Andre McKechnie v State of Victoria
[2024] VSCA 171
•30 July 2024
| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCI 2023 0131 |
| ANDRE MCKECHNIE | Applicant |
| v | |
| STATE OF VICTORIA | Respondent |
---
| JUDGES: | McLEISH JA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 30 July 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 171 |
| JUDGMENT APPEALED FROM: | McKechnie v State of Victoria (Supreme Court of Victoria, Gray J, 2 November 2023) |
---
COURTS AND JUDGES – Adequacy of reasons – Oral reasons refusing request for discovery – Reasons did not provide detailed particulars explaining decision – Reading reasons with request for discovery sufficiently elucidates reasoning – Reasons adequate – Leave to appeal refused.
PRACTICE AND PROCEDURE – Discovery – Request for discovery overly broad – Whether judge should have ordered discovery in more confined form pursuant to Civil Procedure Act 2010, s 55(1), (2)(a)(ii) – Section 55 does not require court to narrow scope of discovery – Breadth of request for discovery meant it was open to refuse discovery – Leave to appeal refused.
PRACTICE AND PROCEDURE – Formulation of ground of appeal – ‘Fraud of a party’ – Submissions not elucidating alleged fraud – Leave to appeal refused.
COURTS AND JUDGES – Apprehended bias – Judge hearing multiple proceedings brought by applicant – Recusal sought from all proceedings – Various decisions adverse to applicant – Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, applied – Fair-minded lay observer would conclude judge merely rejected weak claims – No apprehended bias – Application for recusal from other proceedings beyond scope of proposed appeal – Leave to appeal refused.
---
| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Ms S M C Fitzgerald and Mr C J Fitzgerald | ||
Solicitors | |||
| Applicant: | Not applicable | ||
| Respondent: | Mr M Hocking, Victorian Government Solicitor | ||
MCLEISH JA:
The applicant is a prisoner at Port Phillip Prison. On 26 September 2021, he commenced a proceeding against the State of Victoria seeking injunctive relief to permanently restrain the State from ‘forcing or coercing’ him to consume food which does not ‘conform to kashrut law’.[1] He was earlier incarcerated at Hopkins Correctional Centre and at Ravenhall Correctional Centre.
[1]The applicant defines the term ‘kashrut’ for these purposes as ‘the state of being kosher’.
The proceeding relates to the food the applicant is provided in custody. He says that, since 6 June 2021, he has not been able to consume 90 per cent of the food provided to him because his religious beliefs prohibit him from eating it. He says that, to properly observe his religious beliefs, he requires a diet that is consistent with kashrut law. He says that the respondent has provided him with food that is falsely presented as conforming to kashrut law, and that the respondent does so for the purpose of ‘psychologically grooming prisoners into physical and emotional compliance with the power of the prison’. He says that he has suffered mental harm as a result.
The respondent is defending the proceeding. It says that the food provided to the applicant conforms with kashrut law. It generally denies the allegations made by the applicant.
A number of interlocutory applications have been made during the proceeding. One such application concerned a request for discovery by the applicant filed on 13 July 2023 (‘the request for discovery’). By summons filed on 30 October 2023, the applicant sought orders that the respondent give discovery as sought in the request. The application was dismissed on 2 November 2023 by a judge in the Trial Division.[2]
[2]The same judge is also dealing with, or has dealt with, various other proceedings brought by the applicant. This is of relevance to the applicant’s fourth ground of appeal: see [34] below.
The applicant now seeks leave to appeal from the judge’s decision, proposing five grounds.[3] He has also applied to stay the proceeding while his application for leave to appeal is heard. Since the application for leave to appeal is now being determined, the stay application has become moot and it is unnecessary to address it.
[3]The Registrar referred the application for determination by a single judge pursuant to r 64.15 of the Rules.
For the reasons that follow, the application for leave to appeal is totally without merit and leave must be refused.
The discovery request
The request for discovery sought documents described in the following terms:
1.All documents associated with proceedings initiated against the defendant which relate to the provision of kosher food (eg the affidavits taken in relation to the proceeding initiated by Hayden Whitfield and in particular affidavits made by any Jewish prison Chaplin (eg David Herzog in the proceeding initiated by Hayden Whitfield).
