De Simone v Bevnol Constructions and Developments Pty Ltd & Ors

[2010] VSCA 231

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Stay of proceedings
3. › Civil proceeding pending criminal proceeding
4. › McMahon v Gould guidelines
5. › Whether guidelines should be revised in light of Charter of Human Rights and Responsibilities Act 2006 (Vic)
6. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 24, 25, 33
1. Practice and Procedure
2. › Reference of questions of law
3. › Referral to Supreme Court under s 33 of Charter of Human Rights and Responsibilities Act 2006 (Vic)
4. › Whether question referred was a question of law
5. › Whether appropriate for determination
6. › Hypothetical question without findings of fact
7. › Charter of Human Rights and Responsibilities Act 2006 (Vic), s 33(1)
1. Practice and Procedure
2. › Reference of questions to Court of Appeal
3. › Discretion to decline to answer referred question
4. › Considerations relevant to exercise of discretion
5. › Deprivation of benefit of primary decision-maker's judgment
6. › Supreme Court Act 1986 (Vic), s 17B(2)

Quick Take

A question referred to the Supreme Court under s 33(1) of the Charter must be a question of law grounded in findings of fact or agreed facts, not a hypothetical or abstract question. A tribunal should determine the substantive application before referring questions, as the appellate court is deprived of the benefit of the primary decision-maker's judgment when a reference bypasses the merits. The McMahon v Gould guidelines for staying civil proceedings pending criminal proceedings remain firmly established and have not been modified by an appellate court.