Referral of Questions of Law under Section 33 of the Charter

De Simone v Bevnol Constructions and Developments Pty Ltd & Ors [2010] VSCA 231 (10 September 2010)

The Victorian Court of Appeal has declined to answer a question of law referred to it by the Victorian Civil and Administrative Tribunal under s 33(1) of the Charter on the basis that VCAT had not determined the merits of the application before it, and accordingly, the question was purely hypothetical.


The question referred to the Court of Appeal arose out of a building dispute in VCAT.  The plaintiff company (of which De Simone was the sole director) alleged that the defendant builders, Bevnol Constructions and Developments, were in breach of contract.  The defendants counterclaimed, alleging that De Simone (and others) had made misrepresentations relating to financing the construction.  The defendants also made a complaint to the Victorian police.  Apprehending that criminal charges might be laid, De Simone made an application to VCAT seeking a stay of that part of the counterclaim that related to him and the reference of certain questions to the Supreme Court under s 33 of the Charter.  That application was dismissed on its merits by the Vice President of VCAT in reliance on the guidelines in McMahon v Gould (1982) 7 ACLR 202 (a case in which Wootton J identified a series of matters to be considered in deciding whether to grant a stay of civil proceedings where criminal proceedings were on foot or threatened).

Leave to appeal from the Vice President's decision was sought and refused by the Court of Appeal.  The Court of Appeal considered that the applicant had a real argument that the McMahon v Gould guidelines should be modified in light of ss 24 and 25 of the Charter, but found it was unnecessary to decide the issue as De Simone had now been charged and so could make a fresh application for a stay in VCAT.  He did so, arguing that defending the counterclaim would require him to waive his right to silence and that he would also be denied a fair hearing in the civil proceeding.  This time, the Vice President determined that a question of law relating to the interpretation of the Charter had arisen and referred it to the Supreme Court under s 33 without first considering the merits of the stay application.  In turn, the Supreme Court referred the decision to the Victorian Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986 (Vic).


Section 33 of the Charter permits a court or tribunal (upon application by a party) to refer a question of law relating to the Charter to the Supreme Court for determination.  The question of law must relate to the application of the Charter or to the interpretation of a statutory provision in accordance with the Charter.  The question put before the Victorian Court of Appeal (comprising Redlich, Mandie and Hansen JJA) was:

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, and in particular, ss 24 and 25 of that Act, and, if so, how?

De Simone argued that the McMahon v Gould guidelines did not adequately ensure he would receive a fair trial in the criminal proceedings because the guidelines were not compatible with the Charter.  Further, the natural justice provisions of the VCAT Act (ss 97 and 98) and the rule against self-incrimination (s 105) were not identical to ss 24 and 25 of the Charter.  Bevnol argued that ss 24 and 25 of the Charter are simply a codification of common law rights that are already reflected in the guidelines and that they therefore did not require reconsideration.  Counsel for the Attorney-General submitted that the McMahon v Gould guidelines are consistent with the rights protected by ss 8, 24(1) and 25(2) of the Charter, and that accordingly the guidelines did not require reconsideration.   

The Court of Appeal declined to express an opinion on these issues, on the basis that the question referred to it was inappropriate and not a question of law.  The Court of Appeal accepted that there has been some judicial concern about whether the McMahon v Gould guidelines appropriately accommodate the privilege against self-incrimination, but emphasised that the McMahon v Gould line of authority remained firmly established and that any reconsideration could only be performed by an appellate court.  The facts and circumstances of the case before it did not render it appropriate to undertake this reconsideration.

Their Honours observed (at [35]) that 'a central feature of s 33(1) of the Charter is the presence of the discretion whether to refer'.  This discretion is unfettered, although it must be exercised in light of the relevant facts and circumstances of the case.  Instead, the Vice President had exercised the discretion to refer the question in the absence of any findings or consideration of the issues and 'the question was raised in the air' ([37]).

Their Honours observed that the Vice President could have ruled on the stay application and, in doing so, resolved the issues between the parties and left it open for the unsuccessful party to appeal on a question of law under s148(1) of the VCAT Act.  The case has now been referred back to VCAT.  The effect of the case being transferred between courts multiple times is that the civil proceedings have been considerably delayed.

Charter Implications

The Court of Appeal appears to have suggested that s 33 of the Charter should not be used by inferior courts to refer a question of law until the facts and context surrounding that question of law have been resolved.

The decision raises the question as to what, if anything, s 33 actually adds to existing rights to appeal questions of law to the Supreme Court.

The parties' submissions also raised several interesting points relating to the proper interpretation of the Charter; namely to what extent common law rights to a fair hearing are compatible with ss 24 and 25 of the Charter.

The decision is at

Rebecca James is a Law Graduate with Allens Arthur Robinson