the evidence of a tendency by the applicant to be dishonest with his father, which (he maintained) was 'the same type' of dishonesty that he had displayed to the first respondent's clients. As the judge noted, that explanation by the first respondent was 'muddled' and was based on a misunderstanding (and, we would observe, ignorance) of the basic rules of evidence. However, the judge did not reject the first respondent's evidence that that (mistaken) belief was the reason why he had filed the affidavit in the debt recovery proceeding.

108 The applicant cross-examined the first respondent at some length concerning the purpose for which he filed, and provided to the trustee in bankruptcy, the affidavit of Thomas Davey. It was not put to the first respondent in cross-examination that he had filed the affidavit with the specific intention of seeking to somehow intimidate the applicant from pursuing the debt recovery proceeding. Rather, the applicant specifically put to the first respondent that he had drafted the affidavit 'for the sole purpose of influencing the bankruptcy trustee to extend the bankruptcy', which proposition was denied by the first respondent. As the judge noted, the first respondent did not, ultimately, tender the affidavit in that proceeding and he did not attempt to call Thomas Davey as a witness. In light of the evidence of the first respondent (which was not rejected by the judge), it could not be inferred, beyond reasonable doubt, that the first respondent filed the affidavit of Thomas Davey in the debt recovery proceeding, and forwarded it to the trustee in bankruptcy, with the intention of thereby intimidating the applicant in the debt recovery proceeding, or (somehow) seeking retribution from him by reason of his maintenance of the proceeding. Such a conclusion would not constitute the only reasonable inference available in the circumstances of the case. Nor could it be concluded that the filing of the affidavit, and the provision of it to the trustee in bankruptcy, had a real tendency to intimidate, or seek retribution from, the applicant for his pursuit of the debt recovery proceeding.

109 In those circumstances, while the first respondent may be justly criticised for his conduct in filing the affidavit of Thomas Davey in the debt recovery proceeding, and for his conduct in forwarding a copy of that affidavit to the trustee in bankruptcy, nevertheless that conduct did not constitute a contempt of court as contended by the applicant.

111 Ground 4, by its terms, alleges that the 'ruling' by the trial judge, whether the first respondent was acting with or without instructions, was irrelevant to the proceeding, was erroneous and materially affected the determination of count 7. The application for leave to appeal described ground 4 as directed to counts 1 and 7, but at the hearing the applicant confirmed that it was only concerned with count 7.

112 It would appear, from the applicant's written case, that the ground was directed to an allegation by the applicant that the first respondent acted without his clients' instructions when he sought to persuade the trustee in bankruptcy to interfere with the applicant's lease of his office premises. The judge ruled that the applicant's evidence, to that effect, was irrelevant, because the allegation of contempt in count 7 was made only against the first respondent.[83]

113 The ruling made by the judge was plainly correct. Count 7, in terms, alleged that by his conduct the first respondent intended to interfere with the conduct of the debt recovery proceeding and with the applicant as a witness in that proceeding. The applicant had contended to the trial judge that the email sent by the first respondent to Mr McFarlane on 16 February 2017, suggesting that the trustee in bankruptcy 'may need to consider' if he was prepared to disclaim the applicant's lease, constituted an attempt by the first respondent to subject him to improper pressure to discontinue or compromise the debt recovery proceeding. Count 7 alleged that that conduct by the first respondent was a contempt of court by him. It did not allege that the first respondent engaged in that conduct on behalf of, or with the instructions of, the second and third respondents. The judge was correct to rule that the question whether the first respondent, in engaging in that correspondence, was acting on the instructions of the second and third respondents was not relevant to the allegations contained in count 7.

115 Ground 5 alleges that the trial of the contempt proceeding miscarried because the first respondent, while acting as the legal representative of the second and third respondents, gave evidence on behalf of himself and those respondents at the trial, in circumstances in which he had previously represented to the Court that he and the second and third respondents would maintain their right to silence in the trial.

116 As we have mentioned, earlier in the proceeding, the applicant had sought to restrain the first respondent from acting for the second and third respondents in the proceeding. Daly AsJ rejected that application on a number of grounds, one of which was that her Honour had 'no reason to doubt' that the first respondent and the second respondent would continue to claim their privilege against self-incrimination and thus would not be giving evidence in the trial.[84] Notwithstanding that expectation, at the trial, the first respondent gave substantive evidence, and was an important witness, not only on his own behalf, but also on behalf of the second and third respondents.

