De Simone v Bevnol Constructions and Developments Pty Ltd & Ors [2010] VSCA 231

PRACTICE AND PROCEDURE - Question of law referred to the Supreme Court under s 33 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) - Applicant sought stay of VCAT proceeding on the basis that defending the proceeding might require him to waive his right to silence in future criminal proceedings - Applicant charged with obtaining a financial advantage by deception - Without deciding stay application, VCAT referred question under s 33 of the Charter, namely whether the guidelines in McMahon v Gould (as to staying a civil proceeding in light of a pending criminal proceeding raising same subject) should be revised in light of the Charter - Not a question of law - Question hypothetical as stay application not ruled on, and no findings or statement of agreed facts - Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8, 24, 25 and 33.

Attorney-General for the State of Victoria as intervener

1 On 13 May 2010 we had before us a question referred to the Court by a Vice President of the Victorian Civil and Administrative Tribunal ('the Tribunal') under s 33(1) of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'). After hearing argument we determined that it was not appropriate to decide the question referred. Accordingly, for reasons to be provided later, we declined to express an opinion on the question on the grounds that as formulated:

(b) it was inappropriate to express an opinion on the question.

We now state our reasons for declining to express an opinion on the question referred.

2 Section 33(1) of the Charter provides:

Referral to Supreme Court

(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if -

(a) a party has made an application for referral; and

(b) the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

On 13 June 2009, pursuant to s 33, a Vice President of the Tribunal referred the following question to the Supreme Court for determination:

Given that the Tribunal has an implied statutory power to stay a civil proceeding, whether the McMahon v Gould[1] guidelines applicable to that power should be revised in light of the Charter of Human Rights and Responsibilities Act 2006, and in particular ss 24 and 25 of that Act, and, if so, how?

3 For the purpose of this judgment it is not necessary to refer to the provisions relating to public authorities or to deal with the issue whether the Tribunal acts as a public authority in dealing with any particular type of application, in particular an application for a stay as sought by Mr De Simone. The particular provisions with which Mr De Simone's submissions are concerned were ss 24 and 25 of the Charter. He also mentioned s 8 (equality before the law).

4 Section 24(1) provides that 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 court or tribunal after a fair and public hearing.

5 Section 25 relates only to criminal proceedings and relevantly provides as follows:

(1) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

(2) A person charged with a criminal offence is entitled without discrimination to the following minimum guarantees -

...

(k) not to be compelled to testify against himself or herself or to confess guilt.

6 At this point it is appropriate to identify the issue dealt with in McMahon v Gould. In that case Wootton J had to decide whether a civil proceeding brought by a liquidator against the defendant in respect of acts done by him as a director should be stayed until the determination of criminal proceedings involving the same subject matter pending against the director. The question for Wootton J was, by reference to what considerations the discretion to order a stay should be exercised? Having considered authorities, Wootton J identified as 'guidelines' a series of matters to consider in determining the exercise of the discretion to stay the civil proceeding. It is not necessary to set out the guidelines. The ultimate question, however, as Wootton J stated, was:

... has there been demonstrated such a real risk of injustice to the defendant that the court would be justified in denying the plaintiff his fundamental right to a hearing in ordinary course?[2]

7 The McMahon v Gould guidelines have been applied in Australian courts many times. Young CJ did so in Philippine Airlines v Goldair.[3] Often the case will be determined without express reference to the guidelines but by reference to the justice of the situation, and in that sense such cases follow the McMahon v Gould line of authority.

8 Counsel for the Attorney-General provided us with a lever arch file of authorities which reflected the wide acceptance of the McMahon v Gould guidelines. Some of the cases contain expressions of concern that the guidelines may not appropriately accommodate the privilege against self-incrimination particularly in view of the reminder in Reid v Howard[4] that the privilege is a common law right which applies unless excepted by statute or waiver. Hence there have been suggestions in some cases that McMahon v Gould should be reconsidered 'so as to decide whether too little weight is given to the practical as well as legal prejudice to the accused and to the primacy of criminal proceedings in our justice system'.[5]

9 Notwithstanding such concerns, the McMahon v Gould line of authority remains firmly established and the guidelines have not been modified by an appellate court. It is apparent, as has been acknowledged by judges, including in appellate decisions, that the suggested reconsideration of McMahon v Gould and the subsequent line of authority therefrom, could only be performed by an appellate court and it may be by the High Court. It is axiomatic that any such reconsideration should occur in a case in which the facts and circumstances render it appropriate to undertake the reconsideration. Overwhelmingly, the present is not such a case.