2.All documents providing a record of the purchase of kosher foods by the defendant, which were not also provided as part of the regular provision of food to prisoners other than those considered kashrut observant. The sought documents should include the precise description and quantity of the particular food purchased.
3.All documents providing a record of the purchase of kosher foods by the defendant, which were also provided as part of the regular provision of food to prisoners other than those considered kashrut observant. The sought documents should include the precise description and quantity of the particular food purchased.
4.All documents providing a record of the purchase of kosher certified foods by the defendant, which were not also provided as part of the regular provision of food to prisoners other than those considered kashrut observant. The sought documents should include the precise description and quantity of the particular food purchased.
5.All documents providing a record of the purchase of kosher certified foods by the defendant, which were also provided as part of the regular provision of food to prisoners other than those considered kashrut observant. The sought documents should include the precise description and quantity of the particular food purchased.
6.All documents associated with all kosher certification steps taken by the defendant in relation to foods provided to prisoners as kosher food.
7.All documents associated with all kosher certification steps taken by the defendant in relation to foods provided to prisoners as kosher certified food.
8.Sufficient documents which clearly describe the number of prisoners at all particular times during the relevant period who the defendant agrees were provided kosher food provisions. This item is necessary so as to allow a cross-reference against the quantity of foods purchased for distribution. That is, changes in the number of prisoners receiving, what the defendant claims were kosher meals, should be able to be matched against the quantity of the claimed kosher, or kosher certified, foods purchased by the defendant for distribution to these prisoners.
9.All documents that support in any way that the defendant is certified in relation to kosher food in any way.
10.All documents that support in any way that the defendant is qualified to determine what foods are kosher.
11.All documents that support in any way that the defendant is qualified to determine what foods are kosher certified.
12.All documents that describe the handling (including cutting cooking packaging or repackaging and distribution) of foods purchased for the purpose of distribution to those prisoners determined by the defendant to require the provision of kosher or kosher certified meals.
13.All documents describing the qualification and training of persons tasked with the handling (including cutting cooking packaging or repackaging and distribution) of foods purchased for the purpose of distribution to those prisoners determined by the defendant to require the provision of kosher meals.
14.All documents describing the equipment and how it was used in the handling (including cutting cooking packaging or repackaging and distribution) of foods purchased for the purpose of distribution to those prisoners determined by the defendant to require the provision of kosher meals.[4]
[4]Emphases in original.
The request contained the following notes:
·All documents sought relate to the period 6 June 2020 to present.
·All references made of the defendant include servants and agents of the defendant.
·All references made to kosher or kosher certified foods should be taken to mean the same as accepted by the wider Australian Jewish community. The plaintiff asserts that Kosher Australia is the primary authority on this point.
On 3 August 2023, the respondent sent correspondence to the applicant seeking clarification of the scope of the request and inviting him to refine the categories in the request. The applicant did not respond. The respondent nevertheless filed an affidavit of documents sworn by James Patrick Bulger on 27 September 2023 that listed some documents responsive to the request for discovery, but objected to discovering categories of documents it considered vague, oppressive or unrelated to the issues in dispute in the proceeding. The respondent also objected to production of any documents that did not relate to the applicant’s incarceration at Hopkins Correctional Centre.
The applicant then filed the summons seeking orders for discovery, together with a written outline of submissions and an affidavit setting out the basis upon which discovery of documents in each category was sought.
At a hearing on 2 November 2023 the applicant made oral submissions intended to refine the categories outlined above. He submitted that the categories fell into four groups: testimony, receipts, kosher certifications and kosher handling. The applicant said he was willing to refine category 1 so that it applied only to ‘affidavits that were filed in relation to any matters that were brought during the relevant period, running from 6 June 2021 [sic] … to present’. He said that categories 2–5 were intended to procure certain receipts, and could therefore be refined to capture ‘receipts for the foods … that were purchased for the sake of providing kosher provisions’. The applicant referred to the period covered by discovery, and indicated a willingness to limit that period so as to capture any changes to the provision of kosher food that may have occurred from 6 June 2021 onward.
