VCAT vs the Charter

Two interesting new Charter cases have emerged from that hotbed of Charter lip service, VCAT.  But I can only talk about one of them!

The public one is TGM Investments Pty Ltd v Rosenfield [2008] VCAT 2407, a retail tenancies dispute (although it’s not clear what the substantive issue is.) The procedural involves legal representation in VCAT. VCAT is a lawyer free haven, but there are exceptions:

62 (1) In any proceeding a party…  (b) may be represented by a professional advocate if- … (iii) another party to the proceeding who is permitted under this section to be represented by a professional advocate is so represented…

One party, TGM Investments, is described as being represented by ‘Mr D Anthony, Solicitor‘. So, the result is that the other party, Mr Rosenfield, is entitled to be represted by a ‘professional advocate’. The issue in this case is whether Rosenfield is entitled to be represented by his advocate of choice, a ‘Mr J Foster of Counsel’.

The problem is that Foster represented TGM three years ago in another retail tenancies matter. Moreover, it even involved the same ‘building’ (though not the same bit of the building.) The issue was raised between the parties during settlement negotations and TGM weren’t bothered, but it seems that that agreement has fallen apart. TGM has asked for Foster to be booted off Rosenfield’s case.

VCAT Senior Member Damien Cremean – who taught in a subject I coordinated here at Melbourne Law School last semester (hi Damien!) – granted TGM’s request. His main ground involved the risk (denied by Foster) that Foster might be privy to some sort of secrets gained from his service to TGM and that Foster may (for that or other reasons) be unable to meet the requirement of ‘purity of interest in the adversaries’ that Cremean suggested was required by VCAT’s statutory provisions demanding that its proceedings be conducted fairly. Personally, I have never been impressed by the view that lawyers somehow become affiliated to a party simply by representing them. It’s a view that simultaneously overvalues the service lawyers offer while denigrating their supposed professionalism. The confidential information issue is, by contrast, a real one, but it surely requires something a bit more solid than straight-out speculation.

What’s crucial is the other side of the coin: that Rosenfield is being denied a lawyer of his choice (while TGM has no such burder.) If this was a criminal matter, that’d be a breach of Charter s. 25(2)(d), but this is, instead, a civil matter. Nevertheless, surely fairness will typically involve legal represntation of choice; it definitely requires equality of arms, which seems to be a little shaky here. Cremean, however, cited the Charter in TGM’s favour:

I am concerned with the outward perception of the performance of the Tribunal’s duty under the Act particularly s97. The duty to act fairly could be seen to be compromised if I allowed a member of Counsel to appear against a client for which he previously acted not very long ago. The perception could be that he might have available to him or her information given in confidence and might, unwittingly, use it. This is especially so when the factual contexts in both cases are not dissimilar. It is important also to note the fair hearing right given by s24 of the Charter of Human Rights and Responsibilities Act 2006. I do not consider it proper in the circumstances to allow Mr Foster to appear.

A classic passing mention, in that it doesn’t pay much attention to such niceties as the relevant operational provisions and any compelling comparative law judgments. Interestingly, Cremean’s argument – which notably only seems to focus on the fair hearing rights of TGM – seems to be in breach of Charter s. 6(1), which says that only human beings have human rights and specifically denies them to corporations like TGM. I’m no fan of Charter s. 6(1), especially in this context, but its effect does seem to be that, at least under the Charter, it’s Rosenfield’s fair hearing right that should have been promoted (with TGM’s and VCAT’s interests demoted to a factor in a Charter s. 7(2) or Charter s. 38(2) analysis.) Oops.

Alas, there has been at least one more VCAT judgment on the Charter in recent times that goes way beyond a passing mention, raising a novel and interesting question about the requirements of Charter s. 33 , some familiar but interesting questions about the continued status of McMahon v Gould in light of the Charter, and does a reasonable, if not ultimately satisfying job, at grappling seriously with the operative provisions. Indeed, I’ve written a lengthy post of nearly 4000 words on the case and had it ready to go as soon as the judgment appeared publicly on Austlii. Alas, when I got a little tired of waiting for it to appear and inquired with VCAT about whether there was some sort of problem, I got a response late yesterday that – strangely, just yesterday! – President Bell issued an order suppressing the judgment – and any ‘disclosure or publication’ of it  –  until next month, except for the purposes of the parties who might wish to appeal. Was that my fault?

Doubtless, Bell has good reasons for his order. Arguably, he’d better have, in light of Charter s. 24(3):

24(3) All judgments or decisions made by a court or tribunal in a criminal or civil proceeding must be made public unless the best interests of a child otherwise requires or a law other than this Charter otherwise permits.

Well, that does depend on whether an order (and accompanying reasons) on an interlocutory question counts as a ‘judgment or decision… in a… civil proceeding’. And also what that pesky ‘law other than this Charter… permits’ gloss means. Arguably – and I bet VGSO will argue it! – there’s no right here at all.

An alternative angle is Charter s. 15(2):

15(2) Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds…

Bell will be well familiar with this angle, as he’s just been hearing a matter involving the intersection between Charter s. 15(2) and FOI law. VGSO has said that it will argue that freedom of expression doesn’t include the right to get information from a person unwilling to give it, including the government. They say that that’s the view of overseas courts. But it isn’t the view in Canada, at least for now. In The Criminal Lawyers’ Association v. Ontario (Public Safety and Security), 2007 ONCA 392, the Ontario Court of Appeal held that freedom of expression extends to people (like me, I guess) who are keen to comment on decisions made by others, at least where there is an underlying common law or statutory right to have access to those decisions (which I guess there is here.) Doubtless, a lot of the talk last week was about this case. (Interestingly, though, the Supreme Court of Canada is hearing the appeal from this case today.) Here’s hoping that, Bell’s FOI decision comes out, we’ll be allowed to both read it and comment on it!

Alas, the delay until January for the suppressed VCAT matter – and it might be extended – creates a problem for me, for reasons I’ll get to shortly. I’ll have to mull over if there’s a way to comment on the case this month without breaching the order…

One thought on “VCAT vs the Charter

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