Matsoukatidou v Yarra Ranges Council

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 04972

MARIA MATSOUKATIDOU	Plaintiff
v
YARRA RANGES COUNCIL	Defendant

S CI 2014 04973

BETTY MATSOUKATIDOU	Plaintiff
v
YARRA RANGES COUNCIL	Defendant

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 & 26 June, 24 July and 21 October 2015
DATE OF JUDGMENT:	28 February 2017 (revised 25 May and 19 October 2017)
CASE MAY BE CITED AS:	Matsoukatidou v Yarra Ranges Council
MEDIUM NEUTRAL CITATION:	[2017] VSC 61

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CRIMINAL LAW – judicial review – practice and procedure – applications before judge in County Court OF Victoria for orders reinstating struck out appeals from sentences of Magistrates’ Court of Victoria – applicants self-represented – whether judge ensured fair trial by giving them due advice and assistance – relationship between that duty and human rights to equality and fair hearing – equal access to justice – Criminal Procedure Act 2009 (Vic) s 267(3), Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 8(3) and 24(1), Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56.

HUMAN RIGHTS – equality – fair hearing – equal access to justice – daughter and mother sentenced in Magistrates’ Court for offences – appeals to County Court struck out – applications made for orders reinstating appeals – applicants self-represented – daughter an invalid pensioner with disability and mother her carer – applications dismissed – human rights applying to hearings in court and tribunals – application and scope of procedural dimension of right to equality – application and scope of right to fair hearing – whether judge made adjustments and accommodations to hearing procedure to ensure daughter did not suffer discrimination by reason of disability – whether judge ensured that daughter and mother effectively participated in and thereby obtained fair hearing – ‘equality of arms’ – Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 6(2)(b), 8(3) and 24(1).

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APPEARANCES:	Counsel	Solicitors
For the plaintiffs	Mr L Howson (18 June 2015) Ms E Tadros (24 July 2015) Ms K Evans with Ms E Tadros (21 October 2015)	Colin Biggers & Paisley
For the defendant	Mr P Lawrie	Goddard Elliott Lawyers
For the Attorney-General	Ms S Fitzgerald (24 July 2015) Ms M Richards SC with Ms S Fitzgerald (21 October 2015)	Victorian Government Solicitor’s Office

HIS HONOUR:

INTRODUCTION

Yarra Ranges Council charged Maria Matsoukatidou and her mother Betty with committing certain offences against the Building Act 1993 (Vic) arising out of their failure to secure and demolish their home after an arsonist burnt it down. At the hearing of the charges in the Magistrates’ Court of Victoria, they appeared self-represented. Maria was fined without and Betty was fined with conviction.

Maria and Betty appealed to the County Court of Victoria under the Criminal Procedure Act 2009 (Vic) but the appeals were struck out for non-attendance. Believing that they had good explanations, they applied to the County Court for orders reinstating the appeals. While the matters were not urgent, the registry of the court notified them that their applications would be heard the next day.

At this hearing also Maria and Betty appeared self-represented. The judge dismissed the applications without explaining to them the procedure that would be followed or the legal test that would be applied. Maria, a disability pensioner with a learning disability, and Betty, her daughter’s carer and whose first language is not English, struggled to give their explanations and the judge gave them only limited assistance. The hearing was conducted quickly, confused in relation to important background facts and not fully understood by Maria and Betty.

Under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), Maria and Betty now seek judicial review in this court of the orders of the judge. They contend that, in the way that the hearing was conducted, his Honour failed to ensure their human rights to equality under s 8(3) and a fair hearing under s 24(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic). The case raises important questions about the obligation of courts and tribunals to ensure equal access to justice for self-represented parties in matters of practice and procedure and the conduct of hearings.

Pursuant to s 35(1)(a) of the Charter, notice was given that the following questions of law arose in in the proceeding:

(1)Whether the County Court of Victoria was obliged to comply with ss 8 and 24(1) of the Charter in relation to the conduct of the hearing ...

(2)If so, whether that court was obliged … to conduct the hearing in a manner, and if so what manner, that took into due account that the [plaintiffs were] self-represented.

Submissions were made on behalf of Maria and Betty and the Attorney-General in relation to those questions.

CRIMINAL PROCEEDINGS AGAINST MARIA AND BETTY

The fire occurred on 26 August 2012. The house that was destroyed was Maria and Betty’s home and located at 132 Belgrave-Ferny Creek Road, Tecoma.

The orders under the Building Act were issued by the Council shortly afterwards on 13 September 2012. An ‘emergency’ order was issued under s 102 and required Maria and Betty to secure the building. A ‘minor’ works building order was issued under s 113 and required them to carry out demolition and other work.

After Maria and Betty failed to carry out the required works, an officer of Yarra Ranges Council issued a charge and summons dated 13 March 2013 against them specifying two offences under s 118(1) being the offences of failing to comply with the emergency order (charge 1)[1] and failing to comply with the minor works order (charge 2).[2]
[1]As described in the charge against Betty, this was that:
1.The accused on the 16^th of September 2012 and continuing being the owner of land situated at 132 Belgrave—Ferny Creek Road Tecoma, in the municipality of Yarra Ranges Council, did commit an offence, namely that she (being a person to whom an Emergency Building Order dated 13^th of September 2012 and issued under section 102 of the Building Act 1993 was directed) did fail to comply with the terms of that Order, contrary to the provisions of section 118 of the Building Act 1993)…
Charge 1 against Maria was expressed in the same terms.
[2]As described in the charge against Betty, this was that:
2.The accused on the 13^th of November 2012 and continuing being the owner of land situated at 132 Belgrave—Ferny Creek Road Tecoma, in the municipality of Yarra Ranges Council, did commit an offence, namely that she (being a person to whom a Minor Works Building Oder dated 13^th of September 2012 and issued under section 113 of the Building Act 1993 was directed) did fail to comply with the terms of that Order, contrary to the provisions of section 118 of the Building Act 1993.
Charge 2 against Maria was expressed in the same terms.

The damage done to Maria and Betty’s home in the fire rendered them homeless and they had to obtain alternative accommodation. When the charges were issued in March 2013, they were living in rented premises at 20 Dean Avenue, Mount Waverly. Because they were no longer living at the Belgrave-Ferny Creek Road address, they could not be served there. Copies of the charges were sent to them by mail to the Dean Avenue address, which they received and acted upon.

The charges were issued in the Magistrates’ Court at Ringwood. There were mention hearings on 4 July and 24 October 2013. Maria and Betty attended but were not represented at these hearings. At a hearing on 15 November 2013 and as recorded in a certified court extract dated 19 December 2013, each of them pleaded guilty to charge 2. Charge 1 was withdrawn. Again, they attended but were not represented at this hearing.

The two proceedings were adjourned for a month on the undertaking of Betty to comply with the order. When that was not done, just before Christmas on 19 December 2013 and in the absence of Maria and the presence of Betty (who was not represented), the magistrate imposed penalties upon them both, without conviction in relation to Maria[3] and with conviction in the case of Betty.[4]
[3]The order in relation to Maria was:
[4]The order in relation to Betty was:

From the certified extracts of the court, the orders convicting Betty and imposing fines on Maria and Betty were for committing ‘a breach of Act 93/126.118.1’ (the Building Act) which makes it an offence to fail to comply with an emergency order or a building order. From the orders, the magistrate, separately and additionally to imposing penalties for non-compliance with the building order, made orders under s 253(2) of the Act requiring them to demolish the fire damaged building and carry out the other required minor building works and, in default, authorising Yarra Ranges Council to do so.

By notice of appeal dated 2 January 2014 (County Court reference AP-14-0002), Betty appealed under s 254(1) of the Criminal Procedure Act to the County Court against the conviction and sentence imposed by the magistrate. The notice, which Betty signed, specified an appeal hearing date of 15 April 2014. The notice of appeal specified both offences as ‘FAIL TO COMPLY WITH BUILDING ORDER’, stating the first so described to be ‘Struck out – Withdrawn’ and the second (identically so described) as attracting the conviction and penalties set out above. The notice gave Betty’s address for personal service as ’20 DEAN AVENUE, MOUNT WAVERLEY 3149 VIC’ (which was the correct address at time). It specified the reasons for the appeal as ‘the appellant is not guilty’.

By application also dated 2 January 2014, Maria made application to the magistrate for a rehearing. The application was signed by her and described the offences and penalties in the same terms as the certified extracts already referred to. Maria specified the grounds of the application to be:

The order was made in the absence of the accused. The reason for the accused’s non-attendance was:
I WASN’T THERE BECAUSE I WAS SICK AND HAVE A MEDICAL CERTIFICATE. AND I WISH TO PLEAD NOT GUILTY AND I CAN’T AFFORD THE COSTS IMPOSED IN THIS MATTER AS I AM A STUDENT.

Maria’s application for a rehearing was heard in the Magistrate’s Court at Ringwood on 20 February 2014. The magistrate refused the application and Maria was ordered to pay $450.00 costs.

On the same day, Maria issued two appeals under s 254(1) of the Criminal Procedure Act to the County Court. The first (reference AP-14-0332) was an appeal against the orders by way of fine without conviction and costs made by the Magistrate’s Court on 19 December. The second (reference AP14-0367) was an appeal against orders by way of refusing her application for rehearing and costs made by that court on 20 February 2014. The notices, which Maria signed, both specified an appeal hearing date of 13 May 2014. The notices also gave 20 Dean Avenue, Mount Waverley as Maria’s address for personal service (which was the correct address at the time).

As can be seen, because Betty had appeared at the hearing before the magistrate on 19 December 2013, she appealed directly to the County Court. Because Maria had not so appeared, she first made an application for rehearing to the Magistrates’ Court. When that was refused, she too appealed to the County Court. Because Maria and Betty’s appeals were issued at separate times, different appeal hearing dates were specified, resulting in the unfortunate and confusing procedural separation of two related appeal proceedings.

Betty’s evidence to this court was that she was with Maria at the Magistrate’s Court at Ringwood on 20 February 2014 when Maria’s application for a rehearing was refused and she appealed to the County Court. Because she wanted her own appeal and Maria’s appeal to be heard together, she asked the registry officer of the Magistrate’s Court to have the appeals listed for hearing in the County Court on the same day, that is, 13 May 2014. She said that the registry officer for the Magistrates’ Court telephoned the County Court and arranged for the two appeals to be listed together as ‘it’s a mother and daughter’. She left the court believing that this would occur.

