De Simone v Bevnol Constructions and Developments Pty Ltd (No 2)
[2010] VSCA 348
•17 December 2010
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 33 of the [Charter] –
Given that the Tribunal has an implied statutory power to stay a civil proceeding, whether the McMahon v Gould guidelines applicable to that power should be revised in light of the Charter of Human Rights and Responsibilities Act 2006, and in particular ss 24 and 25 of that Act, and, if so, how?
The particular circumstances that gave rise to the question were that Mr De Simone had been charged with certain offences that arose out of matters the subject of the counter-claim against him. He had sought from the Tribunal a stay of the proceeding against him until the determination of the criminal charges. It was in connection with, and for the purpose of aiding the resolution of, that application that the Vice President referred the question to the Court.
The Court determined that it was not appropriate to decide the question referred, it not being a question of law and it being inappropriate to express an opinion on the question.
Appeal Costs Act
Section 19(1) of the AC Act provides that:
If in any proceeding—
(a) a case is stated for the opinion or determination of a superior court on a question of law; or
(b) a question of law is reserved in the form of a special case for the opinion of a superior court—
any party to that proceeding other than a party who is or represents the Crown, may apply to the superior court for, and the court may grant, an indemnity certificate in respect of the costs that the party has incurred in respect of the proceeding on the case stated.
The expression ‘case stated’ is defined in s 3(1) of the AC Act as meaning:
(a) a case stated for the opinion or determination of a superior court on a question of law; or
(b) a question of law reserved in the form of a special case for the opinion of a superior court.
The expression ‘special case’ is not separately defined. It is to be noted that ‘appeal’ is defined; relevantly it does not include a case stated.
Section 33(1) of the Charter does not refer to a case stated or special case; rather, it authorises reference to the Court of a question of law relating to the application of the Charter or a question with respect to the interpretation of a statutory provision in accordance with the Charter, in each case being a question that has arisen in a proceeding.
Submissions
Bevnol’s submissions may be summarised as follows, commencing with its initial written submission. It was submitted that a referral pursuant to s 33 was a ‘case stated’ within the meaning of the definition in s 3(1) of the AC Act. Support for this submission was said to be found in the following:
(a) the phrase ‘opinion … of a superior court’ in the definition in s 3(1) was consistent with the power of the Court to make a declaration of inconsistency under s 36 of the Charter; and
(b) as to the phrase ‘question of law’ in s 33(1), there was no provision in the Charter and no reference in Hansard that suggested that the determination by a superior court of a referral pursuant to s 33(1) upon a ‘question of law’ was a different procedure to the one contemplated by s 19 of the AC Act. Essentially, the phrase had the same meaning in s 33(1) and s 19.
Counsel also referred to and relied upon Eureka Funds Management Ltd v Freehills Services Pty Ltd (No 2);[2] DPP v Sher (No 2);[3] and DPP v Norman (Costs Order).[4] Finally, the submission noted that between December 2009 and February 2010 Bevnol’s solicitors had endeavoured to have included in the Reference Book for the Court of Appeal additional material that ‘would provide a factual context’ to the referral. Relevant correspondence pertaining to this point was exhibited to an affidavit.
[2][2008] VSCA 177, [8]-[9].
[3][2000] VSC 350, [52].
[4][2004] VSC 43, [8].
Then, pursuant to the Court’s orders, first the Attorney-General and then Bevnol filed a written submission. As Bevnol adopted a deal of the Attorney-General’s submissions it is convenient to commence with reference to the latter.
Noting that a case stated is a procedure that enables a court or tribunal in the course of a proceeding to submit to a superior court for its opinion a question of law which arises ‘from the facts stated in the case’[5] and that a special case should specify the question to be determined by the court and set out the facts in chronological order as concisely as possible,[6] the Attorney-General submitted that:
In principle, a referral under s 33 of the Charter could adopt the form of a case stated or a question of law reserved in the form of a special case and thus satisfy the requirements of s 19 … There is no textual or policy reason to exclude a question referred under s 33 of the Charter from the ambit of s 19 … provided the requirements of that provision are satisfied.
However, the submission continued:
In the present case it seems clear that no case was stated as described in s 19(1)(a). No facts were set out as would be expected in a case stated. Likewise, the question of law was not reserved in the form of a special case. Accordingly, the present referral did not fall within s 19(1)(a) or (b).
[5]DPP v Norman (Costs Order) [2004] VSC 43; Industrial Equity Ltd v Commissioner for Corporate Affairs [1990] VR 780.
[6][1990] VR 780, 782-3.
In Bevnol’s further submission, Bevnol adopted and supported the Attorney-General’s submissions with the exception of the ultimate conclusion that the referral did not fall within s 19(1)(a) or (b). Contrary to the Attorney-General, Bevnol submitted that the reference did fall within s 19(a) or (b). Bevnol’s submission may be summarised as followed.
