Scot v Islamic Council of Victoria
[2005] VSC 156
•29 April 2005
| IN THE SUPREME OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 4979 of 2005
| DANIEL SCOT & ORS | Plaintiffs |
| v | |
| ISLAMIC COUNCIL OF VICTORIA & ORS | Defendants |
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JUDGE: | Hansen J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 April 2005 |
DATE OF JUDGMENT: | 29 April 2005 |
CASE MAY BE CITED AS: | Scot v Islamic Council of Victoria |
MEDIA NEUTRAL CITATION: | [2005] VSC 156 |
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Judicial review - Victorian Civil and Administrative Tribunal - Complaint under Racial and Religious Tolerance Act 2001 - Complaint upheld - Tribunal due to resume hearing case on remedy - Judicial review proceeding commenced to quash decision - Whether pending determination of judicial review the Tribunal should be restrained by injunction from resuming hearing - Delay - Discretion.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr D.A. Perkins | Khor & Burr |
| For the first defendant | Mr W.B. Zichy-Woinarski QC with Mr H.L. Redd | Allens Arthur Robinson |
| No appearance for the second defendant | ||
| For the third defendant | Ms R. Orr | Victorian Government Solicitor |
HIS HONOUR:
It is now almost 5.10 on Friday afternoon and I propose to give reasons on this application, indeed, I must proceed to do so because the issue is whether the Victorian Civil and Administrative Tribunal (“VCAT”) should be restrained from resuming the hearing of a proceeding on Monday.
The case concerns a complaint that was referred to VCAT by the Equal Opportunity Commission on 21 November 2002. The complaint arises under the Racial and Religious Tolerance Act 2001 of Victoria. The parties to the complaint before VCAT are the Islamic Council of Victoria as complainant, which is the first defendant in the proceeding before me, while the respondents before VCAT are the present plaintiffs. In the proceeding before me the second defendant is a Deputy President of VCAT, Judge Higgins, who has heard the complaint thus far, and the third defendant is VCAT.
Following various directions hearings and the provision of particulars of the complaint and the defence, the hearing of the complaint commenced before VCAT constituted by the judge on 15 October 2003. At the outset, counsel for the plaintiffs addressed submissions of a preliminary nature based on paras 62 – 64 of the defence. Paragraph 62 pleaded reliance upon the implied immunity arising under the Constitution as found by the High Court in favour of free speech on political and religious matters, as it is put in para 62. In para 63 it is said that the matters of which complaint has been made are political and religious matters. In para 64 it is contended that the provisions of the Racial and Religious Tolerance Act impinge upon and fetter the operation of the Human Rights and Equal Opportunity Commission Act 1986 of the Commonwealth, and are accordingly wholly or partly invalid, a question of inconsistency it would seem.
The judge ruled on the submissions on 21 October 2003. In short, he found adversely to the contentions of the plaintiffs. On the issue of legislative inconsistency he noted that the parties agreed he had no power to determine the issue. He noted that counsel for the plaintiffs had submitted that he should refer the matter to the Supreme Court pursuant to s.76 or s.96 of the Victorian Civil and Administrative Tribunal Act 1998. There were difficulties in that course, and, the judge considered, anyway, that it was not necessary to deal with the issues for the following reasons. There was no constitutional issue that required determination. First, there is no provision in the Constitution that enabled people to speak freely on religious matters, and the implied protection of freedom of communication on political or government matters did not extend to freedom of religious communication as alleged in the present case. He thus concluded in para 20 of his ruling that having regard to these matters the Tribunal intended to do that which the Victorian Civil and Administrative Tribunal Act and the Racial and Religious Tolerance Act required it to do, namely to determine what it was that was said by the plaintiffs, whether that constituted racial vilification and the remedy.
The hearing continued over many days, although not continuously. The hearing of evidence concluded on 29 March 2004. Then the parties filed written submissions with the final submission being filed on 20 July 2004. In their written submissions, the plaintiffs relied on the matters in paras 62 – 64 of their defence.
On 17 December 2004 the judge gave his decision. He concluded that the complaint was established. The decision was revised and, as revised, bears the date of 22 December 2004. The reasons run to 141 pages. The reasons do not deal with the matters in paras 62 – 64 of the defence and the subject of the ruling on 21 October 2003. In the final paragraph of the reasons the judge states that, the complainant having succeeded, he would hear the parties on the question of the relevant remedy in due course.
At a mention hearing on 28 January 2005 the judge fixed 2 May 2005 as the date for resuming the hearing to consider the matter of remedy. That, I interpolate, is next Monday. He also directed the filing of submissions.
On 9 March 2005 the plaintiffs filed an Originating Motion in this Court for a wide range of relief including an order restraining VCAT from proceeding further, the intention being that VCAT not proceed with the hearing of the complaint until the hearing and determination of the Originating Motion. The proceeding is by way of judicial review. It is unnecessary in the present circumstances, in my view, to set out the terms of the motion.
