De Simone v Bevnol Constructions and Developments Pty Ltd (Unreported, Supreme Court of Victoria, Court of Appeal, Neave JA and William AJA, 3 April 2009) The Court of Appeal held that courts and tribunals are bound by ss 24 (right to a fair hearing) and 25 (rights in criminal proceedings) of the Victorian Charter when they exercise functions engaging those rights.
In this case, there was a possibility that VCAT had erred by not taking ss 24 and 25 into account when refusing to stay civil proceedings. However, no substantial injustice was caused by the refusal and the Court of Appeal therefore declined to overturn VCAT's decision.
In proceedings before VCAT, De Simone had asked for a stay of civil proceedings on the basis that there was a police investigation on foot. He was likely to be charged in relation to the same facts that founded the civil claim. De Simone argued that a failure to stay the civil claim would jeopardize his rights in relation to the criminal matter (for example, the right to remain silent). In November 2008, VCAT refused to stay the civil claim and held that:
- VCAT was not bound by the Charter because it was acting in a judicial capacity;
- the rights in ss 24 (right to a fair hearing) and 25 (rights in criminal proceedings) did not modify the existing common law test for determining whether a matter should be stayed; and
- the rights under ss 24 and 25 in respect of the criminal proceedings only applied to persons charged with a criminal offence and, since De Simone had not yet been charged, those rights were not engaged.
De Simone appealed VCAT's decision to the Court of Appeal. He argued that VCAT 'had wrongly disregarded the effect of the civil hearing on his right to silence in criminal proceedings'. He argued that the VCAT fair procedure provisions apply only to civil proceedings in VCAT, therefore they must be read subject to the fair trial requirements applicable to a person who may become a defendant in criminal proceedings.
The Court of Appeal found the Charter applied to VCAT and there was a 'real argument' that ss 24 and 25 should have been taken into account when deciding whether to stay civil proceedings. However, since there was no substantial injustice caused by the refusal to stay the proceedings, the Court of Appeal declined to overturn VCAT's decision.
The Court of Appeal looked at whether VCAT was bound by the Charter, and apparent tensions within the Charter. Section 6(2)(b) of the Charter provides that the Charter applies to courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3. Section 4(i)(j) excludes courts and tribunals from the definition of public authority except when they are acting in an administrative capacity. The Court of Appeal said of this apparent tension:
Given that s 6(2)(b) refers to both the interpretive functions of courts and tribunals in Part 3, Division 3, and to their functions under Part 2, it appears that s 6(2)(b) implicitly reads down s 4(1)(j), so that Part 2 applies directly to courts and tribunals. It follows that ss 24 and 25 apply directly to courts and tribunals, when they exercise their functions.
This passage of the Court of Appeal has since been relied upon by Bell J in Kracke v Mental Health Review Board  VCAT 646 (23 April 2009).
The Court of Appeal doubted whether the Charter rights necessarily required any modification to the relevant common law test. However, they went on to say that 'the applicant has a real argument that the [common law test] should be modified in light of ss 24 and 25 of the Charter.'
However, even if VCAT erred in holding that ss 24 and 25 did not modify the common law test, allowing the error to go uncorrected 'would not cause substantial injustice on the facts of this case'. This was because VCAT had already made orders prohibiting the disclosure of De Simone's evidence to any person not a party to the civil proceedings.
This case is significant in that the Court of Appeal held that courts and tribunals are bound by the Charter when they are exercising functions relevant to the rights in ss 24 and 25. This aspect of the decision has since been cited with approval in Kracke v Mental Health Review Board.
This case is also significant in that it clarified the scope of the rights in ss 24 and 25 in respect of criminal proceedings. The previous decision of VCAT, that the rights were not engaged until charges were laid, was at odds with case law in other jurisdictions. The comments of the Court of Appeal have expanded the application of ss 24 and 25 to situations were criminal charges are 'threatened or actual'. This is a positive development and is in accord with the spirit of the rights, which are designed, inter alia, to protect a person's right to silence and the presumption of innocence.
The case is also important in that it confirms that there may be situations in which common law principles should be modified to be consistent with rights in the Charter. The Court of Appeal stopped short of making a definitive statement to this effect, instead stating that there was a 'real argument' that the common law test in this case should be modified in light of the Charter. However, the Charter will generally not require that the common law rules be modified.
At time of publication, this decision was not available online.
Helen Conrad is on secondment to the Human Rights Law Resource Centre from Mallesons Stephen Jaques