McKechnie v Secretary of the Department of Justice

[2024] VSCA 170

Victorian Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Preliminary discovery
3. › Discovery from prospective defendant
4. › Whether preconditions satisfied
5. › Whether reasonable cause to believe applicant has right to obtain relief
6. › Whether all reasonable inquiries made
7. › Whether reasonable cause to believe documents exist
8. › Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 32.05
1. Human Rights
2. › Charter of Human Rights and Responsibilities Act 2006 (Vic)
3. › Obligations on public authorities
4. › Whether conduct unlawful under s 38(1)
5. › Whether public authority could not reasonably have acted differently
6. › Operation of s 38(2) defence
7. › Whether precondition in s 39(1) satisfied
8. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 11, 22, 38, 39
1. Practice and Procedure
2. › Leave to appeal
3. › Application totally without merit
4. › Whether order for preliminary discovery would be futile
5. › Supreme Court Act 1986 (Vic), s 14D(3)

Quick Take

The case confirms that where a statutory provision (including subordinate legislation) dictates the outcome, s 38(2) of the Charter will apply to preclude a finding of unlawfulness under s 38(1), and that s 39(1) requires an independent (non-Charter) ground of unlawfulness before Charter-based relief can be sought.

Case Details

Citation[2024] VSCA 170

CourtVSCA

JurisdictionVictoria

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