Giuseppe De Simone redux

[EDIT: Here, at last, the post VCAT suppressed, originally written over a month ago. Who knows why the suppression was ordered or lifted? The case is now available online.]

He’s baaaack! Giuseppe De Simone, readers will recall, scored a brief Charter mention on Halloween in his succesful appeal against his conviction for biting a police officer in the aftermath of a supermarket dispute involving an ice-cream he ate. But that isn’t the end of his business in Victoria’s judicial system or, for that matter, his significance for the Charter. In a recent VCAT judgment, he had another bite of the Charter cherry. Actually, it was his third. And it raises one novel issue (involving Charter s. 33, the Supreme Court referral provision) and a host of familiar ones.

The context is a building contract dispute relating to the Seachange Retirement Village at Ocean Grove  (which, for those who don’t know, is quite close to Barwon Heads, which, for those who don’t know, is the real life location of Pearl Bay, which, for those who don’t know, lucky you.) The owners of the land have sued the builders for non-performance (after the Charter s. 49(2) cut-off date, it seems) and the builders have counterclaimed for misleading conduct. In the thick of things is De Simone, managing director of the owners. On 27th July 2006, two days after the Charter became law, he sent the builders, who said they needed evidence of financing for insurance purposes, a letter on an accountant’s letterhead that appeared to confirm financing. Alas, it seems, it didn’t, but was instead a letter about a subsidiary money matter. This led to De Simone being personally joined in the action. The recent VCAT case was De Simone’s attempt to stay that part of the action.

But, before we get there, there’s an earlier Charter angle. The original VCAT officer appointed to the case early last year was Senior Member Roger Young. Young fairly quickly started to have problems with De Simone, who, it turns out, ‘has studied law but has not been a legal practitioner’. The worst sort! De Simone represented himself (for the most part) in the various directions and interlocutory hearings that arose last year and he and Young obviously didn’t get along, with Young often shutting down De Simone’s contributions (and pointedly suggesting he get a lawyer) and De Simone making applications for Young to step down due to apprehended bias (one of which was prompted by the ‘lawyer’ suggestion, which Young conceded was a lame joke.) In the end, it seems, Young just started to lose it, stopping De Simone from making relevant submissions, criticising De Simone for skipping a meeting that Young had excused him from and, most damningly, saying things like: ‘Gee whiz, I’m getting sick of you!’ (Surely likely to be the last non-ironic use of the term ‘gee whiz’ ever.) So, in the middle of this year, in Seachange Management Pty Ltd v Bevnol Constructions & Developments Pty Ltd & Ors [2008] VCAT 1479, VCAT’s (then) acting President Ian Ross exercised his powers to take over the case, citing apprehended bias, De Simone’s fair hearing right and Charter s. 24. The latter was a classic passing mention, with all the lameness and fuzziness that follows from it. Fortunately, Ross’s latest Charter judgment on the case is more substantial.

De Simone’s case for having the civil claim against him stayed arises because the builders not only sued in VCAT but also referred De Simone’s alleged financing letter shenanigans to the Geelong police. De Simone has not yet been charged (either at the time of his application, in July, or the time of the ruling, in late November), but it was accepted by all parties in the hearing that the probability of  a charge of obtaining financial advantage by deception was ‘high’, although the time-line is not known. De Simone’s application therefore raised the same issue as Trevor Flugge‘s (successful) stay application: whether the civil proceedings should be stayed to avoid prejudicing the defence of the future criminal proceedings and, in particular, whether the unpopular 1982 judgment of McMahon v Gould, which generally favoured the rights of civil litigants, should be applied. However, whereas Flugge’s action faced some significant barriers to raising the Charter (due to the federal context and the  Charter’s lack of direct application to common law rules), De Simone’s action lacks those barriers: VCAT’s jurisdiction is both Victorian and statutory.

The initial (and most novel) issue in Seachange Mangement Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2008] VCAT 2629 is whether the questions pose by De Simone’s Charter challenge should be resolved by VCAT or by the Supreme Court. De Simone requested the later. Here’s the relevant Charter provision:

33(1) If, in a proceeding before a court or tribunal, 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, that question may be referred to the Supreme Court if- (a) a party has made an application for referral; and (b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

(2) 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.

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court, the referral is to be made to the Court of Appeal.

