Andre McKechnie v Detective Peter Evans (Recusal Application)
[2024] VSC 192
•22 April 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00045
| ANDRE MCKECHNIE | Appellant |
| v | |
| DETECTIVE PETER DAVID EVANS | Respondent |
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JUDGE: | GRAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 20 March 2024 |
DATE OF JUDGMENT: | 22 April 2024 |
CASE MAY BE CITED AS: | Andre McKechnie v Detective Peter Evans (Recusal Application) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 192 |
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APPLICATION FOR RECUSAL — Conduct of presiding judge in hearings in this proceeding and related proceedings involving same plaintiff — Whether a fair-minded lay observer might reasonably apprehend possible bias — Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the Respondent | Mr G Buchhorn | Office of Public Prosecutions |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Applicable principles........................................................................................................................ 5
Analysis................................................................................................................................................ 6
Ebner first step – identifying factors that might lead judge to decide a question other than on its merits..................................................................................................................................... 6
First factor – unfavourable decisions without apparent justification?........................ 7
1. Habeas corpus proceeding – treatment of request for Adult Parole Board’s reasons and refusals of adjournment said to cause unreadiness for trial.... 8
2. Decision on costs following Mr McKechnie’s decision to discontinue the habeas corpus proceeding............................................................................... 10
3. Matter related to discontinuance of habeas corpus proceeding – judicial review proceeding regarding parole – dismissal of defendant’s application for stay without order as to costs..................................................................... 12
4. Kosher foods proceeding – refusal to grant discovery on 2 November 2023 and refusal of stay of proceeding on 2 November 2023........................ 13
5. Kosher foods proceeding – adjournment of defendant’s summary dismissal application on 26 October 2023 and 2 November 2023.................. 17
6. Security rating proceeding – striking out of indorsement on originating motion................................................................................................................ 17
Second factor – propensity to push proceeding through to trial and depriving Mr McKechnie of evidence?............................................................................................................ 19
1. This proceeding................................................................................................ 19
2. Other proceedings............................................................................................ 19
3. Ability to prepare in all proceedings?........................................................... 20
First step – conclusion....................................................................................................... 20
Ebner – second step – logical connection between factors and possible impairment of impartiality.............................................................................................................................................. 20
First factor – impact of adverse decisions without apparent justification?.............. 23
Second factor – impact of propensity to push proceeding through to trial?............ 23
Second step – conclusion.................................................................................................. 24
Conclusion......................................................................................................................................... 24
HIS HONOUR:
Introduction
The plaintiff Mr McKechnie seeks ‘as a matter of urgency that the Honourable Justice Gray recuse himself from this proceeding’.[1] Mr McKechnie refers to various hearings before me in various proceedings he has filed in the Court, to support his application. He seeks the same outcome in one of those other proceedings, on the same grounds.[2]
[1]Plaintiff’s summons dated 12 December 2023 and filed 21 December 2023.
[2]McKechnie v State of Victoria S ECI 2021 03896.
The respondent opposes Mr McKechnie’s recusal application.
I have decided not to recuse myself. I now give my reasons.
Since October 2023 I have presided in various hearings, and made various orders, in the following proceedings brought by Mr McKechnie:[3]
[3]I also presided in McKechnie v Commissioner for Corrections and GEO Group S ECI 2022 05418, relating to requests by Mr McKechnie for access by telephone from prison to 1800 numbers, in which there was an interlocutory hearing on 6 December 2023, a trial on 29 February 2024, and the hearing and dismissal of a summons alleging contempt against the first defendant on 7 March 2024. I delivered written reasons for judgment dismissing this proceeding on 15 March 2024 and invited submissions on costs, ultimately making final orders on 19 April 2024. Mr McKechnie does not appear to rely on anything I have said or done in the 1800 numbers proceeding in support of his recusal application.
(a) McKechnie v State of Victoria S ECI 2021 03896, relating to Kosher foods Mr McKechnie seeks to have provided to him in prison. In the Kosher foods proceeding, there have been interlocutory hearings in the nature of directions hearings on 26 October 2023, 2 November 2023 and 27 November 2023, and another interlocutory hearing on 2 November 2023, in which I heard and dismissed an application for particular discovery by Mr McKechnie, giving ex tempore oral reasons for that ruling.
(b) McKechnie v Secretary, Department of Justice and Community Safety S ECI 2023 01528, in which Mr McKechnie sought habeas corpus, and in which there were interlocutory hearings on 31 October 2023 and 9 November 2023, and which he discontinued on 9 November 2023.
(c) McKechnie v Commissioner of Corrections Victoria S ECI 2023 03223, relating to Mr McKechnie’s security rating or security classification, in which there has been an interlocutory hearing on 6 December 2023. On that day, I decided to make an order striking out the indorsement of claim on originating motion in that proceeding without prejudice to Mr McKechnie’s ability to replead his claim.
(d) McKechnie v Adult Parole Board of Victoria S ECI 2023 03095, a judicial review proceeding regarding parole, which was briefly mentioned the hearing on 9 November 2023 at which the habeas corpus proceeding was discontinued. I made an order dismissing an application by the Adult Parole Board for a stay of the judicial review proceeding regarding parole pending determination of the habeas corpus proceeding, because the latter proceeding was now at an end. Mr McKechnie sought costs of the dismissal of that application for stay, which I refused.
