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De Simone v Bevnol Constructions and Developments Pty Ltd

De Simone v Bevnol Constructions and Developments Pty Ltd

Case [2010] VSCA 231 13 May 2010

Stay of Proceedings

Jurisdiction

Charter of Human Rights and Responsibilities Act 2006 (Vic)

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

GIUSEPPE DE SIMONE	S APCI 2009 3901
	Plaintiff/Applicant
v
BEVNOL CONSTRUCTIONS AND DEVELOPMENTS PTY LTD & ORS	Respondents

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JUDGES:	REDLICH, MANDIE and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 May 2010
DATE OF ORDERS:	13 May 2010
DATE OF REASONS FOR JUDGMENT:	10 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 231
JUDGMENT BELOW:	[2009] VCAT 888 (Vice-President Judge Ross)

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PRACTICE AND PROCEDURE — Question of law referred to the Supreme Court under s 33 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) — Applicant sought stay of VCAT proceeding on the basis that defending the proceeding might require him to waive his right to silence in future criminal proceedings — Applicant charged with obtaining a financial advantage by deception — Without deciding stay application, VCAT referred question under s 33 of the Charter, namely whether the guidelines in McMahon v Gould (as to staying a civil proceeding in light of a pending criminal proceeding raising same subject) should be revised in light of the Charter — Not a question of law — Question hypothetical as stay application not ruled on, and no findings or statement of agreed facts — Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8, 24, 25 and 33.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff/Applicant	In person
First to Third Respondents	Mr B Reid	Macpherson + Kelley
Fourth Respondent	Mr P Lustig, solicitor	Peter S Lustig
Attorney-General for the State of Victoria as intervener	Mr M Moshinsky SC and Ms E Bennett	Victorian Government Solicitor

REDLICH JA

MANDIE JA
HANSEN JA:

Introduction

On 13 May 2010 we had before us a question referred to the Court by a Vice President of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) under s 33(1) of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’). After hearing argument we determined that it was not appropriate to decide the question referred. Accordingly, for reasons to be provided later, we declined to express an opinion on the question on the grounds that as formulated:

(a) it was not a question of law; and
(b) it was inappropriate to express an opinion on the question.

We now state our reasons for declining to express an opinion on the question referred.

Section 33(1) of the Charter provides:

Referral to Supreme Court
(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.

On 13 June 2009, pursuant to s 33, a Vice President of the Tribunal referred the following question to the Supreme Court for determination:
Given that…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading De Simone v Bevnol Constructions and Developments Pty Ltd

Details

AGLC: De Simone v Bevnol Constructions & Developments Pty Ltd [2010] VSCA 231
Case: [2010] VSCA 231
Decision Date: 13 May 2010

CaseChat Overview and Summary

In the matter of De Simone v Bevnol Constructions and Developments Pty Ltd, the applicant, De Simone, sought a stay of proceedings in the Victorian Civil and Administrative Tribunal (VCAT) on the basis that defending the proceeding might require him to waive his right to silence in future criminal proceedings. De Simone was charged with obtaining a financial advantage by deception, and the respondent, Bevnol Constructions and Developments Pty Ltd, was seeking to recover unpaid invoices for work done on a construction project. The dispute centred on whether the stay application should proceed in light of De Simone’s criminal proceedings.

The legal issue before VCAT was whether to stay the proceeding in light of De Simone's criminal charge and his concern that defending the proceeding might require him to waive his right to silence. VCAT referred the matter to the Supreme Court under section 33 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), asking if the guidelines set out in McMahon v Gould should be revised in light of the Charter. The Supreme Court needed to determine if the question posed was a question of law and whether it was appropriate to revise the guidelines in the context of the Charter.

The Supreme Court found that the question referred was not a question of law, as it was hypothetical and did not involve a ruling on the stay application itself. The Court noted that there were no findings or a statement of agreed facts, and thus the question was not suitable for referral under section 33 of the Charter. The Court concluded that the guidelines in McMahon v Gould did not need revision in light of the Charter, as the existing guidelines adequately balanced the rights of the parties involved in both civil and criminal proceedings. The Supreme Court declined to revise the guidelines and found that the question was not a proper question of law for referral.

The Supreme Court did not grant a stay of the VCAT proceeding but found that the question referred was not a suitable question of law under the Charter. The matter was to be returned to VCAT for further consideration.

Orders