117 Ground 5 alleges that the 'Court' (presumably the trial judge) permitted the first respondent to give evidence in the trial, notwithstanding that he had told Daly AsJ that he and the second respondent would be maintaining their right to silence in the trial. Contrary to that assertion, it is clear that no such permission was either sought or granted by the trial judge. Significantly, the applicant did not object to the first respondent giving evidence at the trial, before he entered the witness box, or at any point.

118 It is unarguable that it is most undesirable that a legal practitioner, who might be called as an important witness in a proceeding, should not act, or appear as counsel, in the proceeding. That proscription is particularly pertinent in the case of a legal practitioner who not only acts for a party in the proceeding, but also appears on behalf of that party at the trial of the proceeding. It is reflected in r 27.02 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015. In Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd,[85] Adamson J (with whom Barrett JA and Sackville A-JA agreed) stated:

It is necessary to emphasise the risk posed to the administration of justice in New South Wales by solicitors remaining on the record when they are, or may be, witnesses in proceedings. This risk is heightened when they have a personal interest in the outcome of litigation beyond recovery of their fees. Courts rely on legal practitioners to discharge their duties to remain objective and professional in the preparation and presentation of proceedings. Such duties are susceptible to compromise where a practitioner is also a witness and even more so when he or she has a financial interest in the outcome ... .[86]

119 In the present case, it was quite unsatisfactory that the first respondent was an important witness on behalf of the defence of each of the respondents, while at the same time acting for them, and appearing on their behalf in the trial of the proceeding. However, we do not consider that that circumstance occasioned a miscarriage of justice. Having perused the transcript of the trial, there is no indication that the first respondent's role, and his duties as the legal practitioner appearing on behalf of the second and third respondents, were materially compromised by his role as a witness in the proceeding. Further, the applicant has not indicated that he was, or might have been, inhibited in his cross-examination of the first respondent, by reason of the latter also appearing as a legal practitioner on behalf of the second and third respondents.

120 Accordingly, while the circumstance that the first respondent both appeared on behalf of the second and third respondents, and gave evidence on his own behalf and their behalf in the proceeding, was unsatisfactory, it has not been demonstrated to have resulted in a miscarriage of justice. For those reasons ground 5 must also fail.

121 Ground 6, in terms, is that 'for the reasons in ground 5 ... the Court's discretion as to costs miscarried'. In view of the conclusions we have reached in respect of ground 5, it follows that ground 6 must also fail.

122 Ground 7 arises from the hearing on 11 November 2019, on which the judge gave judgment, and also decided the question of costs. The ground alleges that in refusing to hear the applicant on the question of breaches by the first respondent of his overarching obligations, and the applicant's 'application' pursuant to s 29 of the Civil Procedure Act, he was denied procedural fairness, so that the judge's discretion on the award of costs miscarried.

123 On that date, after the judge pronounced judgment in the proceeding and published her reasons for judgment, the first respondent applied for an order for costs. He recognised that, by reason of the recent decision of the High Court in Bell Lawyers Pty Ltd v Pentelow,[87] he was not entitled to 'all costs', but he submitted that he was entitled to the costs of defending the second and third respondents. In response, the judge noted that the respondents had been wholly successful in the proceeding, and the circumstance that the first respondent had represented the second and third respondents on a pro bono basis did not preclude an award of costs in their favour. The judge then addressed the applicant and asked him 'Do you have anything to say?' The applicant responded:

No, your Honour, I think the course of action that you're proposing is correct, given the judgment that you have handed down.

124 The applicant then immediately proceeded to state to the judge that there was a 'further outstanding issue' that had arisen. Having referred to the decision of Daly AsJ, and to the issue as to whether the first respondent had been acting on his clients' instructions, the applicant stated that he 'would seek to make an application pursuant to the Civil Procedure Act under the overarching obligations ... for that to be considered in terms of the cost of this matter'.