(e) This proceeding, which is an appeal pursuant to s 272 of the Criminal Procedure Act 2009 from final orders in a criminal proceeding given against Mr McKechnie by the Magistrates’ Court in 2020. In this proceeding, there has been an interlocutory hearing in the nature of a directions hearing on 6 December 2023, at which I vacated the then listed trial date of 13 February 2024, followed by a series of further brief directions hearings relating to this recusal application, and the hearing of this recusal application on 20 March 2024.
With the exception of this proceeding, all the above proceedings are civil proceedings to which the Civil Procedure Act 2010 (Civil Procedure Act) applies. I explain the relevance of this later in these reasons.
I will explain the direct procedural background to the two recusal applications in a little more detail.
As to the recusal application in the Kosher foods proceeding:
(a) On or about 10 November 2023, Mr McKechnie provided a summons to the Registry, which was accepted for filing on 21 November 2023 and made returnable for directions only on 24 November 2023. Due to availability of counsel, the directions hearing was adjourned to Monday, 27 November 2023. The summons sought two orders: 1. my recusal; and 2. a stay of the proceeding pending an application to the Court of Appeal for a stay, in relation to a foreshadowed appeal from my orders in that proceeding on 2 November 2023.
(b) The summons was supported by an unsworn affidavit of Mr McKechnie dated 10 November 2023, also filed on 21 November 2023.
(c) At the directions hearing on 27 November 2023, the parties agreed that the recusal application be determined on the papers and I made directions for further affidavit material and submissions.
(d) Mr McKechnie provided to the Registry:
(i) a document in support of the recusal application comprising 54 paragraphs titled ‘Plaintiff’s Submissions’ dated 15 December 2023 and filed on 19 December 2023; and
(ii) an unsworn affidavit dated 15 December 2023 and filed on 19 December 2023 comprising 3 pages, together with exhibit AM-1 thereto comprising 23 pages.
As to the recusal application in this proceeding:
(a) On or about 12 December 2023, Mr McKechnie provided a summons to the Registry, which was eventually accepted for filing on 21 December 2023 and made returnable initially on 28 February 2024. Due to delays in communications between the parties, the hearing on 28 February 2024 proceeded as a directions hearing. The matter was mentioned on 1 March 2024, and a further directions hearing occurred on 7 March 2024. I made orders on 7 March 2024, listing Mr McKechnie’s summons for hearing on 20 March 2024 at 11:00am.
(b) As noted in paragraph 1, by this summons Mr McKechnie seeks my recusal from this proceeding. It is this summons that I heard on 20 March 2024 and that I have now decided to dismiss.
(c) The summons was supported by:
(iii) an unsworn affidavit of Mr McKechnie dated 12 December 2023, also filed on 21 December 2023; and
(iv) a document comprising 54 paragraphs titled ‘Plaintiff’s Submissions’ dated 14 December 2023 and filed on 21 December 2023.[4]
[4]This document is substantially identical to the ‘Plaintiff’s Submissions’ dated 15 December 2023 filed 19 December 2023 by Mr McKechnie in the Kosher foods proceeding.
(d) On 23 January 2024, the respondent filed a document titled ‘Respondent’s Outline of Submissions on Recusal’. Amongst other things, the respondent complained that it was not a party to, and did not have access to, a number of transcripts of hearings on which the Plaintiff’s Submissions appeared to rely.
(e) Unlike the Kosher foods proceeding, there was no agreement by the parties for the recusal application to be determined on the papers.
(f) Prior to the hearing of the recusal application on 20 March 2024, I conducted a number of interlocutory hearings to ensure the parties had access to transcripts of hearings before me in various proceedings that appeared to be relied upon in the Plaintiff’s Submissions. Those transcripts were received into evidence. In due course Mr McKechnie confirmed that they had reached him at his prison. He prepared a document titled ‘Plaintiff’s Revised Initial Outline of Submissions Recusal Application 12 December 2023’ dated 14 March 2024 and filed 19 March 2024. Subject to matters such as a date correction, heading formatting and the concluding two paragraphs of the document, the substantive text of this document is for practical purposes identical to the substantive text of the Plaintiff’s Submissions dated 14 December 2023 and filed 21 December 2023. Relevantly it contains a more complete set of footnotes, many of which give pinpoint references to hearing transcripts. [5]
(g) The respondent filed no written submissions in response, but made detailed oral submissions at the hearing opposing Mr McKechnie’s application for my recusal. As mentioned below, I have largely followed the analytical framework adopted in counsel’s oral submissions.
[5]Plaintiff’s Revised Initial Outline of Submissions Recusal Application 12 December 2023 (henceforth referred to as Plaintiff’s Submissions).
Applicable principles
Mr McKechnie does not allege that I am actually biased. In deciding this application, I am required to consider whether I should recuse myself by reason of reasonable apprehension that I might be biased.
The principles applicable to an application of this kind are well settled. Specifically, I am required to recuse myself if I am satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the question or questions I am required to decide in this proceeding.[6] If I am not satisfied that a reasonable apprehension of bias arises in the manner described in the test, I should continue to hear the proceeding.[7]
[6]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (Ebner); British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, [38]; Charisteas v Charisteas (2021) 273 CLR 289, [11] (French CJ); QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15, (2023) 97 ALJR 419, [26], [37] (Kiefel CJ and Gageler J), [67] (Gordon J), [112], [162] (Edelman J), [193]; cf (Steward J, dissenting), [221] (Gleeson J, dissenting), [274] (Jagot J) (QYFM).
[7]Ebner(2000) 205 CLR 337, [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ), [175] (Kirby J). Eg, QYFM, [96] (Gordon J), but see also [129] (Edelman J).