Primary judge’s reasons
At the 2 November 2023 hearing, the primary judge gave an ex tempore judgment dismissing the summons for discovery. The judge gave oral reasons to support that decision.
The judge said that the documents categorised in the request for discovery appeared ‘insufficiently related to material questions of fact for determination in the proceeding, as framed in the amended statement of claim’. He referred to Volunteer Fire Brigades Victoria Inc v Country Fire Authority[5] in support of the proposition that a court considering whether to order discovery must evaluate whether the proposed discovery is sufficiently targeted to meet the overarching purpose of civil litigation, as defined by s 7 of the Civil Procedure Act 2010.
[5][2016] VSC 573.
The judge first considered the categories for discovery other than category 1. He said that each of those categories was ‘overly broad’. He said ‘significant efforts’ would be required to search for the documents, and it was unclear whether the documents would advance the applicant’s case in any event. As such, the applicant’s request for discovery was disproportionate. The ‘categories [were] so broad, and the connection with the material issues for determination raised by the amended statement of claim so tenuous’, that the judge was not satisfied that he should order discovery in those categories.
As to category 1 of the request, the judge observed that the affidavit of David Herzog referred to as an example would probably be subject to implied undertakings preventing it from use in proceedings other than the proceeding for which it was prepared. To entertain the prospect of an order for discovery of the category 1 documents, the judge indicated he would need much more information about the proceedings referred to in that category.
Proposed grounds of appeal
The applicant advances the following proposed grounds of appeal:
1.Failure to provide adequate reasons.
2.In relation to s 55(1) and noting the powers provided by s 55(2)(a)(ii) of the Civil Procedure Act 2010, the judge erred in considering that it was necessary or appropriate to refuse in their entirety the appellant’s discovery applications.
3.Fraud of party.
4.Apprehension of bias.
5.The Judge erred in his determination that documents sought in the refused discovery [application] insufficiently related to the material questions of fact for determination in the proceeding.
Ground 1 — failure to provide adequate reasons
The applicant refers to the proposed categories for discovery other than category 1. He submits that the judge’s reasons for dismissing his application in relation to those categories were limited to stating that they were too broad and that they were insufficiently related to the material questions of fact for determination in the proceeding. The applicant says that the judge failed to specify what the material facts are. It is implicit in the applicant’s submissions that the judge’s alleged failure to specify the material facts means that it is not possible to determine how the judge considered the relationship between the proposed categories for discovery and the material facts for determination.
The respondent submits that the adequacy of the judge’s reasons should be determined by considering whether the reasons sufficiently explain the basis for the judge’s decision and whether they are sufficient to allow the applicant’s right of appeal to be exercised.[6] The respondent says that, in this instance, the judge was required to identify and explain why particular discovery was not ordered, with reference to the relevant law and material relied on by the parties, in a manner that was sufficient to allow the applicant’s right of appeal to be exercised. It is submitted that the reasons met those requirements.
[6]In support of these principles the respondent relied on DL v The Queen (2018) 266 CLR 1, 12 [32] (Kiefel CJ, Keane and Edelman JJ), Public Service Board of New South Wales v Osmon (1986) 159 CLR 656, 666–7 (Gibbs CJ, Wilson J agreeing at 671, Brennan J agreeing at 675, Dawson J agreeing at 678) and JV (a pseudonym) v Children’s Court of Victoria [2023] VSC 656 [53] (Forbes J) citing Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 443–4 (Meagher JA).
The respondent takes issue with the applicant’s characterisation of the judge’s reasons, which it says suggests that the judge reached his conclusion solely because the proposed categories for discovery were insufficiently related to the material questions of fact for determination in the proceeding. The respondent argues that the reasons were sufficiently comprehensive, involving the finding just referred to as well as the findings that categories 2–14 were overly broad, and that the applicant had not established why the category of documents sought by category 1 ought to be discovered.
In my view, this ground has no prospect of success. It is clear from the judge’s reasons why he rejected the applicant’s summons. In short, the categories were too broad, their connection to the material issues in dispute was unclear and the work required to give the discovery sought was disproportionate to the significance of the documents to the litigation. The ‘refinement’ of the categories by the applicant did not do anything to alleviate these problems.