125 The judge, understandably, asked the applicant for clarification. The applicant responded that he was making an 'oral application' pursuant to s 29 in respect of the overarching obligations under the Civil Procedure Act. When the judge asked him which overarching obligation was alleged to have been contravened, the applicant responded 'at least two', and referred to s 17 and s 23 of the Civil Procedure Act.

126 The judge then stated that she could not deal with those allegations on a 'summary basis'. The applicant responded that he was not expecting that her Honour would do so, and he asked for leave to file an application under s 29 of the Civil Procedure Act. The judge then ruled:

I am not going to give you that liberty, Mr Davey. ... In this proceeding, you have absorbed extraordinary amounts of this Court's time and energy pursuing a contempt application which should never have been brought. I'm not going to provide you with liberty to continue agitating issues which would serve, as far as I can see, no purpose at all in furthering the administration of justice. The proceeding is dismissed.

127 Section 29 of the Civil Procedure Act provides that if a court is satisfied that a person has contravened any of the overarching obligations contained in Part 2.3 of the Act, the court may give such relief as it considers appropriate, including making orders for costs or compensation. In submissions before us, the applicant made it clear that he did not contend to the judge, nor did he intend to contend, that the s 29 application that he proposed to make would relate to the question of costs. Indeed, as we have noted, on the hearing on that occasion, the applicant had expressly agreed with the 'course of action' the judge proposed, namely, awarding to the second and third respondents their costs of the proceeding. Rather, the applicant made it clear that his intention had been to make a claim against the first respondent for compensation under s 29(1)(c) of the Civil Procedure Act. He stated that ultimately, if he succeeded in such a claim, such an award might, in some way, have affected the order that the judge proposed to make against him in respect of the costs of the second and third respondents.

128 In those circumstances, it is clear that the applicant was not in any way denied procedural fairness in relation to the question of costs as alleged in ground 7. After the judge pronounced the decision in the case and published her reasons for that decision, the only issue that remained for her Honour to determine was the question of costs. The foreshadowed claim by the applicant, for compensation, was described by him to the judge in the most general terms, the applicant merely referring to some unexplained breaches of s 17 and s 23 of the Civil Procedure Act without even explaining that the claim was for compensation. In those circumstances, the applicant could not reasonably have expected the judge to entertain any such 'application'. In those circumstances, in view of the overarching obligations that applied to the applicant under the Civil Procedure Act, and in particular under ss 16, 18, 23 and 25 of the Act, the approach taken by the judge, at that point of the proceeding, could not be described as a breach of the principles of procedural fairness.

129 Accordingly, there is no substance in the complaint made by the applicant under ground 7, and it must also fail.

130 For the foregoing reasons, the applicant has not succeeded on any of the grounds of the application. Accordingly, the application for leave to appeal must be refused.

THE QUEEN, ON THE APPLICATION OF JOHN PATRICK DAVEY

[1] Davey v Silverstein [2019] VSC 724 ('Reasons').

[2] Australian Conservation Services v Liladel Holdings (2017) 12 ACTLR 124; [2017] ACTSC 162.

[3] Davey v Dessco Pty Ltd [2017] VSC 743.

[26] [2009] VSC 157 ('Rowe').

[27] [2017] FCA 163 ('Bashour').

[28] (2008) 235 CLR 125; [2008] HCA 36 ('Hearne').

[29] [1998] FCA 1685; (1998) 90 FCR 354 ('Clarkson').

[31] [1998] FCA 1685; (1998) 90 FCR 354.

[32] (2007) 70 NSWLR 377; [2007] NSWCA 329 ('Y & Z').

[33] [2014] NSWCA 395.

[34] [2015] VSC 255.

[35] Davey v Silverstein [2019] VSC 302, [18].

[36] Australian Securities and Investments Commission v Pattison; Ex parte Mircevski [2011] VSC 252 ('Pattison').

[37] Harman v Secretary of State for the Home Department [1983] 1 AC 280 ('Harman').

[38] Ibid 299-300 (Lord Diplock); 308 (Lord Keith); 312-13 (Lord Scarman) and 321-2 (Lord Roskill).

[41] [1977] QB 881.

[42] Ibid 896, quoted in Harman [1983] 1 AC 280, 321 (Lord Roskill).

[43] (1995) 183 CLR 10; [1995] HCA 19.

[45] [1996] VicRp 54; [1996] 2 VR 34.