The application of the test logically entails:[8]
[8]QYFM, [38] (Kiefel CJ and Gageler J); see also Ebner, [8].
(a) identification of the factor which it is said might lead a judge to resolve the question other than on its legal and factual merits;
(b) articulation of the logical connection between that factor and the apprehended deviation from deciding that question on its merits; and
(c) assessment of the reasonableness of that apprehension from the perspective of a fair-minded lay observer, an assessment that follows from the preceding two steps.[9]
[9]QYFM, [67] (Gordon J).
The test is often described as a two-step test, with paragraphs (a) and (b) above comprising the two steps. Once those two steps are considered, the concluding assessment in paragraph (c) can be undertaken.
The hypothetical fair-minded lay observer is ‘a deliberate and necessary construct which tethers the court‘s analysis to the ultimate purpose of maintaining public confidence in the impartiality of the judicial system’. It provides the ‘standard by which the courts address what may appear to the public served by the courts to be a departure from standards of impartiality and independence which are essential to the maintenance of public confidence in the judicial system’.[10]
[10]QYFM, [45] (Kiefel CJ and Gageler J), citing Charisteas v Charisteas (2021) 273 CLR 289,[21].
The test is to be applied having regard to all the relevant circumstances.[11] The fair‑minded observer is a lay observer, not a lawyer, and will not have a detailed knowledge of the law. The knowledge of the fair-minded lay observer will also cover the factual and procedural context of the matters Mr McKechnie raises, and what was said at the hearings in question.
[11]See, eg, QYFM, [72] (Gordon J).
Analysis
Ebner first step – identifying factors that might lead a judge to decide a question other than on its merits
Mr McKechnie identifies two broad factors.
(a) The first is that I have a history of making unfavourable decisions against him, ‘clearly shown to weigh … heavily in favour of the defendant’, ‘where there appears no justification to do so’.[12]
(b) The second is that I have ‘shown a strong propensity to push proceedings through to trial, refusing to adjourn …’ which has or had the effect of depriving him of evidence and an opportunity to obtain evidence.[13]
[12]Plaintiff’s Submissions [4], [50], [52].
[13]Plaintiff’s Submissions [50], and see also [4] and [52].
First factor – unfavourable decisions without apparent justification?
Counsel for the respondent distilled six particular matters from Mr McKechnie’s submissions that Mr McKechnie relies on in submitting that I have a propensity to make decisions adverse to the applicant. I largely agree with counsel’s distillation of the matters. Subject to some refinements, I have adopted counsel’s analysis of Mr McKechnie’s submissions in what follows.
For the reasons that follow, I agree with the respondent’s submissions that the evidence does not support Mr McKechnie’s claim that the various adverse rulings of which Mr McKechnie complains were made without apparent justification. For this reason, Mr McKechnie’s reliance on this factor fails at the threshold. Provided the various decisions complained of were supported by apparent justifications, the mere fact that they went against Mr McKechnie on many occasions cannot be enough to meet the first step of the test in Ebner.[14] Provided no other impugning factor is identified, it would appear to the fair-minded lay observer that I have decided the various issues he complains of on their merits, and that each time I have simply assessed Mr McKechnie’s arguments as being unsustainable. Even if I was incorrect, that does not mean the Ebner test was met.[15]
1. Habeas corpus proceeding – treatment of request for Adult Parole Board’s reasons and refusals of adjournment said to cause unreadiness for trial
[14]In Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427, [67], Gummow ACJ, Hayne, Crennan and Bell JJ referred to the ‘fallacious argument that because one side lost … the judge was biased’.
[15]Ibid. Their Honours referred to ‘the equally fallacious argument that making some appealable error … demonstrates prejudgment’.
This matter is raised in three interrelated sections of the Plaintiff’s Submissions, headed ‘Habeas Corpus Application’,[16] ‘The Adjournment Applications’[17] and ‘Plaintiff’s Request for the APB’s Reasons’.[18]
[16]Plaintiff’s Submissions [5]–[16].
[17]Plaintiff’s Submissions [17]–[22]
[18]Plaintiff’s Submissions [23]–[26]. The remaining paragraphs under that heading, [27]–[31], relate to matter number 6, addressed below.
Mr McKechnie contended that in the habeas corpus proceeding I ‘refused multiple applications’ by him to have the matter adjourned, inhibiting his readiness for trial.[19]
[19]Plaintiff’s Submissions [8], [11], [13]–[14], [23]–[24].
In the habeas corpus proceeding, Mr McKechnie contended that my refusals to grant adjournments left him without enough to allow him to properly prepare.
It is true that I refused to adjourn the trial on 31 October 2023 and that I did so again on 9 November 2023. On both occasions I gave reasons, and the details of the justification for the refusal of the adjournment was also evident from submissions that had been made to me. Even if Mr McKechnie were correct in thinking my decisions were wrong, that would not mean a reasonable apprehension of bias would arise.
The habeas corpus proceeding had been commenced in April 2023. On 3 August 2023 Ginnane J vacated the then listed hearing date, made directions by which Mr McKechnie could take steps to join the Adult Parole Board as a party, and ordered that the final hearing would take place on 9 November 2023. In the period the proceeding was before me, 12 October 2023 to 9 November 2023, there were a number of reasons why it was appropriate to maintain that trial date ordered by Ginnane J. First, the nature of habeas corpus proceedings is such that they must be determined expeditiously as they concern the unlawful detention of a person. Second, Mr McKechnie’s application by summons for habeas corpus had already been running for some time. Third, judges have the responsibility of ensuring that time and resources are used efficiently and expeditiously, and with minimal costs. Fourth, the Adult Parole Board had been joined as a party by the time the matter came before me. Fifth, as I explain below, on 9 November it became clear that there was no utility in further delay to allow Mr McKechnie time to pursue further information from the Adult Parole Board.