The judge did not need to give detailed particulars to explain his reasoning further. The reasons must be read with the request for discovery itself. When that is done, it is plain why a request for documents containing (for example) a precise description and quantity of all kosher food (on the one hand) and kosher certified food (on the other) purchased over a period of more than three years, and divided into food provided to prisoners considered kashrut observant and others, would be considered overly broad.[7] Similarly, many of the other categories request detailed documentation about food preparation methods, and related training, over the same period. It is not at all clear how such wide-ranging inquiries would bear on the question whether the applicant himself has been provided with kosher food. That much narrower question is the key matter in dispute.
[7]Categories 2–5.
It is true that, apart from category 1, the judge did not address the specific categories to explain why discovery of the documents in question in each case was refused. But in this case, that was not necessary. Categories 2–14, taken together, describe a mass of documents that might sustain an inquiry into the management of issues relating to the provision of kosher food in Victorian prisons, since June 2020 (or, it may be, 2021). The mismatch between a request for documents of that breadth and a proceeding in which a single prisoner claims not to have been provided with kosher food, is obvious.
I understand the first proposed ground not to relate to category 1. In any event, the judge gave a clear reason for declining discovery of those documents, by reference to the example given in the request.
Ground 2 — refusal of the discovery application in its entirety
The applicant refers to s 55(1) and (2)(a)(ii) of the Civil Procedure Act 2010, which relevantly provide:
55 Court orders for discovery
(1)A court may make any order or give any directions in relation to discovery that it considers necessary or appropriate.
(2)Without limiting subsection (1), a court may make any order or give any directions—
(a)requiring a party to make discovery to another party of—
…
(ii)one or more samples of documents within a class or classes, selected in any manner which the court specifies in the order;
…
Having regard to these provisions, the applicant submits that it is within the Court’s power to narrow categories of discovery considered by the Court to be too broad. ‘For [that] reason’, the applicant says that ‘it could not have been … “considered necessary” to refuse the discovery in its entirety due to “the categories [being] overly broad”’.
The respondent submits that proposed ground 2 amounts to a complaint that the learned primary judge ought to have granted limited discovery, rather than no discovery, in the exercise of his discretion. The respondent submits that this Court should not interfere with the exercise of the primary judge’s discretion in the absence of a House v King error, which had not been established in this case.
The respondent argues further that the applicant has not clearly identified what limited categories of discovery should have been ordered by the primary judge.
Finally, the respondent submits that the applicant’s arguments under proposed ground 2 failed to take account of certain relevant findings of the judge, including that it was unclear whether the proposed categories of discovery would advance the applicant’s case much (if at all) and, in respect of category 1, that insufficient information was before the Court to determine whether category 1 documents could be relied on in the proceeding.
The respondent’s arguments must be accepted. The applicant has shown no error in the exercise of the judge’s discretion. Section 55 does not require the Court in every case to craft a limited order for discovery out of a larger whole, or to order discovery of sample documents. There are myriad ways an overly broad request for discovery may be approached. It has not been shown that the approach the judge took was not reasonably open to him. To the contrary, the sheer width of the discovery sought meant that rejecting the application in whole was an obvious course for the judge to take.
Leave to appeal on this ground must be refused.
Ground 3 — fraud of a party
The applicant’s third ground, simply stated as ‘fraud of a party’, takes issue with the affidavit of James Patrick Bulger filed by the State on 28 September 2023 (‘Bulger affidavit’). The applicant submits that this affidavit described ‘only exactly the same documents’ that were provided in an affidavit of the same deponent at an earlier date. Further, it is submitted that the affidavit neglected to discover any of the documents sought by proposed category 1. It is also said that an affidavit (‘Herzog affidavit’) filed in a separate proceeding (not a proceeding commenced by or against the applicant) should have been discovered.
