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Supreme Court of Victoria
Charter requires consideration of ‘special circumstances’ of alleged infringement offenders Taha v Broadmeadows Magistrates’ Court & Ors; Brookes v Magistrates’ Court of Victoria & Anor [2011] VSC 642 (16 December 2011) Summary The Supreme Court has held that infringements officers and courts may have a duty to inquire whether a person has ‘special circumstances’ – [...]
Charter should be interpreted beneficially but not applied retrospectively Collier v Austin Health & Ors [2011] VSC 344 (27 July 2011) Summary The Supreme Court of Victoria’s recent decision in Collier v Austin Health [2011] VSC 344 confirms that section 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) will not operate [...]
Charter Promotes and Protects Rights of Person with Disability P J B v Melbourne Health & Anor (Patrick’s case) [2011] VSC 327 (19 July 2011) Summary In this case, the Supreme Court of Victoria held that the Victorian Civil and Administrative Tribunal had both failed to interpret law consistently with human rights and had itself [...]
Court will Determine whether a Declaration of Inconsistent Interpretation should be Made During Primary Hearing Noone, Director of Consumer Affairs Victoria v Operation Smile (Australia) & Ors (No 2) [2011] VSC 153 (19 April 2011) The case involved an application brought by the Director of Consumer Affairs Victoria against the Hope Clinic. The application sought [...]
Aboriginal Children Returned to Care of Maternal Grandmother as Court Finds Charter Applies to Child Welfare Proceedings Secretary to the Department of Human Services v Sanding [2011] VSC 42 (22 February 2011) Summary The Supreme Court of Victoria has ruled that the Children’s Court of Victoria (‘Court’) had the discretion to make orders returning four [...]
Evictions and Human Rights Giotopoulos v Director of Housing [2011] VSC 20 (7 February 2011) Summary The Supreme Court refused leave to appeal a decision of the Victorian Civil and Administrative Tribunal (the Tribunal) dismissing an application under section 232 of the Residential Tenancies Act 1997 (the ‘Act’) for the creation of a tenancy. Section [...]
Relevance of the Victorian Charter to Breath and Blood Testing DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 (12 November 2010) The recent decisions in DPP v Piscopo [2010] VSC 498 and DPP v Rukandin [2010] VSC 499 provide further guidance concerning alcohol testing enforcement. The two separate judgements, delivered [...]
The Relationship between the Victorian Charter and Confiscation of Property DPP v Ali & Anor (No 2) [2010] VSC 503 (10 November 2010) The Supreme Court of Victoria (Hargrave J) recently considered the operation of the Charter of Human Rights and Responsibilities Act 2006 (Vic) in relation to an application to forfeit a family home [...]
Supreme Court Considers Right to Liberty and Security of Person Subject to Involuntary Mental Health Treatment Antunovic v Dawson & Anor [2010] VSC 377 (25 August 2010) On an application for a writ of habeas corpus, Bell J of the Supreme Court of Victoria held that the provision in the Mental Health Act 1986 (Vic) [...]
Charter Rights Should be Construed Broadly and by Reference to International and Comparative Human Rights Jurisprudence Director of Public Transport v XFJ [2010] VSC 319 (29 July 2010) The Victorian Supreme Court has affirmed the importance of a broad approach to the construction of human rights in the Charter, including appropriate reliance on international human [...]
Right to Humane Treatment in Detention and Prisoner Access to Health Care Castles v Secretary to the Department of Justice [2010] VSC 310 (9 July 2010) On 9 July 2010, the Supreme Court of Victoria found that the plaintiff, Kimberley Castles, is entitled under s 47(1)(f) of the Corrections Act 1986 to undergo IVF treatment. [...]
Victorian Supreme Court Adopts Narrow View of Right to Privacy and Eschews International Jurisprudence WBM v Chief Commissioner of Police [2010] VSC 219 (28 May 2010) This case raises the rights to privacy (s 13) and freedom from retrospective punishment (s 27), interpretation of legislation (s 32) and declarations of inconsistency (s 36) under the [...]
Supreme Court Orders Speedy Trial to Determine Prisoner’s Eligibility to Access IVF Treatment under Victorian Charter Castles v Secretary of the Department of Justice & Ors [2010] VSC 181 (4 May 2010) The Supreme Court of Victoria has rejected an application by a female prisoner for an injunction restraining the Secretary of the Department of [...]
Statutory Interpretation and Limitations on Rights In the matter of a Major Review of Derek Ernest Percy [2010] VSC 179 (31 March 2010) Derek Percy, the only remaining prisoner in Victoria who was found not guilty of murder on the grounds of insanity, sought to have his custodial supervision order varied pursuant to the Crimes [...]
Right to a Fair Hearing and the Duty of the Court to Unrepresented Litigants Russell v Yarra Ranges Shire Council [2009] VSC 486 (29 October 2009) On 29 October 2009, Kaye J of the Supreme Court of Victoria considered the duty that a court or Tribunal might owe to an unrepresented litigant to ensure that [...]
Supreme Court Considers meaning of ‘Proceeding’ to Determine Application of Charter pursuant to Transitional Provisions Secretary to the Department of Justice v Fletcher (Ruling No 3) [2009] VSC 503 (22 October 2009) Section 49(2) of the Charter states that the Charter ‘does not affect any proceedings commenced or concluded before the commencement of Part 2’. [...]
Supreme Court Considers Relevance of Conditions of Detention to Bail Dale v DPP [2009] VSCA 212 (21 September 2009) In considering whether a former police officer should be granted bail, the Court of Appeal accepted that the circumstances of his custody constituted ‘exceptional circumstances’ as defined by the Bail Act 1977 (Vic). Unless the appellant [...]
