Kortel v Mirik & Mirik [2008] VSC 103

Ms P Tate SC, Solicitor-General for the State of Victoria with Ms J Davidson

For the Victorian Equal Opportunity and Human Rights Commission and for Human Rights Law Resource Centre

1 Refik Kortel is the victim of crimes committed against him by Cetin Mirik and Metin Mirik, for which they were sentenced to significant terms of imprisonment. Mr Kortel now applies for compensation under s 85B of the Sentencing Act 1991.

2 The crimes against Mr Kortel were extremely serious and committed on 13 April 2005. The respondents were sentenced by me on 21 February 2007.[1] The term of imprisonment imposed on Cetin Mirik was increased by the Court of Appeal on 6 August 2007.[2] The nature of the crimes and the full extent of Mr Kortel's injuries are explained in those sentences.

3 Mr Kortel's application for compensation was issued on 18 February 2008. When the matter came on before me in a directions hearing on 27 February 2008, I was informed he would be represented by senior and junior counsel, instructed by solicitors. The respondents, who were in custody, did not have legal aid and were not represented.

4 Under s 35(1)(a) of the Charter of Human Rights and Responsibilities Act 2006, a party to a proceeding must give notice in the prescribed form to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission if "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 ..."

5 As the respondents were not then legally represented, it seemed to me that a legal question arose whether the Charter applied to the court in respect of the proceeding. There is no doubt that the court is not a public authority "except when it is acting in an administrative capacity".[3] Therefore, when acting in its judicial capacity, the court is not positively obliged to act compatibly with the Charter by s 38(1), however desirable it may be for the court to do so in the exercise of its judicial powers and discretions.[4] But under s 6(2)(b), the Charter applies to courts and tribunals "to the extent that they have functions under Part 2". Section 24(1) is in Part 2. It provides, among other things, that a party to a civil proceeding has a right to have it decided "after a fair ... hearing." I thought the question arose whether the obligation of the court to ensure a fair hearing to the respondents as unrepresented litigants - which is a procedural obligation - involved the performance of a function of the kind specified in s 24(1). I also thought s 8 might be relevant in this regard, in so far as it may have procedural implications.

6 Accordingly, Mr Kortel's solicitors served on the Attorney-General and the Commission a notice under s 35(1)(a) of the Charter. It was dated 5 March 2008 and in these terms:

1. Pursuant to an order made 28 February 2008 the Applicant gives notice that this Application involves a matter under the Charter of Human Rights and Responsibilities Act 2006 ('the Charter').

2. In particular, the Applicant gives notice that this Application involves the issue of whether the Supreme Court, in haring an application under Section 85B of the Sentencing Act 1991 (Vic), is exercising a function under Part 2 and Division 3 of Part 3 of the Charter, thereby requiring it to apply and interpret Section 8 and Section 24 of the Charter in the context of one or both of the Respondents being unrepresented.

7 On 28 March 2008, the Commission gave notice of statutory intervention in the proceeding, in these terms:

TAKE NOTICE that the Victorian Equal Opportunity and Human Rights Commission intends to intervene in this proceeding pursuant to section 40 of the Charter of Human Rights and Responsibilities and intends to make the following submissions:

1 section 6(2)(b) of the Charter requires the Court to give effect to the rights under Part 2 of the Charter in so far as those rights arise in relation to the matter the subject of the present proceeding before the Court;

2 the rights that arise in relation to the matter the subject of the present proceeding are the rights set out in sections 8(3) and 24(1) of the Charter; and

3 section 32 of the Charter requires the Court to construe section 85G of the Sentencing Act 1991 (Vic) in a way that is compatible with sections 8(3) and 24(1) of the Charter.

The Commission reserves the right to make submissions in relation to any other Charter related matters that arise during the course of the proceedings, to the extent that they fall within the Commission's intervention power, as set out in section 40 of the Charter.

8 When the matter came back on before me on 1 April 2008, the respondents were represented by counsel, instructed by a solicitor from Victoria Legal Aid. I was informed that legal aid had been granted. The Attorney-General was represented by the Solicitor-General, Ms Pamela Tate SC, and the Commissioner by Mr Ron Merkel QC.[5] Mr Merkel submitted that, despite the respondents now being legally represented, a legal question remained about the application of the Charter to the proceeding. The Solicitor-General submitted the legal question that arose when the respondents were not legally represented no longer existed now that they were.