In fact, Betty’s appeal was heard and determined in her absence on 15 April 2014, the date specified in the notice of appeal. A judge ordered: ‘Appeal struck out – No appearance’. This order was made under s 267(1) of the Criminal Procedure Act. The prosecutor at the Council later told her of that order (see below).

Under a tenancy agreement dated 29 April 2014 and from 6 May 2014, Maria and Betty moved from the Deans Avenue address to new rented premises at 120 Berwick Springs Promenade, Narre Warren South. According to the evidence given by Betty in this court, they instructed Australia Post to redirect all their mail to their new address.

As revealed by a letter dated 9 May 2014 from the solicitors for the Council, Maria and Betty spoke with the Council prosecutor the previous day. They were informed that, in the County Court, Betty’s appeal had been struck out in her absence on 15 April 2014 and that Maria’s appeals were listed for hearing on 13 May 2014. They requested ‘an adjournment to have [the] matters heard together’, apparently thinking that that was still possible. The solicitors for the Council advised them to make that application to the presiding judge.

Maria could not attend the hearing on 13 May 2014 due to ill health. Betty so notified the County Court on 12 May 2014. The hearing was therefore adjourned, as it transpired until 3 September 2014. Maria and Betty maintain that they were not notified of the adjourned date. The evidence reveals that Maria and Betty did not notify the County Court of their new address but that Betty had their mail redirected to that address (see above). Her evidence to this court is that she thought that this would be sufficient to ensure that she would receive any court notifications at her new address. In any event, Maria was also ill on 3 September 2014 and could not have attended that hearing.

So Maria and Betty did not attend the County Court on 3 September 2014. On that day, Maria’s first appeal (reference AP-14-0332) against the orders by way of fine without conviction and costs made by the Magistrate’s Court on 19 December was struck out by a judge (with $9,750 costs), also under s 267(1) of the Criminal Procedure Act. The sentencing and costs orders made by the Magistrate’s Court were confirmed. The evidence does not reveal what if any orders were made in relation to the second appeal. It may still be on foot.

As can be seen, Betty’s appeal was struck out in her absence on 15 April 2014 and Maria’s appeal was struck out in her absence on 3 September 2014. They were informed of the outcome of their appeals but it is not known how and when. It is known that about a week after Maria’s appeal was struck out and on 11 September 2014, they both made application under s 267(3) of the Criminal Procedure Act to the County Court to set aside the strike-out orders. I infer that Betty completed both of the application forms and without legal assistance. The forms required the applicant to specify ‘the grounds that the failure to appear was not due to fault or neglect on the part of the appellant’. Betty wrote: ‘We moved house from 20 Dean Av. Mount Waverly- to 120 Berwick Spring Promenade Narre Warren South 3805: from 6 May 2014’. She wrote to the same effect in Maria’s application. As regards Betty’s application, this was obviously confused, as her appeal had been dismissed in her absence on 15 April 2014 before that move. Her application was clearly made upon the misconceived basis that the relevant appearance date for both her and Maria was 3 September 2014.

In summary:

·Maria and Betty (except as noted below) attended:
·the mention hearings in the Magistrates’ Court at Ringwood on 4 July 2013 and 24 October 2013
·the initial sentencing hearing at the Magistrates’ Court at Ringwood on 15 November 2013
·the final sentencing hearing in the Magistrates’ Court at Ringwood on 19 December 2013 (Betty only)
·Maria’s rehearing application in the Magistrates’ Court at Ringwood on 20 February 2014

·Maria and Betty did not attend:
·the hearing of Betty’s appeal in the County Court of Victoria on 15 April 2014 (relevant only to Betty), which Betty thought, at her request, would be heard at the same time as Maria’s appeal
·the hearing of Maria’s appeal on 13 May 2014, which was adjourned by the court until 3 September 2014 at Maria’s request
·the adjourned hearing of Maria’s appeal on 3 September 2014, of which Maria and Betty received no notice because their mail was not forwarded to their new address as directed

On 11 September 2014 Maria and Betty attended at the County Court to issue an application to set aside the strike-out orders made by the judges. Later on that same day, they and the solicitors for the Shire were notified that the applications for setting aside the strike-out orders would be heard and determined the next day by a judge of the court, that is, on less than one day’s notice. On 12 September, the judge dismissed the applications. The procedure followed by the judge will be discussed in detail below.

It is now necessary to identify the principles under the Charter that govern the hearing and determination of legal proceedings involving self-represented parties, beginning with the general application of the Charter to courts and tribunals.

GENERAL APPLICATION OF CHARTER TO COURTS AND TRIBUNALS

Human rights relating to court and tribunal proceedings

The Charter generally applies to ‘public authorities’ as defined in s 4(1).[5] Section 38(1) obligates a public authority to act compatibly with human rights and give human rights proper consideration when making decisions, subject to contrary legislation (see s 38(2)). Under s 4(1)(j), courts and tribunals are public authorities only when acting in an administrative capacity In that capacity, courts sometimes do but usually do not so act and it is the opposite with tribunals.[6] Under the definition in s 4(1), courts and tribunals are not public authorities and therefore do not have obligations under s 38(1) when acting in a judicial capacity. Accordingly, when the judge in the County Court, acting in a judicial capacity, dismissed Maria and Betty’s applications, his Honour did not have an obligation to apply the Charter under s 38(1).
[5]On the concept of a public authority under the Charter, see generally Metro West v Sudi [2009] VCAT 2025 (9 October 2009) [88]–[141] (Bell J).
[6]On the concept of acting in an administrative capacity under the Charter, see Sabet v Medical Practitioners Board (2008) 20 VR 414, 432–3 [119]–[127] (Hollingworth J) and Kracke v Mental Health Review Board (2009) 29 VAR 1, 68–71 [283]–[298] (Bell J) (‘Kracke’).

However, courts and tribunals have an obligation to apply human rights in the circumstances covered by s 6(2)(b) of the Charter, which provides:

This Charter applies to-

…

(b) courts and tribunals, to the extent that they have functions under Part 2 and Division 3 of Part 3; …

As can be seen, s 6(2)(b) makes the human rights in the Charter generally apply to courts and tribunals ‘to the extent that they have functions under Part 2 and Division 3 of Part 3’ of the Charter, which obligation applies even when they act in a judicial capacity. Part 2 contains the human rights that are protected by the Charter (ss 8-27) and also stipulates a demonstrable justification test for determining when (under law) they may be limited (s 7(2)). Division 3 of pt 3 contains provisions in relation to the interpretation of legislation, including s 32(1). Whether courts and tribunals have human rights obligations under the Charter when acting in a judicial capacity therefore depends on whether, and to what extent, they have ‘functions’ under pt 2 and div 3 of pt 3, as specified in s 6(2)(b).

The scope of the application of s 6(2)(b) to the functions of courts and tribunals under div 3 of pt 3 of the Charter can readily be ascertained because the provisions of that division clearly impose functions upon them. For example, when exercising their judicial and administrative functions, courts and tribunals are regularly required to interpret legislation and the provisions of s 32(1) therefore apply to the performance of those functions.

The scope of the application of s 6(2)(b) to the functions of courts and tribunals under pt 2 of the Charter must be ascertained by properly interpreting this provision.[7] As discussed in Kracke v Mental Health Review Board[8] by reference to a leading text,[9] there are three possible interpretations of s 6(2)(b): the narrow, the intermediate and the broad. As more fully explained by Tate JA in Victoria Police Toll Enforcement vTaha,[10] the narrow interpretation is that the Charter would apply only where the function of the court or tribunal is directly to enforce a specified right; the intermediate interpretation is that the Charter requires a court or tribunal directly to enforce those rights that relate to legal proceedings; the broad interpretation is that the Charter requires a court or tribunal directly to enforce any and all of those rights. After analysing those three possible interpretations, it was concluded in Kracke that the intermediate interpretation is to be preferred. Therefore:

the functions under Pt 2 referred to in s 6(2)(b) are the functions of applying or enforcing those human rights that relate to court and tribunal proceedings.[11]

As submitted on behalf of Maria and Betty and the Attorney-General, this approach appears to be well accepted.[12]

[7]De Simone v Bevnol Constructions & Developments Pty Ltd (2009) 25 VR 237, 247 [51] (Neave JA and Williams AJA) (‘De Simone’), citing Kortel v Mirik and Mirik (2008) 28 VAR 405, 408–9 [12] (Bell J) (‘Kortel’).

[8](2009) 29 VAR 1, 61–4 [241]–[254] (Bell J).

[9]Carolyn Evans and Simon Evans, Australian Bills of Rights (LexisNexis Butterworths, 2008) 12–13.

[10][2013] VSCA 37 (4 March 2013) [246] (Nettle and Osborn JJA not deciding) (‘Taha’).

[11](2009) 29 VAR 1, 63 [250] (Bell J).

[12]See De Simone (2009) 25 VR 237, 247 [52] (Neave JA and Williams AJA), cited with approval in Slaveski v Smith (2012) 34 VR 206, 221 [54] n 27 (Warren CJ, Nettle and Redlich JJA) (‘Slaveski’); DPP v A Mokbel (Orbital & Quills – Ruling No 1) [2010] VSC 331 (5 August 2010) [159] (Whelan J); Secretary, Department of Human Services v Sanding (2011) 36 VR 221, 258–9 [166] (Bell J); Taha [2013] VSCA 37 (4 March 2013) [248] (Tate JA; Nettle and Osborn JJA not deciding); DPP v SL [2016] VSC 714 (29 November 2016) [6] (Bell J) (‘SL’); Application for bail by HL [2016] VSC 750 (13 December 2016) [72] (Elliott J) (‘HL’); DPP v SE [2017] VSC 13 (31 January 2017) [12] (Bell J) (‘SE’). In Momcilovic v The Queen, Crennan and Kiefel JJ said: ‘Some of the rights identified and described in Pt 2 [of the Charter] may require courts or tribunals to ensure that processes are complied with, for example to ensure a fair hearing [under s 24], and that matters guaranteed by the Charter with respect to a criminal trial are provided [s 25]’ ((2001) 245 CLR 1, 204 [525]). In Taha, Tate JA said that these comments ‘appear to implicitly support the intermediate approach’ ([2013] VSCA 37 (4 March 2013) [248] n 281).

