De Simone v Bevnol Constructions and Developments Pty Ltd

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.