The respondent submits that ‘[g]rounds of appeal must be sufficiently specific to enable an appeal court to correctly perform its function’.[8] It says this requirement is supported by the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’), which require grounds of appeal and any questions of law upon which the appeal is proposed to be brought to be set out ‘specifically and concisely’.[9] The respondent submits that the applicant has not attempted to explain how the Bulger affidavit’s purported deficiencies bear on the correctness of the primary judge’s decision. The respondent says it follows that it is not possible for the State to respond to ground 3 or for the Court to ‘correctly perform its function’, and that the ground therefore does not comply with the Rules and should accordingly be rejected.
[8]Li v So [2021] VSCA 32 [34] n 8 (Tate, Emerton and Sifris JJA), citing Victoria v Bacon [1998] 4 VR 269, 285–90 (Phillips JA).
[9]Rule 64.04(d).
The proposed ground of appeal is entirely without merit. It is unclear what ‘fraud’ is said to have taken place. Nothing advanced by the applicant comes close to warranting such a serious designation. More fundamentally, the applicant has not explained how such ‘fraud’ has any bearing on the correctness of the judge’s decision. He goes no further than to say that the Bulger affidavit did not discover the Herzog affidavit. The judge dealt with that point, and ascribing that circumstance to ‘fraud’ does not take the matter any further.
Ground 4 — apprehended bias
The applicant’s proposed ground 4 seeks the recusal of the primary judge from the proceeding, and from ‘matters brought by the [applicant]’ generally.
The applicant’s submissions aim to satisfy the well-known ‘double might test’ for establishing apprehended bias, which asks whether ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.[10] As the applicant identifies, application of the test involves a series of steps. First, it requires identification of what it is said might lead a judge to decide a case other than on its legal and factual merits. Secondly, it requires articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. After the first two steps are undertaken, the reasonableness of the asserted apprehension can be assessed.[11]
[10]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (‘Ebner’). See also, Charisteas v Charisteas (2021) 273 CLR 289, 296 [11] (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ).
[11]Ebner (2000) 205 CLR 337, 345 [8] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
The applicant’s submissions on proposed ground 4 refer to the conduct of the primary judge in the course of the present proceeding as well as in various other proceedings brought by the applicant, as follows.
(a)In McKechnie v Secretary, Department of Justice and Community Safety (S ECI 2023 01528), the applicant sought habeas corpus (‘Habeas Corpus Proceeding’). Part of his claim involved challenging two decisions of the Adult Parole Board (‘APB’) to cancel his parole. The primary judge refused two applications made by the applicant to adjourn the trial, on 31 October 2023 and 9 November 2023. The applicant sought the adjournments in part to obtain more time to acquire reasons for the APB’s decisions to cancel his parole. The judge’s reasons for refusing the adjournments included that the applicant’s reliance on the reasons would be futile: even if the APB had cancelled the applicant’s parole in error, he had since been sentenced to a further term of imprisonment, upon which any subsisting parole was deemed to be cancelled.[12] When the applicant was ultimately granted leave to discontinue the Habeas Corpus Proceeding on 9 November 2023, the judge declined to interfere with the ordinary operation of r 63.15 of the Rules,[13] to the effect that the applicant became liable for the respondent’s costs.
(b)In McKechnie v Adult Parole Board of Victoria (S ECI 2023 03095), the applicant sought judicial review of a decision to refuse a parole application (‘Judicial Review Proceeding’). The primary judge made an order dismissing an application by the APB for a stay of the proceeding pending determination of the Habeas Corpus Proceeding. The APB had sought the stay because a successful application for habeas corpus would render the Judicial Review Proceeding otiose. The stay application was dismissed on 10 November 2023, after the Habeas Corpus Proceeding was discontinued. The applicant sought costs in relation to the dismissal of the stay application. The primary judge refused, noting that he was not satisfied that the applicant would have incurred anything other than de minimis costs in response to the application for a stay, and that the application was made reasonably by the APB.
(c)In McKechnie v Commissioner of Corrections Victoria (S ECI 2023 03223), the applicant challenged a decision to change his security classification. On 7 December 2023, the judge struck out the applicant’s indorsement of claim on originating motion on grounds including that it was pleaded against the wrong party. The judge struck out the claim without prejudice to the applicant’s ability to replead.