This provision is the result of a recommendation by the Consultation Committee. (Interestingly, and pertinently, the Committee’s draft also required a referral to the Court of Appeal instead of the Supreme Court if the referral was from a VCAT President or Vice-President, but that equitable treatment of VCAT and the Supreme Court was excised by the meddlers. )  The Committee explained that sometimes lower courts ‘need guidance on an interpretative question’ and that the Committee ‘sees value’ in having the Supreme Court decide them (following notice to the A-G and VEORHC.) So, it’s another plank in the Committee’s ‘don’t let lesser lawyers or officers stuff up our precious Charter; that’s a job for the Attorney-General and the Supreme Court’ philosophy. However, unlike the risible Charter s. 35, this provision is ameliorated by the sensible constraints of requiring both a party request and a determination by the first instance officer, before the higher authorities stick their collective nose in.

God knows why De Simone made his application (relating to both the application of Charter s. 24 directly to VCAT and its application to the procedural provisions in the VCAT Act), though you’d have to wonder whether he just wanted to delay the civil claim against him under Charter. s33(2)(a), which would probably be as good as getting a stay. But the interesting question is when and on what basis such an application should be granted under Charter. s. 33(1)(b). Neither the Consultation Committee’s report nor the EM given even the slightest hint of when a question ‘is appropriate for determination by the Supreme Court’ [sic – or the Court of Appeal.] Here’s Ross’s take:

I am not persuaded that it is appropriate to refer either of these questions to the Supreme Court pursuant to s 38(1) [sic]. The issues raised by the questions were fully ventilated in the proceedings as was the application of the relevant principles to the facts of this matter. In my view the most expeditious course is to determine the application. Any party aggrieved by the decision may exercise their appeal rights and the issues sought to be determined by the referral application may be determined in that context.

Well, I’m not persuaded by this. Surely, the major issue under Charter s. 33(1(b) is whether or not the question is important enough to require authoritative determination, both for the benefit of the immediate matter and for other similar proceedings. The application of McMahon v Gould in VCAT matters would seem to fit the bill, especially given the enormous criticism of that case, including recently in the Supreme Court. The major counter-factor would be the impact of Charter s. 33(2)(a) on the proceeding itself. Perhaps that’d be a weighty factor, but Ross doesn’t discuss whether or not the builders or owners would be prejudiced by delaying the counter-claim against De Simone (who, it must be remembered, was a late joinder to the original dispute between the two companies.) Of course, there’s a certain sense in Ross’s notion that the matter could be dealt with by the Supreme Court on appeal (and that there’s no reason why Ross can’t resolve the matter himself), but that sense seems to be at odds with the whole (elitist) point of Charter s. 33.

Personally, if the parties are willing – or if one party is keen and the other isn’t prejudiced overly –  it strikes me as a good thing to fast-track major issues to the Supreme Court and Court of Appeal, at least while so many crucial things about the Charter remain unresolved. For instance, what really is the point of Bell J’s current lengthy hearings about mental health, FOI and the definition of public authority, when those matters are all so contentious that they will inevitably have to be sorted out by the Court of Appeal (and perhaps the High Court)? If the parties are fine with doing things the slow way, then I have no objection. But otherwise? The quicker these major questions about how the Charter works are authoratitively resolved, the better, surely?

Anyhow, for better or for worse, Ross proceeded to resolve the matter himself. The good news is that he (and, it seems, the lawyers, and maybe even De Simone) were well versed in Charter Operative Provisions 101:

The Charter may impact on VCAT’s work in three ways:

  • if VCAT is a ‘public authority’ s 38(1) provides that it would be unlawful for it to act incompatibly with human rights (subject to the exceptions in ss 338(2) and (4));
  • all statutory provisions must be interpreted in a way that is compatible with human rights (s 32(1)); and
  • the Charter applies to courts and tribunals to the extent that they have functions under Part 2 and Division 3 of Part 3 of the Charter (s 6(2)(b)).

Oh, thank you Ian Ross! You can read! I’m not being facetious. You are streets ahead of most of your supposed betters on the Supreme Court: the Bongiornos, the Lasries, the Hollingworths, etc. You’ve even noticed the exceptions to the conduct mandate, including the most important one. Praise be. After nearly a year of blogging this stuff, I’m genuinely impressed. Which is actually tragic. Alas – readers of the blog know what’s coming! – Ross’s approach to the subtleties of the Charter didn’t quite match his precise grasp of the basics.

First, on the conduct mandate. Ross commenced with a very detailed analysis of whether (believe it or not) VCAT is a public authority. He trawled his way through the mysteries of whether or not VCAT is established by a statute and whether it has functions of a public nature, ultimately concluding that, yes,  it did, what with the VCAT Act and its public funding and jurisdiction that covers ‘regulatory’ matters. Amazing. While this, of course, is more proof that Ross can read, it does seem a little mad. If VCAT isn’t a public authority, then what the hell is it?