Section 19 was introduced to overcome the anomaly identified by the Court of Appeal in Mason v Mason (No 2).[7] That ‘anomaly’ concerned the requirement in the former Appeal Costs Act 1964 of there having been a decision by the court below. It was further submitted that the Attorney-General’s submission that s 19(1) was not applicable involved an erroneous assertion that in order to qualify for a certificate under s 19(1) the matter referred to the Court must be accepted as an appropriate referral, both as to form and content. That would require the Court to read into s 19(1) a requirement of either success or a decision having been made by the court or tribunal which ordered the reference. That would be contrary to the anomaly raised by Callaway JA in Mason and contrary to the express wording of s 19(1) which was included in the Appeal Costs Act 1998 to resolve that anomaly.
[7][1997] 1 VR 627.
There is no substance in these submissions of Bevnol. That is for several reasons. First, the anomaly with which Mason was concerned has nothing whatever to do with the present case. Secondly, the Attorney-General’s submission did not rest on an erroneous assertion, as distinct from recognising that to enliven s 19(1)(a) or (b) the reference had to be a case stated or special case.
Bevnol submitted further that the outcome of the reference was not determinative of the application of the AC Act. Section 19(1) applied if the clear intention of the Tribunal was to refer a question of law to the Court by way of a case stated or special case. It was clear from the decision of the Vice President that he intended to refer the matter by way of case stated on a question of law. That being so, s 19(1) was enlivened.
Finally, Bevnol referred to O 5 and O 23 in Chapter II of the Rules.[8] We refer to these rules below.
[8]Supreme Court (Miscellaneous Civil Proceedings) Rules 2008.
Decision
The procedures of case stated and special case whereby the opinion of a superior court may be obtained on a question of law have long been known to the law and well before the enactment of s 19 of the AC Act. Over time such procedures have been provided for in legislation and recognised in Rules of Court. See Williams, Civil Procedure, Victoria for a list of legislative provisions[9] and the discussion of the former O 34 R 2 under which the court could direct a question of law to be raised for the opinion of the court by special case and the present O 47 under which the court may similarly order the trial of any question in a proceeding.[10]
[9]Vol 1, par [I 64.01.165].
[10]At [I 47.04.25].
It is long since established, subject of course to the requirements of any particular statute, that in the case of each procedure it is essential that the ‘case’ state the decision (if any) below, the question and the ultimate facts found by the court below, including those found by inference, but not the evidence upon which the ultimate facts were found. Many authorities may be referred to but the following are sufficient, R v Rigby[11] (case stated); Woolf v City of Camberwell[12] (special case); Duncan v Lambeth London Borough Council[13] (special case); City of Hawthorn v Victorian Welfare Association[14] (special case); Industrial Equity Ltd v Commissioner for Corporate Affairs[15] (case stated) and R v Assange[16] (case stated). In Assange, Hayne JA observed that:
The thread that runs through all the authorities to which I have referred is that the court to whom the case is stated must confine itself to the facts that are stated and to the questions that are reserved. As a general rule, the court is not at liberty even to draw inferences from the facts that are stated.[17]
[11](1956) 100 CLR 146, 149-152.
[12][1931] VLR 162.
[13][1968] 1 QB 747.
[14][1970] VR 205, 206.
[15][1990] VR 780, 782-3.
[16][1997] 2 VR 247.
[17]Ibid 253.
Thus, when Parliament enacted the 1998 AC Act and included the above references to case stated and special case it did so in the context of a well known understanding and usage of those procedures. There is nothing in the AC Act that would indicate that it was not to those procedures as understood that s19(1)(a) and (b) and the definitions in s 3(1) referred. Section 19 did not create new procedures. Rather, s 19(1) referred to existing and well understood procedures. Gillard J expressed the same conclusion in DPP v Sher (No 2).[18] We agree with respect with a further statement of Gillard J that that conclusion is reinforced by the definition of ‘appeal’ in s 3 of the AC Act.
[18][2000] VSC 350, [46].
The power to refer a question of law in s 33(1) of the Charter is not expressed as a power to state a case or a special case. It is rather a discretionary power to refer a question of law of the type mentioned in the section. If a question is referred the court or tribunal referring the question must not make a determination to which the question is relevant while the referral is pending (s 33(2)(a)).
Chapter II of the Rules contains rules that pertain to referral under s 33 of the Charter to the Trial Division (O 23), to a case stated by a tribunal (O 5) and reference by a tribunal of a question of law (O 6). Orders 5 and 6 are expressed as not applying to a referral under s 33 of the Charter. It is instructive to note the provisions of these rules.