(d)In the present proceeding, the applicant points to four aspects of the judge’s conduct that are said to be relevant to ground 4:
(i)The judge’s decision to dismiss the application for discovery providing only, in the applicant’s submission, ‘scant reasons’.[14]
(ii)Following the decision to dismiss the application for discovery, the judge’s decision to take steps to progress the proceeding rather than stay or adjourn it while the applicant applied for leave to appeal.
(iii)The judge’s alleged failure to take into account submissions the applicant claims to have made that the Bulger affidavit was made fraudulently. It can be assumed that the applicant is again referring to submissions that were made concerning the discovery by the Bulger affidavit of documents (allegedly) already provided in an earlier affidavit of Mr Bulger.
(iv)The judge’s handling of an application for summary dismissal brought by the respondent and a summons of the applicant seeking dismissal of that application. The summary dismissal application was raised at the 2 November 2023 hearing. The judge noted that the application had been adjourned a number of times, and decided to adjourn it again (along with the applicant’s summons). The judge said he ‘[held] out some hope of there being a hearing on the merits in a reasonably short space of time’, and said ‘the Court would generally prefer to hear a matter on its merits’.
[12]Corrections Act 1986, s 77(7A).
[13]Rule 63.15 provides that ‘[u]nless the Court otherwise orders, a party who discontinues or withdraws part of a proceeding, counterclaim or claim by third party notice shall pay the costs of the party to whom the discontinuance or withdrawal relates to the time of the discontinuance or withdrawal’.
[14]See [17] above.
Addressing the first step of the ‘double might test’, the applicant submits that the conduct just outlined indicates that the judge
might be led to decide the case other than on its legal and factual merits because he has shown a strong propensity to push proceedings through to trial, refusing to adjourn, whilst [the applicant] has been simultaneously, as a result of [the primary judge’s] decisions, rendered deprived of primary evidence and almost completely deprived of an opportunity to attempt to remedy the deprivation of evidence.
It follows, according to the applicant, that it ‘would be impossible for any proceeding to be properly evaluated on its merits’. The applicant submits that the judge had also demonstrated a propensity to ‘weigh decisions heavily in favour of [the respondent] in circumstances where there appears no justification to do so’.
As for the second step of the ‘double might test’, the applicant submits that all of the proceedings referred to above, including the present proceeding, are ‘dependent on evidence yet to be provided’, and so are ‘vulnerable to [the primary judge’s] propensity to push proceedings through to trial’. It is implied by the applicant that the judge’s alleged propensity to heavily weigh decisions in favour of the respondent connects logically to the applicant’s concern that the primary judge might deviate from the course of deciding proceedings brought by the applicant on their merits.
The respondent submits that judges are required to further the overarching purpose of the Civil Procedure Act 2010 in civil proceedings, which requires active case management.[15] It submits that the mere fact of active case management or prior adverse determination in interlocutory matters does not of itself give rise to apprehended bias.[16]
[15]See Civil Procedure Act 2010, s 47(3).
[16]The respondent supported this submission by citing MTI v SUL (No 2) [2012] WASCA 87 [14] (Newnes and Murphy JJA) and Seidler v University of New South Wales (No 2) [2011] FCA 1326 [7] (Perram J). In respect of prejudgment generally, they referred to Australian National Industries v Spedley Securities Ltd (in liq) (1992) 26 NSWLR 411, 438 (Mahoney JA) and Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, 562–4 [180]–[186] (Hayne J, Gleeson CJ and Gummow J agreeing at [100]).
In respect of the request for discovery, the respondent submits that the applicant was given a fair opportunity to present his case. It submits that he has identified no matter, individually or considered cumulatively, that could support a conclusion that the primary judge’s decision was vitiated by apprehended bias. The respondent submits that there is nothing to suggest that the judge might not bring an impartial mind to the decision, and that the applicant’s claim amounted to nothing more than dissatisfaction with the primary judge’s interlocutory and case management decisions.
