Today marks thirty days since the last reported Charter case (Zierk, on 30th May.) I’m basing this on Austlii reporting, which covers the VSC, VCA and VCAT, but not the Magistrates’ or County Courts. That’s the whole month of June, the sixth month of the Charter’s full operation, without this major statute being so much as mentioned by the state’s top court and administrative law workhorse.
What does this mean? Here’s some possibilities:
First, it could just be a statistical blip (something that’s almost inevitable given the tiny sample size.) Last month, May, there were six cases that got a Charter mention, compared to one in April, so this month might have some evening up. On the other hand, I can’t see next month being big, with the winter recess and all. And surely everyone was expecting the numbers to grow as the year progressed?
Second, it could be a welcome development: a decline in pointless passing mentions of the Charter that do little more than pay symbolic lip service to a statute that has a number of non-symbolic and highly complex provisions.
Third, it could be a worrying development, pointing to a gap in confidence or access to the Charter amongst litigants. There are a number of potential culprits: (a) the stupid transitional provision, Charter s. 49(2) (though its effect should be declining as time passes.) (b) the notice provision, Charter s. 35 (which Bongiorno J reckons imposes a mandatory delay as a penalty for raising the Charter, but which I don’t think requires that at all) (c) s78B of the Judiciary Act 1903 (Cth), which – in combination with some dubious constitutional arguments being put by the Attorney-General and some dubious refusals by the courts to apply its expedition provisions – will impose mandatory delays and costs as a penalty for raising the Charter; (d) the Charter’s numerous drafting problems, which might have scared off litigants who don’t want to hire a QC to nut out all the weirdness; (e) the Charter’s many gaps and loopholes, which might have narrowed its potential operation to too few cases.
Despite mulling this over, I really have no idea what is going on. For all I know, there have been heaps of Charter cases but in the lower courts or settled before any judgment is reached. And there may be a stack in the pipeline.
But, from my Austlii-based perspective, there did seem to me to me a fair number of openings for Charter arguments in the last month. Here are some from just the past week from the Supreme Court:
- Secretary, Department of Justice v Fletcher (No 3)  VSC 21: the meaning of a provision allowing a court to give leave to review an extended supervision order (in light of changes to legislation), given Charter ss. 21(7) and 27(2)
- Re Proceeding No 8 of 1938  VSC 220: the operation of Supreme Court rules about non-party access to a court file, as applied to a divorce file where the non-party is trying to research his family history, in light of Charter ss. 13(a), 15(2) and 17(1)
- Somerville Retail Services Pty Ltd v Vi  VSC 196: the scope of complex statutory provisions governing appeals and out-of-time review of findings by a court conciliation officer that there was no genuine dispute as to one party’s liability, in light of Charter s. 24(1)
- Farnell v Penhalluriack(No 2)  VSC 214: whether statutory parentage presumptions in Victorian law cease to operate when there is any evidence to the contrary, in light of Charter ss. 17 and 24(1)
- Tucker v Barwon Health & Anor  VSC 22: whether s27L of the Limitations of Actions Act 1958, when it refers to the knowledge of the plaintiff, includes – where the plaintiff is a child – the parent of a plaintiff, in light of Charter ss. 17 and 24(1)
- Lollis v Loulatzis & Anor (No 3)  VSC 231: whether rule 66.14 of the Supreme Court Rules should be interpreted as allowing a perfected judgment to be set aside on the basis of conduct by the defendant (in allegedly devaluing a property after a judgment based on its earlier value), in light of Charter ss. 20 & 24(1)
- Rixon v Thompson  VSC 23: whether the statutory appeal ground of ‘miscarriage of justice’ should be read to include a duplicitous charge (where a single charge gives the fact-finder the option of several criminal acts) in wider circumstances than the common law rule against duplicity, because of Charter ss. 24(1), 25(2)(a) or 26
Now, don’t misunderstand (or misquote!) me, I’m not saying that any of these cases would have changed their result if the Charter had been considered or even that the Charter (especially s. 24(1)) would have added much to the analysis. My point is just that there doesn’t seem to be a shortage of cases involving the interpretation of difficult statutory provisions that, at least arguably, engage a variety of Charter rights and, at least arguably, are not barred by Charter s. 49(2) or any of the Charter’s other gaps. The question, therefore, is whether the non-raising of the Charter in these cases was because the litigants didn’t consider them; or considered them and decided that they didn’t add anything; or because they were deterred from raising them nevertheless.