Specific rights in issue

In the present case, Maria and Betty rely upon the right to equality in s 8(3) and the right to a fair hearing in s 24(1) of the Charter. It is necessary to determine whether, under s 6(2)(b) as so interpreted, a judge in the County Court is required to apply those rights according to their terms when hearing and determining legal proceedings. As the right in s 24(1) applies to a person charged with a criminal offence, a separate question arises as to whether the obligation in s 24(1) applied to the judge in respect of Maria and Betty’s applications to set aside the strike-out orders (see below).

Fair hearing: s 24(1)

Taking the relevant rights in reverse order, consistently with the intermediate approach to the interpretation of s 6(2)(b) of the Charter, courts and tribunals in Victoria must apply the right to a fair hearing in s 24 (and s 25) according to its terms in proceedings to which the right applies. So held De Simone v Bevnol Constructions & Developments Pty Ltd,[13] where Neave JA and Williams AJA stated that the fair hearing rights in ss 24 and 25 ‘apply directly to courts and tribunals, when they exercise their functions’.[14] In DPP v A Mokbel (Orbital & Quills – Ruling No 1),[15] Whelan J followed Kracke to hold that the Charter applies to this court in a criminal proceeding because its functions include providing a fair hearing under ss 24 and 25.[16] In Secretary, Department of Human Services v Sanding[17] I held that the Children’s Court of Victoria was obligated by s 6(2)(b) to apply s 24(1):[18]

the functions of courts and tribunals under Pt 2 referred to in s 6(2)(b) are the functions of applying and giving effect to those human rights which relate to court and tribunal proceedings. By excluding courts and tribunals from the definition of a public authority (except when acting administratively), while at the same time making the Charter apply directly to them in respect of the specified functions, the legislation has preserved the substantive legal foundation of the jurisdiction of courts and tribunals, while making it obligatory for them to act compatibly with the Charter in respect of those matters which are within their own direct control, including the conduct of proceedings in accordance with the right to a fair hearing under s 24(1) of the Charter.[19]

In Taha, Tate JA held that ‘the right to a fair hearing relates to the core functions courts perform and falls within the intermediate construction’.[20] In one sentencing case and two bail cases in this court concerning children,[21] an element of the right to a fair hearing (the right of children in s 25(3) to age-appropriate and rehabilitation-focused criminal procedures) has been applied under s 6(2)(b.)

[13](2009) 25 VR 237 (Neave JA and Williams AJA).

[14]Ibid 247 [52], cited with approval in Slaveski (2012) 34 VR 206, 221 [54] n 27 (Warren CJ, Nettle and Redlich JJA).

[15][2010] VSC 331 (5 August 2010).

[16]Ibid [159].

[17](2011) 36 VR 221.

[18]Ibid 258–9 [166] (footnote included).

[19]On the same analysis, other human rights may be applicable because they also engage court and tribunal proceedings, such as equality before the law: see Lifestyle Communities Ltd (No 3) (2009) 31 VAR 286, 318 [142] (Bell J) (‘Lifestyle Communities (No 3)’).

[20][2013] VSCA 37 (4 March 2013) [248] (Nettle and Osborn JJA not deciding) (her Honour found it otherwise unnecessary to determine if the intermediate interpretation was correct).

[21]SL [2016] VSC 714 (29 November 2016) [4], [6] (Bell J) (sentencing); HL [2016] VSC 750 (13 December 2016) [72] (Elliott J) (bail); SE [2017] VSC 13 (31 January 2017) [12], [15] (Bell J) (bail).

Therefore, under s 6(2)(b) of the Charter, a judge in the County Court is required to apply the right to a fair hearing in s 24(1) according to its terms when deciding a charge brought against a person charged with a criminal offence. As already noted, a separate question arises as to whether the obligation in s 24(1) applied to the judge in respect of Maria and Betty’s applications to set aside the strike-out orders (see below).

Equality: s 8(3)

I now turn to the right to equality in s 8(3) as to which two issues arise in the present case. The first concerns the general question of how the ‘functions’ referred to in s 6(2)(b) are to be identified. The second concerns the application of s 6(2)(b) to the right in s 8(3).

Identifying ‘functions’ under s 6(2)(b)

We have seen that the ‘functions’ of courts and tribunals under pt 2 of the Charter specified in s 6(2)(b) are ‘the functions of applying or enforcing those human rights that relate to court and tribunal proceedings’.[22] As submitted on behalf of the Attorney-General, it may conveniently be said that those functions may be identified by reference to a list of rights approach or a functional approach. The list of rights approach focusses on the functions that may be derived from the nature of the rights that are specified in pt 2 of the Charter while the functional approach focusses upon the functions that are performed by a court or tribunal in legal proceedings in a given case.
[22]Kracke (2009) 29 VAR 1, 63 [250] (Bell J).

In Kracke, I adopted the list of rights approach and identified a number of human rights in pt 2 of the Charter as being human rights which, by their nature, related to legal proceedings conducted by courts and tribunals.[23] I there concluded that, under s 6(2)(b), courts and tribunals were obligated to apply those human rights. However, the list was not intended to be and has not been immutable. For example, the right in s 15 of the Charter to freedom of expression was not included in the list yet, correctly with respect, it has been applied in two cases in this court concerning suppression orders.[24] Further, the right in s 8(3) to equality was not included in the list yet it has recently been applied in the procedural respect in two of the three cases I mentioned concerning children.[25]
[23]Ibid [253].
[24]X v General Television Corporation Pty Ltd [2008] VSC 344 (8 September 2008) [34]–[45] (Vickery J); News Digital Media Pty Ltd v Mokbel (2010) 30 VR 248, 259 [38] (Warren CJ and Byrne AJA).
[25]SL [2016] VSC 714 (29 November 2016) [4], [6] (Bell J) (sentencing); SE [2017] VSC 13 (31 January 2017) [12], [15] (Bell J) (bail).

That being said, I accept the submission of the Attorney-General that a limitation of the list of rights approach is the risk of under and over-inclusion. Moreover, the relevance of a human right to a particular court and tribunal proceeding may only become apparent when the issues in the proceeding have been properly examined. Therefore, when applying s 6(2)(b), it is always necessary to examine whether, in the given case, the court or tribunal is exercising functions involving the application of human rights that ‘relate to court or tribunal proceedings’.[26]

Procedural implications of right to equality in s 8(3) for courts and tribunals

[26]Kracke (2009) 29 VAR 1, 63 [250] (Bell J).

The second issue is whether the right to equality in s 8(3) of the Charter comes within s 6(2)(b) such that it must be applied in procedural respects in court and tribunal proceedings. It was submitted on behalf of Maria and Betty and the Attorney-General that it must so be applied. I accept these submissions. While s 8(3) actually specifies a number of closely related equality rights between which it will later be necessary to distinguish, for present purposes it is sufficient to examine the provision in cognate terms.

In the present case, the issue arises in relation to the way in which the judge of the County Court conducted the hearing of Maria and Betty’s applications. As an alternative to s 24(1), Maria and Betty contend that they did not have equality under s 8(3) because the judge did not conduct the hearing in a way that adequately took into account that that they were self-represented. Maria made separate submissions in relation to s 8(3) based on her disability. This raises the issue of whether the right in s 8(3) applies in relation to the procedures adopted by courts and tribunals, especially in hearings. I have discussed this and related issues previously.

In the early case of Kortel v Mirik and Mirik,[27] I raised the question whether the equality right in s 8, ‘in so far as it may have procedural implications’, had application to courts and tribunals acting judicially by reason of s 6(2)(b) of the Charter. That was a case, like the present, in which parties were (initially) self-represented. It was not necessary to resolve the issue as those parties became represented under the pro bono scheme operated by the Victorian Bar, as have Maria and Betty in this court in the present case, with the court’s great appreciation.
[27](2008) 28 VAR 405, 407 [5].

Then in Kracke I examined the operation of s 6(2)(b) generally and identified a list of rights to which it applied. I expressly excluded the right specified in s 8(3) from the scope of s 6(2)(b) because it related ‘to the rights possessed by individuals rather than to court and tribunal proceedings’.[28] I was there concerned with the substantive and not the procedural operation of s 8(3), for that is what was in issue in Kracke.
[28](2009) 29 VAR 1, 63 [253].

Finally, in Lifestyle Communities Ltd (No 3)[29] I clarified what I stated in Kracke in this regard. I held that that the equality right (see especially s 8(3)) applied to the procedures of courts and tribunals. Referring to both Kortel and Kracke, I wrote:

In Kortel…,[30] I raised the question whether the equality rights in s 8, ‘in so far as [they] may have procedural implications’, applied to courts acting judicially by reason of s 6(2)(b) of the [Charter]. In Kracke, I held that human rights relating to court and tribunal proceedings in judicial cases were applicable under that provision.[31] I excluded the right to equality before the law in s 8 from that category. I had there in mind the substantive application of the whole of s 8 to courts and tribunals and the law they administer. On the analysis in the present case, the equality rights in s 8 do have ‘procedural implications’, for they impact on the way people can be treated in court and tribunal proceedings. To that extent, following the principles in Kracke on this point, under s 6(2)(b) those rights are applicable to courts and tribunals in judicial cases, thus supplementing the right to a fair hearing in ss 24 and 25. Of course, the [Charter] applies generally to the administration of courts and tribunals and when they are acting in an administrative capacity in the public law sense.[32]

I maintain those views,[33] which I applied in the sentencing case and one of the two bail cases concerning children that I mentioned above.[34]

[29](2009) 31 VAR 286.

[30](2008) 28 VAR 405, 407 [5].

[31](2009) 29 VAR 1, 63 [250], [253].

[32]Lifestyle Communities (No 3) (2009) 31 VAR 286, 318 [142].

[33]In Taha, Tate JA said that it was arguable that these views were correct but it was unnecessary to determine the question in that case: [2013] VSCA 37 (4 March 2013) [249].

[34]SL [2016] VSC 714 (29 November 2016) [4], [6] (sentencing); SE [2017] VSC 13 (31 January 2017) [12], [15] (bail).