That fifth and last point merits amplification. When the habeas corpus proceeding first came before me on 31 October 2023, amongst other things, I facilitated the making of an oral request by Mr McKechnie for the reasons for parole cancellation decisions in 2012 and 2015 he said he required from the Adult Parole Board. This was to dispense with the need for correspondence, in circumstances where Mr McKechnie indicated that he had difficulties in having the prison send correspondence in a timely manner.
When the matter came on for trial on 9 November 2023, Mr McKechnie made alternative applications to adjourn the trial or discontinue.
The request made by Mr McKechnie to the Adult Parole Board during the hearing on 31 October 2023 for reasons for its decisions to cancel his parole in 2012 and 2015 remained unmet on 9 November 2023. Notwithstanding this, I declined Mr McKechnie’s application to adjourn. In light of submissions by the defendants at the hearing on 9 November 2023, it was evident that there was no utility in Mr McKechnie’s request for those reasons. By operation of law, his parole would have been cancelled after those dates in any event, having regard to the imposition of a further term of imprisonment on him in 2020. The further sentencing of Mr McKechnie to a term of imprisonment on 27 October 2020 resulted in the cancellation under s 77(7A) of the Corrections Act 1986 of any outstanding parole that could arguably have been in effect on that date. This made any alleged invalidity of those decisions incapable of affecting the validity of Mr McKechnie’s continued detention since 27 October 2020. In other words, the reasons for those 2012 and 2015 decisions and the validity of the cancellations in 2012 and 2015 could no longer be seen as real issues in the habeas corpus proceeding. The Civil Procedure Act required me to act in a way that did not expend resources on them any further. There would have been no point in an adjournment of the trial to await the response of the Adult Parole Board to the request for reasons.
Mr McKechnie also contended that a reasonable apprehension of bias arises because I approached the adjournment issue ‘as if [the] defendant was unaware of there being an adjournment application’.[20] The defendant’s counsel informed me that the defendant had not received Mr McKechnie’s correspondence setting out his adjournment application, initially subject to the qualification that the correspondence might have gone to another email address maintained by the defendant outside the immediate legal team. He later confirmed that the correspondence had not been received by the defendant, without qualification. It may be these exchanges that Mr McKechnie relies upon in making this contention. In any event, my expressed reasons for refusing the adjournment were not based on the issue of whether the defendant was on notice of the adjournment applications on either occasion.
[20]Plaintiff’s Submissions [22].
For these reasons, this matter is not capable of meeting the first step in the Ebner test for giving rise to a reasonable apprehension of bias.
2. Decision on costs following Mr McKechnie’s decision to discontinue the habeas corpus proceeding
This matter arises as an aspect of Mr McKechnie’s submissions about the habeas corpus proceeding.[21]
[21]Plaintiff’s Submissions [15]–[16], [26]–[27].
After hearing submissions on the question of costs following Mr McKechnie indicating that he intended to discontinue the habeas corpus proceeding, I decided that I would allow the default outcome under the Supreme Court (General Civil Procedure) Rules 2015 (Rules) to apply. That is, if Mr McKechnie decided to discontinue, he would be left with liability to pay the defendant’s costs. As mentioned already, the relevant background was that Mr McKechnie had applied for an adjournment, or alternatively for a discontinuance on the basis that each party bear their own costs. I refused the adjournment, and then indicated that it was up to Mr McKechnie whether or not to discontinue. He said he decided to discontinue the proceeding. The defendant in that proceeding pursued a costs outcome in its favour, which I indicated I would grant by not making any order contrary to the ordinary outcome contemplated under r 63.15 of the Rules where a party discontinues a proceeding. Mr McKechnie then said he would discontinue the proceeding, and I granted him leave to do so.
Counsel for the respondent submitted that there were three principled and evidence‑based reasons for Mr McKechnie bearing the defendant’s costs of that proceeding. First, the relevant authorities indicated that costs can be awarded against prisoners. Second, there were cases of habeas corpus that were dismissed in which costs were ordered. Third, impecunious parties can have costs awarded against them — the fact of that status is not in and of itself a bar to an adverse costs order. While each of these points is correct as far as it goes, they do not provide the full story. Amplification is required.
Mr McKechnie submitted that I ‘awarded’ the Adult Parole Board its costs. To be precise, as already noted, I allowed the ordinary operation of r 63.15 of the Rules to apply, not being persuaded that I should order otherwise, after hearing the submissions of the parties. There were justifications for this outcome in the submissions that had been made. I also gave brief oral reasons for my decision.
Ordinarily the costs of a discontinuance fall on the plaintiff who discontinues under r 63.15. I considered whether to vary this outcome. The defendants made submissions opposing this, including by reference to a letter to Mr McKechnie from the VSGO’s dated 18 October 2023, which he acknowledged receiving at about that time. That letter was very significant. It had made clear the operation of s 77(7A) of the Corrections Act 1986, and had conveyed an offer not to seek costs in the event Mr McKechnie agreed to a dismissal of the proceeding by 23 October. Mr McKechnie did not respond. Neither did he address these points in his submissions to me. All this was made clear in the defendant’s submissions in support of allowing the default position under r 63.15 to prevail. It would have been clear from my ruling that I accepted these submissions.