In submitting that there was a serious question to be tried, Mr Perkins said that the judge had failed to determine the contentions in paras 62 – 64 of the defence, and yet was proceeding to deal with remedy. In identifying the issues that had not been determined, he said that there is an issue of the nature indicated in Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 51. As best as I can identify it, the point is that a state judge cannot enter upon a question of the constitutionality of Federal legislation and certainly not when exercising administrative functions as a member of VCAT.
Mr Perkins submitted that the result of the failure to determine certain matters of defence is that the entire decision should be quashed. There has been a failure to adjudicate upon his clients’ rights and the whole matter should be reconsidered before the primary decision maker.
Following the filing of the Originating Motion, the next step that occurred is that on 8 April 2005 the plaintiffs filed a summons returnable before a master on 21 April 2005, not merely for the relief sought in the Originating Motion, but also for an injunction to restrain VCAT from proceeding further with the matter of the complaint until the determination of the proceeding or further order. Other orders were sought by the summons but that, for present purposes, is that which is relevant.
Then, perusing the file, it is noticed that the matter came before Master Evans on 21 April 2005 when the further hearing of the application for directions was adjourned until today. There was a direction for affidavits and a direction that any application by the defendants under Rule 23.01 be filed and served on 27 April 2005. In fact, on 27 April 2005 the first defendant filed a summons for an order that the proceeding, alternatively the claims for relief in paras A to N inclusive of the Originating Motion, be stayed as not disclosing a cause of action, or as being scandalous, frivolous or vexatious, or as an abuse of process.
Each application came on before Master Evans today and he has referred the plaintiffs’ application and the proceeding to the judge in the Practice Court. In effect what has been referred on to the judge in the Practice Court is the application to restrain VCAT from resuming the hearing. The judge in the Practice Court being burdened with work, I have heard the application to restrain VCAT this afternoon. No submissions were addressed on the first defendant’s application.
In the course of his submissions Mr Perkins put it that an inferior tribunal should, upon the filing and service of an application for prerogative relief concerning one of its proceedings, hold its hand until the determination of that proceeding in the superior court. He has referred me to some Canadian cases, in particular a decision of the Supreme Court of Canada, Batchelor v R [1978] 2 S.C.R. 988, which arose in the context of the criminal law and in particular Rule 7 of the rules respecting criminal proceedings of the Supreme Court of Ontario. That rule, which appears at page 997 of the reasons for judgment of the Chief Justice, states that:
"Upon receiving [a notice of motion under Rule 5] the judge, Provincial Judge, justice or justices, or coroner shall forthwith return to the Registrar's Office at Osgoode Hall, Toronto, the conviction, order, warrant or inquisition, together with the indictment, information, exhibits and any other papers or documents touching the matter, and the notice served upon him with a certificate attached..."
The question before the court concerned the effect of the service of a notice under the rules. The conclusion was that while jurisdiction remained or continued with the Provincial Judge it lay dormant. It is readily to be understood why that conclusion was reached, having regard to the terms of the rule.
That was a criminal case, this is not a criminal case. It was dealt with under a rule not present in this case, and no similarity to which is found in the circumstances of this case. It hardly needs stating that if a proceeding is commenced in a superior court to bring up for review a decision or ruling in an inferior tribunal or court, that as a matter of comity at least, if not commonsense, the inferior court or tribunal will afford an opportunity to the party concerned to make an application to the superior court for an injunction to restrain the inferior court or tribunal proceeding until such time as the superior court may deal with the matter.
But that does not mean that there is to be an indefinite stay of proceedings in the inferior court or tribunal. The party concerned to raise the matter in the superior court must obviously act with all appropriate expedition. Thus, for instance, it is not uncommon in one's professional experience that a judicial officer in an inferior court or tribunal might stay his or her hand for a short time, perhaps for no more than half a day or a matter of hours but not indefinitely for week after week, let alone month after month until an application is heard and determined in the superior court. One has to proceed with urgency and due regard to the interests of the opposite party and all concerned.
I therefore do not accept the general burden of the submission, put at its widest by Mr Perkins, that the mere filing and service of the Originating Motion was in itself sufficient to require VCAT, acting properly in the judicial system, to take no further action until the proceeding in this Court was heard and determined. Furthermore, when one has regard to the fact that the fundamental points in question were ruled upon as long ago as October 2003, that the decision was provided in December 2004, and that it is only today, on the eve of the resumption of the hearing in May 2005, that a judge of this Court is called upon to hear an application to restrain the further hearing, that one is caused to wonder why the application is made so late.