Thus, on the proper interpretation of s 6(2)(b) of the Charter, courts and tribunals are bound to apply the human right specified in s 8(3) because, in procedural respects, the elements of the equality right that it enshrines relate to court and tribunals proceedings, including the conduct of hearings. Therefore, in relation to proceedings and hearings, courts and tribunals are obliged by s 8(3) to ensure that every person is equal before the law and given the equal protection of the law without discrimination and equal and effective protection of the law against discrimination. Under s 8(4), measures taken by courts and tribunals to accommodate the procedural needs of persons disadvantaged because of discrimination do not themselves constitute discrimination. This general obligation under s 6(2)(b) to apply s 8(3) in procedural respects is in addition to any obligation of a court or tribunal under s 24 and the common law to ensure a fair trial[35] and applies in relation to the conduct of proceedings and hearings by court and tribunals where (persons who are) parties are self-represented.[36]
[35]See generally Tomasevic v Travaglini (2007) 17 VR 100, 129–130 [138]–[142] (Bell J) (‘Tomasevic’).
[36]When applying this general proposition, it is necessary to distinguish between the different elements of the right specified in s 8(3) (see below).

Given that s 6(2)(b) of the Charter makes s 8(3) (in procedural respects) and s 24(1) generally applicable according to their terms in court and tribunal proceedings, including hearings, an issue arises as to whether, in Maria and Betty’s specific cases, ss 8(3) and 24(1) required the judge of the County Court to ensure those human rights. Determination of this issue involves consideration of whether, according to their terms, ss 8(3) and 24(1) specifically applied in those proceedings.

APPLICATION OF SPECIFIC RIGHTS IN CHARTER

Different elements of the right to equality in s 8(3)

Here are sub-ss 8(3) and (4) of the Charter:

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

Section 4(1) of the Charter defines ‘discrimination’ as follows:

discrimination, in relation to a person, means discrimination (within the meaning of the Equal Opportunity Act 2010) on the basis of an attribute set out in section 6 of that Act;
Note

Section 6 of the Equal Opportunity Act 2010 lists a number of attributes in respect of which discrimination is prohibited, including age; disability; political belief or activity; race; religious belief or activity; sex; and sexual orientation.

It can be seen that these and indeed other[37] provisions of the Charter do not adopt an unlimited concept of discrimination but rather a definition of discrimination that means discrimination within the meaning of the Equal Opportunity Act 2010 (Vic) on the basis of an attribute set out in s 6 of that Act. ‘Discrimination’ is relevantly defined in s 7(1)(a) to mean ‘direct or indirect discrimination on the basis of an attribute’, while s 8(1) defines ‘direct discrimination’ and s 9(1) defines ‘indirect discrimination’. As the note to s 4(1) of the Charter indicates, s 6 of the Equal Opportunity Act sets out a number of attributes, including ‘(e) disability’. The definition in s 4(1) incorporates by reference into the Charter the specified (and not other) provisions of the Equal Opportunity Act. So incorporated, they operate according to their own terms to give protection against discrimination on the basis of an attribute within the free-standing legislative framework of the Charter (including under s 8(3)) whether or not the discrimination is unlawful within the separate legislative framework of the Equal Opportunity Act.

[37]See eg s 25(2).

In the present case, it is important to note that, when applying s 8(3), a distinction must be drawn between Maria and Betty. In regard to Maria, the conduct of the hearing engaged the attribute of ‘disability’ set out in s 6(e) of the Equal Opportunity Act, for she suffered from a learning disability. [38] Her disadvantage in the hearing was not due only to her being self-represented but was also substantially due to her having a disability. In regard to Betty, the conduct of the hearing by the judge of the County Court did not engage such an attribute. Her disadvantage in the hearing was due entirely to her being self-represented. Therefore the judge was obliged to ensure that the hearing was conducted so that both Maria and Betty were equal before the law (the first element of s 8(3)) and also that Maria was protected by the law without and against discrimination (the second and third elements of s 8(3)).
[38]Under para (d)(ii) of the definition of ‘disability’ in s 4(1) of the Equal Opportunity Act, there is included ‘a condition or disorder that results in a person learning more slowly than people who do not have that condition or disorder’. It was common ground in the present case that this applied to Maria’s disability.

The Attorney-General submitted that the judge of the County Court was obliged by s 8(3) to give positive assistance to Maria and Betty to adjust and accommodate for the disadvantage of their position as self-represented parties. In scope, this obligation equated to the obligation of the judge under the common law as explained in Tomasevic v Travaglini.[39]This submission was connected with the submission of the Attorney-General that s 24(1) did not apply to Maria and Betty’s applications to set aside the strike-out orders as they did not involve the hearing and determination of criminal charges. Maria and Betty supported the submissions of the Attorney-General in relation to s 8(3) but not in relation to s 24(1), which they submitted was applicable.
[39](2007) 17 VR 100, 129–30 [139]–[142] (Bell J).

It is here that it is necessary to pay regard to the different elements of the equality right in s 8(3). As regards the first element (equality before the law), I do not accept the submission made on behalf of Maria and Betty and the Attorney-General, highly attractive as the submissions were, that this element of the right has a substantive operation. As regards the second and third elements (equal protection of the law without discrimination and to equal and effective protection against discrimination), I accept the submissions made on their behalf that these elements of the right, in procedural respects, have a substantive operation and apply to courts and tribunals, but only in respect of discrimination as defined.

Drawing upon art 26 of the International Covenant on Civil and Political Rights[40] (‘ICCPR’) on which s 8(3) of the Charter was modelled and directly relevant international sources, in Lifestyle Communities (No 3)[41] I analysed the scope and purpose of the human right to equality generally and, importantly for present purposes, as specifically enacted in s 8(3) of the Charter. It is not necessary to repeat that analysis, which I here adopt. I particularly drew attention to certain distinctions between the three elements[42] of the human right to equality as so enacted which are relevant in the present case.
[40]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).
[41](2009) 31 VAR 286, 310–46 [105]–[303].
[42]On those three elements, see also Taha [2013] VSCA 37 (4 March 2013) [209] (Tate JA).

In relation to the first element of s 8(3), which requires every person to be equal before the law, I stated:

Equality before the law is the principle of the general application of the law and the equal treatment of all persons who come before the law, whether that is before a court or tribunal applying the law or before someone administering the law. It is directed to the application and administration of the law, not to the content of the law. Equality before the law is procedural, not substantive, in character. It gives no entitlement to laws of a particular content. It is a principle of universal application. Unlike the other components of s 8(3), it is not limited to unequal treatment that constitutes discrimination. Equality before the law proscribes arbitrary treatment, that is, treatment devoid of objective justification, in the application and administration of the law.
The human right to equality before the law requires the tribunal to apply and administer the laws within its responsibility equally towards every person. In doing so it must not treat people arbitrarily (without objective justification).[43]

[43]Lifestyle Communities (No 3) (2009) 31 VAR 286, 344 [285]–[286].

In relation to the second and third elements of s 8(3), which require every person to have the equal protection of the law without discrimination and equal and effective protection against discrimination, I stated:

The human right to equal protection of the law without and against discrimination expresses the fundamental value of substantive equality in the content and operation of the law. It protects the interests that all people have, as of right, in being equally protected by the law from discrimination, including protection from laws that are discriminatory in nature.
The principle negatively prohibits making discriminatory laws, for they subject people to, rather than protect people from, discrimination; it also positively requires people to be equally protected from discrimination in law or fact, for the principle goes further than mere formal equality to encompass substantive equality in the content, application and operation of the law in all respects.
By discrimination is meant making distinctions in the content and administration of the law within the meaning of ‘discrimination’ in the Equal Opportunity Act. The right to equal protection of the law without and against discrimination is not breached by legal or administrative distinctions which, under the test in s 7(2), are regarded as reasonable, objective, for legitimate purposes and proportionate to those purposes.
Treating people equally in substance can require the equal treatment of people who are alike and the unequal treatment of people who are unalike. Therefore, when necessary, it is not discriminatory to take affirmative action to redress the historical or entrenched disadvantage suffered by some people and groups.[44]

[44]Ibid 344 [287]–[290].

In so interpreting s 8(3) of the Charter, I took into account the difference in scope of art 26 of the ICCPR[45] on which s 8(3) was broadly based as compared with the narrower scope of s 8(3) as enacted:
[45]Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

In s 8(3) of the [Charter], the rights to equality before the law and to equal protection of the law without and against discrimination reflect the same rights in art 26 of the ICCPR ... I interpret s 8(3) in that light and give those rights a corresponding scope and operation, with three qualifications.

The first qualification concerns equal protection of the law without and against discrimination. As I have already noted, s 8(3) is expressed in terms of discrimination within the meaning of the Equal Opportunity Act. The protection in art 26 of the ICCPR is expressed in terms of discrimination as such (in respect of equal protection of the law) and discrimination on the enumerated and other grounds (in respect of equal protection against discrimination). The inclusion in the [Charter] of a closed definition of ‘discrimination’ has the effect of limiting somewhat the relative scope and operation of s 8(3) in this respect, such that the focus must be on discrimination as defined, not on discrimination as it is more widely expressed in art 26.[46]

The other qualifications are not here relevant.

[46]Lifestyle Communities (No 3) (2009) 31 VAR 286, 322 [162]–[163]; this analysis of s 8(3) of the Charter was adopted by Garde J in Kuyken v Chief Commissioner of Police [2015] VSC 204 (14 May 2015) [33]–[35].

I have considered in the present case whether the first element of the right to equality in s 8(3) of the Charter has a substantive operation applying in relation to the procedures followed and hearings conducted by courts and tribunals even if it does not generally have that kind of operation. In s 24(1), the legislature did not enact the right in the first sentence of art 14(1) of the ICCPR that ‘[a]ll persons shall be equal before the courts and tribunals’, which encompasses substantive equality.[47] It might be suggested that the legislature did not do so because the first element of the right to equality in s 8(3) was intended to have that substantive operation in its specific application to courts and tribunals even if it did not generally do so. In this connection, the submissions of the Attorney-General relied upon General Comment 18 – Non-discrimination of the Human Rights Committee, which explains the right to equality before the courts and tribunals in the first sentence of art 14(1) as a specific application of the broader right to equality and non-discrimination in art 26.[48]
[47]Human Rights Committee, General Comment 18 - Non-discrimination, UN Doc HRI/GEN/1/Rev 1 (1994).
[48]Ibid 26 [3].