10 The reference in the present case was made on the application of Mr Giuseppe De Simone in a proceeding in the Tribunal in which he was a respondent to a counterclaim.

11 Mr De Simone filed an originating motion by which to bring the reference before the Court for determination. Subsequently, on Mr De Simone's application, Kings AsJ ordered, pursuant to s 17B(2) of the Supreme Act 1986, that the proceeding be referred to the Court of Appeal. That was subject to the requirement of s 17B(3)(a) that the Court of Appeal give leave allowing the question to be considered by it. Mr De Simone duly sought such leave by a summons returnable before the Court of Appeal on the date fixed for the hearing of the reference, which was 13 May 2010.

12 The proceeding in the Tribunal arose out of a contract for the construction of the first part of a retirement village at Ocean Grove for $1,809,827.80. The applicant in the proceeding was Seachange Management Pty Ltd ('Seachange'), the sole director of which was Mr De Simone, which engaged Bevnol Constructions and Developments Pty Ltd ('Bevnol') as builder for the development. The respondents are Bevnol and its two directors.

13 Seachange's points of claim allege that in various respects Bevnol was in breach of the building contract, in particular by reason of defective work and the works not being completed in the contract period. Seachange alleged that it had rescinded the contract and claimed damages including liquidated damages. An alternative claim against the respondents seeks damages on the basis of a representation alleged to constitute a contravention of the Fair Trading Act 1999.

14 In addition to a defence which denied Seachange's claim, Bevnol filed a counterclaim against Seachange, Mr De Simone and two further respondents Paul Marc Custodians Pty Ltd ('Paul Marc'), and a director of Paul Marc. Among other things, the counterclaim alleged that at a meeting on 27 July 2006 Mr De Simone provided Bevnol with a letter from Paul Marc which advised that the funding necessary to finance the development had been put in place and the funds were available to pay the builder; Bevnol provided that letter to its insurer which then issued a Domestic Warranty Insurance Policy on 2 August 2006. The Building Permit was also obtained on this date. It was then that Bevnol was able to commence work, which it duly did. However, in fact, and contrary to the letter, Seachange had not obtained finance, and in early December 2006 Seachange so advised Bevnol which at that stage had performed work to the value of $1,081,398. This is a summary reference to what is, for present purposes, a central allegation in the counterclaim. It is not necessary to identify the several respects in which the case is pleaded against the respondents. It is sufficient to say that, relevantly, it is alleged that one or other of the respondents made a representation to the above effect as to the availability of finance for the project, and that Bevnol suffered loss and damage as a result of carrying out works in reliance upon it, Seachange having failed to pay for those works. It is also claimed that Seachange's termination of the contract was wrongful.

15 In his defence to the counterclaim Mr De Simone seemed first to admit that he provided the Paul Marc letter, but then alleged that Seachange never represented that funding was available to Bevnol. In relation to the alleged misrepresentation the defence states:

Denied. Further particulars of Defence are not being provided due to Bevnol having made a complaint to the Victoria Police which may result in the institution of criminal charges. Such refusal is based on the right against self-incrimination and the right to a fair trial and pursuant to the protections of the Charter of Rights and Responsibilities and in accordance with the application made to the Tribunal on 3 June 2008.