In respect of the applicant’s request for the primary judge to be recused from other matters, the respondent says that this goes beyond the application for leave to appeal. These matters ought to be raised with the primary judge in the relevant proceedings.[17]
Consideration
[17]In this respect, it is noted that the judge has determined recusal applications advanced by the applicant in: a) the present proceeding, see McKechnie v State of Victoria [2024] VSC 193; and b) an appeal from final orders made by the Magistrates Court in a criminal proceeding, see McKechnie v Detective Peter David Evans [2024] VSC 192.
This ground is without substance. The applicant relies on nothing more than a series of adverse outcomes that he has suffered, and invites the Court to conclude that a fair-minded lay observer might apprehend that the judge might not bring an impartial mind to claims involving the applicant and, more relevantly, might not have done so in the present case. In my opinion, bearing in mind the issues in the proceedings as described above, the fair-minded lay observer would rather conclude simply that the applicant had advanced a series of weak claims whose dismissal was unsurprising.
There is no substance whatever in the claim that the decision sought to be appealed was affected by apprehended bias. To the extent that the applicant seeks recusal of the primary judge in other matters (on the same insubstantial grounds), that is not a matter within the scope of the present application for leave to appeal, in any event.
Ground 5 — relationship between discovery application and material questions arising to be determined
The applicant submits that a material fact for determination in the proceeding was ‘whether the food provided by the respondent to the appellant was for the specified period, or any part of it, kosher’. He points to his pleadings that he had been provided by the respondent with food that was not kosher, and the fact that those pleadings were contested by the respondent. Relying on these submissions, the applicant says that the judge erred by determining that the documents sought by the discovery application insufficiently related to the material questions of fact for determination in the proceeding.
The respondent submits that, save for a global assertion, no attempt was made by the applicant to describe how each of the proposed categories for discovery related to the parties’ respective cases nor how obtaining those documents might assist the applicant to advance his case. The respondent said that the proposed ground failed to account for the judge’s findings as to the breadth of the categories as well as the barriers to reliance on affidavits adduced in other proceedings.
This proposed ground is the only one that squarely confronts the substance of the judge’s decision. But it does not address the fundamental point in the judge’s reasoning about the breadth of discovery and the lack of proportion between what the applicant seeks and any bearing such material might have on the issues in the proceeding. The discovery that was sought went far beyond the question whether the food provided to the applicant was kosher. For the reasons given by the judge, and as explained further in relation to ground 1 above, it was open to the judge in the exercise of his discretion to refuse discovery in those circumstances.
Respondent’s argument — leave to appeal should be refused in any event
Having addressed the applicant’s proposed grounds of appeal, the respondent makes brief submissions for consideration in the event the Court finds that proposed grounds 1, 2, 3 or 5 enjoy real prospects of success. It refers to the Court’s residual discretion to refuse leave, including in cases where ‘no substantial injustice will be done if the decision stands, especially where the appeal is from an order as to practice and procedure’.[18]
[18]Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 [110] (Kyrou and McLeish JJA).
The respondent submits that, even if there were real prospects of success on grounds 1, 2, 3 or 5, leave to appeal on those grounds should be refused in any event. The judge’s decision went to a matter of practice and procedure, and the outcome was correct.[19] The respondent says that the decision did not substantively affect any of the applicant’s rights, and he is still able to use other court processes to obtain relevant documents.
[19]In support of this submission, the respondent refers to Beale v Government Insurance Office (NSW) (1997) 48 NSWLR 430, 444 (Meagher JA).
It is not strictly necessary to address these arguments, as none of the proposed grounds of appeal has real prospects of success. For that reason, the point is hypothetical. But this is exactly the kind of case where the residual discretion to which the respondent refers might suitably be exercised. Apart from being a matter of mere practice and procedure, discovery is an ongoing obligation and there is nothing to prevent multiple applications for discovery. There would therefore have been a strong case for refusing leave on these grounds in any event.
Conclusion
Leave to appeal is refused. In my view, the application for leave to appeal is totally without merit within the meaning of s 14D(3) of the Supreme Court Act 1986.
The respondent seeks its costs of the application, as usually follows the refusal of leave. The applicant should have an opportunity to make submissions as to why he should not pay the respondent’s costs. If no submissions are filed and served within 14 days, there will be such an order. If the applicant files and serves submissions in that time, the matter will be dealt with on the papers.
---
14
0