This approach to interpreting the first element of the right in s 8(3) of the Charter has high purposive attractions. However, it requires a shifting interpretation of the right, namely that it has a substantive operation in relation to court and tribunal proceedings and an operation based on non-arbitrariness in relation to other cases. This is not supported by the extrinsic materials. It would be inconsistent with both the express exclusion of the first sentence of art 14(1) of the ICCPR from s 24(1) and the express confining of the substantive operation of the right in the second and third elements in s 8(3) to cases involving discrimination as defined under the Equal Opportunity Act.[49] The better view is that the legislature intended that the right to equality before courts and tribunals in the first sentence of art 14(1) of the ICCPR was to be subsumed in the cognate right in s 24(1) to have civil and criminal proceedings decided by them competently, independently and impartially after fair and public hearings.
[49]For the sake of clarity, I was not suggesting in Kracke ((2009) 29 VAR 1, 86 [374]) that the legislature had transferred the content of the first sentence of art 14(1) of the ICCPR to s 8(3) of the Charter. I was pointing out that the subject of equality was dealt with in s 8(3) of the Charter, without dealing with the content of the elements enacted, which I dealt with subsequently in Lifestyle Communities (No 3) (see above).

As so understood, the different elements of the equality right specified in s 8(3) have application under s 6(2)(b) in relation to the position of self-represented persons in courts and tribunals. But the content of the obligation of the court or tribunal must take account of the specific terms in which the elements of the right have been enacted.

In its application under s 6(2)(b) of the Charter, the first element of the equality right in s 8(3) – equality before the law - specifies a fundamental obligation to avoid arbitrary treatment (treatment that is devoid of objective justification) in the application and administration of the law in relation to court and tribunal proceedings. Procedures and hearing practices that are based on distinctions between parties or other participants which are arbitrary in the sense of lacking objective justification run up against the proper application of this right (subject to s 7(2)). This element of the right applied to the judge of the County Court in relation to the hearing of both Maria and Betty’s applications. But equality before the law under s 8(3) does not impose an obligation to ensure substantive equality, which is what they really needed and a more enlightened concept of equality really demanded.

The limitations in the formal nature of the first element of the right to equality in s 8(3) of the Charter are illustrated by Mara and Betty’s cases. As it happens, Maria has a disability protected by the limited definition of discrimination that is incorporated by reference. Fortunately, her equality rights are fully protected in the circumstances by the other elements of the right (the third is pertinent). The circumstances of Maria’s mother, Betty, are otherwise identical and, it might be thought, demand a like response under the human right to equality. Unfortunately, she is not protected by the other elements of the right in s 8(3) because of the limited definition of discrimination. The inconsistent manner in which the substantive aspect of the equality right in s 8(3) applies in the facts of this case thus gives rise to cause for reflection.

Contrary to the submissions made for Maria and Betty and the Attorney-General, I cannot accept that, in its application to the position of self-represented persons, the obligation of courts and tribunals conducting hearings under the first element of the right to equality in s 8(3) equates to their obligation under the common law as explained in Tomasevic. The common law obligation as so stated sets a significantly higher standard than not treating self-represented persons arbitrarily. The obligation stated in Tomasevic is generally encompassed in the right to a fair hearing in s 24(1) of the Charter, which is applied through the principle of equality of arms, not the first element in s 8(3). Neither does the first element of the right in s 8(3) equate to the obligation in s 24(1) to ensure a fair hearing, which likewise is a much stronger obligation than not treating self-represented persons arbitrarily. As the judge of the County Court did not act arbitrarily towards Maria or Betty when conducting the hearing, their human right to equality was not breached in this respect (see below).[50]
[50]Giving only one day’s notice of hearing to an applicant for an order, if selective, might arguably be arbitrary and contrary to equality before the law under s 8(3), but this was not explored in the present case.

The second and third elements of the right in s 8(3) of the Charter guarantee to every person the equal protection of the law without discrimination and equal and effective protection against discrimination and require substantive equality in the content and operation of the law. These elements of s 8(3) applied to the judge of the County Court in relation to Maria’s but not Betty’s hearing as Maria had a relevant disability and Betty did not. It is the third element – ensuring equal and effective protection against discrimination – that is pertinent. Where a relevant disability of a self-represented person substantially contributes to their participatory disadvantage, as occurred with Maria in the present case, the court or tribunal conducting the hearing is positively obliged to make reasonable adjustments and accommodations. Failing to do so would constitute ‘discrimination’ and specifically ‘indirect discrimination’ under ss 7(1) and 9(1) of the Equal Opportunity Act[51] and therefore would represent a failure to ensure equal and effective protection against discrimination as required by s 8(3) of the Charter. In almost all circumstances, the steps referred to in Tomasevic would be sufficient. In the present case, the judge of the County Court conducting the hearing failed to make reasonable adjustments and accommodations in respect of Maria’s disability. As there was no justification for so failing (see s 7(2)), her human right to equality in this respect was breached.

A ‘person charged with a criminal offence’ under right to fair hearing in 24(1)

[51]It is difficult to see how failing to made adjustments and accommodations of the kind required in Maria’s case could be ever be reasonable under s 9(2) and (3) of the Equal Opportunity Act.

This is s 24(1) of the Charter:

A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

The matter in issue is whether the right in s 24(1) applied to Maria and Betty in respect of the hearing and determination of their applications under 267(3) of the Criminal Procedure Act to set aside the orders made by the judge of the County Court to strike out their appeals against the sentencing orders of the Magistrates’ Court.

In Victoria, the Civil Procedure Act2010 (Vic) governs civil procedure and the Criminal Procedure Act governs criminal procedure. The summary charges brought against Maria and Betty in the Magistrates’ Court were brought pursuant to the procedure specified in the latter Act (s 6(1)), as were the appeals, which I will consider in more detail.

Part 6.1 of the Criminal Procedure Act makes provision for appeals from the Magistrates’ Court of Victoria to the County Court of Victoria in criminal cases. Under s 254(1), an appeal may be brought by ‘a person convicted of an offence by the Magistrates’ Court in a [relevant] criminal proceeding’, including persons found guilty but not convicted of an offence.[52] Such an appeal may be brought against both conviction and sentence or against sentence alone (s 254(1)(a) and (b)). If the appellant is not in custody because of the sentence appealed from, the appeal operates as a stay of sentence, but not of any conviction imposed in respect of the sentence (s 264(1)). If the appellant is in custody because of the sentence appealed from, the appeal operates as a stay of sentence (not conviction) if bail is granted (s 264(2)(b)). An appellant in custody because of the sentence appealed from may apply for bail from the Magistrates’ Court (s 265(1)). An appeal is conducted by way of rehearing and the appellant is not bound by the plea entered in the Magistrates’ Court (s 256(1)). As now to be seen, whatever was the position of the Magistrates’ Court at first instance, a judge of the County Court must therefore determine the appeal upon the evidence admitted in the appeal proceeding and has jurisdiction to determine whether, on that evidence, the appellant is guilty or not guilty of the charge and, if guilty, what the sentence should be.
[52]See the definition of ‘conviction’ in s 3 of the Criminal Procedure Act.

It has been observed that ‘[t]here are different meanings to be attached to the word “rehearing”.’[53] In X v Secretary, Department of Human Services,[54] Gillard J discussed different forms of appeal to which the word ‘rehearing’ could be applied:

There are at least three types of appeal which could be described as a re-hearing. The first is where an appeal court makes its own decision on the evidence before the court below. Secondly, an appeal by way of re-hearing based upon the evidence given in the court of first instance supplemented by further evidence and finally, an appeal by way of hearing de novo (sometimes described as a re-hearing de novo).[55]

The third form of rehearing to which his Honour refers — the ‘hearing de novo’ — describes an appeal in which ‘the court on the appeal is not bound by anything that occurred at the prior hearing and considers the matter afresh.’[56] An appeal will be heard de novo if it is explicitly defined as such in the relevant legislation, or if the legislation describes it as a ‘rehearing’ but a correct construction requires that it be heard de novo.[57]

[53]Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd (1976) 135 CLR 616, 620 (Mason J), quoting Powell v Streatham Manor Nursing Home [1935] AC 243, 249 (Viscount Sankey LC).

[54] [2003] VSC 140 (12 May 2013) (Gillard J).

[55]Ibid [57].

[56] Ibid [58]; R v Pilgrim (1870) LR 6 QB 89, 95 (Lush J).

[57]X v Secretary, Department of Human Services [2003] VSC 140 (12 May 2013) [59] (Gillard J); see also Law Reform Committee, Parliament of Victoria, De Novo Appeals to the County Court (2006) 8.

Historically, appeals by way of rehearing from the courts of petty sessions to the courts of general sessions were treated as appeals in the form of a hearing de novo.[58] These courts are the equivalent of the modern day Magistrates’ Court and County Court, respectively.[59]
[58]Sweeney v Fitzhardinge (1906) 4 CLR 716, 729 (Griffith CJ), quoting R v Pilgrim (1870) LR 6 QB 89, 95 (Lush J).
[59]X v Secretary, Department of Human Services [2003] VSC 140 (12 May 2013) [59] (Gillard J).

Prior to the Criminal Procedure Act, appeals from the Magistrates’ Court to the County Court were governed by ss 83–6 of the Magistrates’ Court Act 1989 (Vic). Section 85 of that Act required such appeals to be conducted as a ‘rehearing’. It is well-established that the word ‘rehearing’ in this provision meant that such appeals were to be heard ‘de novo’.[60] Thus, in DPP v His Honour Judge Fricke,[61] Fullagar, Tadgell and JD Phillips JJ held:

By virtue of s 85 of the Magistrates’ Court Act, an appeal under s 83(1) to the County Court ‘must be conducted as a rehearing’. The word ‘rehearing’ is here used in the sense of a hearing de novo.[62]

The meaning of this proposition was explained by Hargrave J who stated in Candolim Pty Ltd v Garrett[63] that the effect of s 85 of the Magistrates’ Court Act was ‘that everything which happened in the Magistrates’ Court [was] to be disregarded on the hearing of the County Court appeal,’[64] which was approved in Quick v Creanor; Taylor v Wilkins[65] by the Court of Appeal (Maxwell P, Beach and Kaye JJA).

[60]DPP v His Honour Judge Fricke [1993] 1 VR 369, 374 (Fullagar, Tadgell and JD Phillips JJ); Neill v County Court of Victoria (2003) 40 MVR 255, 272 [19] (Redlich J); Candolim Pty Ltd v Garrett [2005] VSC 270 (5 August 2005) [30] (Hargrave J); DPP v Shoan (2007) 176 A Crim R 457, 462 [20] (Buchanan JA). See also Law Reform Committee, Parliament of Victoria, De Novo Appeals to the County Court (2006).

[61]DPP v His Honour Judge Fricke [1993] 1 VR 369.

[62]Ibid 374.

[63][2005] VSC 270 (5 August 2005).

[64]Ibid [30].

[65][2015] VSCA 273 (30 September 2015) (‘Quick’).

