A question of law arises about ‘a question of law arises’

Kortel v Mirik & Mirik [2008] VSC 103, discussed last post, nearly became Victoria’s Marbury v Madison because of these provisions of the Charter:

35 (1) A party to a proceeding must give notice in the prescribed form to the
Attorney-General and the Commission if-

(a) in the case of a Supreme Court or County Court proceeding, a question
of law arises
that relates to the application of this Charter or
question arises with respect to the interpretation of a statutory
provision in accordance with this Charter; or

40. (1) The Commission may intervene in, and may be joined as a party to, any proceeding before any court or tribunal in which a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter.

It all began in 2005 when twin brothers Mirik and Mirik violently assaulted Refik Kortel. The injuries could scarcely have been more extreme, both physically and psychologically.  In 2007, the Miriks pled guilty to these offences and were sentenced by Bell J to lengthy prison terms (and the Court of Appeal raised one of those sentences on appeal.) This year, Kortel applied for an order for compensation, payable by his attackers. When the hearing came before Bell J, Kortel had counsel while both Miriks were unrepresented.

Justice Bell, like Bongiorno J a few weeks later, was gravely concerned about the ability of the defendants to participate in the hearing in the circumstances. Unlike Bongiorno, he didn’t try to deal with this through the use of a common law stay power. Unlike Bongiorno, he leapt at the chance to apply the Charter and, especially, solve the s6(2)(b) mystery. Unlike Bongiorno, he was willing to delay the proceedings by issuing s35(1) notices. However, like Bongiorno, his actions got a result: the next time Mirik and Mirik were in court, they had lawyers funded by legal aid. Problem solved? Not quite, because VHREOC and the Attorney-General both turned up in court. And VEOHRC was determined to argue the 6(2)(b) point.

I’m alarmed by VEOHRC’s conduct here. A fairly unique feature of the Charter is that it gives VEOHRC and the Attorney-General a right to intervene in proceedings where ‘a question of law arises’ about the Charter. That feature is intentional and is designed to ensure that Charter litigation isn’t merely a private matter, but rather a part of the inter-governmental human rights dialogue that is the Charter’s raison d’être. But this good idea obviously can be problematic for the private parties, who may well find themselves swept up into an esoteric legal dispute. They may incur extra legal costs, there will inevitably be delays and a possible shift in the goal posts they had planned for, and they may become the subject of unexpected public interest.

Crucially, in this case, the parties didn’t raise the Charter issue. I can, of course, understand why Bell J was willing to raise the issue himself in the first place, given that the Miriks were unrepresented and could scarcely have initiated the point. But, by the time VEOHRC was involved, the Miriks had legal assistance and Legal Aid made it clear that it didn’t want the Charter topics pursued. Kortel, on the other side, didn’t want the issue pursued either, although he made it clear that the Court should follow the course that will minimise any delay. The Attorney-General, for whatever reason, argued against the issues being resolved.

So, that leaves VEOHRC. To its credit, it has published its guidelines on how it will exercise its right to intervene. There’s no doubt that s6(2)(b) satisfies a lot of the criteria: it wasn’t being argued already, it is of general importance, etc. Presumably, the question of legal aid for defendants to compensation orders is a recurrent and significant issue. But what about these two criteria?:

2(a). The Charter issues are significant and not peripheral to the proceedings;

3(h). The likely impact of the Commission’s intervention on the individuals involved in the litigation. (The Commission is mindful that in promoting human rights it cannot make intervention decisions without considering the impact of its activities on the individuals involved. This will require a consideration of the social, cultural and political context of the intervention and any other impact that intervention may have on the parties.)

Once the Miriks had lawyers, how was 2(a) satisfied? And I’m baffled as to how 3(h) wouldn’t have weighed heavily in this case. (Disturbingly, too, VEOHRC insists that it can’t have a costs order paid against it, leaving those costs to the parties, including Legal Aid.)

And yet:

Mr Merkel contends that, in this proceeding (as in all others in Victorian courts and tribunals), the threshold question arises whether, by reason of the proper construction of ss 6(2)(b), 8 and 24(1), the Charter applies to the court in respect of the proceeding because, in all cases, a court or tribunal has the function of ensuring equality before the law and a fair hearing. He submitted it was appropriate to consider that threshold question in this case, leaving until later the scope of the court’s obligations under ss 8 and 24(1), if the question was answered in the affirmative. He submitted the Commission had a present right to intervene under s 40(1) by reason of that question having arisen, which the court should examine as part of the process of determining whether the Commission had that right to intervene, even though the respondents are now legally represented.

In other words, VEOHRC has a right to intervene either because (a) an issue was raised, even though it is now dead; and/or (b) the mystery of s6(2)(b) theoretically affects everything every court does ever. Putting aside whether VEOHRC is following its own guidelines, its willingness to pursue the point in this case suggests that VEOHRC wants Charter questions resolved as soon as possible, even if they are only resolved in the abstract. I’m one of many who take the view that hypotheticals are a bad way to make law (and, for that matter, to teach law.) In my view, the phrase ‘a question of law arises’ is not satisfied by abstract arguments; the question has to make a difference in reality.

Fortunately, Bell J put the kibosh on VEOHRC’s unfortunate overreach.

[I]n the present case I think the change of circumstances between the time when the Commission was first notified and sought to intervene and the time when the proceeding came back on before me has undermined the Commission’s right to intervene under s 40(1). That change of circumstances has been brought about by the grant of legal aid to the respondents, which has allowed them to obtain legal representation for this proceeding. In the result, the question whether s 6(2)(b) makes the Charter applicable to the court in the proceeding is purely theoretical and really not a positive issue at all.

The question concerning the proper construction of s 6(2)(b) is one of fundamental importance, as counsel for all parties acknowledged. It lurks under the surface of the present case and may arise again depending on the course the proceeding takes. If and when that happens, I will ensure the Attorney-General and the Commission are given notice under s 35(1)(a) so they can decide whether to intervene again under ss 34(1) and 40(1) of the Charter. But I think the present position is so clear-cut, and has been so fully argued at the directions hearing, that I am not prepared to order that the Commission’s present right to intervene be heard and determined as a separate question under r 47.04 of the Supreme Court Rules. As the issue concerning the proper construction of s 6(2)(b) does not presently arise, I would not order the separate hearing and determination of that question.

For those reasons, I think neither the Attorney-General nor the Commission presently has a right to intervene in the proceeding.


[EDIT: A few people have pointed out that VEOHRC’s intervention may have had more merit than I’ve assumed. There’s still an argument that providing a joint counsel for the twins (whose commonalities did not extend to the particular crimes they committed against Kortel or their financial state) isn’t in accords with the demans of a fair hearing. And, given that that argument is, in part, an attack on the decision-making of Legal Aid, its lack of interest in the Charter argument isn’t determinative of the Miriks’ interests. A nice argument, although I’d note that it could have been framed as a s38(1) argument about Legal Aid itself (as well as a s32(1) argument about the legislation), so there’s still no need whatsoever to drag s6(2)(b) into the issue.]

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