16 It is necessary to explain two references in that paragraph. First is the reference to a complaint to Victoria Police and the second is the reference to an application made to the Tribunal on 3 June 2008. As to the complaint, it was common ground before the Tribunal that in about March 2007 a director of Bevnol made a complaint to the police concerning the circumstances in which financial assistance was sought or obtained in relation to the development and in particular the letter provided to Bevnol on 27 July 2006. Mr De Simone was the subject of a subsequent police investigation which culminated in him being charged, on 23 March 2009, with six offences of dishonesty and two charges of having knowingly given false evidence in the Seachange proceeding in the Tribunal on 6 July and 28 August 2007. It is sufficient to note the first charge which alleges that Mr De Simone between 28 September 2006 and 6 December 2006 dishonestly obtained for himself a financial advantage, namely the deferment of a debt of $1,809,827.80 by deception by representing that the construction finance had been approved. It is common ground that the matters the subject of the charged offences arise from the same factual substratum as is involved in the proceeding before the Tribunal.

17 The second point concerns the reference to an application made in June 2008. In this application Mr De Simone sought a stay of that part of Bevnol's counterclaim which related to him. He also sought a reference of certain questions to the Supreme Court pursuant to s 33 of the Charter.

18 The applications by Mr De Simone made in June 2008 were dismissed by the same Vice President on 25 November 2008.[6] In refusing the applications the Vice President applied the guidelines in McMahon v Gould. At that time Mr De Simone had not been charged with any offence, but he relied on the fact of the police investigation and the apprehension that criminal charges would be laid.

19 Mr De Simone sought leave to appeal from the Vice President's refusal of those applications, which leave was refused by the Court of Appeal on 3 April 2009.[7] On the hearing of the leave application Mr De Simone raised the same issue as he later sought to raise by the reference we declined to hear. In the course of their joint judgment Neave JA and Williams AJA stated that they doubted whether s 24 of the Charter required modification of the McMahon v Gould principles but nevertheless considered that the applicant had a real argument that the McMahon v Gould principles should be modified in light of ss 24 and 25 of the Charter. They did not find it necessary to determine that issue for reasons which included that Mr De Simone had by then been charged and it was open to him to make a fresh application for a stay in the light of his changed circumstances.

20 Very promptly Mr De Simone moved the Vice President again for a stay of the Bevnol counterclaim insofar as it related to him, on the basis that to defend Bevnol's counterclaim may require him to forego or waive his right to silence with the risk of adversely affecting his interests in the criminal proceedings. Further, he would be denied a fair hearing in the proceeding before the Tribunal because he would be constrained as to the evidence he could lead in his defence lest he be disadvantaged in the criminal proceeding. Mr De Simone also sought the referral of four questions of law to the Supreme Court. Bevnol opposed the stay and the referral.

21 The Vice President did not determine the stay application on its merits, as he had done previously. Rather, he was satisfied that a question of law had arisen that related to the application of the Charter, namely whether the McMahon v Gould principles should be revised in light of the Charter and in particular ss 24 and 25 thereof, and that it was appropriate to refer the question to the Supreme Court for determination. The Vice President stated that:

The relevant issue has not been the subject of prior determination by the Tribunal or by a court and raises an important issue of general application. I have also had regard to the Court of Appeal's observation that there is a 'real argument' as to whether the McMahon v Gould guidelines should be modified in light of ss 24 and 25 of the Charter. The position taken by the parties is also relevant and I have taken that into account.

He then formulated the question to be referred in the terms set out above.

22 In his submissions Mr De Simone referred to the following provisions of the Victorian Civil and Administrative Tribunal Act 1998 ('the VCAT Act'), namely:

• Section 80(1) which provides that the Tribunal may give directions and do whatever is necessary for the expeditious or fair hearing and determination of a proceeding.
• Section 97 which provides that the Tribunal must act fairly and according to the substantial merits of the case in all proceedings.
• Section 98(1) which provides that the Tribunal -

(b) is not bound by the rules of evidence or any practices or procedures applicable to courts of record, except to the extent that it adopts those rules, practices and procedures;

(c) may inform itself on any matter as it sees fit;

(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.

• Section 105 concerns the rule against self-incrimination and provides that :

(1) A person is not excused from answering a question or producing a document in a proceeding on the ground that the answer or document might tend to incriminate the person.

(2) If the person claims, before answering a question or producing a document, that the answer or document might tend to incriminate them, the answer or document is not admissible in evidence in any criminal proceedings, other than in proceedings in respect of the falsity of the answer.

