De Simone v Bevnol Constructions & Developments Pty Ltd & Ors  VSCA 54 (3 March 2011)
A recent decision of the Court of Appeal has held that it is highly unlikely that the production of documents pursuant to a summons would ordinarily constitute an unlawful or arbitrary interference with a person’s right to privacy pursuant to s 13(a) of the Charter.
Redlich and Mandie JJA further held that a decision relating to the release of documents for inspection in this case was not affected by an impending decision involving the same case, which, pursuant to s 33 of the Charter, was on referral to the Supreme Court.
As part of a protracted contractual dispute before the Victorian Civil and Administrative Tribunal regarding the construction of a retirement village at Ocean Grove, the respondent issued two summonses to produce documents on 16 December 2008 and 29 April 2009 respectively.
The applicant’s objections to the summonses was set down for hearing before Vice President Harbison on 7 December 2009 and a decision was published on 18 March 2010.
Vice President Harbison held that the documents subject to the summonses should, with the exception of a small number, be made available to the respondents’ solicitors for inspection.
The applicant sought leave to appeal Vice President Harbison’s decision before the Court of Appeal pursuant to s 148(1)(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
Redlich and Mandie JJA considered nine grounds of appeal from Vice President Harbison’s decision, two of which were relevant to the Charter. None of the grounds were upheld and leave to appeal was accordingly denied.
Right to Privacy – s 13 of the Charter
The applicant claimed that an order for the release of documents for inspection by Vice President Harbison breached his right to privacy pursuant to s 13(a) of the Charter because he was the author or recipient of the documents in question and that such right attached equally to business and personal correspondence.
Redlich and Mandie JJA stated in paragraph 35 of their judgment:
The right protects the individual from unlawful or arbitrary intrusions into his or her privacy. It is highly unlikely that the production of documents pursuant to a summons, and their release for inspection to the solicitors for a party in proceedings pursuant to an order of a judicial member of a Tribunal following the hearing of objections, would ordinarily constitute an unlawful or arbitrary interference with that person’s right.
Their Honours further endorsed Vice President Harbison’s analysis pursuant to s 7 of the Charter:
disclosure of the documents in relation to which privacy is asserted by De Simone can be demonstrably justified as reasonable having regard to the need for this proceeding to be conducted in a fair manner.
The documents are relevant to the case which he and his company seeks to prove. Access to these documents will enable the respondent to litigation to properly prepare its case and to defend itself…and also to properly prepare the counterclaim…
Referral to Supreme Court – s 33 of the Charter
The applicant submitted that in making an order for inspection of documents, Vice President Harbison was in breach of s 33(2) of the Charter, which provides:
If a question has been referred to the Supreme Court under subsection (1), the court or tribunal referring the question must not –
(a) make a determination to which the question is relevant while the referral is pending; or
(b) proceed in a manner or make a determination that is inconsistent with the opinion of the Supreme Court on the question.
The applicant argued that the documents subject to inspection were those that related to a stay application that he had previously referred to the Supreme Court pursuant to s 33(1) of the Charter and which remained pending at the time of Vice President Harbison’s decision.
Redlich and Mandie JJA held that Vice President Harbison had taken the right approach in examining each document for its relevance to the stay application and in finding that a small number of documents should not be disclosed until the Supreme Court had considered the referral question.
Relevance to the Victorian Charter
Given the thorough approach taken by Vice President Harbison at first instance, there was little scope for Redlich and Mandie JJA to explore, in any depth, the Charter issues raised before them in this application for leave to appeal.
With a different set of facts and a different primary decision maker, the Court of Appeal may in the future have an opportunity to more fully consider what constitutes a ‘determination’ for the purposes of s 33(2) of the Charter, including whether a decision relating to the release of documents for inspection can be so characterised.
The decision is at www.austlii.edu.au/au/cases/vic/VSCA/2011/54.html.
Anna Forsyth is a barrister at the Victorian Bar