For these reasons, I am not satisfied that the first step of the test in Ebner for a reasonable apprehension of bias to arise is met by this matter either.
3. Matter related to discontinuance of habeas corpus proceeding – judicial review proceeding regarding parole – dismissal of defendant’s application for stay without order as to costs
This matter arises from the final paragraphs of the third subsection of the Plaintiff’s Submissions under the main heading for the habeas corpus proceeding. Although that subsection heading refers to the plaintiff’s request for reasons from the Adult Parole Board, these paragraphs raise a discrete matter.[22]
[22]Plaintiff’s Submissions [27]–[30].
The judicial review proceeding regarding parole was listed for application at the same time as the habeas corpus proceeding on 9 November 2023. As mentioned above, I allowed the Adult Parole Board effectively to withdraw its previously foreshadowed application for a stay of that proceeding without any costs consequence. Mr McKechnie contends that a reasonable apprehension of bias arises because I refused the plaintiff costs of dismissal of the defendant’s summons in that matter ‘within minutes’ of my decision to ‘award’ the Adult Parole Board costs in the habeas corpus proceeding.[23]
[23]Plaintiff’s Submissions [27]–[30].
Mr McKechnie sought an order for costs in relation to the dismissal of that summons. He submitted that the summons for stay had been misconceived. He also said:
The stay application would have failed completely and now they’re withdrawing it, they’re dismissing it. They’re entitled to pay costs; I’m entitled to costs. Now, whatever those costs may be — I don’t expect they’re going to be great and significant — but they’re still costs.
I did not accede to Mr McKechnie’s application for costs. No other outcome was reasonably open to me than to refuse that application.
It could not reasonably be said that the summons was foredoomed to fail, because of the potential for the habeas corpus proceeding to have resulted in relief that would have rendered the judicial review proceeding regarding parole unnecessary. As Mr McKechnie acknowledged, any costs he might have incurred could not have been significant. He was not legally represented and was unlikely to have any significant allowable out-of-pocket costs. However that may be, in any event there had been no adjudication of the merits of the Adult Parole Board’s summons for a stay of the judicial review proceeding concerning parole, and it had evidently become redundant to determine it with the discontinuance of the habeas corpus proceeding. I refused to make any order for Mr McKechnie’s costs. I gave brief reasons for doing so, consistent with the above points.
The fact that I made this decision in a very short space of time does not mean that there was or is a reasonable apprehension of bias. Indeed, it only took a short space of time because no other decision could have reasonably been made. No possible basis for potential reasonable apprehension of bias arises. The first step in Ebner is not met.
4. Kosher foods proceeding – refusal to grant discovery on 2 November 2023 and refusal of stay of proceeding on 2 November 2023
This matter is raised in two of three subsections of the Plaintiff’s Submissions appearing under a heading referring to the Kosher foods proceeding.[24]
[24]Plaintiff’s Submissions, subsections headed ‘Discovery Application’ [32]–[36], and ‘Defendant’s Fraudulent Affidavit of Documents’ [37].
As already noted, on 2 November 2023 I refused Mr McKechnie’s application for particular discovery in the Kosher food proceeding.
Counsel for the respondent submitted that the refusal was justified and therefore did not meet the first step of the Ebner test. He noted that the originating process in the proceeding was not sufficiently clear to articulate the precise nature of Mr McKechnie’s claim. There were opportunities for Mr McKechnie to revise his claim, which Mr McKechnie did not take up. As a result, counsel for the respondent submitted, the Court was left in the position of deciding a broadly worded discovery application. These submissions are all correct and I accept them.
Counsel for the respondent also noted that, following in particular the introduction of the Civil Procedure Act, the Court has approached discovery cautiously. He submitted that parties are not permitted to make broad applications for discovery — such applicants should be sufficiently narrow, and must go to the matters in dispute. This submission is also correct, and reflects the explanation I gave to Mr McKechnie during my oral ruling on 2 November 2023.
Mr McKechnie submitted that a reasonable apprehension arises because I ignored oral and written submissions by the plaintiff, in relation to the applications for discovery, that the defendant’s affidavit of documents was ‘made fraudulently’.[25] That is a very serious accusation. I have reviewed the submissions and cannot see any squarely raised submission to this effect. The closest Mr McKechnie gets is an argument in his written submission suggesting that Mr Bulger’s affidavit of documents implies that he only had access to documents relating to Hopkins Correctional Centre, because it only itemises the documents referred to in Mr Bulger’s earlier affidavit dealing with the delivery of Kosher food at that location. My decision was directed to the categories of particular discovery sought by Mr McKechnie in his July 2023 request. I found them to be insufficiently related to the pleading, which was itself somewhat unclear in places, and to be overly broad. Mr McKechnie had not refined and narrowed his categories, in spite of a suggestion I made to him at the previous directions hearing that he do so. It was not relevant to consider whether Mr Bulger’s affidavit of documents implied he did not have access to documents other than those he itemised. Even if I were incorrect in this approach, that might be a defect in my ruling on discovery, but could not provide a basis for a reasonable apprehension of potential bias in any event.
[25]Plaintiff’s Submissions [37].
As already noted, on 2 November 2023, after disallowing Mr McKechnie’s application for particular discovery, I declined to grant a stay pending any application by Mr McKechnie to the Court of Appeal.
Mr McKechnie submitted that a reasonable apprehension of bias arises because I ‘immediately refused’ a request for a stay of the proceeding so that the discovery decision could be challenged, and a request that sufficient time be allowed to the plaintiff to apply to the Court of Appeal for a stay of the proceeding.[26]
[26]Plaintiff’s Submissions [34].