23 The following parties appeared on the hearing of the reference before us. Mr De Simone who appeared in person, Bevnol and its directors, Seachange and the Attorney-General for Victoria. Each provided a written submission which addressed the range of issues said to be raised by, or involved in answering, the question. We first heard Mr De Simone who addressed submissions at some length as to the occasion for the reference and why it was appropriate for the Court to answer the question. We also heard the other parties, in particular as to the appropriateness of answering the question.

24 It is convenient to outline Mr De Simone's submissions as that will indicate the breadth of matters sought to be comprehended by the question. It also serves to identify why it was inappropriate to answer the question.

25 Mr De Simone submitted that significant questions of law arose as to the proper meaning of ss 24 and 25 of the Charter; the ongoing applicability of the McMahon v Gould guidelines, which he said required urgent appellate review; and the meaning of terms used in the guidelines, which he said ought to be clarified. The questions of law were neither moot nor hypothetical; whereas Bevnol supported the present McMahon v Gould test, he favoured a test that is compatible with the Charter rights which the McMahon v Gould guidelines do not adequately protect. He submitted further that the right to a fair hearing in ss 97 and 98 of the VCAT Act is different to the right to a fair hearing under s 24 of the Charter. His submission thus involved an analysis of those provisions of the VCAT Act and the Charter. He submitted, as he had at the Tribunal, that in light of judicial misgivings in relation to the guidelines not taking account of the primacy of criminal proceedings, and the effect of the Charter rights, the court should take the opportunity presented by the reference to undertake the overdue reconsideration of McMahon v Gould.

26 As to this, he addressed particular submissions as to the operation in this case of the McMahon v Gould guidelines (j)(ii)-(vi), and submitted that the guidelines did not adequately ensure that he could receive a fair hearing in the criminal proceedings. It is not necessary to develop why he submitted that was so, as it is sufficient for present purposes to indicate the scope of the submissions. They concluded with the proposition that the guidelines should proceed from a presumption in favour of granting a stay unless exceptional circumstances are shown. And ss 97 and 98 of the VCAT Act should be given a human rights compatible interpretation that gave primacy to the rights of criminal defendants.

27 Bevnol's primary position was that the rights recognised by ss 24 and 25 were simply a codification of the rights at common law, which rights were recognised in the McMahon v Gould guidelines. Accordingly, the Charter did not call for a re-appraisal of these rights, and the McMahon v Gould guidelines did not require reconsideration in light of the Charter. If, however, the Charter was applicable to the exercise of the discretion to stay civil proceedings, the rights recognised in ss 24 and 25 should be considered in conjunction with the guidelines.

28 The development of these submissions involved a close analysis of the meaning and application of terms in the VCAT Act and the Charter, and the guidelines. Among other things, it was said that the reference raised an issue whether the rights in criminal proceedings are required to be recognised in civil proceedings and, if so, to what extent? It was submitted that in a civil proceeding no regard need be had to the rights protected in a criminal proceeding by s 25 of the Charter. Hence, the McMahon v Gould guidelines apply. Further, counsel submitted that the reference was inappropriate: the question was too broad in its scope, and the relevant facts were not identified. While this is an incomplete summary of Bevnol's submissions, for present purposes it is a sufficient reference to those submissions.

29 The solicitor for Seachange stated that while Mr De Simone was the sole director of Seachange, he was not personally a shareholder. Seachange acted as manager of a partnership comprised of entities which were trustees of discretionary family trusts, namely the Jurblum Family Trust, the Serafino De Simone Family Trust and the Giuseppe De Simone Family Trust. The solicitor stated that he has not and does not act for Mr De Simone in respect of the criminal charges nor in the VCAT proceeding due to the potential conflict of interest. But Seachange requires that Mr De Simone be willing to give evidence at the trial of the civil proceeding as he is a key or the principal witness to most matters. However while charges are pending he cannot be compelled to give evidence and he has advised that he is unwilling to voluntarily do so due to the risk of adversely affecting his position in the criminal proceeding. To have to proceed with the civil proceeding before the criminal proceeding would harm the interests of Seachange and its beneficial owners. For such reasons Seachange supported the stay of the VCAT proceeding. It also supported the expansion of the McMahon v Gould guidelines although the solicitor did not advance separate submissions on that issue.