An issue in Quick was the extent of the powers of the County Court on appeal when compared with the powers of the Magistrates Court at first instance. As we have seen, criminal appeals from the Magistrates’ Court to the County Court are now governed by ss 254 and 256 of the Criminal Procedure Act. Quick made clear that these provisions are ‘relatively the same’ as ss 85 and 86 of the Magistrates’ Court:[66]
[66]Ibid [18]–[20].

Plainly enough, that is a provision [s 254] of very broad scope, intended to place the County Court in the same position as the Magistrates’ Court and with complete control over the criminal proceedings before it.[67] It follows that, on an appeal from the Magistrates’ Court, the County Court can exercise the power of reinstatement just as the Magistrates’ Court could have done.
[67]An equivalent provision equips the Victorian Civil and Administrative Tribunal (‘VCAT’) in its merits review jurisdiction with all of the powers of the primary decision-maker: Victorian Civil and Administrative Tribunal Act1998 (Vic) s 51(1).

This conclusion is reinforced by the nature of an appeal to the County Court. Section 256(1) of the [Criminal Procedure Act] provides that an appeal under s 254 must be conducted ‘as a re-hearing’. That provision, and its predecessors in the Magistrates’ Court Act and the Justices Act, have long been understood as requiring the County Court to conduct a hearing de novo. In other words, the Court starts afresh. Thus, for example, amendments made to a charge by the Magistrates’ Court are of no effect before the County Court. As Hargrave J correctly stated in Candolim Pty Ltd v Garrett,[68] the effect of ss 85 and 86 of the Magistrates’ Court Act 1971 (which are relevantly the same as s 256(1) and s 256(2)(a) of the [Criminal Procedure Act]), is ‘… that everything which happened in the Magistrates’ Court is to be disregarded on the hearing of the County Court appeal’.[69]
[68][2005] VSC 270 (5 August 2005).
[69]Ibid [30]; Neill v County Court of Victoria (2003) 40 MVR 255, [19] (Redlich J).

That aspect of the process of appeal, from the Magistrates’ Court to the County Court, was made abundantly plain by Beach J in Helfenbaum v Sattler & Anor,[70] in which his Honour said:

I think that the correct view of the matter is that when the hearing of the appeal commences, and it must be borne in mind that it is a hearing ‘de novo’, the order of the Magistrates’ Court should be either formally set aside or at the least be deemed to be set aside. I say that for the reason that as the hearing is a hearing de novo and regardless of the outcome the order the Magistrates’ Court must be set aside there should no longer be any order on foot in respect of the matter at the time the hearing of the appeal commences before the County Court.[71]

Accordingly, appeals from the Magistrates’ Court to the County Court under the Criminal Procedure Act have been found to be in the form of a hearing de novo.[72]

[70][1999] 3 VR 583.

[71]Ibid 587; see also DPP v Shoan (2007) 176 A Crim R 457, [20] (Buchanan JA).

[72] See also Walters v Magistrates’ Court of Victoria [2015] VSC 88 (24 March 2015) [117] (Zammit J).

As an appeal from the Magistrates’ Court to the County Court under pt 6.1 of the Criminal Procedure Act is an appeal de novo, it is appropriate to describe the appellant as a person charged with a criminal offence for the purposes of s 24(1) of the Charter. As I conclude below, it is but a short step to describe an applicant to set aside an order striking out an appeal under the same appellant process in the same way.

Under s 267(1) of the Criminal Procedure Act, a judge of the County Court has discretion in cases where the appellant fails to appear at the time listed for the hearing of an appeal. The appeal may be struck out or the proceeding may be adjourned on appropriate terms (s 267(1)(a) and (b)). In Maria and Betty’s cases, the appeals were stuck out. The effect of striking out an appeal for failing to appear is to reinstate the sentence of the Magistrates’ Court from which the appeal is brought (s 267(2)(a)). Therefore, when the strike-out orders were made, the finding of guilt and sentence of Maria and the conviction and sentence of Betty were reinstated.

Under s 267(3), the court may set aside an order striking out an appeal because the appellant failed to appear if ‘the appellant satisfies the court that the failure to appear was not due to fault or neglect on the part of the appellant’. If the court grants such an application, it must order the reinstatement of the appeal. A reinstated appeal operates as a stay of sentence but not of conviction (s 267(7)). An application for bail pending the reinstated appeal may be made the County Court (s 267(6A)).

The Attorney-General submitted that the right in s 24(1) of the Charter did not apply to the hearing and determination of Maria and Betty’s applications under s 267(3) of the Civil Procedure Act to set aside the strike out-orders because, in that proceeding, they were not persons ‘charged with a criminal offence’ and, in hearing and determining their applications, the judge of the County Court was not deciding those charges. In the submission of the Attorney-General, it was also doubtful whether, in respect of the appeals, Maria and Betty were persons charged with an offence. Maria and Betty dispute those submissions.

As stated in PJB v Melbourne Health (Patrick’s Case),[73] the scope and application of the human rights in pt 2 of the Charter are to be ascertained by a process of interpretation that takes account of the beneficial purposes of the Charter:[74]

[human] rights are interpreted purposively and, in the words of Warren CJ in Re Application under the Major Crime (Investigative Powers) Act 2004,[75] ‘in the broadest possible way’. Following that decision, Hargrave J said in Director of Public Prosecutions v Ali (No 2) that the general approach was to interpret the rights in the Charter ‘broadly and in a non-technical sense.’[76] Speaking of the New Zealand Bill of Rights Act 1990, Elias CJ said in R v Hansen[77] that the ‘meaning of the right is to be ascertained from the “cardinal values” it embodies.’ In reference to the Canadian Charter of Rights and Freedoms, Dickson J said in R v Big M Drug Mart Ltd[78] that the ‘meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee; it was to be understood, in other words, in the light of the interests it was meant to protect.’ Reasonable and demonstrable limitation of the right is not taken into account when identifying its scope.[79]

Kracke decided that s 24(1) of the Charter was to be so interpreted.[80]

[73](2011) 39 VR 373 (Bell J) (‘Patrick’s Case’).

[74]Ibid 384 [36] (including footnotes).

[75](2009) 24 VR 415, 434 [80]; followed in Castles v Secretary, Department of Justice (2010) 28 VR 141, 157–8 [55] (Emerton J).

[76][2010] VSC 503 (10 November 2010) [29] (Hargrave J).

[77][2007] 3 NZLR 1, 15 [22].

[78][1985] 1 SCR 295, [116].

[79]See generally Kracke (2009) 29 VAR 1, 28–32 [75]–[91] (Bell J); Director of Housing v Sudi (2010) 33 VAR 139, 159 [90] (Bell J).

[80](2009) 29 VAR 1, 94 [411] n 544 (Bell J).

Applying this approach, the interpretation for which the Attorney-General contends is far from the broadest one that is reasonably open. In the context of human rights legislation, I think it is overly technical to doubt that an appellant in a criminal appeal that operates as a rehearing, and that might thereby result in an acquittal or lower sentence, is not a person charged with a criminal offence. It is equally overly technical not to treat an applicant under the appellant criminal process for orders reinstating a struck-out appeal, which might result in the reinstatement of the appeal, as a person charged with a criminal offence.

The underlying purpose of the right in s 24(1) of the Charter is the fair determination of criminal charges by a competent, independent and impartial criminal process, which is fundamental to respect for the dignity of the individual and the rule of law in democratic society. That process encompasses an appeal proceeding and includes such associated processes as applications for bail[81] and, in the present case, orders setting aside orders striking out an appeal. In respect of such proceedings and processes, appellants and applicants, such as Maria and Betty, are to be regarded as persons charged with a criminal offence and therefore enjoy the fundamental protections of s 24(1) of the Charter.
[81]See the analogous cases decided under s 25(3) of the Charter of HL [2016] VSC 750 (13 December 2016) [72] (Elliott J) and SE [2017] VSC 13 (31 January 2017) [15] (Bell J).

While s 32(2) of the Charter permits resort to decisions of foreign and international jurisdictions when interpreting of the Charter, I accept the submission of the Attorney-General that this should be done cautiously, as pointed out by Warren CJ in Bare v Independent Broad-based Anti-corruption Commission[82] by reference to Momcilovic v The Queen.[83] The starting point is not that s 24(1) was modelled upon art 14(1) of the ICCPR so that the court can go straight to the international jurisprudence. It is necessary to start and end with the language of s 24(1), which may be examined in the broader context of the Charter and other relevant Victorian statutes and then, if relevant, the court could resort to international jurisprudence. (Adopting this approach to interpreting s 8(3) of the Charter, I have concluded that it was deliberately enacted in somewhat narrower terms than art 26 of the ICCPR (see above)).
[82](2015) 326 ALR 198, 246–248 [179]–[186].
[83](2011) 245 CLR 1, 37–8 [19]–[20] (French CJ), 90 [159] (Gummow J).

Therefore I also accept the attention given in the submissions of the Attorney-General to the language of s 24(1), which relevantly applies to a ‘person charged with a criminal offence’, rather than in ‘the determination of any criminal charge’, as does art 14(1) of the ICCPR and (similarly) art 6(1) of the European Convention on Human Rights[84] (‘ECHR’) (see below). Further I accept that the legislature has made deliberate modifications to the rights that are specifically applicable in criminal proceedings in a related provision, s 25(2). For example, under that provision, a person charged with a criminal offence has a right to legal aid only if entitled under the Legal Aid Act 1978 (Vic), which limits the right in a way that art 14(3)(d) of the ICCPR is not.[85]
[84]European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos 11 and 14, opened for signature 4 November 1950, ETS 5 (entered into force 3 September 1953).
[85]See generally Slaveski v Smith (2012) 34 VR 206, 220-221 [52]-[53] (Warren CJ, Nettle and Redlich JJA).