9 A debate then ensued about what steps I should take to deal with these issues. I can best explain that debate by reference to the position taken by the parties in relation to separate questions that I was asked to hear and determine under r 47.04 of the Supreme Court Rules.

10 The Solicitor-General submitted I should hear and determine no question, as none arose. Alternatively, she submitted I should hear and determine the questions whether a question of law arose and whether the determination of that question would amount to the giving of an advisory opinion.[6] Mr Merkel submitted that I should hear and determine at least the question whether the Commission was entitled to intervene under s 40(1) on the basis that a question of law had arisen, that I should also receive submissions on the question of the proper construction of s 6(2)(b) and that I should later decide whether that question should be determined. What the Attorney-General and the Commission were really disputing is whether the Commission had a right to intervene to agitate the general question of the proper construction of s 6(2)(b) when the respondents were no longer unrepresented.

11 The problem that arises is that the potential application of the Charter to the court in this proceeding has no present practical implications for the conduct and determination of the proceeding. It is axiomatic, under both the Sentencing Act[7] and the common law, that when an application is made for compensation under s 85B, the court owes a duty to all parties to the proceeding to observe the rules of natural justice. In such a proceeding, the court has a fundamental duty to ensure a fair hearing.[8] I have also expressed the view that, quite apart from the disputed statutory application of the Charter to the court, it is entitled, in appropriate circumstances, to discharge its general powers and duties by having regard to the provisions of the International Covenant on Civil and Political Rights, on which ss 8 and 24(1) are based.[9] I intend to conduct this proceeding and determine Mr Kortel's application with rigorous fairness, having regard to the court's obligations, powers and duties in this regard. As the matter presently stands before me, I can see no respect in which the determination of the question advanced by the Commission - whether the Charter applies to the court in this proceeding by reason of s 6(2)(b) - will have any operative affect.

12 As all of the parties acknowledged, it was different when the respondents were not represented. At that time, a concrete question arose whether s 6(2)(b), properly construed, together with ss 8 and 24(1), put a positive obligation on the court to ensure a fair hearing by giving due assistance to the respondents as unrepresented litigants. If that question was answered in the affirmative, a question also arose as to the scope of that obligation. The argument (I say no more than that) is that the obligation that arises by reason of those provisions of the Charter is statutory and separate to the one that arises under the court's general powers and duties. The resolution of the question turns on the proper construction of the expression "to the extent that they have functions under Part 2 and Division 3 of Part 3" in s 6(2)(b), considered in the context of the objects and scheme of the Charter as a whole. As the respondents are now being legally represented, that question no longer arises.

13 That conclusion does not fully address the issues that the Commission seeks to raise. Mr Merkel contends that, in this proceeding (as in all others in Victorian courts and tribunals), the threshold question arises whether, by reason of the proper construction of ss 6(2)(b), 8 and 24(1), the Charter applies to the court in respect of the proceeding because, in all cases, a court or tribunal has the function of ensuring equality before the law and a fair hearing. He submitted it was appropriate to consider that threshold question in this case, leaving until later the scope of the court's obligations under ss 8 and 24(1), if the question was answered in the affirmative. He submitted the Commission had a present right to intervene under s 40(1) by reason of that question having arisen, which the court should examine as part of the process of determining whether the Commission had that right to intervene, even though the respondents are now legally represented.

14 The Commission has responsibilities under the Charter that are of fundamental importance to the protection and promotion of the human rights to which the Charter gives effect. Under the Equal Opportunity Act 1995, the Commission functions independently of government. Under s 40(1) of the Charter, the Commission may independently intervene in and be joined as a party to any proceeding before a court or tribunal in which a question of law arises relating to the application or interpretation of the Charter. I have already mentioned the requirement to give notice to the Commission specified in s 35(1)(a). The significance of the role of the Commission under the Charter is evident from the fact that the Commission[10] and the Attorney-General[11] have identical rights to receive notice of questions of law and to intervene in proceedings in which they arise.