An application for prerogative relief, by way of judicial review, is required by the rules to be filed within 60 days of the relevant decision. In reality, that decision was given in October 2003 when the judge dealt with the plaintiffs’ argument based on paras 62 – 64 of the defence. The period of 60 days has long since passed. If it is good now in 2005 to have filed the Originating Motion, then it was good to do so within 60 days of the giving of the decision which lies at the heart of the problem raised by the plaintiffs. For what has happened is that, no such application as the present having then been made, the hearing continued and was concluded on what might be called liability and it is a few months later that the Originating Motion was filed. It may have been filed within a period of 60 days of the judgment dated 22 December 2004, allowing for time for the holiday period, I am not sure. But the point is that a long time has elapsed since the decision in October 2003. It was that decision which, as I follow it, was carried into the ultimate decision, as it were, because the ultimate decision did not re-visit the matters upon which the judge ruled in October. I do not overlook that the plaintiffs’ final written submissions again pressed their contentions, but it was not necessary for the judge to revisit his earlier decision given, as it was, during the hearing.
Then, having gone into this year, in January the judge fixed the resumption of the hearing for next Monday. If there was a profound concern as to the resumption of the hearing one would have expected a quick request to the opponent for agreement as to deferral of the decision pending clarification of an issue in this Court and for the pressing of an answer upon that point, together with the filing of appropriate process in this Court.
What has happened is this, according to an affidavit of the plaintiffs’ solicitor. On 4 April he wrote to the Victorian Government Solicitor seeking advice whether the judge and VCAT would take any further steps pending the determination of the Supreme Court proceeding. Before a reply was received, on 6 April the judge’s Associate advised him that, subject to advice from the Victorian Government Solicitor, the judge intended not to proceed. On the same day, he wrote seeking the attitude of the first defendant’s solicitors who, on 7 April, advised that their client was not agreeable to a stay of the proceeding. This attitude of the first defendant, that the VCAT hearing should proceed, was confirmed on 18 April.
It is important to note that according to the affidavit of the first defendant’s solicitor, he was advised by the judge’s Associate that the judge was minded to stay the hearing if the first defendant and the Victorian Government Solicitor were agreeable. That seems to me a more likely position for the judge than that stated by the plaintiffs’ solicitor. Of course, the first defendant was not agreeable and at the hearing before Master Evans on 21 April the judge’s position was advised by counsel briefed by the Victorian Government Solicitor to be that he would proceed with the hearing.
Mr Perkins emphasised that it was not until 21 April that the indication from the judge was that he would proceed, whereas previously the attitude had been that the judge was prepared to or would defer the hearing. That, in my view, was not a sufficient reason for delaying the present application. The critical thing is, I think, that one must have regard to what one's opponent says and if the opponent insisted on the matter proceeding the issue could only be determined by the judge after hearing the parties. That is consistent with the judge’s attitude as indicated by his Associate to the first defendant’s solicitor.
I should add that in relation to the proceeding the judge’s attitude is that he submits to such order as the Court may make.
What I have been addressing is a matter of delay.
As to whether there is actually a serious question to be tried, Mr Woinarski, who appeared with Mr Redd for the first defendant, informed me, when he commenced his oral submissions, that he was prepared to concede that there was a serious question to be tried. That being so, I need not consider the merits of the matters which Mr Perkins said had not been decided.
The question, Mr Woinarski submitted, was whether on the balance of convenience it was appropriate to grant an injunction. In my view it is not. There are a number of reasons for that. There are the factors of delay in the entire context of what has occurred in the proceeding before VCAT and in the bringing of the Originating Motion, and the bringing on, as late as today, of the application for an injunction to restrain the resumption of the hearing.
Then again there is the undesirability, as indeed it is in my opinion, of interceding in the orderly progression to a conclusion overall of the proceeding before VCAT, a proceeding which has travelled as far as it has towards a conclusion. I do not think it is appropriate to restrain VCAT from completing its task. Indeed, there is much to be said from the point of view of the due and orderly administration of justice, for not restraining an inferior court or tribunal from doing so. I do not need to refer to the cases relied on by Mr Woinarski in this respect beyond noting Collie v Behan (1997) 25 ACSR 644 at 647-648 per Spender J.
Further, the plaintiffs’ statutory right to apply for leave to appeal, on a question of law, from an order of VCAT means that what is now complained of by the plaintiffs, whether it be the alleged failure to consider the matters upon which a ruling was given in October 2003 or any other general contention then or later argued, can, if the plaintiffs so desire, be raised as a question of law in the ordinary appeal process from a final order, when ultimately pronounced, of VCAT.
I cannot see that there is any irreparable harm to the plaintiffs such as would warrant the grant of the injunction, rather there is much benefit to be had, in my view, in the proceeding being able to resume and proceed to a conclusion in an ordered and regular way.
For those reasons I am of the view that the application to restrain the continuance of the hearing should be refused. I will order:
1.The application of the plaintiffs, that the Victorian Civil and Administration Tribunal be restrained from resuming the hearing in proceeding A392 of 2002 in the Anti Discrimination List be refused.
2.The further hearing of the proceeding of the plaintiff's summons filed 8 April 2005 and the first defendant's summons filed 27 April 2005 be referred to a master for orders and directions as may be considered appropriate.
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