Giving these and related submissions the best consideration I can, I cannot find in the language of s 24(1) the restricted meaning for which the Attorney-General contends. In particular, the words of application – a ‘person charged with a criminal offence’ – do not suggest that the right to a fair hearing by a competent, independent and impartial court was intended to be confined in criminal cases to the actual determination of the charge at first instance. The context of s 24(1) in the Charter as a whole does not support such a restrictive interpretation. The language of s 25(2) (which lists minimum guarantees for persons ‘charged with a criminal offence’) and s 25(4) (which specifies a right of review of convictions and sentences for persons ‘convicted of a criminal offence’) does not support a restrictive interpretation of a person ‘charged with a criminal offence’ in s 24(1). The distinction between persons ‘charged with’ and ‘convicted’ of a criminal offence in s 25(2) and (4) is not hard and fast for all purposes, including s 24(1). It is a practical way of describing the application of the different kinds of rights in s 25. I note that s 25 is headed ‘Rights in criminal proceedings’. This general expression is apt to cover a number of different processes, as in that provision, and s 24(1), it does. As was pointed out by Hollingworth J in Sabet v Medical Practitioners Board, in reference to s 25,[86] ‘[h]eadings form part of the Charter, and are to be used in its interpretation’.[87]
[86](2008) 20 VR 414.
[87]Ibid 432–3 [119]–[127], referring to s 36(2A) of the Interpretation of Legislation Act 1984 (Vic).

Nothing to which I was taken in Victorian statute law supports such a restrictive interpretation of s 24(1). The provisions of the Criminal Procedure Act (which regulates criminal procedure comprehensively) do not support it. Indeed, as the analysis above shows, appeals from the Magistrates’ Court to the County Court under the provisions of pt 6.1 of that Act involve hearings de novo; the strike-out and set-aside procedures form part of that process. The broader interpretation of s 24(1) for which Maria and Betty contend fits well into the operation of those provisions.

The word ‘decided’ in s 24(1) does not take the matter further. It would frustrate the beneficial purposes of the Charter to exclude from the right conferred by s 24(1) decisions in relation to appeals by way of rehearing under pt 6.1 of the Criminal Procedure Act. It would equally frustrate the beneficial purposes of the Charter to exclude associated decisions, such as decisions to refuse applications to set aside strike-out orders. In appeals, both decisions by way of rehearing and associated decisions form part of the criminal process under the Criminal Procedure Act for the final determination of charges that have been commenced in the Magistrates’ Court. Under s 24(1) of the Charter, an accused person engaged in that process remains ‘a person charged with a criminal offence’ until it has been finalised.

This is a case in which international sources are relevant because s 24(1) was based on art 14(1) of the ICCPR, and that in turn was influenced by art 6(1) of the ECHR. The Victoria legislature did not state that s 24(1) was intended to create a right to a fair hearing in criminal cases that was more restrictive than those rights. My conclusion as to how s 24(1) should be interpreted is supported by decisions of the United Nations Human Rights Committee under art 14(1) and (3) of the ICCPR and of the European Court of Human Rights under art 6(1) of the ECHR.

Article 14(1) of the ICCPR relevantly provides:

All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.

Article 14(3) specifies a number of particular rights applying in the determination of criminal charges against persons, as follows:
In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a)To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b)To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;

(c) To be tried without undue delay;
(d)To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
(e)To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(f)To have the free assistance of an interpreter if he cannot understand or speak the language used in court;

(g) Not to be compelled to testify against himself or to confess guilt.

Article 14(4) specifies a particular right in relation to juvenile persons, as follows:
In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.

In relation to the rights conferred by art 14, the Human Rights Committee has published General Comment No 32: Right to equality before courts and tribunals and to a fair trial.[88] If the rights in art 14 were to be confined to the actual hearing and determination of the criminal charge but not to related aspects of the criminal procedure such as appeals, it is to be expected that this would be made clear in the General Comment. It is not discussed. Determinations of individual complaints by the Committee do not reflect such a narrow conception of the rights conferred by art 14.
[88]Human Rights Committee, UN Doc CCPR/C/GC/32 (23 August 2007).

For example, the Committee has decided that the rights in art 14(1) apply to post-trial review proceedings. In Currie v Jamaica,[89] the author of the communication complained that he was not provided with legal aid for the purposes of filing a matter before the Constitutional Court of Jamaica in relation to his conviction for an offence. The Committee noted that:

The role of the Constitutional Court is not to determine the criminal charge itself, but to ensure that applicants receive a fair trial in all cases, whether criminal or civil. The State party has an obligation, under article 2, paragraph 3, of the Covenant, to make the remedies in the Constitutional Court addressing violations of fundamental rights available and effective.[90]

Nevertheless, it stated that art 14(1) and (3) applied:
The determination of rights in proceedings in the Constitutional Court must conform with the requirements of a fair hearing in accordance with article 14, paragraph 1. In this particular case, the Constitutional Court would be called on to determine whether the author's conviction in a criminal trial has violated the guarantees of a fair trial. In such cases, the application of the requirement of a fair hearing in the Constitutional Court should be consistent with the principles in paragraph 3(d) of article 14. It follows that where a convicted person seeking constitutional review of irregularities in a criminal trial has not sufficient means to meet the costs of legal assistance in order to pursue his constitutional remedy and where the interests of justice so require, legal assistance should be provided by the State.[91]

BMatsou:Your Honour, besides that I think this Court needs to examine whether I have grounds for my appeal
His Honour: Well, you don’t get that chance because you have failed to appear and your daughter failed to appear and the Court has properly, in my view, struck out the appeals and the appeals are no longer before the Court and I have refused yours and your daughter’s applications to set aside the respectively striking out orders

BMatsou: Your Honour, not being notified because of the change of
His Honour: I have made my order, do you want to say anything Mr [counsel for the Shire].

From Betty’s first interjection and her evidence in this court, it is clear that she was confused as to the nature of the proceeding. She thought that the proceeding before his Honour was the appeal when it was the hearing of her application to set aside the strike-out orders. From her second interjection, it is clear that she wanted to say more about not being notified because of the change of address, namely that her mail had not been forwarded in accordance with her direction. But the judge cut her off.

It can be seen from Maria and Betty’s participation in the hearing before his Honour and this court that English is not their first language. I would describe Maria’s level of English as simple and Betty’s as functional. I am not suggesting that the hearing before his Honour should have been adjourned until an interpreter was obtained. But his Honour did not appear to take Maria and Betty’s capacity to speak English into account. In consequence, the hearing was conducted too quickly for their level of English, which compounded the disadvantage that they experienced. In particular, I think they were struggling to understand what the real issue was, especially given the time taken up with clarifying the confusion surrounding the various hearings and applications.

Having regard to the particular self-represented person and the nature of the case in Tomasevic, it was held that the duties of the trial judge in that case were to:

•recognise Mr Tomasevic as someone who, as a self-represented litigant, was gravely disadvantaged;
•explain to him the procedures that would be followed in the hearing and determination of the application;
•explain to him the legal requirements that he had to satisfy, namely that the delay was due to exceptional circumstances and the informant’s case was not materially prejudiced;
•encourage him to make submissions on relevant issues, but explain to him what was relevant;
•discourage him from making submissions on irrelevant issues, but explain to him what was irrelevant;
•ask appropriate questions to confirm he was fully putting forward the matters he wished to rely on, and ask for elaboration of any areas apparently not fully covered; and
•before deciding the application, ask him if there was anything else that he wanted to add.[229]

It was accepted in the submissions made on behalf of Maria and Betty and the Attorney-Geneal that the conduct of the hearing of the judge of the County Court in the present case could be assessed within this framework.

[229](2007) 17 VR 100, 130–1 [146] (Bell J).

As relevant in the present case, it was held in Tomasevic that the judge did not ensure a fair trial because his Honour failed to explain to the plaintiff the procedures that would be followed in the hearing and determination of the application and the legal requirements that he had to satisfy, particularly the elements of the test which governed whether an application for leave to appeal out of time would be granted.[230] I have respectfully concluded that the judge in the present case committed errors of the same kind.
[230]Ibid 131 [147]–[148].

It is difficult to see how the judge could have conducted the hearing fairly without recognising Maria and Betty as self-represented parties. In the circumstances, recognition of this difference would have helped to equalise their position as self-represented parties with the position of the represented party. It would have demonstrated that the court would give equal respect to each after having due regard to their individual position. The court could also have inquired into whether they wished to apply to have the hearing adjourned to obtain legal representation, especially as only one day’s notice was given.[231] Moreover, in the light of them being self-represented, some assessment needed to be made by the judge as to how the hearing would be conducted. For this purpose, his Honour needed to obtain some understanding of their capabilities by appropriately engaging with them at the outset, which he did not do. This would probably have revealed even more readily that Maria had a disability.
[231]Maria’s evidence to this court was that she wanted an adjournment to obtain legal representation but did not feel able to ask the judge.

Effective participation in a hearing by self-represented parties requires (among other things) a basic understanding by them of the procedures to be followed. In this regard, the position of Maria and Betty was fundamentally unequal to that of the Council, for its legal representatives knew what procedure would be followed while Maria and Betty did not. The judge made no attempt to equalise the position by explaining the procedure to them. Indeed, the procedure followed was initially confusing because only one application was called. Then his Honour spoke with counsel for the Council and immediately afterwards asked Betty for the basis of the applications.

Perhaps the most important thing for a self-represented party to know is the applicable legal test. To be effective, their participation must be directed towards satisfaction of this test. The judge clarified with the legal representative for the Council what the test was. With respect, this process did not include Maria and Betty. His Honour did not explain the test to them or how it was applied. Therefore their submissions were often generalised and not pertinent.

The procedure adopted by the judge was one of active questioning. It was not one in which Maria and Betty were asked to provide information and make submissions towards satisfaction of an understood legal standard. The hearing was conducted quickly and there were no breaks. There was confusion about relevant facts and the relationship between the two applications and the events behind them. Betty was cut off on occasions. So was Maria. Maria and Betty’s participation in the proceeding was directed towards the often confused and confusing questions of his Honour rather than towards the coherent narrative that they wished to communicate. The result was that their participation was ineffective and they were not given a fair opportunity to present their case.

With respect, Maria and Betty should not have been prevented from explaining how the loss of their home to arson had affected their participation in the criminal legal process. The loss of their home would have been a traumatic event. Events moved very quickly thereafter, as the sequence of events described above shows. This would have been very difficult for them and potentially relevant to whether their failure to appear could reasonably be regarded as due to their fault or neglect.

As in the case of Maria under s 8(3) of the Charter, reasonable adjustments or accommodations to the conduct of the hearing in relation to Betty could have been made by the judge as required by s 24(1) of the Charter without creating the appearance of lack of impartiality. Such adjustments and accommodations would have ensured that the hearing procedure followed by the judge was substantially impartial as between the parties, without risk of criticism for crossing the boundary of judicial neutrality.