The refusal of the discovery application did not require anything to be done by Mr McKechnie or others that might have caused some immediate prejudice to Mr McKechnie. The discussion about a stay was not a stay of my dismissal of that application, but a stay of the proceeding.
Responding to the recusal application in this proceeding, counsel for the respondent submitted that my refusal to stay in the proceeding was justified by ‘principled and evidence-based reason[ing]’[27] and that had a stay been granted, it would have been for no discernible purpose. First, counsel for the respondent made a point of general principle: that trial judges should not seek to pre-empt what an appeal court might do in dealing with a putative appeal. Second, counsel for the respondent highlighted the importance of progressing the matter. He submitted that this was also a proceeding in which there had been delays in reaching trial, making it important that the matter continue on and that timetabling orders be made. There is force in both these points. Even if reasonable minds might differ on the question of whether to stay the proceeding or not, progressing the matter to trial was reasonably justifiable, and not capable of reasonably being seen as a possible source of possible bias.
[27]Transcript 20 March 2024 p 15.
The details of the relevant exchanges between me and Mr McKechnie on 2 November 2023 on the issue of the stay also indicate that they were confined to the circumstances, and not capable of leading to any broader reasonable suspicion of potential bias. After giving my ruling on Mr McKechnie’s discovery application in this proceeding, I indicated that I wished to hear from the parties on programming steps leading to a trial in the near future. Mr McKechnie said he intended to appeal my decision refusing his application for discovery. In that context, I said ‘unless there’s a stay granted, I’ll continue programming of the matter towards trial’. Mr McKechnie then said a stay might be ‘worth considering’. I then foreshadowed I would ‘not be granting one’ if sought ‘now’.[28]
[28]Transcript Kosher foods proceeding 2 November 2023 p 41.
Mr McKechnie then said he was applying for a stay. I did not respond. I later returned to this topic, indicating my view that it was more appropriate to continue programming for trial than to stay the proceeding pending an appeal and second‑guessing whether the Court of Appeal would grant a stay.
Whether or not my refusal of the stay was correct, a justification was given. The decision is not capable of meeting the first step of the test in Ebner.
Further, with more direct relevance to the second step of the test, my remarks on the topic were limited to a statement of current intention, and was addressing something of a hypothetical application. In the circumstances, it would not be reasonably understood as a statement of a fixed position for all time irrespective of the arguments or evidence he might adduce in the future on that question, or any other.
Mr McKechnie later filed a summons in the Kosher foods proceeding dated 10 November 2023 and filed 21 November 2023, paragraph 2 of which seeks a stay. I am yet to hear argument on that paragraph of the summons. When I do, it will be necessary to consider up to date material about the matter including any developments relating to Mr McKechnie’s foreshadowed appeal.
Incidentally, I note that when the matter next came before me, on 27 November 2023, I ordered an adjournment of the trial in spite of opposition to this course from the defendant. If it mattered, that would perhaps confirm that my refusal of the stay on 2 November 2023 was not capable of being seen as a potential sign of prejudgement on other case management and adjournment questions in the proceeding, let alone any other issues of a more substantive nature in the Kosher foods proceeding or any other proceeding involving Mr McKechnie. However, it is unnecessary to take this into account, because in any event I am satisfied that the first step in the Ebner test is not met, and no reasonable apprehension of bias is capable of arising from the events of 2 November 2023.
5. Kosher foods proceeding – adjournment of defendant’s summary dismissal application on 26 October 2023 and 2 November 2023
Mr McKechnie’s submissions contain a third subsection following the heading referring to the Kosher foods proceeding, titled ‘Refused Dismissal of Defendant’s Summary Dismissal Application’.[29]
[29]Plaintiff’s Submissions [38]–[39].
This concerns a summons filed by the defendant on 21 September 2022 for summary dismissal of the proceeding, which was adjourned by Ginnane J on 14 April 2023 and remained undetermined by his Honour at the time I was allocated the proceeding. This summons was first made returnable before me at a directions hearing in the Kosher foods proceeding on 26 October 2023, and was before me again on 2 November 2023. On both occasions I further adjourned it. I have not yet heard any submissions on the summons and it has not been listed for hearing.
Mr McKechnie says that Ginnane J said unfavourable things about the merits of the summons, and that may be so, but even if his Honour did, that does not mean that I might somehow be thought to have my impartially affected by reason of my having adjourned the summons.
This matter is not capable of being a factor that could meet the first step of the Ebner test.
6. Security rating proceeding – striking out of indorsement on originating motion
This matter is raised in a dedicated section of the Plaintiff’s Submissions.[30]
[30]Plaintiff’s Submissions [40]–[47].
As mentioned above, in the security rating proceeding, I struck out the indorsement of claim in the originating motion without prejudice to Mr McKechnie repleading against the correct party and in light of the applicable law, which had been explained to him in the submissions by the then-defendant. I did not make a costs order against the applicant.
Mr McKechnie contends that there are two matters in the security rating proceeding that could cause a fair-minded lay observer reasonably to apprehend that I might not bring an impartial mind to resolution of the questions I am required to determine in the current proceeding. First, he says that I granted the defendant’s application to strike out the plaintiff’s originating motion on the basis of the listed defendant being the incorrect party, despite the defendant not mentioning that it considered itself to be the incorrect party.[31] Secondly, he says I refused the plaintiff’s application to amend the originating motion.[32]
[31]Plaintiff’s Submissions dated 15 December 2023 [42]–[44].
