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
a
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. Continue reading