Order 23 requires that when a court or tribunal makes a referral to the Trial Division of the Court the applicant (being the party who made the application for referral) shall implement that referral by filing an originating motion and a summons for directions. That was done in this case. Rule 23.06 provides that the Court may (among other things) require any party to provide such information, and in such form, as the Court thinks necessary to enable the Court to give proper consideration to the question referred to it, give directions with respect to the filing and serving of affidavits or any other material verifying the facts relating to the question referred to the Court, and give any other directions for the conduct of the proceeding which the Court thinks conducive to its effective, prompt and economical determination. Under O 23 information and evidence may be required by the Court subsequent to the reference whereas with a case stated or special case the facts are required to be set out in the statement of the case referred for consideration.
Order 5 is applicable where by any Act provision is made for a question of law to be reserved in the form of a special case or case stated for the opinion of the Court by a person or body other than a court (Rule 5.01(1)). The balance of O 5 contains provisions for, and requiring, the preparation of the special case (which includes a case stated) (Rule 5.03), its delivery to the Prothonotary (Rule 5.07), and further provides that upon the hearing of the special case the Court or a party may refer to the whole contents of any document referred to in the special case (Rule 5.08).
Order 6 is applicable where by any Act provision is made for a question of law to be referred to the Court by a person or body other than a court. As mentioned above, this Order (and O 5) does not apply to a referral under s 33 of the Charter. Rule 6.02 provides that a question of law shall be referred to the Court in accordance with O 5 which shall apply to the reference as if (a) reserving a question of law in the form of a special case or case stated meant referring a question of law to the Court, and (b) as if ‘the special case’ meant the reference, and with such further or other modifications as may be necessary. Hence in the case of a reference other than under s 33 a special case is required to be prepared by the tribunal as provided in O 5.
It is appropriate at this point to refer to submissions of Bevnol concerning O 5 and O 23. Bevnol submitted that the exclusion from O 5 of referrals under the Charter was not intended to remove such referrals from the ambit of s 19 of the AC Act. That was for the following reasons. Order 23 allowed ‘a very broad and unregimented procedure for dealing effectively with each referral’. A proper reading of O 23 revealed that a ‘case stated’ procedure is within its scope. Consequently, referrals pursuant to O 23 were within the ambit of s 19. It was further submitted (as mentioned earlier) that the Vice President intended to refer the matter on a case stated basis, and that the failure to do so in the present case was a mere failure of ‘procedural timing’. That is, the intent was to refer the question on a case stated basis, but the ‘case stated’ or the agreed set of facts upon which the question was to be determined, was to be concluded at a later time via the power provided to the Court by Rule 23.06. The failure to take advantage of the powers in Rule 23.06 should not remove the proceeding from the ambit of s 19.
There are several points to be made concerning these submissions. The first is that the proper interpretation of s 19(1) of the AC Act is not determined by a rule of court.
Secondly, the exclusion of s 33 referrals in O 5 and O 6, and the separate and distinct provision for such referrals in O 23 reflects an appreciation that a referral under the Charter may and likely will raise issues of a wider nature, including for instance of public administration, than arise in ordinary party/party litigation. Hence the provision for the Attorney-General to intervene, which intervention will occur in the hearing of the reference. In these circumstances it is readily evident why O 23 is structured as it is. It may not be possible to identify the relevant facts required for determination of the reference until it is in the Court. Hence the provisions for obtaining information and affidavits.
Thirdly, assuming (without deciding) that a referral under s 33 can be made in the form of a case stated or special case, whether a reference was in fact in either form and such as to fall into s 19(1)(a) or (b) would depend on the terms of the reference objectively considered.
Fourthly, thus considered the present reference purported to be the reference of a question of law pursuant to s 33. The order of the Tribunal did no more than order the referral of the question. The order did not state facts as is required in a case stated or special case, let alone the decision of the court or tribunal below. In this case the Vice President did not decide Mr De Simone’s application for a stay, and hence had not for the purpose of determining that application engaged in a fact finding exercise. By no stretch could the order itself be considered a case stated or special case. It is true that the Vice President’s reasons for ordering the referral referred to background matters and explained why he decided to refer the question he settled upon. But, even assuming that the reasons could be read with the order, as though part of the reference, the reasons do not constitute a statement of facts for the purpose of determining the question. In these circumstances the question was hypothetical, as we pointed out in the course of argument at the hearing. It follows that the referral was not a case stated or special case within the meaning of s 19(1)(a) or (b).
Fifthly, there is no basis for Bevnol’s submission that the Vice President intended that his referral would by reason of orders made subsequently pursuant to O 23, become a case stated or special case. The submission is fanciful speculation. Moreover, such orders as were made could not be said to have had the effect of changing the character of the referral to a case stated or special case. In any event, we did not understand Bevnol to have so submitted.
For these reasons, in our view the reference was not a case stated or special case within the meaning of s 19(1)(a) or (b). It follows that it is not open to grant a certificate under s 19. Accordingly, the application for an indemnity certificate pursuant to that section is refused.
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