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De Simone v Bevnol Constructions and Developments Pty Ltd (No 2)

De Simone v Bevnol Constructions and Developments Pty Ltd (No 2)

Case [2010] VSCA 348 17 December 2010

Jurisdiction

Costs

Abuse of Process

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 and HANSEN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 September 2010
DATE OF JUDGMENT:	17 December 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 348
JUDGMENT BELOW:	[2009] VCAT 888 (Vice President Judge Ross)

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PRACTICE AND PROCEDURE — Tribunal purported to refer question of law to Supreme Court under s 33 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) — Not a question of law — Inappropriate to answer — Application by respondents for indemnity certificate in respect of costs — Question referred not a case stated or special case within meaning of Appeal Costs Act 1998, s 19(1) — Certificate refused.

APPEARANCES:	Counsel	Solicitors
The Plaintiff/Applicant	In person
First to Third Respondents	Mr B Reid	Macpherson + Kelley
No appearance by the Fourth Respondent
Attorney-General for the State of Victoria as intervener	Ms E Bennett	Victorian Government Solicitor

REDLICH JA

HANSEN JA:

When the Court handed down its judgment on 10 September 2010,[1] counsel for the first to third respondents (collectively referred to as ‘Bevnol’) applied for a certificate under the Appeal Costs Act 1998 (‘the AC Act’) on the basis that the referral to the Court of a question of law under s 33 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) was a case stated or special case within the meaning of s 19(1)(a) or (b) of the AC Act. After hearing some submissions we directed that Bevnol and the Attorney-General file written submissions on the basis that we would give our ruling without the need for a further appearance. The parties concurred in that course and in our determining the application, the third member of the Court (Mandie JA) being unavailable when judgment was handed down.
[1][2010] VSCA 231 (Redlich, Mandie and Hansen JJA).

Background

A Vice President of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) had referred to the Court a question under s 33(1) of the Charter.To recapitulate, s 33(1) provides that:
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.
The reference occurred in a proceeding in the Tribunal in which Mr De Simone was a respondent to a counter-claim brought by Bevnol. It was Mr De Simone who sought the reference to the Court of the issue in the question referred. The question referred was set out in the Tribunal’s order, thus:

The following question is referred to the Supreme Court for determination pursuant to s…

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.

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Details

AGLC: De Simone v Bevnol Constructions and Developments Pty Ltd (No 2) [2010] VSCA 348
Case: [2010] VSCA 348
Decision Date: 17 December 2010

CaseChat Overview and Summary

The respondents, Bevnol Constructions and Developments Pty Ltd, sought an indemnity certificate in respect of costs incurred in their appeal to the Court of Appeal against a decision of the Victorian Civil and Administrative Tribunal. The appeal related to a dispute involving the applicant, De Simone, who had sought to have a number of planning permits quashed. The respondents argued that the Tribunal had improperly referred a question of law to the Supreme Court under s 33 of the Charter of Human Rights and Responsibilities Act 2006 (Vic), and that the Supreme Court should not have answered the question as it was not a question of law. The respondents sought an indemnity certificate in respect of the costs incurred in the appeal.

The primary legal issue before the Court was whether the question referred by the Tribunal to the Supreme Court was a question of law, and if so, whether the Supreme Court was correct to answer it. The Court also considered whether the question referred was a case stated or special case within the meaning of s 19(1) of the Appeal Costs Act 1998, which would entitle the respondents to an indemnity certificate.

The Court found that the question referred by the Tribunal was not a question of law, and that the Supreme Court was therefore not appropriate to answer it. The Court held that the question was not a case stated or special case within the meaning of the Appeal Costs Act 1998, and that the respondents were not entitled to an indemnity certificate in respect of the costs incurred in the appeal. The Court found that the question referred was a matter of fact and discretion, rather than a question of law, and that the Supreme Court had acted outside its jurisdiction in answering it. The Court concluded that the respondents were not entitled to an indemnity certificate in respect of the costs incurred in the appeal, as the question referred was not a case stated or special case within the meaning of the Appeal Costs Act 1998.

Orders