30 Counsel for the Attorney-General submitted, in summary, that:

(a) At common law, the McMahon v Gould guidelines, read in light of Reid v Howard, provide useful assistance in the exercise of the discretion to stay a civil proceeding on the ground that there is a pending criminal proceeding involving the same subject matter.

(b) The Charter applies to the Tribunal when exercising its discretion to stay a civil proceeding on the ground that there is a pending criminal proceeding involving the same subject matter, pursuant to s 6(2)(b) of the Charter.

(c) The McMahon v Gould guidelines, read in light of Reid v Howard, are consistent with the rights protected by ss 8 (equality before the law), 24(1) and 25(2) of the Charter. Accordingly, the Charter does not require any revision to the common law guidelines.

31 In relation to the first point, as to the guidelines being read in light of Reid v Howard, it was submitted that Reid v Howard required the guidelines to be recalibrated to identify expressly as one of the matters to be considered whether forcing the defendant to take steps in the civil proceeding is realistically likely to infringe the privilege against self-incrimination. If there is a realistic likelihood of the privilege being so infringed, the civil proceeding should be stayed. Further, s 105 of the VCAT Act needed to be taken into account in applying the guidelines before the Tribunal, but did not require the guidelines to be altered.

32 As to the third point, counsel submitted that it was unsurprising that the McMahon v Gould guidelines, read in light of Reid v Howard, were consistent with the rights recognised in ss 24 and 25, as the guidelines gave effect to common law rights which in this context were substantially the same as those protected by ss 8, 24(1) and 25(2) of the Charter. Thus understood, the guidelines are directed at ensuring that the defendant to a pending criminal proceeding is not unfairly prejudiced in that proceeding by reason of the continuance of the civil proceeding.

33 Counsel said that whether continuance of a civil proceeding presents a real likelihood of infringement of the privilege against self-incrimination depends on the facts and circumstances of the particular case. In general, a defendant to a civil proceeding remains at liberty to claim the privilege against self-incrimination in respect of a specific disclosure, although in a proceeding in the Tribunal that position is affected by s 105 of the VCAT Act.

34 In the course of his oral submissions counsel recognised that the abstract nature of the question, and the fact that it did not raise a question of law or otherwise, rendered it inappropriate to answer.

35 A central feature of s 33(1) of the Charter is the presence of the discretion whether to refer. Thus, even if the conditions that enliven the discretion are satisfied, the court or tribunal has an overriding discretion whether to refer the question. The section does not specify the criteria to be considered in determining how to exercise the discretion. The discretion is thus unfettered although like all judicial discretions it is to be exercised in light of the relevant facts and circumstances including such considerations as may be contained in and drawn from the Charter. As to the Charter, we were not pointed to any provision in addition to s 33(1) that was relevant in this respect. Nor does the second reading speech on the Charter of the responsible minister, who was the Attorney-General, provide guidance. In relation to s 33 all the Attorney-General stated was that it:

... recognises the need for a court with the authority of the Supreme Court to determine the significant issues that may arise under the charter.[8]

36 It is not a criticism of the discretion reposed by s 33(1) that it does not state the criteria for its exercise. It is the wisdom of the provision, and other like provisions, that it does not identify the relevant criteria, and thereby risk narrowing by exclusion the scope of its operation.

37 When the Vice President considered whether to exercise the discretion to refer the question to the Supreme Court it was necessary for him to consider the nature and scope of the question and the circumstances in which it arose for consideration. Without a determination of Mr De Simone's application for a stay there were no findings and no consideration of the issues. Nor was there even a statement of agreed facts. That meant that the question was raised in the air, so to speak.