[32]Plaintiff’s Submissions dated 15 December 2023 [45].
The defendant in the security rating proceeding is the Commissioner for Corrections. As to Mr McKechnie’s first contention that the defendant did not mention that it considered itself to be the incorrect party, the defendant’s outline of submissions in response to the plaintiff’s summons response submissions in fact includes a submission that the Commissioner does not make decisions of the kind impugned in the proceeding. The defendant’s outline drew my attention to pt 3 div 3 of the Corrections Regulations 2019, which provides that security classification is performed by the Secretary or sentence management panels established under those regulations. The Commissioner’s submissions stated in this regard, ‘Prisoner classifications are not determined by the Commissioner’.
Although this submission was not made in the Commissioner’s primary submissions in support of her application to strike out the plaintiff’s originating motion, it nevertheless was a matter I felt bound to take into account in identifying the real issues in dispute between the parties, and determining both summonses. Thus, in this sense, Mr McKechnie’s first contention has an incorrect or incomplete factual foundation.
As to Mr McKechnie’s second contention, as explained at the hearing on 6 December 2023, I was unwilling to grant leave to amend without considering a draft. Mr McKechnie had and still has liberty to prepare a draft and seek leave to rely on it.
Counsel for the respondent correctly submitted that the course I took was a fair one, allowing Mr McKechnie to effectively start from scratch, permitting him to provide a fresh originating motion rather than seeking to amend what he had already produced. Counsel also submitted that the lack of costs order made against Mr McKechnie was a ruling in his favour.
No possible basis for meeting the first step in the Ebner test for potential reasonable apprehension of bias arises.
Second factor – propensity to push proceeding through to trial and depriving Mr McKechnie of evidence?
Mr McKechnie’s second factor is that I pushed him through to trial in various proceedings, thus depriving him of evidence. For the reasons that follow, that is not an accurate characterisation of the matters Mr McKechnie relies upon.
1. This proceeding
Counsel for the respondent noted that I have facilitated the provision of material to Mr McKechnie in the present proceeding, following complaints from Mr McKechnie that he had not received material. He made two key points in this regard.
(a) First, that I had assisted Mr McKechnie at hearings to effectively make an informal request for reasons from the Adult Parole Board as to the cancellation of the applicant’s parole.
(b) Second, that any deprivation of reasons from the Adult Parole Board in that cause could not have made a difference. I have already explained in some detail why this was so.
For these reasons, the evidence does not support Mr McKechnie’s contention that he has been pushed through to trial or deprived of evidence.
2. Other proceedings
Counsel for the respondent submitted that the same was true for the applicant’s other proceedings. I have already explained why my refusal of the discovery application in the Kosher foods proceeding is not a basis for reasonable apprehension of possible bias.
Likewise in relation to the habeas corpus proceeding. Mr McKechnie submitted that I ‘refused multiple applications’ by him to have the matter adjourned, and that this inhibited his readiness for trial.[33] I have explained why my conduct of that proceeding does not provide a basis for reasonable apprehension of possible bias either.
3. Ability to prepare in all proceedings?
[33]Plaintiff’s Submissions [8], [11], [13]–[14], [23]–[24].
Counsel for the respondent submitted that the applicant has shown an ability to prosecute a number of different complaints, of which the present proceeding is one. Counsel submitted that this supports the contention that the applicant is not being pushed through in such a way that he cannot fairly run his case. Indeed, counsel submitted that the contrary appears to be the case.
That may well be so. However, I do not rely on this submission. In this ruling, I am merely considering whether anything I have said and done could, either alone or in any combination, meet the first step in the test established in Ebner. I am not forming any opinion about Mr McKechnie’s abilities to conduct multiple proceedings simultaneously.
First step – conclusion
For the reasons set out in paragraphs 16 to 71 above, I conclude that the first step in the Ebner test has not been met.
Ebner – second step – logical connection between factors and possible impairment of impartiality
As will be recalled, the second step in Ebner requires a logical connection between the factor relied upon and the possible impairment of impartiality. Because I have concluded that the first step in the Ebner test is not met, strictly speaking I need not address the second step of the test. However, I will briefly discuss the submissions that were made and the issues that arise.
If a factor or factors had been identified which might (individually or cumulatively) have led to a basis for thinking I might not be able to resolve future questions raised in Mr McKechnie’s proceedings other than on their legal and factual merits, a logical connection between that factor and the apprehended partiality had to be articulated, to be coupled with or followed by an assessment of the reasonableness of the apprehension from the perspective of the fair-minded lay observer.
Mr McKechnie’s submissions on these aspects of his application were general in nature. He submitted that all the individual decisions made by me should be considered cumulatively. He submitted that while the Court may exercise its discretion fairly in individual cases, where those discretions all lean in a particular direction consistently, this can create a clear apprehension of bias. He noted the requirement under the Civil Procedure Act 2010, and submitted that the timely and cost-effective handling of cases should not be at the expense of the requirement that they be handled in a just manner.
Counsel for the respondent also submitted that all hearings must be viewed together as a collective, although he highlighted the importance of considering each in context. Counsel noted that Mr McKechnie’s applications have occurred and are occurring in the ‘modern age of litigation’. Citing Johnson v Johnson,[34] which had been provided to Mr McKechnie, counsel submitted that judicial practices have developed, and that an important part of this is active case management. He submitted that the second step in the Ebner test was not met.
[34](2000) 201 CLR 488, [13].