Much more importantly, Ross then turned to the mysteries of Charter s. 4(1)(j):

4(1) For the purposes of this Charter a public authority… does not include-… (j) a court or tribunal except when it is acting in an administrative capacity…

Ross, after pondering the EM, Williams and Sabet, decided that a decision on whether or not to adjourn a proceeding that determines rights isn’t administrative. He also rejected De Simone’s own argument that VCAT acts in an ‘administrative capacity’ when it is ‘administering justice’:

This submission is misconceived. The relevant test is whether the Tribunal is ‘acting in an administrative capacity’ not whether the matter relates to the administration of justice. Indeed on one view of it everything done by the Tribunal may be regarded as relating to the administration of justice and so adopting Mr De Simone’s contention would defeat the legislative intent of s 4(1)(j).

Now, of course, De Simone’s argument is pretty batty. But Ross’s reference to s. 4(1)(j)’s ‘legislative intent’ is equally bonkers. It’s unclear whether or not Ross knows that the supposed purpose of s. 4(1)(j) is to prevent a constitutional threat to Australia’s unified common law and/or to prevent a ‘horizontal’ human rights impact. Nothing – nothing! – VCAT does could possibly affect the common law, as VCAT can’t develop the common law and, indeed, as a fully statutory tribunal scarcely ever even applies it. Even McMahon v Gould was only picked up as a handy way of applying VCAT’s fully statutory fairness mandate. Moreover, while it’s true that VCAT sometimes decides how private people interact, including in this dispute, many of its decisions – notably whether or not to stay a civil matter – are about whether or not it should intervene in a private affair, which is a vertical, not horizontal, question. So, if legislative intent was the concern, then it’d make a lot of sense to interpret ‘administrative’ very widely to cover everything short of determining inter se (or perhaps even common law) rights. So, ‘adminstration of justice’ is too broad, but administering its own proceedings arguably isn’t.

Of course, the problem here is really that s. 4(1)(j)’s drafting is not only unclear but also obviously much much much broader than its supposed purposes. Not only are a court’s non-administrative capacities much broader than either their common law or private-private functions, but it’s completely unclear why statutory tribunals are included in the exemption at all. After all, statutory tribunals don’t change the common law. Moreover, because their functions are statutory, there will almost certainly be some horizontal effect of the Charter, by virtue of the interpretation mandate. As the Attorney-General recently noted in relation to the Coroners Court, the exemption does little for non-traditional adjudicators. Alas, for all of his attention to whether VCAT was statutory and had public functions, Ross just assumed that VCAT is a tribunal. Of course, that’s the T in VCAT. But, arguably, the ‘legislative intent’ of s. 4(1)(j) calls for a much narrower reading of ‘tribunal’, one that looks to very traditional court-like bodies. Still, that’d be a pretty game argument (and one that would cut across everyone’s – but my – favourite Charter argument: the one based on Charter s. 6(2)(b).)

Second, the interpretation mandate. Ross’s discussion of Charter s. 32 properly noted its differences from traditional interpretation principles, notably its capacity to overturn even settled or uncontroversial readings of a statute. So, should he overturn the established reading that the common law approach is picked up by these statutory provisions?:

80(1) The Tribunal may give directions at any time in a proceeding and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.

97 The Tribunal must act fairly and according to the substantial merits of the case in all proceedings.

98(3) Subject to this Act, the regulations and the rules, the Tribunal may regulate its own procedure.

Alas, Ross’s attention to the operative provisions wasn’t matched by his attention to rights. He dismissed De Simone’s argument that a stay was needed to preserve De Simone’s rights as a future criminal defendant as follows:

The entitlement to a fair hearing in a criminal proceeding extends to a person ‘charged with a criminal offence’. Similarly the rights specified in s 25 only extend to persons ‘charged with a criminal offence’ . Mr De Simone has not been charged with a criminal offence. While the probability that charges will be laid against Mr De Simone is high the time frame for the laying of charges and for the conduct of the criminal proceedings is not known. Mr De Simone contends that while the rights in s 25 are expressed to apply to persons charged they must be construed ‘to apply prospectively to persons who are under investigation’. I am not persuaded that there is any warrant for rewriting s 25 in the manner contended by Mr De Simone. The circumstances in which words will be implied into legislation are rare and this case does not meet any of the accepted circumstances .