15 In the present case, Mr Will Alstergren, as counsel for the respondents, supported the submissions made by the Solicitor-General that no question of law arose, although he did say that, depending on the course of the proceeding, such a question may arise later. He also informed me that, if the questions of law put forward by the Commission were to be separately heard and determined, Victoria Legal Aid would seek leave to intervene on the side of the Attorney-General.[12] Dr Ian Freckelton, as senior counsel for Mr Kortel, sided with the Commission to this extent - he submitted his client did not object to the Commission's two questions being heard and determined as this would delay the proceeding the least.

16 The court's determination of the question whether a question of law arises, such as would activate the Commission's statutory right to intervene in s 40(1), does not depend on the position taken by the parties in their submissions on this subject. Speaking generally, whether a question of law of the kind specified in s 40(1) arises will depend on the nature of the issues raised by the hearing and determination of the proceeding. Under the Charter, the court has an obligation to determine for itself whether such questions arise. There may be all sorts of reasons why a party to a proceeding does not take advantage of human rights designed for their protection and therefore does not raise such a question, or even dispute that one has arisen. The party may be trying to juggle conflicting interests, may be vulnerable or may be subject to imperfect advice or improper influence (which I am not suggesting has happened in this case). That is one reason why ss 35(1)(a) and 40(1) of the Charter give the Commission the right to receive notice of questions of law of the specified kind and an independent statutory right of intervention which, when it properly arises, is not subject to the leave of the court. Of course, it is the obligation of the court or tribunal to give effect to these provision when the occasion to do so arises.

17 But in the present case I think the change of circumstances between the time when the Commission was first notified and sought to intervene and the time when the proceeding came back on before me has undermined the Commission's right to intervene under s 40(1). That change of circumstances has been brought about by the grant of legal aid to the respondents, which has allowed them to obtain legal representation for this proceeding. In the result, the question whether s 6(2)(b) makes the Charter applicable to the court in the proceeding is purely theoretical and really not a positive issue at all.

18 The question concerning the proper construction of s 6(2)(b) is one of fundamental importance, as counsel for all parties acknowledged. It lurks under the surface of the present case and may arise again depending on the course the proceeding takes. If and when that happens, I will ensure the Attorney-General and the Commission are given notice under s 35(1)(a) so they can decide whether to intervene again under ss 34(1) and 40(1) of the Charter. But I think the present position is so clear-cut, and has been so fully argued at the directions hearing, that I am not prepared to order that the Commission's present right to intervene be heard and determined as a separate question under r 47.04 of the Supreme Court Rules. As the issue concerning the proper construction of s 6(2)(b) does not presently arise, I would not order the separate hearing and determination of that question.

19 For those reasons, I think neither the Attorney-General nor the Commission presently has a right to intervene in the proceeding.

20 It is now time to focus on Mr Kortel's application for compensation. I will hear counsel for the parties to that application on the directions I should make for its hearing and determination.

[1] DPP v Mirik and Mirik [2007] VSC 20

[2] DPP v Mirik and Mirik [2007] VSCA 150

[4] I have discussed this subject in Tomasevic v Travaglini [2007] VSC 337 and Ragg v Magistrates' Court and Corcoris [2008] VSC 1.

[5] Mr Merkel also represented the Human Rights Law Resource Centre who sought to be granted leave to intervene in the proceeding. I would have granted that leave but for the conclusion I reached about the issues at this stage.

[6] In this regard the Solicitor-General relied on Swift Australia Co (Pty) Limited v South British Insurance Company Co Ltd [1970] VicRp 47; [1970] VR 368, 369.

[8] I discussed the authorities on this general subject in Tomasevic v Travaglini [2007] VSC 337.

[9] Again, see eg Tomasevic v Travaglini [2007] VSC 337 and Ragg v Magistrates' Court of Victoria and Corcoris [2008] VSC 1.

[12] The issue does not presently arise, but if that were to happen, I would expect Mr Kortel and VLA to be separately represented, both as to solicitors and counsel, to avoid any appearance of conflict of interest.