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. Continue reading

The alienable right to drive

Losalini Rainima has just completed a nine-month stint in a NSW prison for driving without a valid licence. This surprising punishment is the result of her of her refusal to accept conditional bail or, following her lengthy remand in custody, a good behaviour bond, or, following her sentence, the conditions of parole. Her refusal in each case was, I assume, for the same reason as her refusal to accept NSW’s driving licence regime. As she told her magistrate:

God has given me a right that is given to me, it’s within me. … I have a right of passage. I have a right of movement. All living things are given graces; the birds fly, the fish swim, the kangaroo hops, and I’ve been given the graces to drive.

She speaks, of course, of a right that Victorians have under the Charter, albeit given to them not by God but by the Victorian parliament:

12 Every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it and has the freedom to choose where to live.

Appeals to divine law typically fall on deaf ears in courts, but her appeal was accompanied by s78B notices. There, she had the assistance of members of UPMART.

What is UPMART? Curiously, those members told Hidden J that UPMART wasn’t an acronym – perhaps it’s a discount chain? – and declined to say what the name meant. However, the arguments put in their s78B notice were curiously similar to those on the website of a Victorian organisation also called UPMART. Its site offers over twenty phrases spelt out with the letters U, P, M, A, R, T including ‘Unity Pulse of Marriage Assented by Rite of the Trinity’, ‘Universal People Measuring Abundance in Real Time’ (a variation of Time and Relative Dimensions in Space?) and, at the top of the list, ‘United People Movement Against Road Tolls’. They also offer quite a bargain: a driver’s licence that is immune to both fines and tolls and lasts for life. The catch: it’s not offered by VicRoads, but rather the common law. Indeed, the site contains this disclaimer:

PLEASE NOTE the initiatives of UPMART are based on the opinions of some of the members of UPMART, who are not legally qualified, but whose opinions are based on their knowledge of common law, constitutional law, natural law and bible codified common law. The initiative of common law vehicle registration is the most controversial of the initiatives and is presently not recognised by the laws of the states and Territories, and persons participating in this initiative may be exposed to prosecution under the laws of the state or Territory. It is alleged that this initiative is in conflict with State Statutes. Likewise other initiatives also challenge State and Territory laws.

UPMART’s lawyers may well find some surprising comfort, in relation to their views on the inalienability of the common law from state legislation, in the view of Victoria’s Solicitor-General, Pamela Tate, which has protected the common law from being affected by one state statute, the Charter.

Alas, UPMART’s support did not win the day for Ms Rainima. In Rainima v Magistrate Freund [2008] NSWSC 944, Hidden J held:

As I understand it, a distinction is sought to be made between a challenge to the validity of the relevant legislation, on the one hand, and an assertion that the State does not have the power to deny an inalienable right, on the other. For the purpose of this case, however, the distinction is illusory. Either the driver licensing legislation is valid or it is not. If it is, all of us, including the plaintiff, are bound by it and no inalienable right resides within any of us to free us from the obligations which it imposes. Driver licensing is governed entirely by statute, and there is no such thing as a licence “pursuant to common law”. No credible challenge has been mounted to the legislation and there the matter must end.

But that’s nasty NSW. Why doesn’t UPMART bring a similar action in Victoria, where there is a distinction between parliamentary sovereignty and human rights?:

36(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

There are a couple of catches though: Continue reading

The right to Hinch

Maybe a sex offender won’t be the first person to challenge Victoria’s Serious Sex Offender Monitoring Act. Here’s the alternative:

Victoria Police will investigate whether outspoken broadcaster Derryn Hinch should be charged for revealing the names of two protected sex offenders. The Office of Police Prosecutions (OPP) is referring the matter to police after Hinch named the two men during a rally on the steps of the Victorian parliament on Sunday.

If Hinch is charged, he will simultaneously bring himself within the terms of this provision of the SSOMA:

42(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order…(c) that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified- must not be published except in the manner and to the extent (if any) specified in the order.

(3) A person must not publish or cause to be published any material in contravention of an order under this section. Penalty:…120 penalty units or imprisonment for 1 year…

and these Charter provisions:

33(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter…. that question may be referred to the Supreme Court…

36(1) This section applies if-  (a) in a Supreme Court proceeding 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; or (b) the Supreme Court has had a question referred to it under section 33…

(2) Subject to any relevant override declaration, if in a proceeding the Supreme Court is of the opinion that a statutory provision cannot be interpreted consistently with a human right, the Court may make a declaration to that effect in accordance with this section.

This development raises two questions, one mildly interesting, one more interesting.

The mildly interesting question is whether a court will make the declaration. Hinch could argue both freedom of expression and protection of children, but you’d have to say that he has the odds stacked against him when it comes to a Charter s7(2) analysis, given the threat of vigilantism posed by… the sort of people who listen the Hinch. Perhaps, there’ll be a narrow interpretation of the words ‘public interest’ in the SSOMA. Perhaps.

The more interesting question is whether a court will, as a matter of discretion,l refuse to even consider making a declaration because of Hinch’s apparent agenda of deliberately breaching the law so that he can be prosecuted under it. Continue reading