Oh man. There’s no ‘rewriting s 25’ going on here (as opposed to in Sabet, where Hollingworth wrote the heading into otherwise unambiguous provisions.) Rather, De Simone is correctly arguing that ‘charge’ in human rights provisions is not a technical procedural term (as it is used in Victoria in non-Charter settings), but rather a term of substance. A bevy of European judgments say that ‘charge’ should include any significant official investigation, even if no formal proceeding has commenced.  The technical term is that ‘charge’ has a meaning that is autonomous, i.e. independent of local technical terms. Surely, people’s rights shouldn’t depend on a technical question of whether a particular proceeding has crossed a line defined by the state?

And there’s an even deeper problem with Ross’s approach. The Charter s. 32 question isn’t whether or not a provision ‘limits’ someone’s existing rights, but whether or not a provision is ‘compatible with’ those rights. It doesn’t seem too big a leap to say that a provision that harms a person’s future rights is ‘incompatible with human rights’. Ross, alas, seems a little too keen to shoot down De Simone’s arguments, daft and sensible. Isn’t that sort of conduct that led Ross to boot Young off the case?

And, also, what about De Simone’s rights in the civil proceeding? Recall that Flugge’s stay action succeeded in part because the pending criminal proceeding would harm his rights to a fair civil one, by both requiring him to split his legal resources and forcing him into difficult tactical choices prompted by the different standard of proof and rules of evidence applicable in the two proceedings. De Simone is in a bigger bind than Flugge, because VCAT can only offer him (use) immunity against self-incrimination, whereas everything Flugge said in his ASIC civil proceeding would have gotten him (use) immunity. Alas, Ross just batted the argument away:

In relation to the fairness of the civil proceeding I am not persuaded that s 24(1) of the Charter adds anything, given that the VCAT Act already requires that the Tribunal act fairly and that it is bound by the rules of natural justice . Implicit in the notion of a fair hearing is that fairness extends to all parties. Such a concept is inherent in the balancing exercise reflected in the McMahon v Gould guidelines.

This is exactly the sort of non-analysis I feared in my evidence law paper. The fact that fairness involves questions of balance and that the common law values fairness is an insufficient reason to just assume that every current common law rule purportedly based on fairness is dandy under the Charter. Not only is Charter fairness potentially quite different to common law fairness – international standards and all that – but, as Ross well knows, just about every judge that has looked at McMahon v Gould in the last decade thinks that the case isn’t up to modern fairness standards. Jeez.

Finally, Ross had a look at the Charter s. 6(2)(b) argument. Of course, he didn’t decide whether that (dodgy) argument is a valid one or not. I guess he’ll leave that to Bell, in his umpteen current VCAT matters. Instead, he just dodged the dodgy arugment, dodgily of course:

In the context of this case s 6(2)(b) does not add anything further to that which has been discussed in the context of the interpretation mandate. The rights said to be enlivened are the right to a fair hearing and the rights in s 25. For the reasons given I am not persuaded that the application of the Charter in the circumstances of this case warrants any change in the McMahon v Gould guidelines. I now turn to consider the application of those guidelines to this case.

Well, in one sense this follows from Ross’s dodgy Charter ss. 24 and 25 arguments. But he seems to miss the point that Charter s. 6(2)(b)’s importance is in overriding Charter s. 4(1)(j) (not to mention Charter s. 49(3)), thus arguably bringing some sort of conduct mandate to bear on courts and tribunals. It seems to me that this argument therefore isn’t about whether or not a law is compatible with the Charter, but whether or not the way a court administers the law is compatible with the Charter.  (I can’t get too excited about this issue, given that I think Charter s. 6(2)(b) is basically a typo and that its supposed extended effects are tellingly vague.)  That may have consequences for how a court weighs up the various McMahon v Gould factors. The fact that, in contrast to Flugge, De Simone’s stay application was dismissed by Ross in what struck me as a fairly unfriendly reading of the various factors underlines this concern.

All up, I’ve got mixed feelings about this case. On the one hand, I’m thrilled to see so much discussion of the operative provisions and relatively little dodging based on the Charter’s unfortunate gaps and exemptions or a hand-waiving reliance on ‘reasonableness’. This is the sort of discussion I had naively thought would be the norm in the first few months of this year. So, its eleven months late, but we’re getting there. But, on the other hand, this case still evinces the ‘Charter changes nothing anyway’ approach that is the mainstay of substantive Charter discussion all this year (and not just in legal proceedings.) If that approach remains, then the Charter will be (at best) just a feel good affair. You have to wonder: if the Charter can’t trigger a rethink of silly old 1982 cases that no-one likes like McMahon v Gould, then what is it good for?

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