Referral of Question of Law under Victorian Charter

De Simone v Bevnol Constructions & Developments Pty Ltd & Ors (Domestic Building) [2009] VCAT 888 (13 May 2009) For the first time, VCAT has referred a question of law arising under the Charter for determination by the Supreme Court, by way of s 33 of the Charter.  The referred question is whether VCAT's implied statutory power to stay a civil proceeding (in particular, the McMahon v Gould guidelines applicable to that power) should be revised in light of ss 24 and 25 of the Charter, and if so, how.

Facts

In previous proceedings before VCAT, De Simone had applied for a stay of a civil counterclaim against him on the basis that a police investigation was on foot.  He argued that a failure to stay the civil proceeding would prejudice his defence of the anticipated criminal proceeding and would constitute a violation of the right to a fair hearing under s 24(1) of the Charter and the rights in criminal proceedings under s 25 of the Charter.  VCAT refused to stay the civil claim, finding that:

  • the rights in ss 24 and 25 did not modify the existing common law test for determining whether a matter should be stayed (as set out in McMahon v Gould); and
  • the rights under ss 24 and 25 only apply to persons charged with a criminal offence and as De Simone had not yet been charged, these rights were not engaged.

De Simone appealed to the Court of Appeal, arguing that the McMahon v Gould test required modification in light of ss 24 and 25 of the Charter.  Before the decision was handed down, he was charged with eight offences.  The Court of Appeal refused leave to appeal, finding that the refusal of leave would not grant substantial injustice to De Simone because of sufficient suppression orders already in place at VCAT.  However, the Court also commented that:

  • De Simone had 'a real argument' that the McMahon v Gould principles should be modified in light of ss 24 and 25 of the Charter; and
  • it was open to De Simone to make a fresh stay application given that the charges had now been laid, since part of VCAT's reasoning relied on the Charter rights not being engaged for persons under investigation but not charged.

De Simone made a fresh application to VCAT for a stay and also applied for a referral on a question of law to the Supreme Court under s 33 of the Charter.  Section 33 provides that a court or tribunal may refer to the Supreme Court a question of law that arises that relates to the application of the Charter, provided a party has made an application for referral and the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

Decision

Vice President Ross decided to refer the following question of law arising under the Charter to the Supreme Court:

Given that the Tribunal has an implied statutory power to stay a civil proceeding, whether the McMahon v Gould guidelines applicable to that power should be revised in light of the Charter of Human Rights and Responsibilities Act 2006, and in particular ss 24 and 25 of that Act and, if so, how.

In so deciding, he noted that the question had not been the subject of prior determination and raised important issues of general application.

Relevance to the Victorian Charter

This is the first time VCAT has referred a question of law to the Supreme Court under s 33 of the Charter and it highlights the importance of the s 33 mechanism.  The case also highlights the potential impact of the Charter on the development of the common law and the exercise of judicial discretion and the Charter's capacity to align decision making processes with human rights norms.

The decision is available at http://www.austlii.edu.au/au/cases/vic/VCAT/2009/888.html.

Jessica Zikman is a lawyer with Lander & Rogers

MichelleBennettHuman Rights Law & Institutions, Police