38 Section 33 is expressed in similar language to s 17B(2) of the Supreme Court Act under which Kings AsJ referred this matter to the Court of Appeal. That section permits a judge or associate judge in the Trial Division to reserve a proceeding or question in a proceeding for the consideration of the Court of Appeal, or to direct a proceeding or question in a proceeding to be argued before the Court of Appeal. This power was formerly contained in s 15(2) of the Supreme Court Act which provided for a question to be referred to the Full Court. As mentioned earlier, when a referred matter comes to the Court of Appeal, it will only be heard with the leave of the Court of Appeal. While this requirement of leave is of recent origin[9] it is consistent with the fact that, historically, the Full Court would refuse to consider a reference if in the circumstances that was the more appropriate course. The approach that was taken, and the relevant considerations, are referred to in Collins v Black,[10] and Hodgson v State of Victoria.[11] What is clear is that mere difficulty of a question, or its importance to the parties or the public, or a conflict of authorities, or that the parties have stated they will appeal whatever the decision at first instance, are but factors among others to be considered when deciding to refer a question to the Court of Appeal. As Brooking J said in Collins v Black, 'everything depends on the circumstances of the particular case'.[12] A further significant point, and one that is relevant in the present case, is that when a primary decision maker refers a question to the appeal court, that court is deprived of the benefit of the primary decision maker's judgment on the issues arising for determination. Of course, in this case the initial reference was to the Trial Division, but the point remains the same. The matters we have mentioned were to be considered by the Vice President as the primary decision maker.

39 These considerations are apposite in the present case. In our view, in the circumstances that the Vice President did not rule on the stay application and having regard to the terms of the question, the reference was neither appropriate to make nor appropriate for this Court to answer.

40 If the Vice President had ruled on the stay application, the unsuccessful party could have sought leave to appeal on a question of law to the Court of Appeal, pursuant to s 148(1) of the VCAT Act. Any such appeal would have been considered in the light of the Vice President's reasons, and, more particularly, would have been concerned with the existence or not of an error of law in those reasons. That is an altogether different thing from what we had here which was a question not conditioned on any facts found or assessed or conclusion of law reached by a primary judge. Yet the premise of the question is an accepted power to stay a civil proceeding, the exercise of which must turn on the facts of the particular case considered in light of the applicable law including so far as was necessary a consideration of relevant statutory provisions. Notwithstanding that, the referred question bypasses any facts and asks a purely hypothetical question. Moreover the answer to the question would not determine the issue between the parties who would have to return to the Tribunal for the hearing and determination of the stay application. With respect, this is a further reason why the stay application should have been determined and the reference not made.

41 It was for reasons of this nature that, in our view, the question referred was not a question of law and it was not appropriate to answer the question and we declined to do so.

[1] (1982) 7 ACLR 202.

[3] [1990] VicRp 34; [1990] VR 385.

[4] [1995] HCA 40; (1995) 184 CLR 1.

[5] Baker v Commissioner of the Australian Federal Police [2000] FCA 1339; (2000) 104 FCR 359, 366 (Gyles J). See also, as instances, Yuill v Spedley Securities Ltd (in liq) (1992) 8 ACSR 272, 274-5 (Kirby P), but contra 275 (Priestly JA); Guglielmin v Trescowthick (No 3) [2005] FCA 139; (2005) 220 ALR 535, 540-1, [20]-[21]; Niven v SS [2006] NSWCA 338, [2] (Beazley JA); Lee v DPP (Cth) [2009] NSWCA 347; (2009) 261 ALR 123, 142, [89]; Re AWB Limited [2008] VSC 473, [58].

[6] Seachange Management Pty Ltd v Bevnol Constructions and Developments Pty Ltd [2008] VCAT 2629.

[7] De Simone v Bevnol Constructions and Developments Pty Ltd [2009] VSCA 199.

[8] H_ansard_, Legislative Assembly 4 May 2006, 1293.

[9] Constitution (Court of Appeal) Act 1994, s 20, commenced 7 June 1995.

[10] [1995] VicRp 26; [1995] 1 VR 409, 410-11 (Brooking J), 419 (J D Phillips and Hansen JJ).

[11] [1995] VicRp 56; [1995] 2 VR 292, 297 (Tadgell J with whom Nathan J agreed), 299 (Ashley J).

[12] [1995] VicRp 26; [1995] 1 VR 409, 410.