In considering Mr McKechnie’s contention that a reasonable apprehension of possible bias might arise from my refusal of some of his adjournment applications, and my ‘pushing through’ of his cases, it is significant to note that the Civil Procedure Act has on all relevant occasions required me to further the overarching purpose having regard to the seven objects mentioned in s 9 in the proceedings to which it applies.
That provision, combined with the description of the ‘overarching purpose’ in s 7 of the Civil Procedure Act, required facilitation of the just, efficient and timely resolution of cases focussing on the real issues in dispute. As Mr McKechnie says, the determination or resolution to be sought must be just, but this goal is to be pursued in the context the other aspects of the overarching purpose and of s 9, which tend to emphasise the need to progress matter efficiently and cost-effectively to their conclusion.
My assessment is that the decisions I made have all been reasonably open to me as measures to progress Mr McKechnie’s relevant proceedings in the manner required by the Civil Procedure Act. My orders and directions may not have been perfect in ‘further[ing] the overarching purpose’ as required by s 9, but they were explicable by reference to that aim. Mr McKechnie may consider my decisions to have been wrong, but that does not mean they meet the test in Ebner. The Civil Procedure Act provides an intelligible explanation for my decisions, with the result that they cannot be seen as indications of possible impairment of my impartiality such as might meet the second step in Ebner.
There is perhaps an issue as to whether the requirements of the Civil Procedure Act may be taken into account in applying the Ebner test. That test, after all, involves a fair‑minded lay observer, not a lawyer. In my view, there is no doubt that the fair‑minded lay observer must be taken to understand the Civil Procedure Act requirements. This conclusion was presaged by and is consistent with the approach of the High Court in Johnson v Johnson, decided 10 years before the Civil Procedure Act was enacted. It is also common sense. The requirements in question are not technical legal matters and are well within the grasp of a fair-minded lay observer.
In what follows, I provide a summary of my views about the application of the second step of the Ebner test below, in relation to the two factors identified by Mr McKechnie and the six particular matters addressed in the application of the first step, above.
First factor – impact of adverse decisions without apparent justification?
Counsel for the respondent made his submissions using the same six matters distilled in relation to the first step in Ebner.
In relation to the making of adjournments, counsel submitted that the refusals of adjournments were evidence-based, such that a reasonable lay observer — being aware of active case management and the requirement of courts to ensure the efficient use of processes and resources — would not be led to an impression that I might not decide Mr McKechnie’s case otherwise than on its merits.
In relation to the refusal of discovery and refusal of a stay pending appeal in the Kosher foods proceeding, counsel for the respondent submitted that a reasonable lay observer would accept that judges must ensure that court time and resources are used efficiently. Counsel noted that trial judges should not dictate timetabling in their trials based on how an appeal court might deal with a putative appeal. Counsel also noted that there was no order made prohibiting Mr McKechnie from filing an appeal if he so chose. These matters would not lead a reasonable lay observer to apprehend that I could not decide the case other than on its merits.
In relation to the decision on costs in the habeas corpus proceeding and the Adult Parole Board proceeding, counsel for the respondent similarly submitted that costs orders should not be made if they would be futile, and that the reasonable lay observer would accept these propositions.
Finally, in relation to the strike out of the originating motion in the security rating proceeding, counsel for the respondent submitted that given the effect of the decision was to keep the proceeding on foot and to enable Mr McKechnie to file a fresh application with correctly named defendants, a reasonable person would not perceive that I would not decide future matters otherwise than on their merits.
Second factor – impact of propensity to push proceeding through to trial?
Counsel for the respondent also noted that, considering the totality of Mr McKechnie’s various proceedings, I made a series of decisions which assisted Mr McKechnie in running these various proceedings. Counsel noted, for example, that the decision to organise a referral for pro bono counsel to appear in the habeas corpus proceeding as amici curiae effectively indirectly assisted Mr McKechnie. Further, as already noted, Counsel relied on the principle that judges are required to actively manage litigation to progress it efficiently.
Second step – conclusion
There is considerable force in the respondent’s submissions outlined above.
Further, Mr McKechnie’s submissions on the second step were very general and did not advance any compelling theory as to how the factors he identified could be thought to impair my impartiality, or in any way affect my ability to deal — on their merits — with different issues as they may arise in the future.
For these reasons, if I had been required to reach a decision as to whether Mr McKechnie’s identified factors met the second step in the Ebner test, I would have found that they did not.
Conclusion
I have made a number of decisions in the course of the hearings that have been adverse to Mr McKechnie. However, when the context is considered, I am not satisfied that any of them give rise to a possible reasonable apprehension in the fair-minded lay observer that I might not bring an impartial mind to the determination of future questions in the proceeding. Likewise, when all are considered together as a whole, that test is not met either.
When the context is considered, including all the things said in the course of the relevant hearings, it is reasonably to be seen by a fair-minded lay observer that all those decisions are the product of genuine deliberation. Each decision had a justification that was apparent during the hearing and from the applicable law and correspondence.
Mr McKechnie may consider the justifications for the decisions to have been inadequate or wrong. Even if he is correct in that regard, that does not mean that the making of the adverse decisions themselves meets the test for reasonable apprehension of bias.[35]
[35]Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427, [67].
I am not satisfied that a fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of the questions I am required to decide in this proceeding.
I am required to continue to hear this proceeding as allocated to me by the Registry. I will therefore dismiss Mr McKechnie’s summons dated 12 December 2023.
I will dismiss Mr McKechnie’s summons filed 21 December 2023, and will hear the parties as to costs and any other orders arising from these reasons, and as to any orders required for the future conduct of the proceeding.
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