Access to Court Fundamental to Right to Fair Hearing Materials Fabrication Pty Ltd v Baulderstone Pty Ltd [2009] VSC 405 (8 September 2009) On 8 September 2009, Vickery J of the Victorian Supreme Court handed down a decision which considered the right to commence a civil proceeding. In the decision, Vickery J noted that the [...]
The Right to a Fair Hearing and the Privilege Against Self-Incrimination under the Victorian Charter Re an application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381 (7 September 2009) In a landmark decision for the operation of the Charter of Human Rights and Responsibilities, Warren CJ of the Supreme Court of Victoria, [...]
Supreme Court Considers Relevance of Conditions of Detention to Sentencing R v Kent [2009] VSC 375 (2 September 2009) On 2 September 2009, Bongiorno J of the Victorian Supreme Court handed down a decision which considered the application of the Charter to sentences of imprisonment imposed on individuals with mental health conditions. Facts Shane Kent [...]
Supreme Court holds that the ‘Interests’ of Mortgagors include their Right to Protection from Arbitrary Interference with the Home Nolan v MBF Investments Pty Ltd [2009] VSC 244 (18 June 2009) The Supreme Court of Victoria recently confirmed that fundamental human rights, both in international law and the Victorian Charter, are relevant interests that must [...]
Supreme Court Considers Retrospective Operation of the Charter State of Victoria v Turner [2009] VSC 66 (4 March 2009) In this case, the Supreme Court of Victoria considered whether it was bound by the interpretive provision in s 32 of the Charter when determining whether the Victorian Civil and Administrative Tribunal made an error of [...]
The Treatment of Delay under the Bail Act post-Charter: Is Change Required? DPP (Cth) v Barbaro [2009] VSCA 26 (3 March 2009) The Victorian Court of Appeal has considered whether the enactment of the Charter necessitates a change to the treatment of delay under the Bail Act 1977 (Vic). Facts The appellant, Pasquale Barbaro, was [...]
Disability Convention, Legal Capacity and Domestic Law Nichoson & Ors v Knaggs & Ors [2009] VSC 64 (27 February 2009) The Victorian Supreme Court adopted a human rights approach to the issue of legal capacity for those who have disabilities. In accordance with the UN Convention on the Rights of Persons with Disabilities (the ‘CRPD’), [...]
In refusing an application for bail, Justice Lasry of the Victorian Supreme Court considered the impact of s 21(5) of the Charter – which provides the right to be brought to trial without unreasonable delay – on the Bail Act 1997 (Vic). Detailed case note.
The Supreme Court of Victoria (Robson J) has held that civil penalty proceedings against five former directors of AWB Limited should be stayed in the exercise of the Court’s inherent jurisdiction. This was on the basis that criminal proceedings are threatened against them for conduct that is substantially the same as the conduct that is [...]
In this case Vickery J decided that it was appropriate in a free and democratic society to temporarily curtail freedom of media expression to guarantee X the right to a fair trial. Detailed case note.
The Supreme Court of Victoria considered that the Medical Practitioners Board of Victoria was a public authority as well as a tribunal under s 4 of the Charter. The Court held that the Board did not breach a medical practitioner’s right to be presumed innocent in disciplinary proceedings determining his capacity to practice medicine. Detailed [...]
In this case, the Supreme Court was asked to consider the proper construction of s 6(2)(b) of the Charter, which provides that the ‘Charter applies to courts and tribunals to the extent that they have functions under Part 2’. Part 2 of the Charter enshrines a body of civil and political rights largely derived from [...]
The applicants had been charged with terrorism-related offences under the Commonwealth Criminal Code. They applied to have the trial stayed on grounds of unfairness, arguing the conditions of their incarceration and of their transport to and from Court each trial day were increasingly affecting their capacity to properly defend the charges against them. Detailed case [...]
In a recent decision of the Supreme Court of Victoria, Habersberger J considered the extent to which the rights protected under the Victorian Charter apply to the acts and decisions of public authorities that are connected with a judicial proceeding. Detailed case note.
In a significant decision, the Supreme Court of Victoria has outlined the nature and scope of the principle of ‘equality of arms’ as an aspect of the right to a fair hearing. While the Court held that the Victorian Charter did not apply to the proceeding (as it was commenced prior to the entry into [...]
In the first decision to substantively consider the Victorian Charter of Human Rights since it became justiciable on 1 January 2008, Bongiorno J has held that the Charter guarantees the right to a timely trial and that the appropriate remedies for failure of the Crown to provide such a trial are release of the accused [...]
Under ss 17(1)(c) and 17(1)(d) of the Summary Offences Act 1966 (Vic), it is an offence to use insulting words and behave in an insulting manner in a public place. In this decision, Harper J held that these sections are subject to the decision in Coleman v Power (2004) 220 CLR 1 (that is, ‘whether [...]
In sentencing a young offender found guilty of murder, Bell J of the Supreme Court of Victoria had regard to international human rights principles, including the rights of the child under the Convention on the Rights of the Child, in the exercise of his sentencing discretion. Detailed case note. Full text decision: www.austlii.edu.au/au/cases/vic/VSC/2007/489.html
In a very significant decision, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to [...]
The incarceration in prison of a person with a severe psychiatric illness may amount to a violation of the Victorian Charter of Human Rights, according to Bongiorno J of the Supreme Court of Victoria. Detailed case note. The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/142.html.
Supreme Court of Victoria Considers Right to Legal Counsel under Charter of Human Rights – ss 6, 7, 4, 25, 49(2). Detailed case note. The full text decision is available at http://www.austlii.edu.au/au/cases/vic/VSC/2007/2.html.
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