[46] Ibid 37-38. See also British American Tobacco Australia Services Ltd v Cowell [No 2] [2003] VSCA 43; (2003) 8 VR 571, 586 [34]; [2003] VSCA 43 (Phillips, Batt and Buchanan JJA) ('Cowell').

[47] (2008) 235 CLR 125; [2008] HCA 36.

[48] Ibid 154-155 [96]-[97] (citations omitted).

[49] [1999] 1 All ER 908.

[50] [1999] 3 All ER 154.

[51] Bourns Inc v Raychem Corporation [1999] 1 All ER 908, 916.

[52] Bourns Inc v Raychem Corporation [1999] 3 All ER 154, 170 (Aldous LJ, Swinton Thomas LJ and Sir Stephen Brown P agreeing at 172).

[53] [2008] HCA 36; (2008) 235 CLR 125, 155 [96]; [2008] HCA 36.

[54] [1989] 2 Qd R 509 ('Central Queensland Cement').

[55] [1992] FCA 472; (1992) 38 FCR 217, 223 ('Springfield Nominees').

[56] [1995] SASC 5070; (1995) 64 SASR 224, 229.

[57] Central Queensland Cement [1989] 2 Qd R 509, 510-11.

[58] [1992] FCA 472; (1992) 38 FCR 217, 223.

[59] [1995] SASC 5070; (1995) 64 SASR 224, 228-229. See also Cowell [2003] VSCA 43; (2003) 8 VR 571, 590-591 [42]-[43]; [2003] VSCA 43 (Phillips, Batt and Buchanan JJA).

[60] [1978] 1 WLR 710; [1978] 1 All ER 1261 ('Medway').

[61] [1998] FCA 1680; (1998) 30 ACSR 156 ('Re Addstone').

[62] Medway [1978] 1 WLR 710, 711; [1978] 1 All ER 1261.

[64] Re Addstone [1998] FCA 1680; (1998) 30 ACSR 156, 160.

[65] [2009] VSC 157.

[68] [2005] FCAFC 3 ('Liberty Funding').

[69] Ibid [20]-[21] (Branson, Sundberg and Allsop JJ).

[70] [2020] FCA 643.

[72] [2008] HCA 36; (2008) 235 CLR 125, 155 [96]; [2008] HCA 36 (Hayne, Heydon and Crennan JJ).

[73] See Cowell [2003] VSCA 43; (2003) 8 VR 571, 590 [42]; [2003] VSCA 43 (Phillips, Batt and Buchanan JJA).

[74] See, eg, Pattison [2011] VSC 252, [7] (Robson J).

[76] See Crimes Act 1958 s 321(2); Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, 506; [1985] HCA 29 (Wilson, Deane and Dawson JJ) (conspiracy); Crimes Act 1958 s 321N(2); DPP v Stonehouse [1978] AC 55, 68 (Lord Diplock); Knight v The Queen [1992] HCA 56; (1992) 175 CLR 495, 501; [1992] HCA 56 (Mason CJ, Dawson and Toohey JJ) (attempt).

[77] Witham v Holloway (1995) 183 CLR 525, 538; [1995] HCA 3 (McHugh J).

[78] A-G (NSW) v Dean (1990) 20 NSWLR 650, 655 (Gleeson CJ, Kirby P and Priestley JA).

[80] Parashuram Detaram Shamdasani v King Emperor [1945] AC 264, 269 (Lord MacMillan, Lord Goddard and Sir Madhavan Nair); Re Samuel Goldman [1968] 3 NSWR 325, 327 (Sugarman A-P); Brown v Putnam (1975) 6 ALR 307, 309-10 (Moffitt P, Samuels and Mahoney JJA); Y & Z [2007] NSWCA 329; (2007) 70 NSWLR 377, 384 [37]; [2007] NSWCA 329 (Ipp JA).

[81] Bhagat v Global Custodians Ltd [2002] NSWCA 160, [35]-[49] (Spigelman J); Novotny v Cropley [2005] NSWCA 26, [9]-[10] (Hodgson JA).

[84] Davey v Silverstein [2019] VSC 302, [18].

[85] [2014] NSWCA 395.

[87] (2019) 93 ALJR 1007; [2019] HCA 29.