Decision of a court to grant or refuse an adjournment is a judicial function for the purposes of the Charter of Human Rights
Slaveski v The Queen (on the application of the Prothonotary of the Supreme Court of Victoria) [2012] VSCA 48 (20 March 2012)
The applicant, Mr Slaveski, appealed against conviction and sentence for contempt of court.The Victorian Equal Opportunity & Human Rights Commission intervened in the proceeding regarding the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) to the Supreme Court. The Commission’s submissions concerned, among other things, whether the trial judge erred in not granting an adjournment to Mr Slaveski in circumstances where his lawyers had withdrawn and he alleged that evidence relevant to his trial had been tampered with. In particular, the Commission submitted that:
when a trial judge determines to grant or refuse an adjournment of the trial, the judge acts in an administrative capacity within the meaning of s 4(1) of the Charter and thus as a public authority within the meaning of s 38(1) of the Charter.
The corollary of this submission, according to the Commission, is that “the courses of action open to the judge are limited to those which are demonstrably justifiable having regard to the criteria delineated in s 7(2) of the Charter.”
The Court of Appeal dismissed the submission, saying that “the Commission’s contention is quite unsustainable”. According to the Court:
The function to grant or refuse an adjournment is one which takes its character from the tribunal or court in which the function is reposed. Where, therefore, the power to grant or refuse an adjournment of a trial is reposed in a trial judge, it is to be inferred that it is to be exercised judicially and thus that the character of the function is judicial. More precisely, when a trial judge determines to grant or refuse an adjournment of the trial, the judge exercises judicial power which involves the governance of a trial for the determination of criminal guilt and its punishment or, in a civil proceeding, the determination of a dispute inter partes. That is not an administrative function.
Sabet v Medical Practitioners Board of Victoria or Kracke v Mental Health Review Board, on which the Commission relied, were concerned with administrative tribunals. Plainly, they involve different considerations. It should not be thought that anything said in either case was supportive of the Commission’s position.
The decision is available online at: http://www.austlii.edu.au/au/cases/vic/VSCA/2012/48.html
Phil Lynch is Executive Director of the Human Rights Law Centre.
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