Under ss 6(2)(b) and 24(1) of the Charter, parties to a criminal proceeding of the kind in which Maria and Betty were engaged are entitled to a fair hearing before the court or tribunal concerned. As they were self-represented, the judge in the County Court hearing their applications was required to give them such advice and assistance as would ensure their effective participation in the hearing and equality of arms with the legally represented party. His Honour did not do so. Therefore Maria and Betty’s rights to a fair hearing under s 24(1) of the Charter were breached.

RELIEF BY WAY OF JUDICIAL REVIEW

Maria and Betty have sought relief by way of judicial review under O 56 of the Supreme Court (General Civil Procedure) Rules. This relief is available in respect of orders made by a court in breach of the rules of procedural fairness and thereby in excess of jurisdiction.[232] A court commits a breach of the rules of procedural fairness and thereby exceeds it jurisdiction where it makes orders after conducting a hearing in which the judge fails to ensure a fair trial by providing due assistance to a self-represented party. [233]
[232]Criag v South Australia (1995) 184 CLR 163, 176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Taha v Broadmeadows Magistrates’ Court [2011] VSC 642 (16 December 2011) [76]-[80] (Emerton J), upheld Taha [2013] VSCA 37 (4 March 2013) (Nettle, Tate and Osborn JJA); Tomasevic (2007) 17 VR 100, 132 [148] (Bell J).
[233]Tomasevic (2007) 17 VR 100, 131 [157]-[158]. (Bell J).

The human right of parties to court or tribunal proceedings to a fair hearing under s 24(1) of the Charter and the common law obligation of the court or tribunal to ensure a fair hearing both give effect to equality before the law and equal access to justice. In relation to the participation of self-represented parties in such proceedings, they are very close both in content and in application. Thus Tomasevic[234] explains the obligation at common law of a court or tribunal to ensure a fair hearing in a way that draws upon, and is consistent with, the human right to a fair hearing in that context. Both categories of right promote respect for the personal dignity, agency and capacity for self-determination of individuals in the legal system and aim to ensure, as far as reasonably possible, that participation by self-represented parties in court and tribunal proceedings is effective. As Heydon J stated in International Finance Trust Company Ltd v New South Wales Crime Commission, ensuring that parties to legal proceedings are fairly heard is justified because it ‘respects human dignity and individuality’.[235] In this connection, his Honour endorsed the following statement by a learned author:

[W]e think we owe it to a man as a human being to engage in argument with him, and allow him to engage in argument with us, rather than take decisions about him behind his back, completely disregarding, as it were, his status as a rational agent, able to appreciate the rationale of our decisions about him, possibly willing to co-operate in carrying them out.[236]

His Honour went on to endorse this further statement by the same author which explicitly applies to litigants in person:
[E]ach man ought himself to have some say of his own in his own future, and … each man ought to count, to count as being himself, and not merely as one instance among many of the human species. We therefore think each man ought to be able to instruct his own counsel (or appear in person) to represent his own views, not merely those views which a benevolent authority might deem him to hold. … [O]n a matter on which he is likely to have very strong wishes, namely where a decision (judicial or administrative) is in danger of being taken adversely to his interests, he should have a chartered right of having a say, that is, the authority has a duty to hear him.[237]

[234]Ibid 129–30 [138]–[142] (Bell J).

[235](2009) 240 CLR 319, 381 [144].

[236]Ibid, citing John Randolph Lucas, The Principles of Politics (Clarendon Press, 1966) 132.

[237]Ibid 381 [145], citing John Randolph Lucas, The Principles of Politics (Clarendon Press, 1966) 270.

As two sources of positive law applying in cases like the present, human rights and the common law are mutually reinforcing and the obligations arising under each are almost always co-extensive. The contemporary human rights dimension brings a broader rationale and added strength to the existing obligation under the common law and brings to the fore the need to achieve substantive procedural equality and effective participation as regards self-represented parties. In its procedural application to court and tribunal proceedings, the right to equality in s 8(3) may be regarded in a similar way.

In relation to self-represented parties in a court or tribunal proceeding, I hesitate to say that the content of the human right to a fair hearing and the common law obligation to ensure a fair hearing are conterminous.[238] But the obligations imposed by the two rights are so close and overlapping that a court or tribunal is almost always entitled to proceed upon the basis that advice and assistance which satisfies the common law standard will also represent reasonable adjustments and accommodations under the human rights standard, and vice versa.
[238]As pointed out in the submissions made on behalf of the Attorney-General, the common law does not reflect the right to expedition, which is an aspect of the human right to a fair hearing, as discussed in Kracke (2009) 29 VAR 1, 100-108 [448]-[486] (Bell J).

Therefore, a court or tribunal that, under the common law, gives adequate advice and assistance to a self-represented party depending on the needs of that party and the nature on the case, also ensures, under human rights, their effective participation in the proceeding, equality of arms and a fair hearing, and vice versa.[239] The explanation in Tomasevic as to the scope of the obligation of a court or tribunal under the common law is equally relevant to its compliance with s 24(1) of the Charter. The discussion in this judgment of the principle of equality of arms and ensuring effective participation of the self-represented party in the proceeding are also relevant.
[239]I am not here dealing with those cases in which no amount of judicial assistance will make the hearing fair because legal representation is indispensable for that purpose (see eg Dietrich (1992) 177 CLR 292).

It follows that, where a court of judicial review finds that a court or tribunal has not ensured that a self-represented party obtains a fair hearing under the common law as so explained, it would almost always be entitled to find that the failure constitute a breach of the human rights of that party under the Charter.[240] The obverse case is one of a court of judicial review finding that a court or tribunal has not ensured that a self-represented party obtains a fair hearing under s 24(1) of the Charter by reference to the standards discussed in this judgment, including the principle of equality of arms. In that kind of case, it will almost always be entitled to find that the failure constitutes a breach of the rules of procedural fairness and an excess of jurisdiction under the common law for which relief in the nature of judicial review is available, as in the present case. As was submitted on behalf of the Attorney-General, it is well established that judicial review is available at common law for excess of jurisdiction based on want of procedural fairness, in the case of both administrative tribunals and inferior courts, regardless of whether the error appears on the face of the record. The procedural implications of the right to equality in s 8(3) as herein discussed and applied feed into the same reasoning.
[240]There may be cases in which justification under s 7(2) may need to be considered.

In both applications for judicial review in this court, the court will therefore make orders to the effect that the orders of the judge of the County Court dated 12 September 2014 refusing Maria and Betty’s applications to set aside the strike-out orders will be set aside and the applications will be remitted to a different judge for hearing and determination according to law.

CONCLUSION

In relation to the procedures followed in hearings, courts and tribunals must apply the right to equality in s 8(3) and the right to a fair hearing in s 24(1) of the Charter. This obligation applies in relation to self-represented parties generally and it applied specifically in relation to the hearing of the applications made by Maria and Betty in the County Court for reinstatement of their appeals. They have established that the judge hearing those applications did not apply those rights.

Maria is a person with a disability and a disability pensioner. Under s 8(3) of the Charter, the judge was obliged to ensure that she was equally and effectively protected against discrimination by reason of this disability. This required the judge to make certain adjustments and accommodations to the procedures that were adopted, which his Honour did not make. Maria’s inability effectively to participate in the hearing was substantially due to the judge’s failure to do so. Therefore the judge did not apply her right to equality under s 8(3).

Maria and Betty both had the right under s 24(1) of the Charter to a fair hearing of their applications. As they appeared self-represented, the judge was obliged by s 24(1) to give them certain advice and assistance to ensure that they effectively participated in the hearing, which his Honour did not give. Their inability effectively to participate in the hearing was due (in Maria’s case as an additional reason) to the judge’s failure to do so. Therefore the judge did not apply their right to a fair hearing under s 24(1).

In almost all cases, a self-represented party in a case like the present will be entitled to make application for an order for judicial review for breach of the rules of procedural fairness and thereby excess of jurisdiction under the common law when a court or tribunal fails to apply the right to equality under s 8(3) (where relevant) and a fair hearing under s 24(1) of the Charter in respect of that party. This is because the obligations of courts and tribunals under the Charter to apply those human rights in proceedings are very close to, and in almost all cases coextensive with, their obligations under the common law to give self-represented parties such advice and assistance as will ensure that they have a fair trial.

The court will therefore make orders in the nature of judicial review that the orders of the judge of the Count Court dismissing Maria and Betty’s applications are set aside and remitting their applications for reinstatement of their appeals to be reheard and determined according to law by a different judge.

COURT ORDER

PURSUANT TO S253(2)(B) & (D) OF THE BUILDING ACT, THE COURT ORDERS BOTH ACCUSED DEMOLISH AND REMOVE EXISTING FIRE DAMAGED BUILDINGS AND REMNANTS OF BUILDING ON THE LAND (THE BUILDING WORKS) BY 19/1/2014. IF THE ACCUSED FAIL TO CARRY OUT THE WORKS, THE RESPONSIBLE AUTHORITY BY ITS AUTHORIZED AGENTS ARE HEREBY AUTHORIZED BY THE COURT TO ENTER THE LAND AND CARRY OUT THE BUILDING WORKS AND CHARGE ITS EXPENSES TO THE ACCUSED.
A MATSOUKATIDOU (Accused) ordered to pay costs in the amount of $5,965.00 without conviction, fined $4,000.00
But for the plea of guilty the sentence I would have otherwise imposed is AS BEST AS I CAN ESTIMATE, A FINE IN EXCESS OF $10,000.

COURT ORDER

PURSUANT TO S253(2)(B) & (D) OF THE BUILDING ACT 1993, THE COURT ORDERS BOTH ACCUSED DEMOLISH AND REMOVE EXISTING FIRE DAMAGED BUILDINGS AND REMNANTS OF BUILDINGS ON THE LAND (THE BUILDING WORKS) BY THE 19/1/2014. IF THE ACCUSED FAIL TO CARRY OUT THE WORKS, THE RESPONSIBLE AUTHORITY BY ITS AUTHORIZED AGENTS ARE HEREBY AUTHORIZED BY THE COURT TO ENTER THE LAND AND CARRY OUT THE BUILDING WORKS AND CHARGE THE EXPENSE TO THE ACCUSED.

B MATSOUKATIDOU (Accused) ordered to pay costs in the amount of $5,965.00 with conviction, fined $10,000.00
But for the plea of guilty the sentence I would have otherwise imposed is AS BEST AS I CAN ESTIMATE, A FINE EXCEEDING $20,000.

[2017] VSC 61

28 February 2017 (revised 25 May and 19 October 2017)