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

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.